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THE CRIMINAL CODE. 
 
 I L' 
 
 
 Ui 
 
 «3S f* K 
 
 
I *' 
 
 CR 
 
 D( 
 
 COMMEI 
 
 HEN 
 
 BEING A Tl 
 
 THE CA 
 
 / 
 
THE 
 
 CRIMINAL CODE 
 
 OF THE 
 
 DOMINION OF CANADA, 
 
 AS AMENDED IN 1893, 
 
 WITH 
 
 COMMENTARIES, ANNOTATIONS, PRECEDENTS 
 
 OF INDICTMENTS, &c., &c. 
 
 
 BY 
 
 HENRI ELZEAR TASCHEREAU, LL.D. 
 
 One of the Judges of the Supreme Court of Canada. 
 
 BEING A THIRD EDITION OF THE AUTHOR'S WORK ON THE CEIMINAIi 
 STATUTE LAW OP THE DOMINION OF CANADA. 
 
 TORONTO : 
 THE CARSWELL Co. (Ltd.), LAWPUBLISHERS, Etc. 
 
 1893. 
 
K.'^ 3 6" 
 
 219526 
 
 Bntered according to Act of the Parliament of Canada, in the year one thousand 
 eight hundred and ninety -three, by The Cabswbll Co. (Ltd.), in the office 
 of the Minister of Agriculture. 
 
 THE CO 
 Code 
 heretofore 
 of Canada. 
 In the 
 of the Cod 
 spectively j 
 
 1.— The 
 draft Code 
 Commons i 
 present Cc 
 taken : 
 
 2.— The 
 of the Dorn 
 
 3.- A r. 
 now in fore 
 
 4.— A r 
 applying fc 
 statutes on 
 
 5. — Cop 
 Bishop and 
 
 6.— Fori 
 law for the 
 courts ; in i 
 there is a 
 
PREFACE. 
 
 July 1st, 1893. 
 
 THE coming into force on this day of the Criminal 
 Code has necessitated a new edition of this work, 
 heretofore published sah. noni. " The Criminal Statute Law 
 of Canada." (Two editions, first in 1874, second in 1888.) 
 
 In the present volume will ' e found, besides the text 
 of the Code, under each section thereof to which they re- 
 spectively apply : ;.-- 
 
 1. — The report of the Imperial Commissioner on the 
 draft Code of 1879, submitted to the Imperial House of 
 Commons in the form of a Bill in 1880, from which the 
 present Code has been in a large measure textually 
 taken : 
 
 2. — The cases from England and each of the Provinces 
 of the Dominion brought down to the latest date : 
 
 3. — A reference to the Imperial corresponding statute 
 now in force in England : 
 
 4. — A reference to the Imperial statutory enactments 
 applying to Canada and to the unrepealed Canadian 
 statutes on the same or cognate subjects: 
 
 5. — Copious extracts from Russell, Greaves, Archbold, 
 Bishop and other well known books on Criminal Law : 
 
 6. — Forms of indictments adapted to the changes in the 
 law for the offences the more frequently met with in our 
 courtB ; in many instances, these might be shorter, but, till 
 there is a settled jurisprudence on the new law, it was 
 
 m 
 
iv 
 
 PREFACE. 
 
 deemed pradent not to expose those who have to draft in- 
 dictments to useless risks : 
 
 7. — The changes, extensions, or additions to the law, 
 either italicized in the text of the statute, or pointed out 
 in the annotation. This has been done even in the parts 
 specially relating to justices of the peace, magistrates, 
 coroners, etc., though, as in the previous editions, the size 
 of the book did not allow the annotation of these enact- 
 ments. 
 
 The index of matters and tables of cases have been pre- 
 pared by C. H. Masters, Esq., of the New Brunswick Bar, 
 assistant reporter to the Supreme Court. 
 
 The following synopsis of the principal parts of the new 
 statute to which the attention of the practitioner should 
 be more especially called may prove useful, though it must 
 not be taken as giving more than about one-half of the 
 amendments introduced : 
 
 Enactments on magistrates, coroners, justices of the 
 peace, constables, etc. 
 
 553. As to jurisdiction, p. 627, post. 
 
 568-642. A coroner cannot commit for trial : the find- 
 ing of murder or manslaughter by a coroner's jury is to be 
 reviewable by a magistrate. {New). 
 
 590. Depositions before a justice on a preliminary 
 inquiry must be read over and signed by the witness and 
 the justice, the accused, the witness and justice being all 
 lyresent together at the time of such reading and signing : 
 depositions to be written on one side only of each sheet ; 
 may be taken by stenographer; same for depositions on 
 trial of summary convictions, sec. 843, except that the 
 witnesses need not sign their depositions, sec. 856. (Neiv). 
 
 550. Trials of offenders under sixteen to be private. 
 (New). 
 
 552. Arrest without warrant, in what cases legal by 
 peaccroflficers and others. (Amemled). 
 
 562, 7! 
 of abode 
 thereof, a] 
 
 562-56 
 blank, {u 
 
 575. I 
 instrumen 
 585, 5f 
 593. ( 
 595. ( 
 784. ^ 
 
 limited to 
 846. ( 
 864. 1 
 
 complainan 
 959. P] 
 
 (New). 
 
 Page 9^ 
 ments of ju 
 
 OEXERAL E 
 
 13. Ab 
 in presence 
 
 The ruh 
 accessory a 
 husband act 
 presumed tt 
 
 16-60. 
 This part o 
 law as to tl 
 which woul 
 the law rela 
 in arresting 
 for the most 
 
PREFACE. 
 
 562, 796, 818. Affidavit of service of summons at place 
 of abode must state that it was made on some inmate 
 thereof, apparently not under sixteen. (New). 
 
 562-563. No summons or warrant to be signed in 
 blank. {New). 
 
 575. Search-warrant authorized for lottery-tickets or 
 instruments. (New). 
 
 585, 586, 591. (Amended). 
 
 593. (New). 
 
 595. (New). 
 
 784. The summary trials of indictable offences not 
 limited to the police limits of cities. (New). 
 
 846. Certain objections not fatal. (New). 
 
 864. No summary conviction for assault if either 
 complainant or accused objects thereto. (New). 
 
 959. Provisions as to sureties and articles of the peace. 
 (New). 
 
 Page 948.' Enactment as to absence of seal from docu- 
 ments of justices repealed, and not re-enacted. 
 
 GENERAL ENACTMENTS— OFFENCES NEW, OR ALTERED, OR 
 
 EXTENDED. 
 
 13. Abolition of rule that a wife committing an offence 
 in presence of her husband acts under coercion. 
 
 The rule, however, will still subsist for a wife who is 
 accessory after the fact to her husband. And (new) a 
 husband accessory after the fact to his guilty wife will he 
 presumed to act under coercion, sec. 63. 
 
 16-60. (Di-awn by Lord Blackburn for Imperial draft.) 
 This part of the Act in the main represents the existing 
 law as to the circumstances which excuse or justify acts 
 which would otherwise be crimes, and" more particularly 
 the law relating to the degree of force which may be used 
 in arresting offenders. Such alterations as it makes are 
 for the most part made necessary by the abolition of the 
 
 », 
 
vl 
 
 PREFACE. 
 
 distinction between felonies and misdemeanours. There 
 are, besides, a few special alterations in particular cases, 
 notice of which is given under each section in this volume, 
 A definite rule is laid down as to the suppression of 
 dangerous riots (ss. 38-43) not materially varying from 
 Lord Chief Justice Tindal's charge to the Grand Jury after 
 the Bristol riots {see 1st Stephens Hist. Cr. L. 204), but 
 more explicit and complete. (From Imp. Comm. memo, to 
 Parliament.) 
 
 61. Puts the rules as to accessories and abettors in a 
 new form. 
 
 64. Any one may be found guilty of attempt to com- 
 mit an offence although the commission of the offence was 
 impossible under the circumstances. 
 
 65. Treason. (Amended). 
 
 67. Accessory after the fact to treason. {New). 
 
 72. Inciting to mutiny. {New). 
 
 120, 121, 122, 123, 124. As to seditious offences. {New). 
 
 125. Libel on foreign sovereigns {New). 
 
 126. Spreading false news. {New). 
 127, 128, 129, 130. As to piracy. {New). 
 
 131. Bribery and corruption of judges, members of 
 parliament, or of a legislature. {Neiv). 
 
 132. Corruption of peace officers. {New). 
 135. Breach of trust by public officer. (iVew). 
 137. Selling office. {New). 
 
 139. Disobedience to orders of court. {New). 
 
 140. Neglect of peace officer. {New). 
 
 141. Neglect to aid peace officer. {New). 
 
 142. Neglect to aid peace officer. (New). 
 145. New provisions as to perjury. 
 
 150. False statements. (New). 
 
 151. Fabricating evidence. (New). 
 
 152. 
 
 159,] 
 
 170. 
 
 177. 
 
 179. 
 
 188. 
 
 192, l! 
 
 194. 
 
 195, U 
 
 206. ; 
 
 210, 21 
 parents, m 
 See p. 144, 
 
 227, 22 
 
 slaughter : 
 with malic* 
 thought do 
 of any one 
 murder. ^ 
 
 237. 
 
 238. 
 
 239. 
 
 (New). 
 
 266. 
 271. 
 283. 
 291 
 
 303-305 
 a distinct of 
 the gist of 
 pages 307 tc 
 
 313. Tl 
 property an 
 amended 
 
 A 
 A 
 
 I 
 
 L 
 K 
 A 
 Li 
 
PREFACE. 
 
 Vtt 
 
 162. Conspiracy to bring false accusations. (New). 
 Ls to escapes and rescues. (New). 
 Blasphemous libel. (New). 
 Indecent acts. (Amended). 
 Obscene books, etc. (New). 
 Conspiracy to defile. (New). 
 
 159, 160. 
 170. 
 177. 
 179. 
 
 188. 
 
 192, 193. As to nuisances. (New). 
 
 194. Selling things unfit for food.. (New). 
 
 195, 196, 197, 198. Gaming or disorderly houses. (New). 
 
 206. Misconduct in respect to dead bodies. (New). 
 
 210, 211. Amendments of statute concerning duty of 
 parents, masters or husbands to provide necessaries, etc. 
 See p. 144, post 
 
 227, 228, 229. Alter the law of murder and man- 
 slaughter: murder is not now to be defined as "killing 
 with malice aforethought." But killing with malice afore- 
 thought does not cease to be murder. Accidental killing 
 of any one in the commission of a felony is not now to be 
 murder. See pages 153 to 212, post, as to details. 
 
 Aiding and abetting suicide. (New). 
 
 Attempt to commit suicide. (New). 
 
 to obtain assistance in child-birth. 
 
 237. 
 238. 
 
 239. 
 
 (New). 
 
 266. 
 271. 
 283. 
 291. 
 
 Neglect 
 
 Law as to rape altered. 
 
 Killing child in mother's womb. (New). 
 
 Abduction of girl under sixteen. (Amended). 
 
 Law of libel as to public meetings. (New). 
 303-305. Law of larceny amended. Embezzlement as 
 a distinct offence abolished. A fraudulent conversion now 
 the gist of the offence, not an unlawful taking. See 
 pages 307 to 340, post. 
 
 313. The law as to stealing by husband of his wife's 
 property and vice versa, and as to receiving by avowterer 
 amended. 
 
viii 
 
 PREFACE. 
 
 314. 
 
 315. 
 346. 
 351. 
 353. 
 left out. 
 
 356. 
 
 {Amended}. 
 
 As to receiving stolen goods. (Amended). 
 
 As to receiving post letters. (Amended). 
 
 Stealing by pick-locks, etc. (New). 
 
 Stealing on railwaj'^s. (New). 
 
 Provision as to stealing of promissory notes, etc.. 
 
 Previous conviction on charge of 
 
 stealinsf. 
 
 365. 
 paniee 
 366. 
 367. 
 
 369. 
 years. 
 394. 
 
 396. 
 406. 
 
 False statements by promoters, directors of com- 
 ( Amended). 
 
 False accounting by clerks. (Neiv). 
 False statement by public officers. (New). 
 Punishment increased from six months to ten 
 
 Conspiracy to defraud. (New). 
 
 Practising witchcraft. (New). 
 
 Extortion by threats. (New). 
 408-418. Burglary. (Amended). 
 417. Being masked by night. (New). 
 423. Forgery. (Amended). 
 
 428. Sending telegram in false name. {New). 
 
 429. Sending false telegrams or letters. (New). 
 
 456-457. Personation. (New). * 
 
 478. Previous conviction on offences against coin. 
 (Amended). 
 
 481. Mischief. (.Amended). 
 
 482. Arson. (Amended). 
 
 499. Damaging any property by night to amount of 
 ^20. {New). 
 
 502. Punishment decreased from ten years to two 
 years. 
 
 503. To destroy an election ballot or paper, seven 
 years. By s. 100, c. 8, R. S. C. {unrepealed) to destroy 
 any ballot paper, not more than six months. 
 
 507a. 
 
 527. 
 
 528. 
 
 629. 
 
 530. 
 
 531-5 
 
 534. 
 
 535. 
 
 abolished 
 
 539-5' 
 diction h 
 coin, bias] 
 
 542. 
 mitted w 
 hoard a E 
 eral. (Ne 
 
 551. 
 
 595. 
 
 610,6 
 ments. ( 
 
 631, 6J 
 
 640. 
 courts, no 
 
 641. 
 cutions. 
 
 648. 
 
 656. 
 
 660. 
 trial. (Nt 
 
 661. 
 
 G6G. 
 
 667. 
 
PREFACE. IX 
 
 507a, Injuries to harbours. {New). 
 
 527. Conspiracies. (New). 
 
 528. Attempts. (Neiv). 
 
 529. " (Neiv). 
 
 630. " (Neiv\ 
 
 531-532. Accessories after the fact. (Neiv). 
 
 PROCEDURE. 
 
 534. Effect of criminal offence on civil remedy. 
 
 535. Distinction between felony and misdemeanour 
 abolished. (New). 
 
 539-540. Court of Sessions of the Peace, to have juris- 
 diction in manslaughter, perjury, forgery, counterfeiting 
 coin, bla.sphemous libel, bribery at elections. (New). 
 
 542. No alien to be prosecuted for an offence com- 
 mitted within the jurisdiction of the Admiralty, even on 
 hoard a British ship, without leave of the Governor-Gen- 
 eral. (New). 
 
 551. Limitation of time. (Amended). 
 
 595. (Neiv). P. 658 jyost. 
 
 610, 611, 612, 613, 616, 617, 019. 626, 627, 629. Indict- 
 ments. (AiHfnded). 
 
 631, 632, 633. Pleas in bar. (Amended). 
 
 640. A,bolishes the law of venue. Jurisdiction of 
 courts, not confined to territorial liiaits. (Xfu). 
 
 641. Vexatious indictments Act extended to all prose- 
 cutions. (New). 
 
 648. Bench warrant. (Amended). 
 
 656. Pleas in abatement abolished. (Neic). 
 
 660. Court may allow accused not to be present at 
 trial. (New). 
 
 661. Counsel's addresses to jury. (Amended). 
 
 666. Challenging the array. (New). 
 
 667. Calling the panel. (Ne^r). 
 
PREFACE. 
 
 668. Number of challenges, how regulated. {New). 
 
 673. Rules as to jury separating during trial. {New). 
 
 684. Evidence of any witness in forgery to require 
 corroboration. ( Kew). 
 
 690. Admissions by prisoner on trial. (New). 
 
 713. Verdict for a minor offence included in offence 
 charged. (Amended). 
 
 But if on a charge of larceny, obtaining by false pre- 
 tenses is proved, or vice versa, the prisoner must now be 
 acquitted. {New). 
 
 723. Variances and amendments. {Amended). 
 
 729. Any proceedings of the court on a Sunday are 
 legal. {New). 
 
 731. Jury de ventre inspiciendo abolished. 
 
 743. Writ of erroi abolished. 
 
 744. Appeal when a reserved case refused. {New). 
 
 746. Powers of court of appeal. {Amended). 
 
 747. New trial. {Neiv). 
 
 748. New trial by order of Minister of Justice. (New). 
 
 749. Intermediate effects of appeal. {New). 
 832-835. Costs. (Netv). 
 
 <S36. Compensation for loss of property. (New). 
 
 838. Restitution of stolen property. {Amended). 
 
 951-952. Punishments in cases not provided for and 
 after previous conviction. {Amended). 
 
 959. Sureties for the peace, articles of the peace. {New). 
 
 90 1. Disabilities by a conviction. {New). 
 
 9G2-965. Outlawry and attainder abolished. {Neiv). 
 
 FOB co^ 
 
 Soi 
 
 William I . . 
 William II., 
 Henry I.... 
 Stephen.. .. 
 Henry II. . . 
 Richard I . . 
 
 John 
 
 Henry III. . 
 Edward I . . 
 Edward II . 
 Edward III 
 Bichard II. 
 Henry IV . . 
 Henry V. . , 
 Henry VI.. 
 Edward IV . 
 Edward V.. 
 Richard III 
 Henry VII., 
 Henry VIII 
 Edward VI . 
 
 Mary 
 
 Philip and ]V 
 Elizabeth . . 
 James I.. ,, 
 Charles I.. . 
 The Commoi 
 Charles II*. 
 James II. . . 
 William and 
 
 Anne 
 
 Georf^e I .... 
 George II..., 
 George III . . 
 George IV.. , 
 William IV, 
 Victoria 
 
 •Although] 
 his regnal yei 
 13, 1G49, so tl 
 reign. 
 
A TABLE OF REorNAL YEARS. 
 
 FOB CONT£MIENCE OF IlEFEBEMCE TO THE ENOLIRH STATUTES AND LAW 
 
 BEPORTB. 
 
 SOVEBEIONS. 
 
 William I 
 
 William II 
 
 Henry I 
 
 Stephen 
 
 Henry II 
 
 Bichard I 
 
 John 
 
 Henry III 
 
 Edward I 
 
 Edward II 
 
 Edward III 
 
 Bichard II 
 
 Henry IV 
 
 Henry V . . . . 
 
 Henry VI 
 
 Edward IV 
 
 Edward V 
 
 Bichard III 
 
 Henry VII 
 
 Henry VIII 
 
 Edward VI 
 
 Mary 
 
 Philip and Mary 
 
 Elizabeth 
 
 James I 
 
 Charles I 
 
 The Commonwealth. 
 
 Charles II' 
 
 James II 
 
 William and Mnry.. 
 
 Anne 
 
 George I 
 
 George II 
 
 George III 
 
 George IV 
 
 William IV 
 
 Victoria 
 
 Commencement of Beion. 
 
 December 25, 1066.. 
 September ^6, 1087 
 
 Augusts, 1100 
 
 December 26, 1135. 
 December 19, 1154. 
 Septembers, 1189.. 
 
 May 27, 1199 
 
 October 28, 1216. . . 
 November 20, 1272. , 
 
 Julys, 1307 
 
 January 25, 1327 ... 
 
 June 22, 1377 
 
 September 30, 1399. 
 March 21, 1413 .... 
 September 1, 1422.. 
 
 March 4, 1461 
 
 April 9, 1483 
 
 June 26. 1483 
 
 August 22, 1485 
 
 April 22, 1509 
 
 January 28, 1547... 
 
 July 6, 1553 
 
 July 25, 1654 
 
 November 17, 1558., 
 March 24, 1603 . . . . 
 
 March '27, 1625 
 
 January 30, 1049. . . 
 
 May 29, 1060 
 
 February 6, 1685... 
 February 13, 1689.. 
 
 March 8, 1702 
 
 August 1, 1714 
 
 June 11, 1727 
 
 October 25, 1760 . . . 
 January 29, 1820. . . 
 
 June 26, 1830 
 
 June 20, 1837 
 
 Length 
 
 of 
 Beign. 
 
 21 
 13 
 36 
 19 
 35 
 10 
 18 
 57 
 35 
 20 
 51 
 23 
 14 
 10 
 39 
 23 
 
 3 
 24 
 
 38 
 
 7 
 
 2 
 
 4 
 
 45 
 
 23 
 
 24 
 
 11 
 
 37 
 
 4 
 
 14 
 13 
 18 
 84 
 (iO 
 11 
 7 
 
 ■fe; 
 
 'Although Charles II. did not ascend the throne until 29tliMay, 1060, 
 his regnal years were computed from the death of Charles I., January 
 13, 1649, so that the year of his restoration is styled the twelfth of his 
 reign. 
 
Xll 
 
 A TABLE OF REGNAL YEARS. 
 
 A Table op Regnal Years— Continued. 
 
 1831—1 & 2 Wm. IV, 1 
 
 1832—2 & 3 
 
 
 1833—3 & 4 
 
 
 1834—4 & 5 
 
 
 1835—5 & 6 
 
 
 1836—6 & 7 
 
 
 1837—7 Wm. ' 
 
 [V. and 1 Vic. 
 
 1838— 1 & 2 Vic. 
 
 1839— 2 & 3 
 
 it 
 
 1840— 3 & 4 
 
 (t 
 
 1841— 4 & 5 
 
 ii 
 
 1841- 5 
 
 t( 
 
 1842- 5 & 6 
 
 •< 
 
 1848- 6 & 7 
 
 K 
 
 1844— 7 & 8 
 
 « 
 
 1845— 8 & 9 
 
 Ii 
 
 1846— 9 & 10 
 
 <( 
 
 1847—10 & 11 
 
 << 
 
 1848—11 & 12 
 
 U 
 
 1849—12 & 13 
 
 (1 
 
 1850—13 & 14 
 
 « 
 
 1851—14 & 15 
 
 (( 
 
 1852—15 & 16 
 
 (( 
 
 1853—16 & 17 
 
 n 
 
 1854—17 & 18 
 
 «i 
 
 1856—18 & 19 
 
 it 
 
 1856—19 & 20 
 
 it 
 
 1857-20 
 
 tl 
 
 1857—20 & 21 
 
 it 
 
 1858—21 & 22 
 
 ii 
 
 1859—22 
 
 it 
 
 1859—22 & 23 
 
 tt 
 
 18G0— 23 & 24 
 
 it 
 
 1861—24 & 25 
 
 t 
 
 1862- 
 
 -25 & 26 Vic 
 
 1863- 
 
 -26 & 27 
 
 (( 
 
 1864- 
 
 -27 & 28 
 
 t( 
 
 1865- 
 
 -28 & 29 
 
 (( 
 
 1866- 
 
 -29 & 30 
 
 i( 
 
 1867- 
 
 -30 & 31 
 
 (( 
 
 1868- 
 
 -31 & 32 
 
 (( 
 
 1869- 
 
 -32 & 33 
 
 <( 
 
 1870- 
 
 -33 & 34 
 
 II 
 
 1871- 
 
 -34 & 35 
 
 Ii 
 
 1872- 
 
 -35 & 36 
 
 Ii 
 
 1873- 
 
 -36 & 37 
 
 II 
 
 1874- 
 
 -37 & 38 
 
 II 
 
 1875- 
 
 -38 & 39 
 
 41 
 
 1876- 
 
 -39 & 40 
 
 • ( 
 
 1877- 
 
 -40 & 41 
 
 If 
 
 1878- 
 
 -41 & 42 
 
 II 
 
 1879- 
 
 -42 & 43 
 
 II 
 
 1880- 
 
 -43 & 44 
 
 II 
 
 1881- 
 
 -44&45 
 
 11 
 
 1882- 
 
 -45 & 46 
 
 (1 
 
 1883- 
 
 -46 & 47 
 
 ii 
 
 1884- 
 
 -47 & 48 
 
 II 
 
 1885- 
 
 -48 & 49 
 
 «l 
 
 1886- 
 
 -49 & 50 
 
 II 
 
 1887- 
 
 -50 & 51 
 
 l( 
 
 1888- 
 
 -51 & 62 
 
 II 
 
 1889- 
 
 -62 
 
 II 
 
 1889- 
 
 -52 & 63 
 
 II 
 
 18!)0- 
 
 -63 & 54 
 
 II 
 
 1891- 
 
 -54 & 65 
 
 II 
 
 1892- 
 
 -65 & 66 
 
 II 
 
 1833- 
 
 -66 & 67 
 
 II 
 
 Title L Inl 
 
 II. Ofl 
 
 IIL Off 
 
 IV. Off 
 
 V. Off 
 
 VI. Off 
 
 V;L Pre 
 
 VIII. Pre 
 
 IX. Act 
 
 X. Rei 
 
 SCBEDDLE 1. 
 2. 
 
 Appendix. 
 
THE CRIMINAL CODE, 1892. 
 
 [55.56 VIC. c. 29]. 
 
 AMENDMENT OF 1893. 
 [56 \IC. c. 32]. 
 
 AERANGEMENT OF TITLES. 
 
 Page. 
 
 Title I. Introductory pro- iiiona 1 
 
 II. Offences against public order, internal and external 46 
 
 III. Offences affecting the administration of law and justice.... 77 
 
 IV. Offences against religion, morals and publio convenience.. Hi 
 V. Offences against the person and reputation 143 
 
 VI. Offences against rights of property and rights arising out of 
 
 contracts and offences connected with trade 836 
 
 Vn. Procedure 602 
 
 VIII. Proceedings after conviction 959 
 
 IX. Actions against persons administering the criminal law.... 979 
 
 X. Repeal, etc 980 
 
 ScBEDCLE 1. Forms 983 
 
 2. Table of Acts repealed 983 
 
 Appendix. Acts and parts of Acts which are not affected by this 
 
 Act 986 
 
Sec. 
 
 1. Short titl 
 
 2. CommeiK 
 
 3. Explanat 
 
 4. Meaning ( 
 
 5. Offence a 
 
 Uni 
 
 6. Conseguei 
 
 7. General n 
 
 8. General n 
 
 9. Children i 
 
 10. Children I 
 
 11. Insanity.. 
 
 12. Compulsio 
 
 13. Compulsio 
 
 14. Ignorance 
 
 15. Execution 
 
 16. Execution 
 
 17. Execution 
 
 18. Execution 
 
 19. Sentence o: 
 
 20. Arresting i 
 
 21. Irregular w 
 
 22. Arrest by j 
 
 23. Persons asf 
 
 24. Arrest of pi 
 
 25. Arrest aftei 
 
TABLE OF CONTENTS. 
 
 V 
 
 TITLE I. 
 INTRODUCTORY PROVISIONS. 
 
 PART I. 
 
 Pbeliminaby. 
 Sec. Page. 
 
 1. Short title 1 
 
 2. Commencement of Act 1 
 
 3. Explanation of terms I 
 
 4. Meaning of expressions in other Acts retained 6 
 
 5. Offence against statutes of England, Great Britain or the 
 
 United Kingdom *> 
 
 6. Consequences of committing offence 6 
 
 PART II. 
 
 Matters of Justification or Excuse. 
 
 7. General rule under common law 7 
 
 8. General rule under this Act 7 
 
 9. Children under seven 7 
 
 10. Children between seven and fourteen 7 
 
 11. Insanity B 
 
 12. Compulsion by threats 9 
 
 13. Compulsion of wife 11 
 
 14. Ignorance of the law 11 
 
 15. Execution of sentence 12 
 
 16. Execution of process 1'.^ 
 
 17. Execution of warrants 14 
 
 18. Execution of erroneous sentence or process I'l 
 
 19. Sentence or process without jurisdiction 15 
 
 20. Arresting the wrong person 15 
 
 21. Irregular warrant or process 16 
 
 22. Arrest by peace officer in case of certain offences 16 
 
 23. Persons assisting peace officer 17 
 
 24. Arrest of persons found committing certain offences 17 
 
 25. Arrest after commission of certain offences 17 
 
 U 
 
Xvi TABLE OF CONTENTS. 
 
 Sec. Pftjre. 
 
 26. Arrest of person believed to be committing certain o£fencea by 
 
 night 17 
 
 27. Arrest by peace officer of person found committing offence. ... 17 
 
 28. Arrest of person found committing any offence at night 18 
 
 29. Arrest during flight 18 
 
 30. Statutory power of arrest 18 
 
 31. Force used in executing sentence or process or in arrest 19 
 
 82. Duty of persons arresting 19 
 
 33. Peace officer preventing escape from ari-est for certain offences 19 
 31. Private person preventing escape from arrest for cer tain 
 
 offences 20 
 
 35. Preventing escape from arrest in other cases 20 
 
 36. Preventing escape or rescue after arrest for certain offences.. 20 
 
 37. Preventing escape or rescue after arrest in other cases 20 
 
 38. Preventing breach of the peace 20 
 
 39. Prevention by peace officers of breach of the peace 21 
 
 40. Suppression of riot by magistrates 21 
 
 41. Suppression of riot by perssons acting under lawful orders 21 
 
 42. Suppression of riot by persons without orders 22 
 
 43. Protection of persons subject to military law 22 
 
 44. Prevention of certain offences 22 
 
 45. Self-defence against unprovoked assault 22 
 
 46. Self-defence against provoked assault 23 
 
 47. Prevention of insult 24 
 
 48. Defence of movable property against trespasser 24 
 
 49. Defence of movable property with claim of right 24 
 
 50. Defence of movable property without claim of right 24 
 
 51. Defence of dwelling-house 24 
 
 52. Defence of dwelling-house at night 25 
 
 53. Defence of real property 25 
 
 54. Assertion of right to house or land 26 
 
 55. Discipline of minors 27 
 
 56. Discipline on ships * 27 
 
 67. Surgical operations 27 
 
 68. Excess 27 
 
 59. Consent to death 27 
 
 60. Obedience to de facto law 28 
 
 PART III. 
 
 Parties to the Commission of Offences. 
 
 61. Parties to offences 28 
 
 62. Offence committed other than the offence intended 39 
 
 63. Accessory after the fact 40 
 
 64. Attempts 42 
 
 OFFENC 
 
 Treason a: 
 
 Sec. 
 
 65. Treason 
 6G. Conapira 
 67. Accessor] 
 08. Levying 
 Bub 
 
 69. Treasona 
 
 70. Conspira( 
 
 71. Assaults i 
 
 72. Inciting t 
 
 73. Enticing! 
 
 74. Resisting 
 
 75. Enticing 
 
 poli( 
 70. Interprets 
 
 77. Unlawfulll 
 
 78. Communii 
 
 Unlaw 
 
 79. Definition 
 
 80. Definition 
 
 81. Punishmei 
 
 82. Punishmei 
 
 83. Heading tl 
 
 84. Duty of ju 
 So. Riotous de 
 
 86. Riotous da 
 
 87. Unlawful 
 
 88. Being unla 
 
 89. Forcible en 
 
 90. Affray . . 
 
 91. Challenge t 
 
 92. Prize-fighti 
 
 93. Challenging 
 
 94. Engaging a 
 
 95. Attending 
 
 Crim. Law 
 
 P 
 
 h 
 
 ;(.*; 
 
I' ! 
 
 TABLE OF CONTENTS. 
 
 TITLE II. 
 
 XVU 
 
 OFFENCES AGAINST PUBLIC ORDER, INTERNAL AND 
 
 EXTERNAL. 
 
 PART IV. 
 
 Treason and other Offences against the Queen's Acthority and 
 
 Person. 
 Sec. Page. 
 
 65. Treason 46 
 
 CG. Conspiracy 47 
 
 67. Accessories after the fact 47 
 
 68. Levying war by subjects of a state at peace with Her Majesty — 
 
 subjects assisting 47 
 
 69. Treasonable offences 48 
 
 70. Conspiracy to intimidate a legislature 48 
 
 71. Assaults on the Queen 49 
 
 72. Inciting to mutiny 49 
 
 73. Enticing soldiers or sailors to desert 49 
 
 74. Resisting execution of warrant for arrest of deserters £0 
 
 75. Enticing militiamen or members of the North-west mounted 
 
 police force to desert 60 
 
 7G. Interpretation 50 
 
 77. Unlawfully obtaining and communicating official information.. 51 
 
 78. Communicating information acquired by holding office 52 
 
 k 
 
 I ,'-■ 
 
 PART V. 
 
 Unlawful Assemblies, Riots, Breaches of the Peace. 
 
 79. Definition of unlawful assembly 52 
 
 80. Definition of riot 65 
 
 81. Punishment of unlawful assembly 56- 
 
 82. Punishment of riot 66' 
 
 83. Reading the Riot Act 56- 
 
 84. Duty of justice if rioters do not disperse 57 
 
 85. Riotous destruction of buildings 5T 
 
 86. Riotous damage to buildings 58 
 
 87. Unlawful drilling 59 
 
 88. Being unlawfully drilled 59 
 
 89. Forcible entry and detainer 60 
 
 90. Affray 60 
 
 91. Challenge to fight a duel 61 
 
 92. Prize-fighting defined 61 
 
 93. Challenging to fight a prize-fight, etc 62 
 
 94. Engaging as principal in a prize-fight 62 
 
 95. Attending or promoting a prize-fight 62 
 
 Crim. Law— b 
 
 \^m 
 
xvm 
 
 TABLE OF CONTENTS. 
 
 Sec. Page. 
 
 96. Leaving Canada to engage in a prize -fight 62 
 
 97. Where the fight is not a prize-fight— diecbarge or fine 63 
 
 98. Inciting Indians to riotous acts 63 
 
 PART VI. 
 
 Unlawful Use and Possession or Explosive Scbstances and 
 Offensive Weapons. — Sale or LiQCons. 
 
 99. Causing dangerous explosions 63 
 
 100. Doiiig anything, or possessing explosive substance, with intent 
 
 to cause dangerous explosions 64 
 
 101. Unlawfully making or possessing explosive substances 64 
 
 102. Having possession of arras for purposes dangerous to the public 
 
 peace 64 
 
 103. Two or more persons openly carrying dangerous weapons so as 
 
 to cause alarm 65 
 
 104. Smugglers carrying offensive weapons 65 
 
 105. Carrying a pistol or air-gnn without justification 65 
 
 106. Selling pistol or air-gun to minor 66 
 
 107. Havi^ weapons on person when arrested 66 
 
 108. Having weapons on the person with intent to injure any person. 67 
 
 109. Pointing any firearm at any person 67 
 
 110. Carrying offensive weapons about the person 67 
 
 111. Carrying sheath-knives 67 
 
 112. Exceptiou as to soldiers, etc 67 
 
 113. Refusing to deliver offensive weapon to a justice 68 
 
 114. Coming armed within two miles of public meeting 68 
 
 115. Lying in wait for persons returning from public meeting 68 
 
 116. Sale of arms in the North-west Territories 69 
 
 117. Possessing weapons near public works 69 
 
 118. Sale, etc., of liquors near public works 69 
 
 119. Intoxicating liquors on board Her Majesty's ships 70 
 
 Sec. 
 
 127. Piracy I 
 
 128. Piratica: 
 
 129. Piracy t 
 
 130. Not flghi 
 
 OFPENCJ 
 
 131. Judicial c 
 
 132. Corruptio) 
 
 133. Frauds up 
 
 134. Other couf 
 
 135. Breach of 
 
 136. Corrupt pr 
 
 137. Selling ofli 
 
 138. Disobedien 
 
 139. Disobedien 
 
 140. Neglect of 
 
 141. Neglect to i 
 
 142. Neglect to i 
 
 143. Misconduct 
 
 144. Obstructini 
 
 PART VII. 
 
 Seditious Offences. 
 
 120. Oaths to commit certain offences 70 
 
 121. Other unlawful oaths 71 
 
 122. Compulsion in administering and taking oaths 72 
 
 123. Seditious offences defined 72 
 
 124. Punishment of seditious offences 73 
 
 125. Libels on foreign sovereigns 73 
 
 120. Spreading false news ' 73 
 
 M5. Perjury def 
 
 146. Punishment 
 
 147. False oaths, 
 
 148. False staten 
 
 149. Making fal8< 
 160. False staten 
 151. Fabricating 
 
 162. Conspiring t 
 
 163. Administerii 
 1S4. Corruptiug j 
 165. Compoundin 
 
TABLE OF CONTENTS. 
 
 XIX 
 
 PART VIII. 
 Piracy. 
 
 Sec. Pafie. 
 
 127. Piracy by the law of nations 74 
 
 128. Piratical acta 75 
 
 129. Piracy with violence 75 
 
 130. Not fighting pirates 76 
 
 V 
 
 TITLE III. 
 
 OFFENCES AGAINST THE ADMINISTRATION OF LAW 
 
 AND JUSTICE. 
 
 PART IX. 
 
 Corruption and Dibobedibnck. 
 
 131. Judicial corruption 77 
 
 132. Corruption of officers employed in prosecuting offenders 77 
 
 133. Frauds upon the government 78 
 
 134. Otlier consequences of conviction for any such offence 80 
 
 135. Breach of trust by public officer 80 
 
 136. Corrupt practices in municipal affairs 81 
 
 137. Selling office, appointment, etc 82 
 
 138. Diiiobedience to a statute 83 
 
 139. Disobedience to orders of court 83 
 
 140. Neglect of peace officer to suppress riot 83 
 
 141. Neglect to aid peace officer to suppress riot 83 
 
 142. Neglect to aid peace officer in suppressing riot 83 
 
 143. Misconduct of officers intrusted with execution of writs 84 
 
 144. Obstructing public or peace officer in the execution of his duty 84 
 
 PART X. 
 
 MisLEADiNo Justice. 
 
 145. Perjury defined 85 
 
 146. Punishment of perjury 97 
 
 147. False oaths 98 
 
 148. False statement, wilful omission in affidavit, etc 98 
 
 149. Making false affidavit out of province in which it is used 99 
 
 160. False statements 99 
 
 151. Fabricating evidence 99 
 
 152. Conspiring to bring false accusations 100 
 
 153. Administering oaths without authority 101 
 
 154. Corrupting juries and witnesses 104 
 
 165. Compounding penal actions 104 
 
 ■/ 
 
XX 
 
 TABLE OF CONTENTS. 
 
 Sec. P'lge. 
 
 156. Corruptly taking; a reward for helping to recover stolen property 
 
 without usin^ diligence to bring offender to trial 105 
 
 167. Unlawfully advertising a reward for return of stolen property. . lOG 
 
 158. Signing false declaration respecting execution of judgment of 
 
 death 10& 
 
 PART XI, 
 
 Escapes and Bescces. 
 
 159. Being at large while under sentence of imprisonment 107 
 
 160. Assisting escape of prisoners of war Ill 
 
 161. Breakini! prison HI 
 
 162. Attempting to break prison HI 
 
 163. Escape from custody after conviction or from prison Ill 
 
 164. Escape from lawful custody 112 
 
 165. Assisting escape in certain cases 112 
 
 166. Assisting escape in other cases 112 
 
 167. Aiding escape from prison 112 
 
 168. Unlawfully procuring discharge of prisoner 113 
 
 169. How escaped prisoners shall be punished 11& 
 
 TITLE IV. 
 
 OFFENCES AGAINST RELIGION, MORALS AND PUBLIC 
 
 CONVENIENCE. 
 
 PART XII. 
 
 Offences Against Religion. 
 
 170. Blasphemous libels 114 
 
 171. Obstructing officiating clergyman 115 
 
 172. Violence to officiating clergyman 115 
 
 173. Disturbing public worship 116 
 
 PART XIII. 
 
 Offences Against Morality. 
 
 174. Unnatural offence 116 
 
 175. Attempt to commit sodomy 118 
 
 176. Incest 110 
 
 177. Indecent acts 120 
 
 178. Acts of gross indecency 121 
 
 179. Publishing obscene matter 121 
 
 180. Posting immoral books, etc 122 
 
 181. Seduction of girls under sixteen 123 
 
 182. Seduction under promise of marriage 123 
 
 Sec. 
 
 183. Seduction 
 
 184. Seduction i 
 
 185. Unlawfully 
 
 186. Parent or ( 
 
 187. Houseliold* 
 
 188. Conspiracy 
 
 189. Carnally ki 
 
 190. Prostitutio 
 
 191. Common ni 
 
 192. Common av 
 
 193. Common nu 
 
 194. Selling thin. 
 
 195. Common ba 
 
 196. Common ga 
 107. Common be 
 
 198. Disorderly 1 
 
 199. Playing or 1( 
 
 200. Obstructing 
 
 201. Gaming in s 
 
 202. Habitually f 
 
 on , 
 
 203. Gambling in 
 
 204. Betting and 
 
 205. Lotteries . . 
 200. Misconduct 
 
 207. Vagrant defi 
 
 208. Penalty for 
 
 OFFENCES A 
 
 DCTI 
 
 209. Dutytoprov 
 
 210. Duty of head 
 
 211. Duty of mast 
 
TABLE OF CONTENTS, XXI 
 
 Sec. Page. 
 
 ISi). Seduction of a ward, servant, etc 124 
 
 184. Seduction of females who are passengers on vessels 124 
 
 185. Unlawfully defiling women I'ili 
 
 186. Parent or guardian procuring defilement of girl 127 
 
 187. Householders permitting defilement of girls on th< ir premiseB.. 128 
 
 188. Conspiracy to defile 129 
 
 18',). Carnally knowing idiots, etc 180 
 
 190. Prostitution of Indian women 130 
 
 PART XIV. 
 
 Nuisances. 
 
 191. Common nuisance defined 131 
 
 192. Common nuisances which are criminal 133 
 
 193. Common nuisances which are not criminal 133 
 
 194. Selling things unfit for food 133 
 
 19r>. Common bawdy-house defined 133 
 
 19C. Common gaminghouse defined 133 
 
 197. Common betting-house defined 134 
 
 198. Disorderly houses 134 
 
 199. Playing or looking on in gaming-house 135 
 
 200. Obstructing peace ofMcer entering a gaming-house 135 
 
 201. Gaming in stocks and merchandise 18C 
 
 202. Habitually frequenting places where gaming in stocks is carried 
 
 on 136 
 
 203. Gambling in public conveyances 136 
 
 204. Betting and pool-selling 137 
 
 205. Lotteries 138 
 
 200. Misconduct in respect to human remains 139 
 
 PART XV. 
 
 Vagrancy. 
 
 207. Vagrant defined 140 
 
 208. Penalty for vagrancy 140 
 
 m 
 
 il' 
 
 
 TITLE V. 
 OFFENCES AGAINST THE PERSON AND REPUTATION. 
 
 PART XVI. 
 
 Duties tending to the Pheservation of Life. 
 
 209. Duty to provide the necessaries of life 143 
 
 210. Duty of head of family to provide necessaries 143 
 
 211. Duty of maatera to provide necessaries 143 
 
xxn 
 
 TABLE OF CONTENTS. 
 
 Sec. Pa-He. 
 
 212. Duty of persons doing dangerous acts 144 
 
 213. Duty of persons in charge of dangerous things 144 
 
 214. Duty to avoid omissions dangerous to life 144 
 
 215. Neglecting duty to provide necessaries 144 
 
 216. Abandoning children under two years of age . 149' 
 
 217. Causing bodily harm to apprentices or servants 151 
 
 PART XVII. 
 
 Homicide. 
 
 218. Homicide defined 205 
 
 219. When a child becomes a liuman being 205 
 
 220. Culpable homicide 20(> 
 
 221. Procuring death by false evidence 208 
 
 222. Death must be within a year and a day 208 
 
 223. Killing by influence on the mind ^08 
 
 224. Acceleration of death 209 
 
 225. Causing death which might have been prevented "09 
 
 226. Causing injury the treatment of which causes death 209 
 
 PART XVIII. 
 
 MUKDEK, MaNSLADGHTER, EtC. 
 
 227. Definition of murder 210' 
 
 228. Further definition of murder 210- 
 
 229. Provocation 211 
 
 230. Manslaughter 211 
 
 231. Punishment of murder 212 
 
 232. Attempts to commit murder 212 
 
 233. Threats to murder 222 
 
 234. Conspiracy to murder 224 
 
 235. Accessory after the fact to murdt-r 225- 
 
 23G. Punishment of manslaughter 225 
 
 2b7. Aiding and abetting suicide 22(> 
 
 238. Attempt to commit suicide 228 
 
 239. Neglect to obtain assistance in childbirtli 228 
 
 240. Concealing dead body of child 229 
 
 PART XIX. 
 
 Bodily Ixjuiues, and Acts and Omissions causino Danger to 
 
 THE Pehson. 
 
 241. Wounding with intent 23a 
 
 242. UnlawBul wounding 237 
 
 243. Shooting at Her Majisty's vessels — wounding customs or inland 
 
 revenue officers 239 
 
TABLE OF CONTENTS. 
 
 XXUl 
 
 Sec. Page. 
 
 244. Disabling or administering drugs with intent to commit an 
 
 indictable offence 289 
 
 246. Administering poison so as to endanger life 240 
 
 246. Administering poison with intent to injure 240 
 
 247. Causing bodily injuries by explosives. 241 
 
 248. Attempting to cause bodily injuries by explosives 241 
 
 249. Betting spring-guns and man-traps 243 
 
 250. Intentionally endangering the safety of persons on railways. . . . 245 
 
 251. Negligently endangering the safety of persons on railways .... 245 
 
 252. Negligently causing bodily injury to any persons 249 
 
 258. Injuring persons by furious driving 249 
 
 254. Preventing the saving of the life of any person shipwrecked. . . . 250 
 
 255. Leaving holes in the ice and excavations unguarded 250 
 
 256. Sending unseaworthy ships to sea 251 
 
 257. Taking unseaworthy ships to sea 251 
 
 PART XX. 
 
 AsBkVhUB. 
 
 258. Assault defined 252 
 
 359. Indecent assaults on females 252 
 
 260. Indecent assaults on males 253 
 
 261. Consent of child under fourteen no defence 253 
 
 262. Assaults causing actual bodily harm 263 
 
 263. Aggravated assault 254 
 
 264. Kidnapping 258 
 
 265. Common assaults 259 
 
 PART XXI. 
 Rape and Procurinq Abortion. 
 
 266. Rape defined 268 
 
 267. Punishment for rape 268 
 
 2C8. Attempt to commit rape 268 
 
 269. Defiling children under fourteen 274 
 
 270. Attempt to commit such offence 274 
 
 271. Killing unborn child 275 
 
 272. Procuring abortion 275 
 
 273. Woman procuring her own miscarriage 27G 
 
 274. Supplying means of procuring abortion 276 
 
 PART XXII. 
 
 Offences aqiinst Coxjuual and Parental Rights— Bigamy 
 — Abuuction. 
 
 275. Bigamy defined 279 
 
 270. Puuialnni;nt of bigamy 280 
 
 <'A 
 
 V 
 
XXIV 
 
 TABLE OF CONTENTS. 
 
 Sec. , Page. 
 
 277. Feigned marriages 287 
 
 278. Punishment of polygamy 287 
 
 279. Solemnization of marriage without lawful authority 238 
 
 280. Solemnization of marriage contrary to law 288 
 
 281. Abduction of a woman 289 
 
 2S2. Abduction of an heiress 289 
 
 283. Abduction of girl under sixteen 292 
 
 284. Stealing children under fourteen 295 
 
 PART XXIII. 
 
 Defamatory Libel. 
 
 28.3. Defamatory libel defined 296 
 
 280. Publishing defined 297 
 
 287. Publishing upon invitation 297 
 
 28^*. Publishing in courts of justice 297 
 
 289. Publishing parliamentai-y papers 297 
 
 290. Fair reports of proceedings of parliaments and courts 297 
 
 291. Fair report of proceedings of public meetings 297 
 
 292. Fair discussion 298 
 
 293. Fair comment 298 
 
 291. Seeking remedy for grievance 298 
 
 ■295. Answer to inquiries . . , . • 298 
 
 296. Giving information 298 
 
 297. Selling periodicals containing defamatory libel 298 
 
 '2dS. Selling books containing defamatory matter 299 
 
 299. When truth is a defence : 299 
 
 300. Extortion by defamatory libel 299 
 
 801. Punishment of defamatory libel known to be false iJOO 
 
 302. Punishment of defamatoi'y libel 300 
 
 TITLE VI. 
 
 OFIEXCES AGAINST RIGHTS OF PROPERTY AND RIGHTS 
 
 ARISING OUT OF CONTRACTS AND OFFENCES 
 
 CONNECT HD WITH TRADE. 
 
 PART XXIV. 
 
 TlIKFT DEI-IXED. 
 
 303. Tilings capable of being stolen 336 
 
 304. Animals capable of being stolen 337 
 
 o0.3. Theft defined 338 
 
 306. Theft of things under .seizure 340 
 
 307. Theft of auimal.s 341 
 
 308. Theft by agent 341 
 
 Sec, 
 
 309. Theft by 
 
 310. Theft by 
 
 311. Theft by 
 
 312. Conceal ii 
 
 313. Husband 
 
 314. Receiving 
 
 315. Receiving 
 
 316. Receiving 
 
 con\ 
 
 317. When reci 
 
 318. Receiving 
 
 PUNISHME 
 MITTED 
 
 319. Clerks and 
 
 320. Agents an 
 
 321. Public se 
 
 book! 
 
 322. Tenants ar 
 
 323. Testament 
 
 324. Document 
 
 325. Judicial or 
 
 326. Stealing pc 
 
 327. Stealing pc 
 
 328. Stealing mi 
 
 329. Election di 
 
 330. Railway ti( 
 
 331. Cattle ,... 
 
 332. Dogs, birds 
 
 333. Pigeons . . 
 
 334. Oysters .. 
 
 335. Things fixe 
 
 336. Trees in j 
 
 elsewi 
 
 337. Trees of th. 
 
 338. Timber fou 
 
 339. Fences, atil 
 
 340. Failing to s 
 
 341. Roots, plan 
 
TABLE OF CONTENTS. 
 
 XXV 
 
 Sec. Page. 
 
 309. Theft by person holding a power of attorney 342 
 
 310. Theft by misappropriating proceeds held under direction 342 
 
 311. Theft by co-owner 345 
 
 312. Concealing gold or silver with intent to defraud partner in claim 345 
 
 313. Husband and wife 346 
 
 PART XXV. 
 
 Receiving Stolen Goods. 
 
 314. Receiving ^iroperty dishonestly obtained 317 
 
 315. Receiving stolen post letter or post letter bag 353 
 
 316. Receiving property obtained by offence punishable on summai-y 
 
 conviction 354 
 
 317. When receiving is complete 355 
 
 318. Receiving after restoration to owner 355 
 
 PART XXVI. 
 
 Punishment of Theft and Offences KESEMnLiNc. Tiif.ft com- 
 mitted BY PaUJ ICCLAU PeI'.SONS IN RESl-ECT OF PaKTICILAK 
 
 Things in Pauticulau Places. 
 
 319. Clerks and servants 355 
 
 320. Agents and attorneys, punishment 309 
 
 321. Public servants refusing to deliver up chattels, moneys or 
 
 books, etc., lawfully demanded of them 309 
 
 322. Tenants and lodgers 370 
 
 323. Testamentary instruments 370 
 
 324. Document of title to lands 370 
 
 325. Judicial or official documents 371 
 
 326. Stealing post letter bags, etc 372 
 
 327. Stealing post letters, packets and keys 3'2 
 
 328. Stealing mailable matter other than post letters 372 
 
 329. Election documents 373 
 
 330. Railway tickets 373 
 
 331. Cattle 373 
 
 332. Dogs, birds, beasts and other animals 374 
 
 333. Pigeons 375 
 
 334. Oysters 375 
 
 336. Things fixed to buildings or to land 37(> 
 
 336. Trees in pleasure grounds, etc., of tivo dollars' value — trees 
 
 elsewhere of twenty-tive dollars' value 377 
 
 337. Trees of the value of twenty-five cents 378 
 
 33H. Timber found adrift 380 
 
 3H9. Fences, stiles and gates 380 
 
 340. Failing to satisfy justice that possession of troe, etc., is lawful, 380 
 
 341. Roots, plants, etc., growing in gardens, etc 381 
 
 lil 
 
 ' i 
 
 lit-,'. 
 
XXVI TABLE OF CONTENTS. 
 
 Seo. PaRe. 
 
 342. Roots, plants, etc., growing elsewhere than in gardens, etc 382 
 
 343. Ores of metals 382 
 
 844. Stealing from the person 383 
 
 345. Stealing in dwelling-houses 384 
 
 346. Stealing by picklocks, etc 389 
 
 347. Stealing in manufactories, etc 389 
 
 348. Fraudulently disposing of goods intrusted for manufacture. . . . 390 
 
 349. Stealing from ships, wharfs, etc 390 
 
 350. Stealing wreck 392 
 
 351. Stealing on railways 392 
 
 352. Stealing things deposited in Indian graves 393 
 
 353. Destroying, etc., documents 393 
 
 354. Concealing 396 
 
 355. Bringing stolen property into Canada 396 
 
 356. Stealing things not otherwise provided for 397 
 
 357. Additional punishment when value of property exseeds two 
 
 hundred dollars 397 
 
 PART XXVII. 
 
 Obtaining Pbopertt by False Pretenses and other Criminal 
 Frauds and Dealings with Propfrty. 
 
 858. Definition of false pretense 397 
 
 359. Punishment of false pretense 398 
 
 360. Obtaining e.\ocution of valuable security by false pretense 414 
 
 361. Falsely pretending to enclose money, etc., in a letter 417 
 
 362. Obtaining passage by false tickets 417 
 
 363. Criminal breach of trust 417 
 
 PART XXVIII. 
 
 Fracd. 
 
 364. Falsa accounting by official 418 
 
 365. False statement by official 41!) 
 
 366. False accounting by clerk 41'> 
 
 367. False statement by public officer 421 
 
 368. AssLj^ning property with intent to defraud creditors 421 
 
 3(59, Destroying or falsifying books with intent to defraud creditors. 421 
 
 370. Concealing deeds or encumbrances or falsifying pedigrees 421 
 
 371. Frauds in respect to the registration of titles to land 422 
 
 372. Fraudulent sales of property 422 
 
 373. Fraudulent hypothecation of real property 422 
 
 374. Fraudulent seizures of land 422 
 
 375. Unlawful dealings with gold and silver 423 
 
 376. Warehousemen, <&c., giving false receipts— knowingly using the 
 
 same 423 
 
 Seo. 
 
 377. Owne 
 
 378. Makii 
 
 379. Innoc( 
 
 380. Sellmj 
 
 381. Other 
 
 382. Offenc, 
 
 383. Definit 
 
 384. Marks 
 
 385. Unlawl 
 
 386. Taking 
 
 387. Unlawf 
 
 388. Not sat 
 
 389. Searchi 
 
 390. Receivij 
 
 391. Receivi] 
 
 392. Receivii 
 
 393. Not sat: 
 
 la^ 
 
 394. Conspin 
 
 395. Cheating 
 
 396. Pretend: 
 
 397. Robbery 
 
 398. Punishn] 
 
 399. Punishm 
 
 400. Assault \ 
 
 401. Stopping 
 
 402. Compelii 
 
 403. Sending 
 
 404. Demandi 
 
 405. Extortio! 
 
 406. E.xtortioii 
 
 407. Definitioi: 
 
 408. Breaking 
 
 409. Breaking 
 
 410. Burglary 
 
TABLE OF CONTENTS. 
 
 xxvu 
 
 Sec. Page. 
 
 377. Owners of merchandise disposing thereof contrary to agree- 
 
 ments with consignees who have made advances thereon. . 424 
 
 378. Making false statements in receipts for property that can be 
 
 used under " The Bank Act " — fraudulently dealing with 
 property to which such receipts refer 424 
 
 379. Innocent partners 424 
 
 380. Selling vessel or wreck not having title thereto 425 
 
 381. Other offences respecting wrecks 42S 
 
 382. Offences respecting old marine stores 425 
 
 383. Definitions 425 
 
 384. Marks to be used on public stores 426 
 
 385. Unlawfully applying marks to public stores 426 
 
 386. Taking marks from public stores 427 
 
 387. Unlawful possession, sale, <fec., of public stores 427 
 
 388. Not satisfying justices that possession of public stores is lawful 427 
 
 389. Searching for stores near Her Majesty's vessels 428 
 
 390. Eeceiving regimental necessaries, &c., from soldiers or deserters 428 
 
 301. Receiving. &c., necessaries from miiriners or deserters 428 
 
 3y2. Receiving, &G., a seaman's property 429 
 
 393. Not satisfying justice that possession of seaman's property is 
 
 lawful 429 
 
 394. Conspiracy to defraud 429 
 
 305. Cheating at play 430 
 
 306. Pretending to practice witchcraft , 433 
 
 PART XXIX. 
 
 ROBBEKY AND ExTORTIOK. 
 
 307. Robbery defined 444 
 
 398. Punishment of aggravated robbery 444 
 
 309. Punishment of robbery ^ 446 
 
 400. Assault with intent to rob 447 
 
 401. Stopping the mail 447 
 
 402. Compelling execution of documents by Torce 448 
 
 403. Sending letter deinaiuling property with menaces 449 
 
 404. Demanding with intent to steal 450 
 
 405. Extortion by certain threats 451 
 
 406. Extortion by other threats 454 
 
 PART XXX. 
 
 Bci;OL.\UY AND HOUHEBUEAKINO. 
 
 407. Definition of dwelling-house, etc 469 
 
 408. Breaking place of worship and committing offence 470 
 
 409. Breaking place of worship with intent to commit offence 471 
 
 410. Burglarv defined 471 
 
 I 
 
XXVlll 
 
 TABLE OF CONTEXTS. 
 
 Sec. Page. 
 
 411. Housebreaking and committing an indictable offence 475 
 
 412. Housebreaking with intent to commit an indictable offence. . . . 478 
 
 413. Breaking abop and committing an indictable offence 480 
 
 414. Breaking shop with intent to commit an indictable offence .... 483 
 
 415. Being found in dwelling-house by night 483 
 
 416. Being found armed with intent to break a dwelling-house .... 484 
 
 417. Being disguised or in possession of housebreaking instruments. 485 
 
 418. Punishment after previous conviction 488 
 
 PAPT XXXI. 
 
 FOUGERY. 
 
 419. Document defined 509 
 
 420. " Bank note," and " exchequer bill " defined 609 
 
 421. False document defined 510 
 
 422. Forgery defined 510 
 
 423. Punishment of forgery 511 
 
 421. Uttering forged documents 521 
 
 425. Counterfeiting seals 521 
 
 42(5. Counterfeiting seals of courts, registry offices, etc 522 
 
 427. Unlawfully printing proclamation, etc 522 
 
 428. Sending telegrams in false name 522 
 
 429. Sending false telegrams 522 
 
 430. Possessing forged bank notes 523 
 
 431. Drawing document without authority 523 
 
 432. Using probate obtained by forgery or perjury 524 
 
 PART XXXII. 
 
 PliEPAKATIOX FOR FoROERY AND OfFENCES RESEMBLING FOROERY. 
 
 433. Interpretation of terms 625 
 
 434. Instruments of forgery 525 
 
 435. Counterfeiting stamps 526 
 
 436. Falsifying registers 630 
 
 437. Falsifying extracts from registers 530 
 
 438. Uttering false certificates 531 
 
 439. Forging certificates 531 
 
 440. Making false entries in books relating to public funds 531 
 
 441. Clerks issuing false dividend warrants 532 
 
 442. Printing circulars, etc., in likeness of notes 533 
 
 PART XXXIII. 
 
 Forgery of Trade Marks— Fraudulent Marking of Merchandise. 
 
 443. Definitions 533 
 
 444. Words or marks on watch cases 535 
 
 Sec. 
 
 445. Defii 
 
 446. Appl 
 
 447. Forg( 
 
 448. Sellii 
 
 449. Sellii 
 
 450. Punii 
 
 451. False 
 
 452. Uula\ 
 
 453. Defen 
 
 ( 
 
 454. Defeni 
 
 455. Excep 
 
 456. Person 
 
 457. Person 
 
 458. Person 
 
 459. Ackno\ 
 
 460. Interpi 
 
 461. When 
 
 462. Counte 
 
 463. Dealing 
 
 464. Manufa 
 
 cc 
 
 465. Exporti 
 
 466. Making 
 
 467. Bringin 
 
 468. Clipijinj 
 
 469. Defacin 
 
 470. Possessi 
 
 471. Possessi 
 
 472. Offences 
 
 473. Offencet 
 
 474. Utterin< 
 
 475. Uttering 
 
 476. Utterini 
 
TABLE OF CONTENTS. 
 
 XXIX 
 
 Sec. Page. 
 
 445. Definition of forgery of a traJe mark 535 
 
 446. Applying trade marks to goods 535 
 
 447. Forgery of trade marks, etc 535 
 
 448. Selling goods falsely marked — defence 536 
 
 449. Selling bottles marked with trade mark without consent of 
 
 owner 536 
 
 450. Punishment of offences defined in this part 536 
 
 451. Falsely representing that goods are manufactured for Her 
 
 Majesty, etc 537 
 
 452. Unlawful importation of goods liable to forfeiture under this 
 
 part 537 
 
 453. Defence where person charged innocently in the ordinary course 
 
 of business makes instruments for forging trade marks . . 537 
 
 454. Defence where offender is a servant 537 
 
 455. Exception respecting trade description lawfully applied to goods 
 
 on 22nd May, 1888, etc 538 
 
 PART XXXIV. 
 
 Person Alios. 
 
 456. Personation 538 
 
 457. Personation at examinations 538 
 
 458. Personation of certain persons 539 
 
 459. Acknowledging instrument in false name 540 
 
 PART XXXV. 
 
 Offences kelatisq to the Coin. 
 
 460. Interpretation of terms 541 
 
 461. When offence completed 541 
 
 462. Counterfeiting coins, etc 542 
 
 463. Dealing in and importing counterfeit coin 544 
 
 464. Manufacture of copper coin and importation of uucurrent 
 
 copper coin 545 
 
 465. Exportation of counterfeit coin 545 
 
 466. Making instruments for coining 545 
 
 467. Bringing instruments for coining from mints into Canada .... 549 
 
 468. Clipping current gold or silver coin : 549 
 
 469. Defacing current coins 550 
 
 470. Possessing clippings of current coin 550 
 
 471. Possessing counterfeit coins 551 
 
 472. Offences respecting copper coin 551 
 
 473. Offences respecting foreign coins 652 
 
 474. Uttering counterfeit gold or silver coins 552 
 
 475. Uttering light coins, medals, counterfeit copper coins, etc 654 
 
 476. Uttering defaced coin 555 
 
 
XXX TABLE OF CONTENTS. 
 
 Sec. Page. 
 
 477. Uttering uncurrent copper coins 555 
 
 478. Puniahment after previous conviction 655 
 
 PART XXXVI. 
 
 Advertisino Counterfeit Money. 
 
 479. Definition 656 
 
 480. Advertising counterfeit money, and other offemes connected 
 
 therewith 656 
 
 PART XXXVII. 
 
 Mischief. 
 
 481. Preliminary 557 
 
 482. Arson : 558 
 
 483. Attempt to commit arson 6G3 
 
 484. Setting fire to crops 564 
 
 485. Attempt to set fire to crops 564 
 
 486. Recklessly setting fire to forest, etc 565 
 
 487. Threats to burn, etc 565 
 
 488. Attempt to damage by gunpowrler 565 
 
 489. Mischief on railways 567 
 
 490. Obstructing railways 567 
 
 491. Injuries to packages in the custody of railways 667 
 
 492. Injuries to electric telegraphs, etc 569 
 
 493. Wrecking 570 
 
 494. Attempting to wreck 570 
 
 495. Interfering with marine signals 570 
 
 496. Preventing the saving of wrecked vessels or wreck 571 
 
 497. Injuries to rafts of timber and works used for the transmission 
 
 thereof 571 
 
 498. Mischief to mines 572 
 
 499. Mischief 57S 
 
 500. Attempting to injure or poison cattle 579 
 
 501. Injuries to other animals 579 
 
 602. Threats to injure cattle 680 
 
 503. Injuries to poll-books, etc 580 
 
 604. Injuries to buildings by tenants 581 
 
 605. Injuries to land marks indicating municipal divisions 582 
 
 506. Injuries to other land marks 582 
 
 507. Injuries to fences, etc 582 
 
 507a. " " harbours 583 
 
 608. Injuries to trees, etc., wheresoever growing, 583 
 
 609. Injuries to vegetable productions growing in gardens, etc 584 
 
 610. Injuries to cultivated roots and plants growing elsewhere 684 
 
 611. Injuries not otherwise provided for 585 
 
 Sec. 
 
 612. Cruelty 
 
 513. Keeping 
 
 614. The con 
 
 615. Search 
 
 ofl 
 
 Offenck 
 
 516. Conspin 
 
 517. What ac 
 
 518. Prosocut 
 
 519. Interprei 
 
 520. Combina 
 
 521. Criminal 
 
 522. Posting i 
 
 con 
 
 623. Intimida: 
 
 624. Intimidai 
 
 trac 
 525. Intimidat 
 
 — U] 
 
 626. Iijtimidnt 
 land 
 
 527. Conspirinj 
 
 528. Attemptin 
 
 529. Attemptin 
 
 530. Attemptin, 
 
 531. Accessoriei 
 
 532. Accessoriei 
 
 583. Power to m 
 534. Civil remed 
 
TABLE OF CONTENTS. 
 
 XXXI 
 
 PART XXXVIII. 
 
 Cruelty to Animalb. 
 
 Sec. Page. 
 612. Cruelty to animals 587 
 
 513. Keeping cock-pit 687 
 
 514. The conveyance of cattle 587 
 
 615. Search of premises — penalty for refusing admission to peace 
 
 officer 588 
 
 PART XXXIX. 
 
 GrFENCKS COSNECTED WITH TuiDE AND BREACHES OF CONTRACT. 
 
 616. Conspiracies in restraint of trade 589 
 
 517. What acts done in restraint of trade are not unlawful 589 
 
 518. Prosecution for conspiracy 589 
 
 619. Interpretation 689 
 
 620. Combinations in restraint of trade 589 
 
 521. Criminal broaches of contract 690 
 
 522. Posting up copies of provisions respecting criminal breaches of 
 
 contract — defacing same 691 
 
 628. Intimidation 591 
 
 524. Intimidation of any person to prevent him from working at any 
 
 trade 593 
 
 626. Intimidation of any person to prevent him dealing in wheat, etc. 
 
 — unlawfully preventing seamen from working 595 
 
 626. Intimidation of any person to prevent him bidding for public 
 
 lands 595 
 
 PART XL. 
 
 Attempts— CoN8PiR.AciF.s — Accessories. 
 
 627. Conspiring to mmit an indictable offence 516 
 
 528. Attempting to commit certain indictable offences 598 
 
 529. Attempting to commit other indictable offences o98 
 
 530. Attempting to commit statutory offences .'598 
 
 631. Accessories after the fact to certain indictable offences 000 
 
 682. Accessories after the fact to other indictable offences 600 
 
 \ 
 
 TITLE VII. 
 
 PROCEDURE. 
 
 PART XLI. 
 
 General Provisions. 
 
 638. Power to make rules o02 
 
 684. Civil remedy not suspended though act is a criminal offence... 602 
 
XXXil TABLE OF CONTENTS. 
 
 Sec. Page. 
 535, Abolition of distinction between felony and misdemeanour. . . . 603 
 53(5. Construction of .\ct8 603 
 
 537. Construction of reference to certain Acts 603 
 
 PART XLII. 
 
 JCBISDICTION. 
 
 538. Superior Court GOi 
 
 539. Otlier courts 604 
 
 540. Jurisdiction in certain cases 604 
 
 541. Exercising powers of two justices , 605 
 
 TART XLIII. 
 
 Procedure i\ Particular Cases. 
 
 542. Offences within the jurisdiction of the Admiralty of England.. 606 
 
 543. Disclqsing official secrets 612 
 
 544. Judicial corruption 612 
 
 545. Making explosive substances G12 
 
 546. Sending unseaworthy ships to sea 612 
 
 547. Trustee fraudulently disposing of money 612 
 
 548. Fraudulent acts of vendor or mortgagor 612 
 
 540. Uttering defaced coin 612 
 
 550. Trial of offenders under sixteen 613 
 
 551. Time within which proceedings shall be commenced in certain 
 
 cases «13 
 
 552. Arrest without warrant t IC 
 
 PART XLIV. 
 
 Compelling Appearance of Accused before Justice. 
 
 553. Magisterial jurisdiction 627 
 
 554. When justice may compel appearance 629 
 
 555. Offences committed in certain parts of Ontario 629 
 
 550. Offences committed in the district of Gaspe 630 
 
 557. Offences committed out of jurisdiction 630 
 
 558. Information 632 
 
 559. Hearing on information 632 
 
 560. Warrant in case of offence committed on the seas, &g 632 
 
 5iil. Arrest of suspected deserter 633 
 
 562. Contents of summons — service of summons 634 
 
 5('.3. Warrant for apprehension in first instance 635 
 
 564. E.\ecution of warrant 636 
 
 565. Proceeding when offender is not within the jurisdiction of the 
 
 justice issuing the warrant 637 
 
 50C. Disposal of person arrested on endorsed warrant 638 
 
 f( 
 fc 
 
 Sec. 
 667. Disposal 
 568. Coroner' 
 669. Search m 
 570. Search f( 
 
 671. Search w 
 
 672. Search fc 
 
 673. Search fc 
 
 674. Search fo 
 
 675. Search in 
 576. Search fo 
 
 577. Inquiry bj 
 
 578. Irregularil 
 
 579. Adjournm 
 
 580. Procuring 
 
 581. Service of 
 
 682. Warrant 
 
 683. Warrant 
 
 584. Procuring i 
 
 585. Witness rel 
 
 586. Discretiona 
 
 587. Bail on ren 
 
 688. Hearing mt 
 
 689. Breach of r 
 590. Evidence fo 
 691. Evidence to 
 59'^. Confession < 
 
 693. Evidence foj 
 
 694. Discharge ol 
 595. Person pref 
 
 proseci 
 
 696. Committal o 
 
 697. Copy of depo 
 598. Recognizanc* 
 699. Witness refu 
 
 600. Transmissioi 
 
 601. Rule as to ba 
 
 602. Bail after cor 
 
 603. Bail by super 
 
 604. Application f( 
 
 605. Warrant of d( 
 
 606. Warrant for i 
 
 607. Delivery of ac 
 
 Crim. Law— c 
 
• A 
 
 TABLE OF CONTENTS. 
 
 XXXIU 
 
 Sec. 
 567. 
 608. 
 669. 
 670. 
 571. 
 572. 
 573. 
 574. 
 575. 
 576. 
 
 577. 
 578. 
 679. 
 580. 
 581. 
 582. 
 683. 
 584. 
 585. 
 586. 
 687. 
 588. 
 589. 
 590. 
 591. 
 59-^. 
 693. 
 594. 
 595. 
 
 696. 
 597. 
 598, 
 699. 
 600, 
 601, 
 602, 
 603, 
 604 
 605 
 606, 
 607, 
 
 Page. 
 
 Disposal of person apprehended on warrant 638 
 
 Coroner's inquisition 688 
 
 Search warrant 638 
 
 Search for public stores 641 
 
 Search warrant for gold, silver, &c 642 
 
 Search for timber, &c., unlawfully detained 642 
 
 Search for liquors near Her Majesty's vessels 642 
 
 Search for women in house of ill-farae 642 
 
 Search i n gaming-house 643 
 
 Search for vagrant 644 
 
 PART XLV. 
 
 Procedure on Appearance of Accused. 
 
 Inquiry by justice 644 
 
 Irregularity in procuring appearance 644 
 
 Adjournment in case of variance 644 
 
 Procuring attendance of witnesses 645 
 
 Service of summons for witnesses 646 
 
 Warrant for witness after summons 646 
 
 Warrant tor witness in first instance 647 
 
 Procuring attendance of witnesses beyond jurisdiction of justice 648 
 
 Witness refusing to be examined 660 
 
 Discretionary powers of the justice 651 
 
 Bail on remand 653 
 
 Hearing may proceed during time of remand 654 
 
 Breach of recognizance on remand 654 
 
 Evidence for the prosecution 655 
 
 Evidence to be read to the accused 656 
 
 Confession or admission of accused 657 
 
 Evidence for the defence 657 
 
 Discharge of the accused : 658 
 
 Person preferring charge may have himself bound over to 
 
 prosecute 658 
 
 Committal of accused for trial 659 
 
 Copy of depositions 660 
 
 Recognizances to prosecute or give evidence 660 
 
 Witness refusing to be bound over 662 
 
 Transmission of documents 664 
 
 Rule as to bail 665 
 
 Bail after committal 666 
 
 Bail by superior court 667 
 
 Application for bail after committal 667 
 
 Warrant of deliverance 668 
 
 Warrant for the arrest of a person about to abscond 668 
 
 Delivery of accused to prison 668 
 
 C'RiM. Law— c 
 
XXXIV 
 
 TABLE OF CONTENTS. 
 
 PART XLVT. 
 
 Indici'ments. 
 See. Page. 
 
 COS. Indictments need not be on parchment 670 
 
 009. Statement of venue ()71 
 
 610. Heading of indictment 673 
 
 611. Form and contents of counts 673 
 
 612. Offences may be charged in the alternative 678 
 
 613. Certain objections not to vitiate counts 678 
 
 614. Indictment for high treason or treasonable offence 679 
 
 615. Indictments for libel 679 
 
 616. Indictments for perjury and certain other offences 680 
 
 617. Particulars 680 
 
 618. Indictment for pretending to send money, etc., in letter 681 
 
 619. Indictments in certain cases 681 
 
 620. Property of body corporate 684 
 
 621. Indictment for stealing ores or minerals OSo 
 
 622. Indictment for offences in respect to postal cards, etc G85 
 
 623. Indictments against public servants ()85 
 
 624. Indictment for offences respecting letter bags, etc 686 
 
 625. Indictment for stealing by tenant or lodger 686 
 
 626. Joinder of counts and proceedings thereon 686 
 
 627. Accessories after the fact, and receivers 697 
 
 628. Indictment charging previous conviction 697 
 
 629. Objections to an indictment 701 
 
 630. Time to plead to indictment 710 
 
 631. Special pleas 714 
 
 632. Depositions and judge's notes on former trial 715 
 
 633. Second accusation , 715 
 
 634. P'ea of justification in case of libel 726 
 
 PART XL VII. 
 
 Corporations. 
 
 635. Corporations may appear by attorney 727 
 
 636. Certiorari, etc., not required 727 
 
 637. Notice to be served on corporation 727 
 
 638. Proceedings on default 727 
 
 639. Trial may proceed in absence of defendant 727 
 
 PART XLVin. 
 
 Prefkrring Indictment. 
 
 640. Jurisdiction of courts 728 
 
 641. Sending bill before grand jury 7_>1) 
 
 642. Coroner's inquisition 73-j 
 
 Sec. 
 
 fi43. Oath in 
 
 644. Oath ma 
 
 645. Names o 
 
 646. Names o: 
 
 647. Fees for i 
 
 648. Bench wi 
 
 649. Removal ( 
 
 650. Indictmen 
 
 651. Change of 
 
 652. Bringing p 
 
 653. Right of ac 
 
 654. Copy of ind 
 
 655. Copy of dej 
 
 656. Pleas in abj 
 
 657. Plea-refuB 
 
 658. Special pro> 
 
 659. Right to ful 
 
 660. Presence of 
 
 661. Prosecutor's 
 
 662. Qualificatioi 
 
 663. Snvydemedi 
 
 664. Mixed juries 
 
 665. Mixed juries 
 
 666. Challenging 
 
 667. Calling the r 
 
 668. Challenges a 
 169. Right to cam 
 
 670. Peremptory c 
 
 671. Accused pers 
 «72. Ordering a ta 
 773. Jurors shall : 
 
 674. Jurors may h 
 
 675. Saving powe 
 
 676. Proceedings 
 
TABLE OF CONTENTS. 
 
 XXXV 
 
 Sec. Page. 
 
 f)43. Oath in open court not required 733 
 
 (j44. Oath may bo administered by foreman 733 
 
 ()45. Names of witnesses to be endorsed on bill of indictment 733 
 
 646. Names of witnesses to be submitted to grand jury 738 
 
 647. Fees for swearing witnesses 733 
 
 648. Bench warrant and certificate 736 
 
 PART XLIX. 
 
 Removal or Prisoners — Ghamoe of Venue. 
 
 649. Removal of prisoners 740 
 
 650. Indictment after removal 740 
 
 651. Change of venue 740 
 
 PART L. 
 
 Arraignment. 
 
 652. Bringing prisoner up for arraignment 751 
 
 653. Right of accused to inspect deposition and hear indictment. . . . 751 
 
 654. Copy of indictment 751 
 
 655. Copy of deposition 751 
 
 656. Pleas in abatement abolished 752 
 
 657. Plea— refusal to plead 752 
 
 658. Special provisions in the case of treason 755 
 
 PART LI. 
 
 Trial. 
 
 659. Right to full defence 756 
 
 660. Presence of the accused at trial 756 
 
 661. Prosecutor's right to sum up 757 
 
 662. Qualification of juror 771 
 
 G63. 3nry de medietate lingiuc aholiahed 771 
 
 664. Mixed juries in the province of Quebec 772 
 
 665. Mixed juries in Manitoba 774 
 
 066. Challenging the array 774 
 
 067. Calling the panel 776 
 
 008. Challenges and directions to stand by 777 
 
 009. Right to cause jurors to stand aside in case of libel 786 
 
 070. Peremptory challenges in case of mixed jury Too 
 
 071. Accused persons joining and severing in their challenges 786 
 
 072. Ordering a tales 786 
 
 773. Jurors shall not be allowed to separate 787 
 
 074. Jurors may have fire and refreshments >. 787 
 
 075. Saving power of court 787 
 
 676. Proceedings when previous offence charged 791 
 
 f 
 
 i 
 
XXXVl TABLE OF CONTENTS. 
 
 Sec. Page. 
 
 677. Attendance of witnesses 791 
 
 678. Compelling attendance of witnesses 792 
 
 679. Witnesses in Canada but beyond jurisdiction of court 792 
 
 680. Procuring attendance of prisoner as witness 792 
 
 681. Evidence of person dangerously ill maybe taken under com 
 
 mission 794 
 
 682. Presence of prisoner when such evidence is taken 794 
 
 683. Evidence may be taken out of Canada under commission .... 794 
 
 684. When evidence of one witness must be corroborated 795 
 
 685. Evidence not under oath of child in certain cases 795 
 
 686. Deposition of sick witness may be read in evidence 796 
 
 687. Depositions on preliminary inquiry may be read in evidence . . 796 
 
 688. Depositions may be used on trial for other offences 800 
 
 689. Evidence of statement by accused 800 
 
 690. Admission may be taken on trial 800 
 
 691. Certificate of trial at which perjury was committed 800 
 
 692. Evidence of coin being false or counterfeit 801 
 
 693. Evidence on proceedings for advertising counterfeit money. . . . 801 
 
 694. Proof of previous conviction 801 
 
 695. Proof of previous conviction of witness 802 
 
 696. Proof of attested instrument 805 
 
 697. Evidence at trial for child murder 805 
 
 698. Comparison of disputed writing with genuine 805 
 
 699. Party discrediting his own witness 806 
 
 700. Evidence of former written statements by witness 807 
 
 701. Proof of contradictory statements by witness 808 
 
 702. Evidence of place being a common gaming-house 809 
 
 703. Other evidence that place is a common gaming-house 809 
 
 704. Evidence in case of gaming in stocks, &c 809 
 
 705. Evidence in certain cases of libel 810 
 
 706. Evidence in case of polygamy, &o 810 
 
 707. Evidence of stealing ores or minerals 810 
 
 708. Evidence of stealing timber 810 
 
 709. Evidence in cases relating to public stores 810 
 
 710. Evidence in case of fraudulent marks on merchandise 811 
 
 711. Full offence charged--attempt proved 811 
 
 712. Attempt charged— full offence proved 817 
 
 713. Offence charged — part only proved 818 
 
 714. On indictment for murder conviction may be of concealment of 
 
 birth 826 
 
 715. Trial of joint receivers 827 
 
 716. Proceedings against receiverw 627 
 
 717. The same after previous conviction 828 
 
 718. Trial for coinage offences 828 
 
 719. Verdict in case of libel 828 
 
 720. Impounding documents 828 
 
 Sec. 
 
 721. Destro' 
 
 722. View.." 
 
 723. Variant 
 
 724. Amend 
 
 725. Form o 
 
 726. Form o 
 
 727. Jury re 
 
 728. Jury ue 
 
 729. Proceed 
 
 730. Woman 
 
 731. Jury de 
 
 732. Stay of 
 
 733. Motion i 
 
 734. Judgmei 
 
 735. Verdict) 
 
 736. Insanity 
 
 737. Insanity 
 
 738. Custody 
 
 739. Insanity 
 
 740. Custody ( 
 
 741. Insanity 
 
 742. Appeal in 
 
 743. Reserving 
 
 744. Appeal wl 
 
 745. Evidence 
 
 746. Powers of 
 
 747. Applicatic 
 
 748. New trial 
 
 749. Intermedi; 
 
 750. Appeal to 
 851. Appeal to 
 
 752. Further d£ 
 
 753. Question rt 
 764. Practice in 
 766. Comraissio 
 
 766. Court of ge 
 
 767. Time for pi 
 758. Rule to pie 
 769. Delay in pr 
 
TABLE OF CONTENTS. 
 
 XXXVll 
 
 Sec. Page. 
 
 721. Destroying counterfeit coin — ., 829 
 
 722. View 829 
 
 723. Variance and amendment 829 
 
 724. Amendment to be endorsed on the record 8.S0 
 
 725. Form of formal record in such case 830 
 
 726. Form of record of conviction or acquittal 845 
 
 727. Jury retiring to consider verdict 849 
 
 728. Jury unable to agree 849 
 
 729. Proceedings on Sunday 850 
 
 730. Woman sentenced to death while pref»nant .... 850 
 
 781. Jury de ventre inspiciendo abolished 850 
 
 732. Stay of proceedings 851 
 
 733. Motion in arrest of judgment on verdict of guilty 852 
 
 734. Judgment not to be arrested for formal defects 854 
 
 735. Verdict not to be impeached for certain omissions as to jurors. . 860 
 
 736. Insanity of accused at time of offence 860 
 
 7S7. Insanity of accused on arraignment or trial 861 
 
 738. Custody of persons formerly acquitted for insanity 861 
 
 739. Insanity of person to be discharged for want of prosecution .... 861 
 
 740. Custody of insane person 861 
 
 741. Insanity of person imprisoned 861 
 
 PART LII. 
 
 Appeal. 
 
 742. Appeal in criminal cases 864 
 
 743. Reserving questions of law 864 
 
 744. Appeal when no question is reserved S65 
 
 745. Evidence for court of appeal 865 
 
 746. Powers of court of appeal 865 
 
 747. Application for a new trial 872 
 
 748. New trial by order of Minister of Justice 873 
 
 749. Intermediate effects of appeal 878 
 
 750. Appeal to Supreme Court of Canada 873 
 
 851. Appeal to Privy Council aboliahed 874 
 
 PART LIII. 
 
 SrEciAii Protuioms. 
 
 752. Further detention of person accused >................ 874 
 
 753. Question raised at trial may be reserved for decision 874 
 
 754. Practice in high court of justice for Ontario 875 
 
 755. Commission of court of assize, etc. 875 
 
 756. Court of general sessions 876 
 
 757. Time for pleading to indictment in Ontario 87f 
 
 758. Rule to plead 876 
 
 769. Delay in prosecution 876 
 
 i 
 
XXXviii TABLE OF CONTENTS. 
 
 Sec. P*ge- 
 
 760. Calendar of criminal cases in Nova Scotia 876 
 
 761. Criminal sentence in Nova Scotia 876 
 
 PART LIV. 
 
 Speedy Trials of Indictable Offences. 
 
 762. Application 877 
 
 763. Definitions 877 
 
 764. Judge to be a court of record 877 
 
 765. Offences triable under this part 877 
 
 766. Duty of sheriff after committal of accused 878 
 
 767. Arraignment of accused before judge 878 
 
 768. Persons jointly accused 880 
 
 769. Election after refusal to be tried by judge 880 
 
 770. Continuance of proceedings before another judge 880 
 
 771. Election after committal under parts Iv. or Ivi 880 
 
 772. Trial of accused 880 
 
 773. Trial of offences other than those for which accused is com- 
 
 mitted 880 
 
 774. Powers of judge 881 
 
 775. Admission to bail 881 
 
 776. Bail in case of election of trial by jury 881 
 
 777. Adjournment 881 
 
 778. Powers of amendment 881 
 
 779. Recognizances to prosecute or give evidence to apply to pro- 
 
 ceedings under this part 881 
 
 780. Witnesses to attend throughout trial 881 
 
 781. Compelling attendance of witness 881 
 
 PART LV. 
 Sdmmary Trial of Indictable Offknces. 
 
 782. Definitions 884 
 
 783. Offences to be dealt with under this part 884 
 
 784. When magistrate shall have absolute jurisdiction 885 
 
 785. Summary trial in certain other cases 886 
 
 786. Proceedings on arraignment of accused 886 
 
 787. Punishment for certain offences under this part 886 
 
 788. Punishment for certain other offences 887 
 
 789. Proceedings for offences in respect to property worth over ten 
 
 dollars 887 
 
 790. Punishment on plea of guilty in such case 887 
 
 791. Magistrate may decide not to proceed summarily 887 
 
 792. Election of trial by jury to be stated on warrant of committal. 887 
 
 793. Full defence allowed 888 
 
 794. Proceedings to be in open court 888 
 
 Costs and P 
 
TABLE OF CONTENTS. 
 
 XXXI X 
 
 Sec. Page. 
 
 795. Procuring attendance of witnesses 838 
 
 796 Service of summons 888 
 
 797. Dismissal of charge 888 
 
 798. Effect of conviction 888 
 
 799. Certificate of dismissal a bar to further proceedings 888 
 
 800. Proceedings not to be void for defect in form 88S 
 
 801. Result of hearing to be filed in court of sessions 889 
 
 802. Evidence of conviction or dismissal 889 
 
 803. Kestitution of property 889 
 
 804. Remand for further investigation 839 
 
 805. Non-appearance of accused under recognizance 889 
 
 805. Application of fines , 889 
 
 807. Forms to be used 890 
 
 808. Certain provisions not applicable to this part 892 
 
 PART LVI. 
 
 Trial of Juvenile Offenders for Indictable Offences. 
 
 809. Definitions 892 
 
 810. Punishment for stealing 892 
 
 811. Procuring appearance of accused 898 
 
 812. Remand of accused 89.S 
 
 813. Accused to elect how he shall be tried 893 
 
 814. When accused shall not be tried summarily 893 
 
 815. .Summons to witness 894 
 
 810. Binding over witness 894 
 
 817. Warrant against witness 894 
 
 818. Service of summons 894 
 
 81U. Discharge of accused 894 
 
 820. Form of conviction 895 
 
 821. Further proceedings barred 89(5 
 
 822. Conviction and recognizance to be filed 890 
 
 82S. Quarterly returns 890 
 
 824. Restitution of property 896 
 
 82'>. Proceedings when penalty imposed on accused is not paid 89(> 
 
 82il. Costs 897 
 
 827. Application of lines 897 
 
 82s. Costs to be certified by justices 897 
 
 829. Application of this part 898 
 
 830. No imprisonment in reformatory under this part 898 
 
 831. Other proceedings against juvenile offenders not affected 898 
 
 PART LVII. 
 
 C'osrs AND PeCCNI.ARV COMPENSVI'ION — RESTITUTION OF PROPERTY. 
 
 832. Coats 898 
 
 833. Costs in case of libel 899 
 
 V 
 
xl TABLE OF CONTENTS. 
 
 Sec. I'aee. 
 
 834. Costs on conviction for assault 899 
 
 835. Taxation of costs 900 
 
 836. Compensation for loss of property 900 
 
 837. Compensation to bond fide purchaser of stolen property 901 
 
 838. Restitution of stolen property 901 
 
 PART LVIII. 
 
 ScMMABY Convictions. 
 
 839. Interpretation 906 
 
 840. Application 906 
 
 841. Time within which proceedings shall be commenced 906 
 
 842. Jurisdiction 907 
 
 843. Hearing before justices 907 
 
 844. Backing warrants 90S 
 
 845. Informations and complaints 908 
 
 846. Certain objections not to vitiate proceedings 908 
 
 847. Variance 908 
 
 848. Execution of warrant 909 
 
 849. Hearing to be in open court 909 
 
 850. Counsel for parties ; 909 
 
 851. Witnesses to be on oath 909 
 
 852. Evidence 909 
 
 853. Non-appearance of accused 909 
 
 854. Non-appearance of prosecutor 91Q 
 
 855. Proceedings when both parties appear 910 
 
 853. Arraignment of accused 910 
 
 857. Adjournment 910 
 
 858. Adjudication by justice 911 
 
 859. Form of conviction 911 
 
 860. Disposal of penalties on co»-viction.of joint offenders 917 
 
 861. First conviction in certain cases <(17 
 
 862. Certificate of dismissal <H 8 
 
 863. Disobedience to order of justice 919 
 
 864. Assaults 919 
 
 865. Dismissal of complaint for assault 919 
 
 866. Release from further proceedings 920 
 
 867. Costs on conviction or order 920 
 
 868. Costs on dismissal 920 
 
 869. Recovery of costs when penalty is adjudged 920 
 
 870. Recovery of costs in other cases 920 
 
 871. Fees 920 
 
 872. Provisions respecting convictions 921 
 
 873. Order as to collection of costs 929 
 
 874. Endorsement of warrant of distress 931 
 
 875. Distress not to issue in certain cases 932 
 
 Sec. 
 
 876. Remand c 
 
 877. Cumulatii 
 
 878. Recogniza 
 
 879. Appeal... 
 
 880. Condition 
 
 881. Proceedin 
 
 882. Appeal on 
 
 883. Judgment 
 
 884. Costs whe 
 
 885. Proceedinj 
 
 886. Conviction 
 
 887. Certiorari 1 
 
 888. Conviction 
 
 889. Conviction 
 
 890. Irregularit 
 
 891. Protection 
 
 892. Condition 
 
 893. Imperial A 
 
 894. Judicial nc 
 
 895. Refusal to 
 
 896. Conviction 
 
 897. Order as t 
 
 898. Recovery 
 
 899. Abandonmi 
 
 900. Statement 
 
 901. Tender an< 
 
 902. Returns ret 
 
 903. Publication 
 
 904. Prosecution 
 
 905. Remedies s 
 
 906. Defective t 
 
 907. Certain def 
 
 908. Preserving 
 
 909. Resistance 
 
 910. Render of a 
 
 911. Bail after r< 
 
 912. Discharge o 
 
 913. Render in C( 
 Sureties not 
 Right of sur 
 Entry of tm 
 Officer to pr 
 
 default 
 
TABLE OF CONTENTS. 
 
 xli 
 
 Sec. Pap,e. 
 
 876. Remand of defendant when distress ia ordered 932 
 
 877. Cumulative punishments 932 
 
 878. Becognizanoes 932 
 
 879. Appeal 933 
 
 880. Conditions of appeal 934 
 
 881. Proceedings on appeal 937 
 
 882. Appeal on matters of form 937 
 
 883. Judgment to be upon the merits 937 
 
 884. Costs when appeal not prosecuted 938 
 
 885. Proceedings when appeal fails 938 
 
 886. Conviction not to be quashed for defects of form 938 
 
 887. Certiorari not to lie when appeal is taken 938 
 
 888. Conviction to be transmitted to appeal court 938 
 
 889. Conviction not to be held invalid for irregularity 938 
 
 890. Irregularities within the preceding section 939 
 
 891. Protection of justice whose conviction ia quashed 939 
 
 892. Condition of hearing motion to quash 939 
 
 893. Imperial Act superseded 940 
 
 894. Judicial notice of proclamation 940 
 
 895. Refusal to quash 940 
 
 896. Conviction not to be set aside in certain cases 940 
 
 897. Order as to costs 940 
 
 898. Recovery of costs 940 
 
 899. Abandonment of appeal 944 
 
 900. Statement of case by justices for review 944 
 
 901. Tender and payment 946 
 
 902. Returns respecting convictions and moneys received 946 
 
 903. Publication, &c. , of returns 947 
 
 904. Prosecutions for penalties under the preceding section 948 
 
 905. Remedies saved 948 
 
 906. Defective returns 948 
 
 907. Certain defects not to vitiate proceedinga 948 
 
 908. Preaerving order in court 949 
 
 909. Resistance to execution of process 949 
 
 PART LIX. 
 
 Recoonizanceb. 
 
 910. Render of accused by surety 950 
 
 911. Bail after render 950 
 
 912. Discharge of recognizance 950 
 
 913. Render in court 9r0 
 
 914. Sureties not discharged by arraignment or conviction 950 
 
 915. Right of surety to render not affected 951 
 
 916. Entry of tines, etc., on record and recovery thereof 951 
 
 917. Officer to prepare lists of persons under recognizance making 
 
 default 953 
 
 Mr 
 
xlii TABLE OF COXTENTS. 
 
 Sec. Page. 
 
 918. Proceeding on forfeited recognizance not to be taken except on 
 
 order of judge, etc 953 
 
 919. Recognizance need not be estreated in certain cases 953 
 
 920. Rale of lands by sheriff under estreated recognizance 954 
 
 921. Discharge from custody on giving security 954 
 
 922. Discharge of forfeited recognizance 954 
 
 923. Return of writ by sheriff 954 
 
 924. Roll and return to be transmitted to Minister of Finance 955 
 
 925. Appropriation of moneys collected by sheriff 955 
 
 926. Quebec i'55 
 
 PART LX. 
 Fines and Forfeitures. 
 
 927. Appropriation of fines, etc 958 
 
 928. Application of fines, etc., by Order in Council 958 
 
 929. Recovery of penalty or forfeiture 958 
 
 930. Limitation of action 958 
 
 Sec. 
 
 946. Certificate 
 
 prise 
 
 947. Omissions 
 
 948. Other proc 
 
 949. Rules and 
 
 950. Offences nc 
 
 951. Imprisonm 
 
 952. Punishmen 
 
 953. Imprisonme 
 
 954. Cumulative 
 
 955. Imprisonmi 
 
 956. Imprisonme 
 
 TITLE VIII. 
 
 PROCEEDINGS AFTER CONVICTION. 
 PART LXL 
 
 Punishments Generally. 
 
 931. Punishment after conviction only 959 
 
 932. Degrees in punishment 959 
 
 933. Liability under different provisions 959 
 
 934. Fine imposed shall be in discretion of court 9(10 
 
 957. Sentence of] 
 
 Sdri 
 
 958. Persons cony 
 
 959. Recognizance 
 
 960. Proceedings f 
 
 PART LXIL 
 
 Capital Pcnishme.vt. 
 
 935. Punishment to be the same on conviction by verdict or by con- 
 fession 9o0 
 
 9S6. Form of sentence of death IltiO 
 
 937. Sentence of death to be reported to Secretary of State '(til 
 
 938. Prisoner under sentence of death to be confined apart 961 
 
 939. Place of execution , 961 
 
 940. Persons who shail be present at execution 9"il 
 
 941. Persons who may be present at e.xecution 961 
 
 942. Certificate of death 961 
 
 943. When deputies may act 9(12 
 
 944. Inquest to be held ;i63 
 
 945. Place of burial idlS 
 
 961. Consequences 
 
 i»6•-^ Outlawry... 
 
 963. Solitary confir 
 
 964. Deodand . . . 
 
 965. Attainder... 
 
 966. Pardon by the 
 
 967. Commutation c 
 
TABLE OF CONTENTS. xliii 
 
 Sec. Page. 
 
 946. Certificate to be sent to Secretary of State and exhibited at 
 
 prison 963 
 
 947. Omissions not to invalidate execution 963 
 
 948. Other proceedings in executions not affected 963 
 
 949. Rules and regulations as to execution 963 
 
 PART LXIII. 
 
 Imprisonment. 
 
 950. Offences not capital how puuished 964 
 
 951. Imprisonment in cases not specially provided for 964 
 
 952. Punishment for offence committed after previous conviction 965 
 
 953. Imprisonment may be for shorter time than that prescribed .. . . 966 
 
 954. Cumulative punishments 966 
 
 955. Imprisonment in penitentiary, &c •. 966 
 
 956. Imprisonment in reformatories 967 
 
 PART LXIV. 
 
 Whipping. 
 
 957. Sentence of punishment by whipping 968 
 
 PART LXV. 
 Sureties for Keeping the Pkacg, and Fines. 
 
 958. Persons convicted may be fined and bound over to keep the peace 968 
 
 959. Recognizance to keep the peace 969 
 
 960. Proceedings for not finding sureties to keep the peace 972 
 
 PART LXVI. 
 
 Disabilities. 
 
 901. Consequences of conviction of public official 973 
 
 PART LXVII. 
 
 PCNISHMENTS AliOLISHEU. 
 
 96i. Outlawry 974 
 
 963. Solitary confinement — pillory 974 
 
 904. Deodand 974 
 
 065. Attainder 975 
 
 PART LXVIII. 
 
 Pardons. 
 
 yiiO. Pardon by the Crown 97() 
 
 "J07. Commutation of sentence 976 
 
 ^1 
 
 I-' 
 
xliv TABLE OF CONTENTS. 
 
 Sec. I'age. 
 
 968. Undergoing eentence equivalent to a pardon 976 
 
 969. Satisfying jp^gment 977 
 
 970. Royal prerogative ♦ 977 
 
 971. Conditional release of first offenders in certain cases 977 
 
 972. Conditions of release 977 
 
 973. Proceeding on default of recognizance 978 
 
 974. Interpretation 97* 
 
 TITLE rX. 
 
 ACTIONS AGAINST PERSONS ADMINISTERING THE 
 CRIMINAL LAW. 
 
 975. Time and place of action 979 
 
 976. Notice of action 979 
 
 977. Defence 979 
 
 978. Tender or payment into court 979 
 
 979. Costs 979 
 
 980. Other remedies saved 979 
 
 TITLE X. 
 REPEAL, ETC. 
 
 981. Statutes repealed , 960 
 
 982. Forms in Schedule one, to be valid 980 
 
 983. Application of Act to N. W. T. and Keewatin 981 
 
 Schedule 1.— Forms 988 
 
 Schedule 2.— Statutes repealed 983 
 
 Appendix. — Acts and parts of Acts which are not affected by this 
 
 Act 986 
 
 TA 
 
 Abbott, R. v., 
 Abrahams, — . 
 Abrahams v. R. 
 Ackroj-d, R. v., 
 Adams,' — 
 
 Adiinison, — 
 
 Adey, • _ 
 
 Ady, • - 
 
 Airey, _ 
 
 Alison, — 
 
 Allday, — 
 
 Allen, — 
 
 V. Wright 
 
 Allison, In re 
 
 II ^" '•' 
 Amerv. R. . 
 Amier, — 
 Anderson v. R. 
 
 Andrews, R. v., 
 
 V. The Pe( 
 
 Anon 
 
 ApoUon, The 
 Appleby V, Franklin 
 Archer,. R. v., 
 
 Ardley, — 
 Aris, — 
 
 Amiellmi, e.c part,\ 
 Armstrong, R. v., 
 Arnold, _ 
 
'■•1 f; 
 
 TABLE OF CASES CITEP. 
 
 •| 
 
 A. 
 
 • 
 
 
 PAGE. 
 
 Abbott, R. v., 
 
 2 Cox, 430 . . . . 
 
 . 406 
 
 Abrahams, — . 
 
 24 L. C. J. 325 . 
 
 . C94 
 
 Abrahams v. R. 
 
 6S. C. R. 10 
 
 613, 732 
 
 Ackrojtl, R. v., . 
 
 IC. &K. 158 
 
 . 699 
 
 Adaiiis," — , . . 
 
 16 Cox, 544 ; 22 Q. B. D. Cfi 
 
 122, 304 
 
 • 
 
 R. &R. 225 
 
 . 312 
 
 . 
 
 IF. &F. 86 
 
 . 352 
 
 . 
 
 1 Den. 38 . . 398,55 
 
 >4, 719. 820 
 
 
 
 Car. & M. 299 .. . 
 
 . 960 
 
 Adamson, — . . . 
 
 2 Moo. 2S6 ... 
 
 408, 409 
 
 Adey, • — . . • 
 
 1 Den. 571 
 
 . 361 
 
 Ady, • - . . 
 
 7C.&P.140 
 
 . 408 
 
 Airey, • — . • 
 
 2 East, 30 ... 
 
 . 400 
 
 Alison, — 
 
 8 C. & P. 418 .. . 
 
 33, 226 
 
 Aliday, — 
 
 8 C. & P. 136 
 
 . 527 
 
 Allen, — 
 
 1 Den. 364 ... 
 
 8 
 
 
 
 7 C. & P. 153 .. . 
 
 12, 194 
 
 
 
 12 Cox, 193 ... 
 
 . 283 
 
 . .. 
 
 1 B. & S. 850 
 
 . 851 
 
 V. Wright 
 
 9 C. & P. 522 
 
 . 626 
 
 Allison, hi re 
 
 10 Ex. 561 
 
 . 981 
 
 R. v., . 
 
 R. & R. 109 ... 
 
 . 282 
 
 
 10 Cox, 559 
 
 . 613 
 
 Amer v. R. . 
 
 2 S. C. R. 592 . 
 
 . 874 
 
 Amier, — 
 
 6 C. & P. 344 
 
 . 476 
 
 Anderson v. R. 
 
 2 M. & R. 469 . 
 
 . 519 
 
 ^„__ 
 
 11 Cox, 198 
 
 . 609 
 
 Andrews, R. v., . 
 
 Car. &M. 121 .. 
 
 . 477 
 
 
 12 O. R. 184 .. . 
 
 . 870 
 
 V. The Peoiile 
 
 117 111. 195 
 
 . 733 
 
 Anon — 
 
 1 B. & Ad. 382 . 
 
 . 266 
 
 ^^ 
 
 1 Cox, 250 ... 
 
 . 530, 553 
 
 — 
 
 1 Russ. 85 ... 
 
 . 817 
 
 — 
 
 2 Chit. R.^p. 422 
 
 . 529 
 
 ApoUon, The 
 
 9 Wheat. 360 
 
 . 612 
 
 Appleby v. Franklin 
 
 17 Q. B. D. 93 . 
 
 . 602 
 
 Archer,. R. v., 
 
 2 Moo. 283 213, 
 
 447, 820, 823 
 
 
 Dears. 449 
 
 . 408 
 
 Ardley, — 
 
 12 Cox, 23 ... 
 
 . 411 
 
 Aris, — 
 
 6C.&P.348 
 
 . 561 
 
 Armellini, ex parte. 
 
 14 R. L. 311 . . 
 
 . %7 
 
 Armstrc^ng, R. v., 
 
 13 Cox, 184 
 
 . 609 
 
 Arnold, — 
 
 1 Russ. 9 . . . . 
 
 130 
 
 1 i 
 
xlvi 
 
 TABLE OF CASES CITED. 
 
 Arnoldi, R. v., 
 Arscott, — 
 
 V. Lillej-, 
 
 Ashley v. Dundas 
 Ashwell, R. v., 
 Aapinall, — 
 Asplin, 
 Asterley, — 
 Astley, — 
 Aston, 
 
 Athea, — 
 Atkin, — 
 Atty.-Gen. v. Ueiiiibieii 
 At wood,, R. V. 
 Audley (Lord), R. v., 
 Austin, — 
 
 and King's Cases 
 
 Avery, R. v., 
 
 Ayes, — 
 
 Aylett, — 
 Ayley, — 
 Azzopardi, — 
 
 Baby, R. v.. 
 
 Back V. Holmes, 
 
 Badcock, R. v., 
 
 Bail, 
 
 Bailey, — 
 
 Bain, 
 
 Baker, 
 
 Baldwin, 
 Ball, 
 
 Balls, 
 
 23 O. R. 201 
 •J O. R. oil 
 
 11 O. R. 153 
 
 5 O. S. (Ont.) 749 
 
 16 Cox, 1 ; 1(5 Q. B. D. VM 
 
 13 Cox, 231, o()3 
 
 12 Cox, :m 
 7 C. & P. 1!)1 
 2 East P. C. 72!) 
 
 2 Russ. 841 
 
 I Moo. 32!) 
 18 L. C. J. 213 
 !) L. C. J. 117 
 20 O. R. 674 
 
 3 St. Tr. 402 
 
 II Q. L. R. -r, 
 1 C. & K. G21 
 7 C. & P. 7i)() 
 Dears. 612 
 2 East P. C. 602 
 Bell, 1.50 . 
 
 5 C. & P. 596 
 R. & R. 166 
 
 6 A. & E. 247 
 15 Cox, 328 
 2 Moo. 288 
 
 B. 
 
 12 U. C. Q. B. 3 Ui 
 
 16 Cox, 263 
 
 R. & R. 249 
 
 7 O. R. 228 
 
 12 Cox, 56 
 
 12 Cox, 129 
 
 4 Cox, 392 
 
 1 Moo. 23 
 
 Dears. 244 
 
 6 Cox, 29 
 
 R. & R. 341 
 
 Ramsay App. Cas. 191 
 
 L & C. 129 
 
 23 L. C. J. 327 . 
 
 1 C. & K. 254 
 
 1 Leach, 29it 
 
 R. & R. 24] 
 
 Car. & M. 1! t'.) . 
 
 8 C. & P. 74.-. 
 
 R. & R. 132 
 
 12 Cox, 96 
 
 PAGE. 
 
 . 81 
 . 141 
 141 
 . 619 
 334 
 . 597 
 .501, 515, 527, 530 
 , 408 
 437, 441 
 . 505 
 . 461 
 . 903 
 . 956 
 . 556 
 269, 692 
 . 582 
 . 615 
 . 692 
 . 798 
 . 394 
 . 316 
 . 515 
 . 185 
 . 849 
 . 281 
 . 611 
 
 . 678 
 . 53 
 32 
 . 518 
 . 363 
 . 396 
 . 430 
 . 461 
 , 488 
 . 844 
 4G4, 467 
 97, 981 
 479, 817 
 . 870 
 . 219 
 . 436 
 . 351 
 . 401 
 
 . sot) 
 
 . 871 
 361, 367 
 
 345, 360, 
 
 Bamfield, R. v., 
 Bank Prosecutic 
 Banks, R. v., 
 Bannen, — 
 Barber, R, v., 
 Barkatead's Cast- 
 Barnard, R. v., 
 Barnes, — 
 
 Barnes v. White, 
 Barnett, R. v., 
 Barratt, — 
 Barret, — 
 Barrett, — 
 
 Barry, — 
 
 Bartlett, — 
 Barwell v. Winter 
 Basset, R. v., 
 Bassett, — 
 Bate, — 
 
 Bates, — 
 
 Bathgate, — 
 Batstone, — 
 Batty, — 
 
 Bauld, — 
 Baumer v. The Sta 
 Baxter, R. v., 
 Baynes v. Brew.^tci 
 Beacall, R. v., , 
 Beaney, — 
 Beard, 
 
 Beard more, — 
 Beatty v. Gillbanks, 
 Beckett v. Dutton, 
 Beckwith v. Philby, 
 Bedere, R. v., 
 Bedingfield, R. \ ., 
 Beechani, — 
 Beere, — 
 
 Beetoii, — 
 
 Bell, - 
 
 Bellencoutre, cxpurh 
 Belstead, R. v., 
 Belyea, — 
 Benfield, — 
 Benge, 
 
 H 
 
TABLE OF CASKS CITED. 
 
 xlvii 
 
 
 
 PAGH. 
 
 Bainfield, R. v., . 
 
 1 Moo. 416 . . . . 
 
 . 519 
 
 Bank Prosecutions, 
 
 R. & R. 37S 
 
 . 508 
 
 Banks, R. v., 
 
 12 Cox, 393 
 
 . 225 
 
 Bannen, — 
 
 2 Moo. 309 . . . . 
 
 31, 547 
 
 Barber, R. v., 
 
 1 C. & K. 4i'2 . 
 
 . 38 
 
 Barkatead's Ca.-i'-, . 
 
 Kel. 1(5 ... . 
 
 . 780 
 
 Barnard, R. v., 
 
 7C. &P. 7.S4 
 
 . 402 
 
 Bames, — 
 
 12 Jur. N. S. 549 
 
 . 313 
 
 — 
 
 2 Den. 59 
 
 . 402 
 
 — 
 
 L. R. 1 C. C. R. 45 . 
 
 . 841 
 
 Barnes v. White, . 
 
 1 C. B. 192 . . . . 
 
 . 981 
 
 Barnett, R. v.. 
 
 17 O. R. G49 . . . . 
 
 342, 613 
 
 Barratt, — 
 
 12 Cox, 498 . . . . 
 
 270, 817 
 
 Barret, — 
 
 ISalk. 383 
 
 . 615 
 
 Barrett, — 
 
 L. & C. 263 
 
 129, 135 
 
 — 
 
 15 Cox, 658 ... 
 
 . 295 
 
 Barry, — 
 
 4 F. & F. 3«9 
 
 . 693 
 
 Bartlett, — 
 
 2 M. & Rob. 362 
 
 . 516 
 
 Barsvell v. Winterstokc, 
 
 14 Q. B. 704 ., . 
 
 . 573 
 
 Basset, R, v., 
 
 Greaves' Cons, Acts, 7- 
 
 . 267 
 
 Bassett, — 
 
 10 Ont. P. R. 38(5 
 
 . 142 
 
 Bate, — 
 
 11 Cox, 686 ... 
 
 . 232 
 
 Bates, — 
 
 3 Cox. 201 ... 
 
 . 408 
 
 Bathgate, — 
 
 13 L. C. J. 299 . 
 
 . 708 
 
 Batstone, — 
 
 10 Cox, 20 ... 
 
 . 563 
 
 Batty, — 
 
 2 Moo. 257 ... 
 
 . 366 
 
 Bauld, — 
 
 13 Cox, 282 
 
 . 598 
 
 Tlainuer v. The Stati-, . 
 
 49 Ind. 544 
 
 . 120 
 
 Baxter, R. v.. 
 
 5 T. R. 83 
 
 348, 677 
 
 Baynes v. Brewster, 
 
 2 U. C. Q. B. 375 
 
 21, 6-22 
 
 B°acall, R. v., . 
 
 1 Moo. 15 ... 3 
 
 GO, 361, 684 
 
 Beaney, — 
 
 R. & R. 416 .. . 
 
 . 373 
 
 Beard, 
 
 8 C. & P. 142 . 
 
 . 762 
 
 Beardmore, — 
 
 7 C. & P. 497 
 
 . 714 
 
 Beatty v. Gillbanks, 
 
 15 Cox, 138 . . 
 
 53, 55 
 
 Beckett v. Dutton, 
 
 7M. &W. 157 
 
 . 836 
 
 Beckwith v. Philby, 
 
 6 B. & C. 635 
 
 . 619 
 
 Bedere, R. v., 
 
 21 0. R. 189 
 
 . 274 
 
 Bedingtield, R. v., 
 
 14 Cox, 341 
 
 . 201 
 
 Beechani, 
 
 5 Cox, 181 ... 
 
 . 409 
 
 Beere, — 
 
 2 M. & Rob. 472 
 
 . 7.^9 
 
 lieeton, — 
 
 1 Den. 414 . . 
 
 . 347 
 
 Bell, - 
 
 8 Ir. R. C. L. 542 
 
 . 231 
 
 -- 
 
 12 Cox, 37 . . 
 
 . 732 
 
 Bellencoutre, cxpurtv, . 
 
 17 Cox, 253; (1891) 2 < >. 1'.. l-'2 
 
 . 344 
 
 Belstead, R. v., . , 
 
 R. & R. 411 . . 
 
 . 370 
 
 Belyea, — . . . 
 
 James (N.S.) •-•JO 
 
 . 708, 752 
 
 Bentield, — . , . 
 
 2Burr. 980, 9S1 . . . 2 
 
 65, 687, 694 
 
 Benge, 
 
 4F. &F. 504 
 
 . 195 
 
 \ 
 
 I I 
 
xlviii 
 
 TABLE OF CASES CITED. 
 
 
 
 PAOB. 
 
 Bennett, R. v., 
 
 Bell, 1 ... 
 
 12 
 
 
 J F. & F. 11(»5 . 
 
 . 253 
 
 
 R. & R. 28!» 
 
 467, 482 
 
 Bent, — 
 
 10 O. R. r)57 
 
 . .505 
 
 
 1 Den. 1.57 
 
 . 705, 981 
 
 Berens, — 
 
 4 F. & F. 842 . 
 
 . 7'JO, 761 
 
 Bergen v. The People, 
 
 17 111. 42(5 
 
 . 120 
 
 Beriau, R. v., 
 
 Ramsay's App. Cas. 185 
 
 . 798 
 
 Bernard, — 
 
 Warb. Lead. Cas. 45 . 
 
 73 
 
 
 1 F. & F. 240 . 
 
 . 225, 701 
 
 Berrinian, — 
 
 6 Co.x, 388 
 
 . 230 
 
 Berry, — 
 
 1 g. B. D. 447 . 
 
 . 130 
 
 
 Bell. 1(5 
 
 . 317 
 
 
 13 Co.x, 189 
 
 . 755, 863 
 
 Berthe, — 
 
 16 C. L. J. 2.-il . 
 
 . 562, 564 
 
 Bertrand, — 
 
 10 Co.x, 018 
 
 . 789 
 
 Beat, — 
 
 2 Moo. 124 
 
 . 104 
 
 Betts V. Amiatead, 
 
 16 Cox, 418; 20 Q. B. D. 771 
 
 . 295 
 
 Bice V. Jarvis, 
 
 49 J. P. 264 .. . 
 
 . 904 
 
 Biggs, R. v., 
 
 2 Man. L. R. 18 . 
 
 . 304 
 
 Bignold, — 
 
 4 D. & R. 70 
 
 . 765 
 
 Bingley, — 
 
 K. & R. 446 • . 
 
 32 
 
 — 
 
 5 C. & P. 602 • . 
 
 . 413 
 
 Binns, — 
 
 26 St. Tr. 595 • . 
 
 72 
 
 Bircli, — 
 
 1 Leach, 79 . . . 
 
 . 498 
 
 — 
 
 1 Den. 185 
 
 . 821 
 
 Birchall, — 
 
 4 F. & F. 1087 . . . . 
 
 . 193 
 
 Bird, — 
 
 17 Co.x, 387 ... 
 
 97 
 
 — 
 
 12 Cox, 257 
 
 . 325 
 
 — • 
 
 L' Den. 94 ... 7 
 
 18, 812, 820 
 
 — 
 
 2 Den, 88 . . . . 
 
 . 822 
 
 — 
 
 5 Cox, 11 . . . . 
 
 718, 864 
 
 V. Holbrook, 
 
 4 Bing. 628 . . . . 
 
 . 244 
 
 Birkett, R. v., 
 
 R. & R. 86 
 
 . 193 
 
 Birmingham, R. v.. 
 
 M'arb. Lead. Cas. 33 . . 
 
 . 727 
 
 Bishop, — 
 
 5 Q. B. D. 259 .... 
 
 . 295 
 
 Bissell, — 
 
 1 0. R. 514 .... 
 
 . 149 
 
 Bissonette, — 
 
 Ramsay's App. Cas. 190 
 
 . 152 
 
 — 
 
 2:JL.C. J. 249 . 
 
 . 709 
 
 Bitton, — 
 
 6C. &P. 92 ■. . . . 
 
 75i. 
 
 Bjornsen, — 
 
 10 Cox, 74 .... 
 
 . 610 
 
 Blackburn, — 
 
 11 Cox, 157 
 
 . 345 
 
 — 
 
 6 Cox, 33o •. . . . 
 
 . 697 
 
 Blackhani, — 
 
 2EastP. C. 711• 
 
 . 439 
 
 Blackson, — 
 
 8C. &P. 43 -. . . . 
 
 . 601 
 
 Blackstone, — 
 
 4 Man. L. R. 296 .. . 
 
 508, 532 
 
 Blakemore, — 
 
 2 Den. 410 . . 
 
 . 869 
 
 Bleau, — 
 
 7 R. L. 571 .... 
 
 . 564 
 
 Bloomfield, — 
 
 Car. & M. 537 . 
 
 . 408 
 
 oaler, v. R., . 
 Boardman, R. ^ 
 BotJen, _ 
 
 Bolland's case, . 
 Bond, R. v„ 
 
 V. Conmee,. 
 
 ■ V. Evans, . 
 
 Booth, R. v., 
 Bootyman, R. v,, 
 Borthwick, — 
 Borrett, — 
 
 BorroweH, . 
 
 Boucher, 
 
 Boulton, 
 
 Bourdeau, R, v. 
 Bourdon, _ 
 
 Bowden, — 
 
 Eowen, 
 
 B(jwennan, — 
 
 Bowers, _ 
 
 Bowman, _ 
 
 Bowray, 
 
 liowyer, _ 
 
 Tlox, _ 
 
 Boyce, __ 
 
 Brackenridge, — 
 
 Bradford, _, 
 
 Bradlaugh, -,- 
 
 Bradshaw, 
 
 lirain, 
 
 Bramley, 
 
 lirannon, 
 
 Brashier v. Jackson 
 Brawn, R. v., 
 l^ray, __ 
 
 Criu. Law— I 
 
TABLE OF CASES CITED. 
 
 xlix 
 
 oaler, v. R., . 
 Boardman, R. v., 
 Boclen, 
 
 Bolland's case, 
 Bond, R. v., 
 
 V. Conmee,- 
 
 V, Evans, • 
 
 Booth, R. v., 
 Bootyman, R. v,, 
 Borthwick, — 
 Borrett, — 
 Borrowes, — 
 Boucher, — 
 
 Boulton, 
 
 Bourdeau, R. v. 
 
 Bourdon, — 
 
 Bowden, — 
 
 Bowen, — 
 
 B(jwennan, 
 
 Bowers, 
 
 Bowman, 
 
 Bowray, 
 
 Bowyer, 
 
 Tlox, 
 
 Boyce, 
 
 Brackenridge, 
 
 Bradford, 
 
 Brad laugh, 
 
 Bradshaw, — 
 Brain, — 
 
 Bramley, — 
 
 Urannon, — 
 
 Krashier v. Jackuon 
 Urawn, R. v.. 
 Bray, — 
 
 Criu. Law — d 
 
 
 TAOE. 
 
 10 Cox, 488 ; 21 Q. B. D. 284, . 
 
 301, 613, 781 
 
 2 M. & R.ib. 147 
 
 . 500 
 
 1 C. & K. 31)5 . 
 
 . 820 
 
 1 Leach, 83 ... 
 
 . 4fl9 
 
 1 Don. 517 
 
 . 723 
 
 10 A. R. Ont. 398 . 
 
 . 948 
 
 KiCox, 4fil;21Q. B. D. 249 
 
 12 
 
 12 Cox, 231 ... 
 
 . 294 
 
 5 C. & P. 300 . 
 
 361, 680 
 
 1 East P. C. 350 . 
 
 38 
 
 6 C. & P. 124 . 
 
 . 366. 
 
 Shirley Lead. Gas. 140 
 
 . 764 
 
 4 C. & P. 562 
 
 . 224 
 
 10 R. L. 183 .. . 
 
 . 415 
 
 8 C. & P. 141 
 
 . 764 
 
 1 Den. iJ08 
 
 . 400 
 
 12 Cox, 87 ... 
 
 . 597 
 
 n C. & P. 537 
 
 . 68* 
 
 M. L. R. 7 ii. B. 176 . 
 
 . 86» 
 
 2 R. L. 713 ... 
 
 . 708. 
 
 2 Moo. 285 . . 
 
 . 385: 392 
 
 3 Cox, 4S3 
 
 . 408; 
 
 M. L. R. 7 Q, B. 408 
 
 . f)l» 
 
 1 Den. 22 .... 
 
 . 530, 67» 
 
 !« C. & P. 509 
 
 . 714 
 
 13 ii. B. 7JK) . . . 
 
 . 857 
 
 17 Cox, 151; (1«91)1Q R 112 
 
 . 344, 394 
 
 10 Cox, 2.')0 .... 
 
 . 361, 363 
 
 (! C. & P. 101, 337 . 
 
 . 724 
 
 10 .Tur. 211 
 
 . 248 
 
 4C. &P..559 ... 
 
 . 562. 
 
 R. & R. 300 . . . 
 
 , 516 
 
 1 Moo. 29 
 
 . 2.34 
 
 11 Cox, 90 . . 
 
 . 526. 
 
 Bell. 208 ... 
 
 . 247, 569 
 
 •2 C. & D. 41 . . . 
 
 . 541 
 
 15 Cox, 217 . . 7C 
 
 (, .304, 694, 696: 
 
 3 (l B. D. 607 . . 
 
 . 122 
 
 15 Cox, 156 
 
 . 731, 732 
 
 14C*.x, 68 
 
 . 854 
 
 38 U. C. Q. B. 564 
 
 . .582, 771 
 
 C. & P. 349 . . 
 
 . 174, 205 
 
 L. & C. 21 
 
 . 309 
 
 R. & R. 478 
 
 . 320 
 
 14 Cox, 394 ... 
 
 42. 601 
 
 OM. &\V. 549 ... 
 
 . 837, 838 
 
 1 C & K. 144 . . 
 
 . 282, 283 
 
 15 Cox, 197 ■ . . 
 
 . 23& 
 
 3 B. & S. 255 ; Co.x, 215 . 
 
 . 731 
 
 ? 
 
tabu; of cases cited. 
 
 
 
 
 PAGR. 
 
 firen, B. v., . 
 
 L. & C. 846 365 
 
 Brettel, — 
 
 Car. 4 M. 609 . 
 
 
 . 723 
 
 Brewer, — 
 
 6 C. & P. 363 . 
 
 
 . 56S 
 
 Brewster, — 
 
 8 U. 0. 0. P. 208 
 
 
 . 131 
 
 Brice, — 
 
 16 Q. L. R. 147 
 
 
 . 131, 786. 868 
 
 
 7 Man. L. R. 627 
 
 
 . 253, 274 
 
 ^ 
 
 . R. * R. 450 
 
 
 . 464, 468, 469 
 
 •w.— — • 
 
 2 B. & Aid. 606 
 
 
 . 738 
 
 Bridgman, — 
 
 Car. & M. 271 
 
 
 . 714 
 
 Brierley, — 
 
 . 14 0.R. 525 
 
 
 . 280, 281, 611 
 
 Briggs, — 
 
 1 Moo. 318 
 
 
 . 216, 234 
 
 
 Dears. & B. 98 
 
 
 . 283 
 
 
 . 2 M. & Rob. 199 
 
 
 . 766 
 
 Bnmilow, — 
 
 2 Moo. 122 
 
 
 8, 269, 823 
 
 Brisebois, — 
 
 . L-N S. C. R. 421 
 
 
 . 785, 836 
 
 BrisBon v. Lsfontaine, . 
 
 8 L. C. J. 173 . 
 
 
 27 
 
 Brookes, R. v.. 
 
 Car. & M. 543 . 
 
 
 . 836 
 
 Brooks, — 
 
 1 F. 4; F. 502 . 
 
 
 . 40i, 409 
 
 
 1 Den. 217 
 
 
 . 615 
 
 Brown, — 
 
 . 14 Cox, 144 
 
 
 . 36 
 
 — *-— '~~ • 
 
 16 Cox. 715 ; 24 Q. B. D. 357 . 42. 707, 
 
 
 814, 867, 8G8 
 
 
 Car. &M. 314 83 
 
 — , 
 
 16 Cox, 199 
 
 1 
 
 . 219 
 
 
 11 Cox, 517 
 
 
 . . .231 
 
 
 2 East P. C. 731 
 
 
 . 437 
 
 
 2 East P. C. 501 
 
 
 . 438 
 
 — — — • ( 
 
 2 East P. C. 487 
 
 
 . 465 
 
 — , , 
 
 2 F. & F. 559 . 
 
 
 . 506 
 
 — , , 
 
 3 F. & F. 821 . 
 
 
 .. 566 
 
 
 1 Deu. 291 
 
 
 . 7.')5 
 
 — , , 
 
 Warb. Lead. Cas. 236 
 
 
 . 766 
 
 — , , 
 
 10 Q. B. D. 381 
 
 
 . 822 
 
 V. Foot, . 
 
 17 Cox, 509 , 
 
 
 . 12 
 
 — V. Gugy, 
 
 14 L. C. R. 213 
 
 
 . 131 
 
 Brovnilow, R. v., 
 
 14 Cox, 216 
 
 
 . 344 
 
 Bruoe, — . , 
 
 10 L. C. R. 117 
 
 
 . 131 
 
 Brummit, — 
 
 L.&C. 9 . 
 
 
 . 869 
 
 Bnunby, — 
 
 3 C. & K. 315 
 
 
 . 382 
 
 Bryan, — 
 
 2 Russ. 664 
 
 
 . 398 
 
 — 
 
 Dears. & B. 265 
 
 
 . 407, 411 
 
 — 
 
 Warb. I^ead. Cas. 170 
 
 
 . 407 
 
 Brydges, em parte, 
 
 18L.C. J. 141 . 
 
 
 . 199, 745 
 
 Buchanan, R. v.. 
 
 8 Q. B. 883 
 
 
 . 9<k) 
 
 Buckley, — 
 
 13 Cox, 293 
 
 
 . 799,800 
 
 Bucka»8ter, — , 
 
 aOQ. B.D. 182 
 
 
 . 812, 390 
 
 Budd ▼. Lucas, . 
 
 17 Cox, 248 . . 
 
 
 . 684 
 
 Ball, R. v., . . , 
 
 a F. ft F. 201 
 
 
 . 1»7 
 
 '' • » • 
 
 « C. ft P. 22 
 
 
 . 203 
 
 Bull, 
 
 R. 
 
 BuUard, — 
 Bullock, — 
 
 Bulmer, — 
 
 Buncombe, — 
 
 Bunkall, — 
 
 Bunn, 
 
 Bunting, -_ 
 
 Burch, __ 
 
 Burgess, _ 
 
 Bui^pron, 
 
 Burke, 
 
 Bums, 
 
 Burridge, 
 Burroues, 
 Burrows, 
 
 Burt, 
 Burton, 
 
 Butcher, — 
 
 Butler V. Turley, 
 fi»tt, R. v., 
 Butteris, — 
 Butterwick, R, 
 Butterworth, ~ 
 
 V. 
 
 Button, R, V. 
 Byrne, _ 
 
 Cadman, R. v., 
 Callaghan v. The S 
 Callan, R, v., 
 Canienon, — 
 Caminad* v. Hultoi 
 
TABLir OF CASES CITED. 
 
 Bull, R. v., . 
 
 
 
 . 13 Cox, 608 
 
 — 
 
 
 
 12 Cox, 31 
 
 BuUard, — 
 
 
 
 12 Cox, 353 
 
 Bullock, — 
 
 
 
 11 Cox, 125 
 
 — 
 
 
 
 1 Moo. 324 (n) 
 
 — 
 
 
 
 Dears. 653 
 
 Buhner, — 
 
 
 
 L. & C. 476 
 
 — 
 
 
 
 6 L. N. 92 
 
 Buncombe, — 
 
 
 
 1 Cox, 183 
 
 Bunkall, — 
 
 
 
 9 Cox, 419 : L. & 
 
 Bunn, — 
 
 
 
 12 Cox, 316 
 
 Bunting, — 
 
 
 
 7 0. R. 524 
 
 Burch, — 
 
 
 
 4 F. 4 F. 407 
 
 BurgeBS, — 
 
 
 
 16 Q. B. D. 141 
 
 
 
 
 . L. A; C. 258 
 
 
 
 
 L. & C. 293 
 
 Burgon, — 
 
 
 
 Dears. & B. 11 
 
 Burke, — 
 
 
 
 10 Cox, 619 
 
 Bums, — 
 
 
 
 16 Cox, 355 
 
 — 
 
 
 
 16 Cox, 195 
 
 Burridge, — 
 
 
 
 2 M. ft Rob. 296 
 
 Burrowes, — 
 
 
 
 1 Moa 274 
 
 Burrows, — 
 
 
 
 11 Cox, 258 
 
 — 
 
 
 
 2 M. & Rob. 124 
 
 Burt, — 
 
 
 
 8 Cox, 284 . 
 
 Burton, — 
 
 
 
 13 Cox, 71 
 
 — 
 
 
 
 6 Cox, 293 
 
 — 
 
 
 
 1 Moo. 237 
 
 — 
 
 
 
 16 Cox, 62 
 
 Butcher, — 
 
 
 
 Boll, 6 
 
 — 
 
 
 
 2 M. & Rob. 228 
 
 Butler V. Turley, 
 
 
 
 . 2C. &P. 585 
 
 Butt, R. v., 
 
 
 
 15 Cox, 664 
 
 Butteris, — 
 
 
 
 6 C. & P. 147 
 
 Butterwick, R. v.. 
 
 
 2 M. & Rob. 19G 
 
 Butterworth, — 
 
 
 12 Cox, 132 
 
 — 
 
 
 R. & R. 520 
 
 Button, R. v., 
 
 
 11 Q. B. 929 
 
 — 
 
 
 8 C. &. P. 660 
 
 Byrne, — 
 
 
 
 6 Cox, 475 
 
 C. 371 
 
 li 
 
 PAGE. 
 
 . 413 
 
 . 797 
 . 797 
 . 676 
 672, 819 
 . 857 
 . 409 
 718,871 
 
 U 
 . 316 
 . 697 
 
 77 
 . 693 
 . 106 
 213,227 
 . 345 
 . 407 
 . 756 
 
 73 
 . 766 
 . 223 
 . 462 
 . 404 
 . 764 
 . 764 
 
 29 
 . 3.*^ 
 . 3«5 
 . 399 
 
 30 
 . 762 
 . 5 6 
 . 420 
 . 351 
 . 617 
 . 345 
 . 473 
 . 818 
 . 823 
 . 643 
 
 '%■■ I 
 
 
 c. 
 
 Cadman, R. v 
 
 1 Moo. 114 
 
 . 214, 216 
 
 Callaghan v. The Society, . 
 
 16 Cox, 101 
 
 . 587 
 
 Callan, R. v., , 
 
 R. & R. 157 
 
 . 466 
 
 Cameron, — . . . 
 
 23 N. S. Rep. 160 
 
 . 414 
 
 Caminada v. Hulton, . 
 
 17 Cox, 307 
 
 . 134 
 
lii 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 PAGE. 
 
 Camfield, R. v., . 
 
 1 Moo. 42 684 
 
 Campbell, — 
 
 11 Cox, 323 
 
 
 
 . 169, 189 
 
 — 
 
 1 Moo. 179 
 
 
 
 . 309 
 
 — 
 
 2 Leach, 564 
 
 
 
 . 386 
 
 — 
 
 11 Q. B. 799 
 
 
 
 . 692 
 
 Uamplin, — 
 
 1 Den. 89 
 
 
 
 . 270,964 
 
 Canwell, — 
 
 11 Cox, .363 
 
 
 
 . 238 
 
 Carbray, — 
 
 14 Q. L. R. 223 . 
 
 
 
 . 616 
 
 — 
 
 13 Q. L. R 100 
 
 
 
 . 736, 798 
 
 Carden, — 
 
 14Cox, 359;5Q. B. ] 
 
 0.1 
 
 
 . 303 
 
 Cardo, — 
 
 17 0. R. 11 
 
 
 
 . 270 
 
 Carey, — 
 
 14 Cox, 214 
 
 
 
 19, 177 
 
 Carlile. — 
 
 3B.&Ad. 161 . 
 
 
 
 . 960 
 
 Carney, — 
 
 1 Moo. 351 
 
 
 
 . 620 
 
 Carpenter, — 
 
 11 Cox, 600 
 
 
 
 . 406 
 
 Carr, — 
 
 R. & R. 377 
 
 
 
 . 219 
 
 — 
 
 R. & R. 198 
 
 
 
 . 361,366 
 
 — 
 
 26 L. C. J. 61 
 
 f 
 
 r06, 8 
 
 53, 858, 867 
 
 — 
 
 15 Cox, 129 
 
 
 
 . 609 
 
 Carrell, — 
 
 1 Leach 237 
 
 
 
 . 461, 462 
 
 Carroll, — 
 
 7 C. & P. 145 . 
 
 
 
 12 
 
 — 
 
 1 Moo. 89 . 
 
 
 
 . 386 
 
 Carter, — 
 
 1 C. & K. 173 
 
 
 
 . 477 
 
 — 
 
 15 Cox. 448 
 
 
 
 . 828 
 
 Cartwright v. Green, 
 
 2 Leach, 952 
 
 
 
 . 331 
 
 Casbolt, R. V. . 
 
 11 Cox, 385 
 
 
 
 . 616 
 
 Case, — 
 
 1 Den. 580 
 
 
 
 253, 262 
 
 Casey, — 
 
 8 Ir. Rep. C. L. 408 
 
 
 
 58 
 
 — 
 
 13 Cox, 614 
 
 
 
 303, 742 
 
 Caspar, — 
 
 2 Moo. 101 
 
 
 
 . 348 
 
 Caswell, — 
 
 33U. C. Q. B. 303 
 
 
 
 . 381 
 
 Catherall, — 
 
 13 Cox, 109 
 
 
 
 275, 811 
 
 Cavtley v. Loundes, 
 
 34 W. R. 139 
 
 
 
 . 904 
 
 Caudwell, R. v., . 
 
 2 Den. 372 (n) . 
 
 
 
 . 872 
 
 Cavendish, — 
 
 2 Cox, 176 
 
 
 
 . 742 
 
 Chadwick, — 
 
 6C. &P. 181 
 
 
 
 . 409 
 
 — 
 
 2 M. & Rob. 545 
 
 
 
 . 491 
 
 Chalking, — 
 
 R. & R. 334 
 
 
 
 . 481 
 
 Chalkley, — 
 
 R. &R. 258 
 
 
 
 . 675 
 
 Chambers, — 
 
 12 Cox, 109 
 
 
 
 . 621 
 
 Chammaillard, R. v., . 
 
 18 L. C. .J. 149 . 
 
 
 
 . 772 
 
 Champneys, — 
 
 2 M. & Rob. 26 . 
 
 
 
 . 724 
 
 Chandler, R. v. . 
 
 Dears, 453 
 
 
 
 . 149 
 
 Channell, — 
 
 2 East P. C. 818 
 
 
 
 . 431 
 
 Chapman, — 
 
 12 Cox, i . . . 
 
 
 
 186, 622 
 
 
 
 1 C. & K. 119 
 
 
 
 . 367 
 
 — — — 
 
 8 C. & P. 558 . 
 
 
 
 . 714 
 
 — 
 
 1 Den. 432 
 
 
 
 . 817 
 
 Chappie, — 
 
 9C. &P. 355 . 
 
 
 
 41 
 
 Chappie, R. y 
 
 Charest — 
 
 Charles, _ 
 
 Charlesworth, 
 
 Charlewood, 
 
 Charnock's Cas 
 
 Charter v. Grei 
 
 Chasson, R, y, 
 
 Chatburn, 
 
 Cheeseman, R. 
 
 Cherry, 
 
 Chetwjrnd, 
 
 Child, _ 
 
 Chiser'a Case 
 Chisholm, R. v., 
 
 Chisholm v. Doul 
 Chouinard, R. v., 
 
 Christopher, — 
 Chute, _ 
 
 Clarence, 
 
 Clark, 
 
 Clarke, 
 
 Clarkson, 
 Clay, 
 
 Claybum, 
 
 Clayton, 
 
 Clement, 
 
 Clements, 
 
 Clifford, 
 
 CIoss, 
 
 Cluderay, 
 Cookcroft, 
 CtKld V. Cabe, 
 
 Coggins, R. v., 
 
 Cohen, _ 
 
 Coll., _ 
 
 Coles, _ 
 
 Coley, __ 
 
 CoIIicott, — 
 
 Collins, — 
 
TABLE OF CASES CITED. 
 
 liii 
 
 
 
 PAOE. 
 
 Chappie, R. v., . 
 
 17 Cox, 455 
 
 . 701 
 
 Charest — 
 
 9 L. N. 114 . . 
 
 . 357 
 
 Charles, — 
 
 17 Cox, 499 
 
 32, 64 
 
 Charlesworth, R. v., . 
 
 1 B. & S. 460 ; 2 F. & F. 3S 
 
 K . 721, 7S8 
 
 Charlewood, — 
 
 1 Leach, 409 
 
 . 374 
 
 Charnock's Case, 
 
 SSalk. 80 . 
 
 . 781 
 
 Charter v. Greame, 
 
 13 Q. B. 216 
 
 . 585, 981 
 
 Chasson, R. v. . . . 
 
 3Pugs(N. B.)546 . . 
 
 . 201 
 
 Chatburn, — 
 
 1 Moo. 403 . . 
 
 . 181 
 
 Cheeseman, R. v., 
 
 L & C. 140 
 
 43, 357, 814 
 
 — . — — 
 
 7 C. & P. 454 
 
 . 191 
 
 Cherry, — 
 
 2 East P. C. 556 
 
 . 322 
 
 Chetwjoid, — 
 
 23 N. S. Rep. 332 
 
 . 795 
 
 Child, — 
 
 4 C. & P. 442 
 
 56 
 
 — . • . 
 
 L. R. IC. C. R. 307; 11 C 
 
 !ox, 64 557, 563 
 
 Chiser's Case 
 
 T. Raym. 276 
 
 . 332 
 
 Chisholm, R. v., Jacob's C 
 
 Jase, 7 Man. L. R., 613 
 
 . 275 
 
 — 
 
 R. &R. 297 
 
 . 515 
 
 Chisholm v. Doulton, . 
 
 16 Cox, 675 ; 22 Q. B. D. "i 
 
 '86 . .12 
 
 Chouinard, R. v., 
 
 11 Q. L. R. 220 . 
 
 . 343 
 
 Christopher, — 
 
 ]i.V 
 
 . 329 
 
 Chute, — 
 
 4 r.C. Q. B. 555 . 
 
 . 253 
 
 Clarence, — 
 
 .ovJox, 511;22QB. D. 2J 
 
 \ . 207, 233, 239, 
 252, 253 
 
 — , 
 
 16 Cox, 526 
 
 . 823 
 
 Clark, — 
 
 R. & R. 181 
 
 . 394 
 
 — 
 
 Dears. 198 
 
 . 699 
 
 — 
 
 10 Cox, 338 
 
 . 867 
 
 Clarke, — 
 
 1 Moo. 376 (n) . . 
 
 . 317 
 
 — 
 
 1 C. & K. 421 . 
 
 . 474, 436 
 
 Clarkson, — 
 
 17 Cox, 483 
 
 53, 55 
 
 Clay, - 
 
 R. &R. 387 
 
 . 341 
 
 Claybum, — 
 
 R. & R 360 
 
 . 431 
 
 Clayton, — 
 
 IC. &K. 128 
 
 38, 564 
 
 Clement, — 
 
 26 U. C. Q. B. 297 . 
 
 . 677 
 
 Clements, — 
 
 2 Den. 251 
 
 . 797 
 
 Clifford, — 
 
 2 C. &. K. 202 . 
 
 . 30 
 
 CIORS, — 
 
 Dears. & B. 460 . 
 
 431, 502 
 
 Cluderay, — 
 
 1 Den. 514 
 
 . 814 
 
 Cookcroft, — 
 
 11 Cox, 410 
 
 . 271 
 
 Cotld V. Cabe, 
 
 1 Ex. D. 352 
 
 19 
 
 
 13 Cox, 202 
 
 . 257, 622 
 
 CoKKJns, R. v., . 
 
 12 Cox, 517 
 
 . 352 
 
 Cohen, — 
 
 8 Cox, 41 
 
 . 816 
 
 Cole, — 
 
 2 Leach. 1095 
 
 .746 
 
 Coles, — 
 
 16 Cox, 165 
 
 95, 801 
 
 Coley, — 
 
 16Cox, 22ti 
 
 . 364 
 
 CoUicott, — 
 
 R. &R. 212 
 
 . 627 
 
 Collins, — 
 
 L. &C. 471 
 
 . 42,44,384,814 
 
 ;;'l' 
 
 ! .-. 
 
liv 
 
 TABLE OF CASES CTTBD. 
 
 
 
 FAOE. 
 
 
 Collins, R.. v., . . 
 
 2 M. ft Rob. 461 
 
 . 491 
 
 Cozlett's case, . 
 
 Colmer, — . . 
 
 9Co«,606 
 
 . 280 
 
 Crab, R. v., 
 
 Combes's case, 
 
 NoylOl 
 
 . 491 
 
 Cracknel], R. v., 
 
 Comet, R. v., 
 
 1 Leach, 36 
 
 . 473 
 
 Craddock, — 
 
 Commonwealth v. Groo 
 
 dhue, 2 Met. 198 ... 
 
 . 119 
 
 Cramp, — 
 
 Mat 
 
 tee, . 12 Cox, 649 
 
 . 767 
 
 .. 
 
 Mm 
 
 ■phy, 2 AUen (Mass.) 163 . 
 
 . 820 
 
 Craw, — 
 
 Compton, R. v.,. . . 
 
 7C. ft P. 139 . 
 
 . 476 
 
 Crawford, — 
 
 Coney, — . . . 
 
 16Cox, 46; 8Q B. D. 634 
 
 . 85^61,02 
 
 Cfawshaw, R, v., 
 
 Conneil, — . . 
 
 1 C. & K. 190 . . 
 
 . 643 
 
 Creamer, — 
 
 — — — ... 
 
 . 6 Cox. 178 
 
 . 717, 718 
 
 Creighton, — 
 
 Connor, . — . . 
 
 2Man. L. R.286 
 
 201 
 
 Cregan — 
 
 Connolly, — . 
 
 26U. C.<J. B.817 . 
 
 . 278 
 
 Cresswell — 
 
 
 2C. &K. 518 . 
 
 . 822 
 
 Crick, — 
 
 V. Kent, . 
 
 17 Cox, 354 
 
 . 591, 597 
 
 Crighton, — 
 
 Considine, R. v., . 
 
 8L. N. 307 
 
 . 791 
 
 Crisham, — 
 
 Coogan, — . . 
 
 1 Leach, 449 . 
 
 . fil5 
 
 Crisp, — 
 
 Cook, - . 
 
 11 Cox, 5*2 
 
 . 231 
 
 Crofts, _ 
 
 ■^ V. Beal, 
 
 ILd. Raym. 176 
 
 25 
 
 Cronan, — 
 
 Cooke, R. v., 
 
 8 C. ft P. 566 
 
 505,506 
 
 Cronin, — 
 
 •'^-'^ — . ... 
 
 8C.&P.582 
 
 607,784 
 
 Cronmire, — 
 
 — - — . . . . 
 
 1 Leach, 105 
 
 . 836 
 
 Cronyn v. Widder, 
 
 — — — 
 
 7 C. ft P. 659 . 
 
 . 838 
 
 Crook, R. v., 
 
 V. Stratford, 
 
 13 M. ft W. 379 . 
 
 . 837 
 
 Cro<jke, — 
 
 Cooper, R. v., 
 
 5 C. ft P. 535 
 
 36,37 
 
 Cropper, — 
 
 — 
 
 1 Den. 459 ; 2 C. ft K. 876 . 
 
 . 1.50 
 
 V. Horton 
 
 — . . 
 
 12 Cox, 600 . . . . 
 
 . 344 
 
 Crosby, R. v., 
 
 — — . — . • 
 
 13 Cox, 617 . . . . 
 
 . 402 
 
 Crossley, — 
 
 Coote, — . . . . 
 
 L. R. 4 P. C. 599; 12 Cox, 557 . 
 
 797, 79» 
 
 Croteau, — 
 
 
 
 800, 802 
 
 Crowe's Case, 
 
 Copeland, — 
 
 . . Car. ft M. 516 . . . . 
 
 . 407 
 
 Crowther, R. v.. 
 
 Corcoran, — 
 
 26 U. C. C. P. 134 . 
 
 55, 867 
 
 Crump. — 
 
 Cordy, — 
 
 2 Russ. 586 
 
 . 851 
 
 Crumpton, — 
 
 Corey, — 
 
 . 22 N. B. Rep. 543 . . 
 
 . 411 
 
 Cninden, — 
 
 Cormack, — 
 
 210. R. 213 . . . . 
 
 . 618 
 
 Cru.ie, — 
 
 Cornwall, v. R. . 
 
 38 U. C. Q. B. 106 . 
 
 259, 841 
 
 
 Corporation of London, 
 
 R. v., E. B. & E. 509 . 
 
 . WKJ 
 
 ~ 
 
 Corwin, ex parte. 
 
 24L. C. J. 104; 2L. N. 364 
 
 . 75a 
 
 ■ Crutcliley, — 
 
 Cory, R. v.. 
 
 10 Cox, 23 . . . . 
 
 . 324 
 
 ■ Cuddy. — 
 
 Cosser, — . . 
 
 13 Cox, 187 . . '. 
 
 . 313 
 
 ■ Cullen, — 
 
 Cotterill v. Lempriere . 
 
 17 Cox, 97 . . . . 
 
 . 678 
 
 ■ Culhim, — 
 
 Cotton, R. v.. 
 Court, — 
 Cowell, — 
 Cox, — 
 
 12 Cox, 400 . . . . 
 6 Cox, 202 , . . . 
 2 EaHt P. C. 617, 781 . 
 R. ft R. 262 
 
 . 175 
 
 . 247 
 
 . 350 
 
 234, 23.J 
 
 H Caniinings, — 
 
 ■ Cunipton, — 
 
 ■ Cuniiy V. LeCocq, 
 H Cunningham. R. v.. 
 
 ~~— — ... 
 
 IF. ft F. 90 
 
 . 851 
 
 ^^^^H ^J —•■•J .^VV ■ 1 * 
 
 — 
 
 16 0. R. 228 
 
 . 417 
 
 1 
 
 Coxhead v. Richards . 
 
 1 Leach, 71 . . . . 
 2C.B. 509 . . 
 
 . 981 
 . 298 
 
 ■ Cmgenwen, — 
 
 ■ Curran, — 
 
TABI^ OF CASES CITE£>. 
 
 Iv 
 
 PAGE. 
 
 Cozlett'B case, • . 
 
 2 East P. C. 656 
 
 ' * * 
 
 i 833. 
 
 Crab, R. v., . * 
 
 11 Cox, 85 4 i 
 
 * i 
 
 . 402 
 
 Cracknel], B. v., 
 
 10 Cox, 408 . i 
 
 * • 
 
 . 463 
 
 Craddock, — i 
 
 2 Den. 31 
 
 , 
 
 348,350 
 
 Cramp, — i 
 
 14 Cox, 390, 401 . 
 
 , , 
 
 . 278 
 
 • • 
 
 R.&;R.827 
 
 ^ ^ 
 
 . 688 
 
 Craw, — . 
 
 8 Cox, 885 
 
 • 
 
 . 34 
 
 Crawford, — . 
 
 1 Den. 100 
 
 • 
 
 . 242 
 
 CtawBhaw, R. v., 
 
 BeU, 803 
 
 11, 186, 189, 
 
 771,960 
 
 Creamer, — 
 
 10 L. C. R. 404 . 
 
 • 
 
 . 282 
 
 Creighton, — 
 
 19 O. R 889 
 
 • • 
 
 303,701 
 
 Cregan — . 
 
 1 Han. (X. B. 36) 
 
 <i • 
 
 . 828 
 
 Cre8swell — 
 
 13 Cox, 126 4 
 
 4 4 
 
 . 281 
 
 Crick, — 
 
 1 F. & F. »19 . 
 
 * 
 
 . 196 
 
 Crighton, — 
 
 R. * R. 62 
 
 4 
 
 . 361 
 
 Crisham, — 
 
 Car. & M. 187 . 
 
 • i 
 
 . 36 
 
 Crisp, — 
 
 IB. & Aid. 282 . 
 
 
 . lOi 
 
 Crofts, — 
 
 9 C. & P. 219 . 
 
 
 . 700 
 
 Cronan, — 
 
 24 U. C. C. P. 106 
 
 
 . 823 
 
 Cronin, — 
 
 36 U. C. Q. B. 342 
 
 . ' 501, 
 
 661,846 
 
 Cronmire, — 
 
 16 Cox, 42 
 
 
 . 343 
 
 Cronyn v. Widder, i 
 
 16 U. C. Q. B. 356 
 
 
 . 139 
 
 Crook, R. v., 
 
 1 F. & F. 621 , ^ 
 
 
 . 196 
 
 Cro<jke, — 
 
 2 Str. 901 . 
 
 
 . 500 
 
 Cropper, — 
 
 2 Moo. 18 . 
 
 
 . 850 
 
 V. Horton 
 
 8 D. & R. 166 . 
 
 
 . 623 
 
 Crosby, R. v., 
 
 1 Cox, 10 . . . 
 
 
 . 410 
 
 Crossley, — 
 
 2 M. A; Rob. 17 . 
 
 
 . 408 
 
 Croteau, — 
 
 9 L. C. R 67 . 
 
 
 . 956 
 
 Crowe's Case, 
 
 1 Lewin, 88 . , 
 
 
 . 358 
 
 Crowther, R. v., 
 
 5 C. & P. 316 
 
 
 . 500 
 
 Crunjp, — 
 
 1 C. & P. 658 . 
 
 
 . 374 
 
 Crumpton, — 
 
 Car. & M. 597 . 
 
 
 . 822 
 
 Cninden, — 
 
 Warb. Lead. Cas. 99 . 
 
 
 . 121 
 
 Cniie, — 
 
 Warb. Lead. Cas. 24 . 
 
 
 . 12 
 
 — 
 
 8C. &P. Ml . 
 
 
 35 
 
 — 
 
 2 Moo. 53 
 
 
 213, 823 
 
 Crutchley, — 
 
 7 C. & P. 814 . 
 
 
 . 206 
 
 Cuddy, — 
 
 1 C. & K. 210 . 
 
 
 35,180 
 
 Cullen, — 
 
 1 Moo. 300 
 
 
 . 520 
 
 Culluiii, — 
 
 12 Cox, 469 
 
 
 . 864 
 
 Ciiniinings, — 
 
 16 U. C. Q. B. 15 
 
 356, 677, 
 
 9(50, 981 
 
 Cuiupton, — 
 
 Warb. Lead. Cas. 216 
 
 
 19 
 
 Cuiidy V, LeCocq, 
 
 13 il B. D. 207 
 
 
 . 295 
 
 Ciiniiingham, R. v., 
 
 16 Cox, 420 
 
 
 53,55 
 
 — 
 
 Bell, 72 
 
 
 . 236 
 
 — ■ . 
 
 CasselsV Dig. 107 
 
 . 521 
 
 806, 874 
 
 Cuigenwen, — 
 
 10 Cox, 152 
 
 
 . 285 
 
 Cunan, — 
 
 3 C. & P. 897 ♦ 
 
 
 4 021 
 
 i-r:; 
 
 ! 
 
 '1 •; 
 I- .■ 
 
 I , 
 
 i : 
 
 f 
 
Ivi 
 
 TABLE OF CASES CITED. 
 
 Curry, R. v., 
 Curvau, — . 
 
 Dade, R. v., 
 Dale, — 
 
 Dadson, — • 
 
 Daly, -^ 
 
 Danger, — » 
 
 Dannelly &• Vaughan, R. v, 
 
 Dant, R. v,f 
 
 Daonst, — • 
 
 Dart, • — 
 
 Davie v. Briggs 
 
 Da vies, R. v., . . 
 
 Davis, 
 
 v. Lennon, 
 
 v. Russell, 
 
 v. Stephenson, 
 
 DHvison, R. v.. 
 
 Davitt, — 
 Day, - 
 
 Deacon, — 
 Dear v. Knight 
 Deasy, R. v.,. 
 Deaves, — 
 
 Debaun, — . 
 DeBerenger, — . 
 Debruiel, — . 
 Deegaii, . — . 
 
 2 Moo. 218 
 1 Moo. 132 
 
 D. 
 
 1 Moo. 307 
 
 6 Cox, 14 
 16 Cox, 703 
 
 7 C. & P. 3-2 
 
 2 Den. 33 
 
 24 L. C. J. 157 . . 
 Dears. & B. 307. 
 R. & R. 310 
 10 Cox, 102 ; L. & C 
 
 9 L. C. J. 85 . 
 14 Cox, 143 
 
 27 U. S. 628 
 
 8 Cox, 48<) 
 
 10 Cox, 239 
 
 2 East P. C. 709 
 2 Leach, 876 . 
 2 East P. C. 956 
 5 Cox, 328 
 
 14 Cox, 5G3 
 R. & R. 113 
 
 15 Cnx, 174 
 L. & C. 64 
 
 6C. &P. 177 .. . 
 
 11 Cox. 181 
 
 18 U. C..Q. B. 180 
 R. & R. 322 
 
 6 Cox, 3t)I) 
 R. & R. 499 
 
 7 C. & P. 785 . 
 
 8 U. C. Q. B. .599 
 
 5 Bing. 354 
 17 Cox, 73 
 
 2F. &F. 250; 8 Cox, 
 7 Cox, 1.58 
 11 Cox. 676 
 
 9 C. & P. 722 . 
 R. & M. 27 
 
 I F. & F. 433 
 15 Cox, 3:34 
 llCox, 2i'7 
 
 II L. N. 323 
 
 3 M. & S. 73 . . 
 11 Cox, 207 
 
 6 Man. L. R. 81 
 
 570 
 
 360 
 
 PAOB. 
 
 . 31!) 
 185, 622 
 
 ■ IT, I 
 
 32, .509 
 . 216 
 . 279 
 . 401 
 . 626 
 . 142 
 409, 414, 416 
 .39 
 . 192 
 . 8«7 
 . 221 
 . 6:^13 
 14 
 . 316 
 . 436 
 . 459 
 . 503 
 . 692 
 . 8 
 . 32 
 . 199 
 . 257 
 3.51, 827 
 . 40 
 410, !)S1 
 4(57, 482 
 467, 472 
 . 467 
 • 760 
 . 25 
 . 626 
 . 184 
 . 7.S!) 
 . 844 
 47 
 . 262 
 . 706 
 
 . m\ 
 
 47 
 
 , 830 
 . 521 
 . 497 
 . o'.H't 
 
 . :)09 
 
 Deeley, R. 
 
 Deer, 
 
 Deering, 
 
 Deery 
 
 Defoy, 
 
 I>eKromme, — 
 Delaval, _ 
 
 Denby, 
 
 Densley, _ 
 
 D'Eon, _ 
 
 Derbyshire, — 
 DiBreconrt v. Cof 
 Derrick, R. v., 
 Despatie, expa.'t 
 Devett, R. v., 
 DeVidil - 
 Dewitt, _ 
 Dickeu, — 
 Dickenson, — 
 Dickinson, — 
 Dillot, in re, 
 Dihuore, R. v. 
 Dillon, _ 
 
 - — V. O'Brien, 
 Dilworth, R. v., . 
 
 Diprose, 
 
 Dixon, 
 
 Dobbs, _ 
 
 Dodds, _ 
 
 Dodson, 
 
 Doe v. Oliver, 
 
 d. Marriott v. ] 
 
 Dnggett V. Catterns, 
 Doh«rty, R. v., 
 Donally, _ 
 
 Doody, 
 
 Doonan, -_ 
 Dougall, __ 
 Douglas, _ 
 Dove, 
 
 I>ovey V. Hobson, 
 Dowey, R.V., 
 Downes, R. v., 
 
1^11 
 
 TABLE OF CASES CITED. 
 
 Ivii 
 
 
 
 PAOE. 
 
 Deeley, R. v., 
 
 1 Moo. ms 
 
 . 836 
 
 Deer, — . . . 
 
 L. & C. 240 
 
 818, 352 
 
 Deerin?, — . 
 
 11 Cox, 298 
 
 . 327 
 
 Deery — . . 
 
 20L. C. J. 129 
 
 . 867 
 
 Defoy, — , . . . 
 
 Ramsay's App..Ca3.J93 . . 
 
 . 598 
 
 DeKromme, — ... 
 
 17 Cox, 492 
 
 . 597 
 
 Delaval, — . . . 
 
 3 Burr. 1435 
 
 . . 129 
 
 Denby, — . 
 
 lLea«3h, 514 
 
 . 7a5 
 
 Denaley, — , . . . 
 
 6C. &P. 3!)5) 
 
 . 351 
 
 D'Eon, — . . 
 
 1 W. Bl. .517 
 
 73 
 
 — • . ■ 
 
 3 Burr. 1514 
 
 . 712 
 
 Derbyshire, — . . . 
 
 2 Q. B. 745 
 
 . 575 
 
 Dereccmrt v. Co^biBhl.ey, . 
 
 6 E. & B. 188 
 
 . 622 
 
 Derrick, R. v., . . . . . 
 
 23 L. C. J. 239 
 
 . 787 
 
 Despatie, 4Xpa:'te, 
 
 »L. N. 387 
 
 . 141 
 
 Devett, R. v.. 
 
 8 C. & P. 639 
 
 . 694 
 
 DeVidil - . . 
 
 9 Cox, 4 
 
 . 797 
 
 Dewitt, — . . . 
 
 21 N. B. Rep. 117 ... 
 
 . 394 
 
 Dickbu, — 
 
 14 Cox, 8 
 
 . 275 
 
 Dickenson, — 
 
 1 Saund. 135 
 
 . 960 
 
 Dickinson, — 
 
 R. & R. 401 ... 
 
 734.735 
 
 Dillot, in re, 
 
 16CUX.241 
 
 . 767 
 
 Dihuore, R. v, . . 
 
 C Cox, 52 
 
 . 797 
 
 Dillon, — 
 
 10 P. R. Ont. 352 . . . . 
 
 . 135 
 
 - — V. O'Brien, . . 
 
 lf> Cox, 245 
 
 19 
 
 Dilworth, R, v., . . 
 
 2M. &Rub. 531 
 
 215, 823 
 
 Diprose, — 
 
 11 Cox, 185 
 
 345, 365 
 
 Dixon, — . 
 
 10 Mod. 335 
 
 135,960 
 
 — 
 
 11 Cox, 341 
 
 . 172 
 
 — ... 
 
 Doars. 580 
 
 . 329 
 
 — . . . . 
 
 11 Cox, 178 
 
 . 363 
 
 — . . 
 
 R. & R. 53 
 
 . 389 
 
 — .... 
 
 M. & S. 11 
 
 . 432 
 
 Dobbs, — . 
 
 2 East P. C. 513 
 
 . 468 
 
 Dodds, — 
 
 4 0. R. 390 
 
 . 139 
 
 Dodson, — 
 
 9 A. & E. 704 . 
 
 . 585 
 
 Doe V. Oliver, 
 
 2 Sin. Lead. Cas. 78Q 
 
 . 785 
 
 d. Marriott v. Edwards, 
 
 5 B. & Ad. 1005 . . . 
 
 . 838 
 
 DogKett V. Catterns, 
 
 10 C. B. N. S. 705 . . 
 
 . 134 
 
 Dolmrty, R. v., . 
 
 10 Cox, 3(M5 
 
 12, 764 
 
 Donally, — 
 
 2 East 1'. C. 713 
 
 . 437 
 
 Dootly, — 
 
 (> Cox, 403 ... 
 
 . 227 
 
 Doonan, — . . 
 
 M. L. R. q. B. 186 
 
 . 3i)4 
 
 Doujfall, ~ . . 
 
 18 L. C. J. 85, <)0 . 303, ' 
 
 ri3, 768, 773 
 
 Douglas, — 
 
 Car. & M. 193 ... 
 
 . 757 
 
 Dove, — 
 
 3 Stephen's Hi^t. 426 
 
 8 
 
 Dovey v. Hobson, 
 
 2 Marsh, 154 
 
 . mi 
 
 Dowey, R.v., 
 
 11 Cox, 115 .... 
 
 . 403 
 
 Downes, R. v.. 
 
 1 Q. B. 1). 25 
 
 , 145 
 
 
 
 
 i 
 
 i i 
 
 
 :.' ij 
 
 ■?' 
 
 ''"'! 
 
Iviii 
 
 TABLE OF CASES CITED. 
 
 
 
 PAGE. 
 
 Downey, R. v., ^ 
 
 18 L. C. J. 193 . 
 
 . 708 
 
 Downie, — 
 
 13 R. L. «9 
 
 . 608 
 
 Downie v, R. 
 
 M. L. R. 8 Q. B. 360; 15 S. C. I 
 
 L358 m 
 
 Downing, R. v., i 
 
 1 Den. 52 .... 
 
 36, 692, 603 
 
 i 
 
 11 Cox, 580 . 
 
 . 376 
 
 — — V. Capel . i 
 
 3(} L. J. M. C. 87 
 
 . <m 
 
 Drain, R. v., t 
 
 8Man. L.R. 535 
 
 . 358,264 
 
 Drage, — * 
 
 14 Cox, 85 .... 
 
 . 828 
 
 Drake v. Footitt . 
 
 7Q. B. D.201 . 
 
 . »8 
 
 Draper, R. v., 
 
 IC. &K. 176 
 
 216,823 
 
 Dredge, — ; 
 
 Warb. Lead. Cas. 135 . 
 
 . SS8 
 
 Dring, — 
 
 Dears, ft B. 329 . 
 
 . 866 
 
 Drury, — 
 
 3 C. ft K. 198 . 
 
 718, 720 
 
 Dubois, — 
 
 17 Q. L. R. 203 . 
 
 8 
 
 Duckworth, R. v.. 
 
 17 Cox, 495 ; [1892] 2 Q. B. 83 > 
 
 13, 220, 822 
 
 Dudley, — , . 
 
 l5Cox, 624; 14Q. B.D.273 ] 
 
 LO, 171, 608 
 
 Duffin, — . 
 
 R. & R. 365 
 
 214,234 
 
 Duffy, — . . 
 
 9 Jr. L. R, 329 . 
 
 . 7» 
 
 Dogal, — . 
 
 4 Q. L. R. 350 . . . 18 
 
 9, 199, 80» 
 
 Duncan, — . 
 
 7Q.'B. D. 398 . . . . 
 
 . 87» 
 
 Dungey, — . 
 
 4 F. ft F. 99 . . 43, 27 
 
 3, 817, 834 
 
 Dunlop, — . 
 
 11 L. C. J, 186 . 
 
 . 131 
 
 Dunn, — . 
 
 1 Moo. 146 .... 
 
 351,827 
 
 — . 
 
 1 Leach, 57 .... 
 
 . 502 
 
 • • 
 
 11 Jur. 287 .... 
 
 . 742 
 
 Dunning, — . 
 
 11 Cox, 651 . . . . 
 
 . 680 
 
 Durooher, — . 
 
 12 R. L. 697 
 
 409, 413 
 
 Duval V. R. . . 
 
 14 L. C. R. 52 . 
 
 . 76J» 
 
 Dwyer, R. v.. 
 
 27 L. C. J. 201 . 
 
 . 286 
 
 Dyer,. — 
 
 2 East P. C. 767 . . 
 
 31,350 
 
 Dyke.v. Grower . 
 
 17 Cox, 421 .... 
 
 11" 
 
 Dyson, R. v., 
 
 R. &R. 523 . . . 3i 
 
 t, 226, 228 
 
 ■ ■ 
 
 7C. ftp. 305 . . . . 
 E. 
 
 . 868 
 
 Eagle, R. V 
 
 2 F. & F. 827 
 
 . 184 
 
 Eagleton, R. t., . 
 
 Dears. 376, 515 . . 43 
 
 , 398, 481 
 
 Eardly, _ . _ 
 
 49 J. P. wJl .... 
 
 . 267 
 
 Earl ')f Somerset, R. v., 
 
 19 St. Tr. 804 .... 
 
 .% 
 
 £arii»haw, _ 
 
 15 East, 450 .. . 
 
 . 077 
 
 Eastern Archipelago Co. v 
 
 The 
 
 
 Queen 
 
 2 E. & B. 879 .... 
 
 . 900 
 
 Edwards, R. v., . 
 
 8 C. ft P. 611 
 
 . 198 
 
 ■ • ■ 
 
 Warb. Lead. Cas. 132 
 
 . 824 
 
 • • • 
 
 6 C. & P. 521 
 
 394, 448 
 
 • • • 
 
 6 C. & P. 515 
 
 . 451 
 
 ^MM** _^ ^ 
 
 R. & R. 224 
 
 . 78» 
 
 *"" ■ • • • 
 
 8C. ftp. 26 
 
 . m 
 
 Egginton, R. v., 
 
 Egre, ~ 
 
 Eldershaw^ — 
 Elliott, — 
 
 V. Osbon 
 
 Ellis, R. v.. 
 
 Elrington, R. v., 
 Else, _ 
 
 English, — 
 Eno, er parte, 
 Enoch, R. v., . 
 Epps, — 
 
 Etherington, R. v. 
 Evans, 
 
 Ewer V. Ambrosw, 
 
 Faderman, R. v., 
 Falkingham, — 
 Falkner, — 
 Fallon, _ 
 
 Fallows, _ 
 
 Fanning, — 
 Farrell's Case, . 
 Farrell, R. v., 
 
 Fnrre's Case, 
 Farrington, R. ▼., 
 
 Farrow, 
 
 Faulkner, — 
 Featherstone, — 
 Feist, _ 
 
 Fellowes, 
 
 Fennell, -u 
 
 Fenti)n, -i. 
 
 Feore, 
 
 Fflrens v. O'Brien, 
 Ferguson, R. v., . 
 

 TABLE OF CASES CITED. 
 
 lix 
 
 
 
 
 
 PAGE. 
 
 Egginton, R. v., . 
 
 2 Leach, 913 48> 
 
 — , • 
 
 2 B. & P. 508 . 
 6 E. ft B. 100 . 
 
 
 
 . 692 
 . 981 
 
 Egre, — 
 
 1 P. * B. (N. B.) 189 
 
 
 
 . 129 
 
 Elderehawi— . ■ . 
 
 8 C. & P. 896 . 
 
 
 
 8 
 
 Elliott, — . . 
 
 16 Cox, 710 . 
 
 
 
 . 199 
 
 — . ■ . 
 
 I Leach, 175 
 
 
 
 . 501 
 
 V. Osbom, 
 
 17 Cox, 846 . 
 
 
 
 12,587 
 
 Ellis, R. v., . . . 
 
 22 N. B. Rep. 440 
 
 
 
 . 129 
 
 — . . 
 
 1 F. & F. 309 . 
 
 
 
 . 284 
 
 — , . 
 
 16 Cox, 469 . 
 
 
 
 . 288 
 
 — . ■ . 
 
 8 C. & P. 654 
 
 
 4 
 
 47, 821, 82S 
 
 EIrington, R. v., . - . 
 
 1 B, & S. 688 
 
 
 
 . 266 
 
 Else, — . • . 
 
 R. & R. 142 
 
 
 
 . SS 
 
 Engliah, — . - . 
 
 12 Cox, 171 . 
 
 
 
 . 411 
 
 Eno, er parte. 
 
 lOQ. L. R. 194 . 
 
 
 •• 
 
 . 608 
 
 Enoch, R. -v., • . . • 
 
 5C. &P.639 
 
 
 
 . 178 
 
 Eppa, — . . 
 
 4 F. A F. 81 
 
 
 
 . 616 
 
 Etherington, R. v., • . 
 
 2 Leach, 671 
 
 
 
 . 387 
 
 Evans, — • . 
 
 17 Cox, 37 . 
 
 
 
 . 97 
 
 — — — ■ . 
 
 L. & C. 252 
 
 
 
 . 401 
 
 — • . 
 
 Car, & M. 298 . 
 
 
 
 . 470 
 
 — ■ . 
 
 5 C. & P. 553 
 
 
 
 . 620 
 
 Ewer V. AmbrosA, 
 
 3 B. & C. 746 . 
 
 
 
 . 806 
 
 I 
 
 f 
 
 I 
 I 
 
 '■■::i 
 
 Faderman, R. v.. 
 
 1 Den. 666 . 
 
 
 
 
 , 
 
 867 
 
 Falkingham, — 
 
 11 Cox, 475 . 
 
 
 , 
 
 . 151 
 
 Falkner, — 
 
 7 R. L. 544 
 
 
 
 
 . 694 
 
 Fallon, — 
 
 L. & C. 217 
 
 , 
 
 , 
 
 , 
 
 42, 601 
 
 Fallows, — 
 
 2 Rmss, 107 
 
 
 
 
 . 442 
 
 Fanning, — 
 
 10 Cox, 411 . 
 
 
 
 
 . 282 
 
 Farrell's Case, 
 
 2 East P. C. 557 
 
 
 
 
 . 322 
 
 Farrell, R. v., . . 
 
 1 Leach, 322 
 
 
 
 
 . 434 
 
 — . . . 
 
 12 Cox, 605 . 
 
 
 
 
 . 799 
 
 Fnrre's Case, 
 
 Kel. 65 
 
 
 
 
 . 326 
 
 Farrington, R. ▼., 
 
 1 R. & R. 207 
 
 
 
 
 , 560 
 
 Farrow, — 
 
 Dears. & B. 164 
 
 
 
 
 . 277 
 
 Faulkner, — 
 
 13 Cox, 550 
 
 
 
 
 563,578 
 
 Featherstone, — 
 
 Dears. 3CI) . 
 
 
 
 
 317, 868 
 
 Feist, — 
 
 Dears. & B. 590 
 
 
 
 
 . 139 
 
 Fellowes, — 
 
 1« U. C. Q. B. 46 
 
 
 
 
 
 597 
 
 Fennell, -^ 
 
 Warb. Lead. Ca» 
 
 250 
 
 
 
 
 800 
 
 Fentt^m, -^ ■ . 
 
 1 Lewin, 179 
 
 
 
 
 
 188 
 
 Feore, — 
 
 3 Q. L. R. 219 
 
 
 
 
 
 785 
 
 Fflrens v. O'Brien, 
 
 15 Cox, 332 . 
 
 
 
 
 
 324 
 
 Ferguson, R. v., . 
 
 1 Lt!«in, 181 
 
 
 
 
 
 196 
 
 • a _ 
 
 3Pug8. (N.B.)61 
 
 2 
 
 
 
 
 335 
 
 £« 
 
Ix 
 
 TABLE OF CASES CITED. 
 
 
 
 PAGE. 
 
 
 Ferguson, R. v., . 
 
 4 P. & B. (N.B.) 259 . 
 
 . 353 
 
 Freeman, R. v. 
 
 
 Dears. 427 . 689, 6 
 
 i91, 856, 866 
 
 Freeth, .— 
 
 Fidler, — . 
 
 4 C. & P. 449 ... 
 
 . 577 
 
 French, — 
 
 Field, — 
 
 1 Leach, 383 .. . 
 
 . 627 
 
 Fretwell, — 
 
 Field house, R. v., 
 
 1 Russ. 1030 
 
 . 752 
 
 FrieJ, — 
 
 Finney, — . 
 
 12 Cox, ()25 .... 
 
 . 199 
 
 Friend, — 
 
 Firth, — 
 
 11 Cox. 234 . 
 
 . 322, 695 
 
 Frost, — 
 
 Fisher, — 
 
 8 C. & P. 182 
 
 . 162, 184 
 
 — 
 
 
 Warb. Lead. Cas. 112 
 
 . 211 
 
 — 
 
 — 
 
 10 Cox, 14'> . . . 
 
 . 572, 577 
 
 — 
 
 Fitch, — . 
 
 Dears. & B. 187 
 
 . 318 
 
 — 
 
 
 L. & C. 159 
 
 . 520 
 
 Fry, _ . 
 
 Fitzgerald, — . 
 
 1 Leach, 20 . . . 
 
 . 616 
 
 Fuidge, — . 
 
 Flanagan, — 
 
 10 Cox, 561 . 
 
 . 366 
 
 Fullagar, — 
 
 Flannagan, — . 
 
 R. & R. 187 . . . . 
 
 . 460 
 
 Fullarton, ,— 
 
 . 
 
 15 Cox, 403 . . . 
 
 . 714 
 
 Fuller, _ 
 
 Flatnian, — . . 
 
 14 Cox. 396 . 
 
 . 316 
 
 — 
 
 Flattery, — 
 
 13 Cox. 388 ... . 
 
 . 270 
 
 — 
 
 Fletcher, — _ . . 
 
 10 Cox, 248 . 
 
 . 270 
 
 Fulton V. James, 
 
 
 8 Cox, 131 ; Bell, 63 . 
 
 . 270 
 
 Furneaux, R. v.. 
 
 
 Bell, 65 ... . 
 
 . 964 
 
 Fumival — . , 
 
 Flint, — 
 
 R. & R. 460 
 
 . 402 
 
 
 Flower, — . 
 
 8 D. & R. 512 . 
 
 . 390 
 
 
 Flowers, — . . 
 
 16 Cox, 33 ; 16 Q. B. D. 643 
 
 . 334 
 
 
 Flynn, — 
 
 2 P. & B. (N. B.) 321 . 2 
 
 37, 708, 710 
 
 Gaby. _ . 
 
 Foley. - 
 
 17 Cox, 142 . . . . 
 
 . 324 
 
 Gadbury, — . 
 
 Folkes, — 
 
 lM.x>. 3.54 . . • . 
 
 . m 
 
 Gallagher, — , 
 
 Fontaine, — 
 
 loL. C. J. 141 . . . . 
 
 . 285 
 
 Gale, _ . 
 
 Forbes, — ' . . 
 
 10 Cox, 362 . . . . 
 
 , . 256 
 
 Ganes, _ , 
 
 — . . 
 
 7 C. & P. 224 . 
 
 . 506 
 
 Garbett, — . 
 
 Ford, — 
 
 R. & R. 329 . . . . 
 
 . 177 ' 
 
 Gardner, — . 
 
 — ' . . 
 
 M. L. R. 7 Q. B. 413, 
 
 394, 413 
 
 
 — 
 
 14Q. L. R. 231 . 
 
 . 732 
 
 V. Mansbn 
 
 V. Wiley, . ' . 
 
 16 Cox, 683; 2:3 Q. B. D. 203 
 
 295, 587 
 
 Garland, R. v., . 
 
 Foreman, R. v. . . 
 
 1 L. C, L. J, 70 . 
 
 . 855 
 
 Garner, — . , 
 
 Foster, — . , . 
 
 13 Cox, 393 . . . , 
 
 . 407 
 
 Garrett, — . 
 
 — . ' . . 
 
 7C.&P.49.5 . . 
 
 . 547 
 
 — — _ 
 
 — . , . 
 
 6 Cox, 25 . . . . 
 
 . .577 
 
 Gascoigne, — ', 
 
 Foulkes, — . . 
 
 13 Cox, 63 . . . . 
 
 . 364 
 
 Gate Fulford, R. v., 
 
 Fox, — . . . 
 
 10 Cox, 502 . . . . 
 
 699, 849 
 
 Gauthreaux's Bail, 
 
 V. Gaunt, . . 
 
 3 E. & Ad. 798 . . 
 
 . 622 
 
 Gay lor, R. v., 
 
 Francis, R. v., 
 
 12 Cox, 612 . . . , 
 
 . 412 
 
 Gair^rd, — 
 
 — . . . 
 
 R. & R. 209 . . 
 
 . 502 
 
 Geach, — 
 
 Frankland, — . . . 
 
 L. &C. 276 . , 
 
 . 6S4 
 
 Geering, — 
 
 Franklin, — . . . 
 
 15 Cox. 163 . . . . 
 
 . 188 
 
 George, — 
 
 Franks, — . . . 
 
 2 Leach, 644 
 
 . 553 
 
 Gerrans, — 
 
 Eraser, — . . . 
 
 1 Moo. 407 . . 
 
 . a53 
 
 Gibbons, — 
 
 — . . . 
 
 14 L. C. J. 245 . . 
 
 . 872 
 
 Gibson, — 
 
 Fray, _ . . . 
 
 1 Ea.st P. C. 236 . . . 
 
 . 188 
 
 
TABLE OF CASES CITED. 
 
 Ixi 
 
 
 
 
 
 PAGE. 
 
 Freeman, E. v., . . . 2 Rush. 301 . . • . • . 
 
 . 684 
 
 Freeth, .— . . 
 
 
 
 R. & R, 127 
 
 . 402 
 
 French, — . . 
 
 
 
 11 Cox. 472 ■- 
 
 . 620 
 
 Fretwell, — . . 
 
 
 
 L. & C. 443 
 
 . 286 
 
 Frie), - . . 
 
 
 
 17 Cox, 326 
 
 226, 267, 721 
 
 Friend, — . . 
 
 
 
 R, & R. 20 
 
 . 143 
 
 FroBt, — . . 
 
 
 
 22 St. Tr. 471 . . . 
 
 . 72 
 
 — . . 
 
 
 
 2 Moo. 140 . . . . . 
 
 . 756 
 
 — . , 
 
 
 
 9C. &P.159 . . . 
 
 . 766 
 
 — . . 
 
 
 
 9 C. & P. 136 . . . 
 
 . 779 
 
 — . , 
 
 
 
 Dears. 474 
 
 . 840 
 
 Fry. - . . 
 
 
 
 Dears. & B. 449 . . . 
 
 . 400 
 
 Fuidge, — 
 
 
 
 L. &C. 390; 9 Cox, 430 . 
 
 . 731 
 
 Fullagar, — 
 
 
 
 14 Cox, 370 . . . 
 
 . 314 
 
 FuUarton, .— . . 
 
 
 
 C Cox, 194 
 
 . 840 
 
 Fuller, — 
 
 
 
 R. & R. 308 . . • , 
 
 43 
 
 — 
 
 
 
 1 B. & P. 180 
 
 49, 694 
 
 — . , 
 
 
 
 1 Leach, 186 . . . . 
 
 . 468, 459 
 
 Fulton V. James, 
 
 
 5 U. C. C. P. 182 . . 
 
 . 137 
 
 Furneaux, R. v., 
 
 
 R. & R. 335 
 
 . 360 
 
 Fumival — . , 
 
 
 R. & R. 445 . . 
 
 . 469 
 
 G. 
 
 
 Gaby, — . . R. & R. 178 . . . 
 
 . 683 
 
 Gadbury, — . 
 
 
 8 C. & P. 676 . . . 
 
 . 700 
 
 Gallagher, — . 
 
 
 15 Cox, 291 
 
 . 47 
 
 Gale, — , . 
 
 
 13 Cox, 340 
 
 . 364 
 
 Ganes, — . 
 
 
 22 U. C. C. P. 185 . 
 
 . 820, 822 
 
 Garbett, — . 
 
 
 1 Den. 236 
 
 . 797 
 
 Gardner, — , 
 
 
 Dears. &IB. 40 . . 
 
 .401 
 
 — ■ . 
 
 
 1 C. & P. 479 . 
 
 450, 452, 453 
 
 V. Mansbridge 
 
 
 16 Cox, 281 19 Q. B. D. 21 
 
 7 . .586 
 
 Garland, R. v., . 
 
 
 11 Cox, 224 
 
 699. 870 
 
 Garner, — . 
 
 
 4 F. & F. 346 . 
 
 . 176 
 
 Garrett, — . 
 
 
 2 F. & F. 14 
 
 . 316 
 
 — — M^ ^ 
 
 
 Dears. 232 . . 
 
 . 410, 412, 524 
 
 Gascoigne, — 
 
 
 2 East P. C. 709 
 
 . 438 
 
 Gate Fulford, R. v., 
 
 
 Dears. & B. 74 . 
 
 . 870 
 
 Gauthreaux's Bail, 
 
 
 9 P. R. (Ont.) 31 
 
 . 957 
 
 Gay lor, R. v., 
 
 
 Dears. & B. 288 . . 
 
 38, 182, 188 
 
 Gaz*rd, — 
 
 1 
 
 
 8 C. & P. 595 
 
 93 
 
 Geach, — 
 
 
 
 9 C. & P. 499 
 
 493, 507, 782, 785 
 
 Geering, — 
 
 
 
 18 L. J. M. C. 215 . 
 
 . 175 
 
 George, — 
 
 
 
 11 Cox, 41 
 
 . 230 
 
 Gerrans, — 
 
 
 
 13 Cox, 158 
 
 . 799 
 
 Gibbous, — 
 
 
 
 R. & R. 442 . . 
 
 . 469 
 
 Gibson, — 
 
 
 
 7 R. L. 573 
 
 88 
 
 — 
 
 
 
 160. R. 704 
 
 . 589, 868 
 
 V 
 
 '4 
 
 I,: 
 'I'l 
 
 ■ i ' 
 hi 
 
 N 
 
 
 I- 
 
Ixii 
 
 TABLE OF CASES CITED. 
 
 \ 
 
 
 PAOK. 
 
 
 Gibson, R. v., 
 
 16 Cox, 181 ... 
 
 . 771, 871 
 
 Govor. R. V. 
 
 Oiddipa, — 
 
 Car. * M. 634 . 
 
 . S94 
 
 Grand Jut. i,ion 
 
 Gilbert, — 
 
 1 M(w. 186 ... 
 
 . 811 
 
 Granger, R. v., 
 
 — . , 
 
 1 C. & K. 84 
 
 . 482 
 
 Grant, — 
 
 Gilchriat, — 
 
 2 Leaoli, 657 . ... 
 
 . 86M 
 
 Gray, _ 
 
 Giles, — . . . 
 
 1 Moo. 16« . ... 
 
 30, 604, 518 
 
 
 , , . 
 
 L. & C. 502 ... 
 
 . 400 
 
 .___ 
 
 Gill, - ... 
 
 2 B. A Aid. 204 . ... 
 
 . 598 
 
 — 
 
 6illi8» — .. . . 
 
 27 N. B. Rep. 30 . . 
 
 . 363 
 
 I Grf-nt Western R 
 
 — ... 
 
 6 C. L. T. 203 . . . 
 
 . 7a'S 
 
 I Green, R. v.. 
 
 Gillow, — ... 
 
 1 Moo. 8.5 ... 
 
 . 234 
 
 1 
 
 Oilmore, — . . 
 
 15 Cox, »^ . ... a 
 
 46, 718, 720 
 
 1 
 
 GilHon, — 
 
 . R. & R. 138 . . . 
 
 . 562 
 
 1 Greenhalgb, R. ^ 
 
 Giorgetti, — . . 
 
 4 F. & F. 546 . ... 
 
 . 779 
 
 1 Greenwood. — 
 
 Girdwood, — . . 
 
 1 Leach, 142 . . . 
 
 . 229, 224 
 
 _ 
 
 GlMOD, — .... 
 
 2 C. & K. 781 . ... 
 
 . 272 
 
 Gregory, _ 
 
 Glas», — ... 
 
 M. L. R. 7 Q. B. 405 . 
 
 335, 368 
 
 
 — . . 
 
 . 1 L. N. 41 . ... 
 
 . 3«J7 
 
 
 — 
 
 21 L. C. J. 245 . 
 
 . 870 
 
 Grey (Lord), - 
 
 V. O'Grady, 
 
 . 17 U. C. C. P. 233 . 
 
 25 
 
 Griffin, _ 
 
 Gloster, B. v., . 
 
 16 Cox, 471 .... 
 
 . 201 
 
 • 
 
 Glover, — . . 
 
 L. & C. 460 
 
 . SGH 
 
 V. Cplem^r 
 Griffith V. Taylor, 
 
 Glyde, - . . 
 
 11 Cox, 103 ... 
 
 . asn 
 
 Gnosil, — 
 
 1 C. & P. 304 
 
 . 436, 440 
 
 Grimes, R, v., 
 
 Goate, — . . 
 
 1 Ld. Raym. 737 
 
 . 500 
 
 Grimwade, — 
 
 Goddard, — 
 
 15 Cox, 7 . . . . 
 
 . 201 
 
 Gtoombridge.— 
 
 Goflf - . 
 
 9U. C. ^.P. 438 . . 
 
 . 398 
 
 Stove, — 
 
 Gogerley, — . . . 
 
 R.&R.»I3 . . ". 
 
 . 31 
 
 Gruncell, — 
 
 Goldsmith, — . 
 
 12 Cox, 479 . . . . 
 
 400,858 
 
 Giielder, — 
 
 — . . . 
 
 12 Cox, 594 . . ' . . 
 
 . 908 
 
 Ouenwey, — 
 
 Goldthorpe, — 
 
 2 Moo. 240 ,244 . . . 
 
 230,826 
 
 Gugy, Ex parte, . 
 
 Goodej — . . . 
 
 7 A. & E. 630 . . ' . 
 
 . 863 
 
 Gumble, R, v.. 
 
 Goodenough, R. v., 
 
 Dears. 210 , , . 
 
 . .367 
 
 Gurford v. Bailey, 
 Gurney, R. v., 
 
 Gooden, — 
 
 11 Cox, 672 . . . . 
 
 . 520 
 
 Goodfellow, — 
 
 14 Cox, 326 . . . . 
 
 . 799 
 
 G«ttridge, — 
 
 Goodhall, — 
 
 1 Den. 187 . . . . 
 
 278, 814 
 
 ....» 
 
 — 
 
 R. & R. 461 . . . 
 
 . 400 
 
 
 Gooding, — . . 
 
 Car. & M. 297 . . " . 
 
 . 836 
 
 ' 
 
 Goodman, — 
 
 22 U. C. C. P. 338 . . 
 
 . 664 
 
 
 Gorbutt, — 
 
 Dears. & B. 166 
 
 308.820 
 
 Hadfifild, R. V 
 
 Gordon, — 
 
 1 Leaoh, 515 . . . . 
 
 36, 256 
 
 H««ran, — 
 
 — . 
 
 IRuss. 351 . . . . 
 
 . 73 
 
 Haigh, — 
 
 — . . 
 
 1 East P. C. 315, 352 
 
 . 176 
 
 H«igh V. Sheffield^ 
 
 ^ • • 
 
 16 Cox, 622 .... 
 
 . 409 
 
 H»ine8, R. v., 
 
 • — 
 
 23 Q. B. D. 354 ; 16 Cox, 622 . 
 
 . 415 
 
 HmH, _ 
 
 G088, — 
 
 Bell, 208 
 
 . 407 
 
 
 Gould, - 
 
 1 Leach, 338 ... . 
 
 . 385 
 
 
 — ' — — 
 
 20 U. C. C. P. 154 
 
 . 608 
 
 
 
 8 Burn, 98 .... 
 
 . 789 
 
 
1 1 
 
 TABLE OF CASES CITED. 
 
 1X111 
 
 
 
 PAOR. 
 
 Gover. R. v., . . . 
 
 9 Cox. 282 . . . 
 
 . 647 
 
 &rand Jui, iion Ry. Co. R. v 
 
 ., 11 A. &E. 138 . . , . 
 
 . 828 
 
 Granger, H. v., . . 
 
 7 L.N. 247 . . . 
 
 97 
 
 Grant, — . . . . • 
 
 2 L. C. L. .T. 276 . . . 
 
 . 708 
 
 Gray, — . . 
 
 7C. 4P. 104 . . . 
 
 . S« 
 
 
 Dears. & B. 303 . . . . 
 
 . 150 
 
 _ —. , • . 
 
 17 Cox, 299 . . . . 
 
 . 408 
 
 
 L. &C. 866 
 
 . 706,858 
 
 Gr*»ftt Western Hailw^yCo. R 
 
 v., 8 Q. B. 333 . j . 
 
 . 628 
 
 Green, R. v., . • 
 
 7 C. & P. 1.56 . . . 
 
 . 194 
 
 
 3 F. & F. 274 . . . 
 
 . 294 
 
 — — • — * • • 
 
 Dean. & B. 113 
 
 . 720, 721 
 
 Greenhalgt), R. v., 
 
 Deard. 267 . . . . 
 
 . 409 
 
 Greenwood, — 
 
 2 Den. 453 . . . 
 
 38,553 
 
 — 
 
 2C. &K. 339 . 
 
 . 821 
 
 Gregory, — 
 
 10 Cox, 459 
 
 , 30, 699, 817 
 
 
 L. R. 1 0. C. R. 77 . 
 
 . 228 
 
 
 5 B. & Ad. 566 . 
 
 . 960 
 
 Grey (Lord), — 
 
 3 St. Tr. 519 
 
 . 129 
 
 Griflfin, — 
 
 11 Cox, 402 
 
 27. 191 
 
 — 
 
 14 Cox, 308 
 
 . 281 
 
 V. Coleman, 
 
 4 H. & N. 265 . 
 
 . 622 
 
 Griffith V. Taylor, 
 
 2 C. P. D. 194 . . 
 
 . 626 
 
 Grimes, R. v., . 
 
 Fost. 79 . . . 
 
 . 391 
 
 Grimwade, — 
 
 1 Den. 30 . . . 
 
 . 223, 450 
 
 Gcoombridge,— . 
 
 7C. &P. 582 . 
 
 8 
 
 Grove, — . 
 
 1 Moo. 447 
 
 . 367 
 
 Gruncell, — . 
 
 9C.&P. 865 
 
 . 321, 833. 351 
 
 Giielder, — . 
 
 Bell, 284 
 
 . 367 
 
 Guernsey, — . 
 
 1 F. 4 F. 894 . 
 
 . 307 
 
 Giigy, Ex partt, . 
 
 8L.C. R. 353 . 
 
 . 303 
 
 Gumble, R, v., 
 
 12 Cox, 248 
 
 . 374, 846 
 
 Gurford v. Bailey, 
 
 3M. &G. 781 , 
 
 . 837 
 
 Gurney, R. v.. 
 
 11 Cox, 414 
 
 . 758 
 
 Guttridge, — 
 
 9C. &P. 228 
 
 . 714 
 
 — — — . 
 
 9C. &P. 471 
 
 . 820, 825 
 
 H. 
 
 Had&Bld, R. v., . 
 
 U Cox, 574 
 
 . mi 
 
 Ha<fan, — 
 
 8 C. & P. 167 . 
 
 . 7.;8, 447 
 
 Hftigh, — . . . 
 
 7 Cox, 403 
 
 . 343 
 
 Haigh V. Sheffield, . . . 
 
 L. R. 10 Q. B. 102 
 
 . 134 
 
 lUines, R. v., . 
 
 R. & R. 451 
 
 . 465 
 
 H»H, - 
 
 » C. & P. 409 . 
 
 . 11, 32<> 
 
 ._ — — 
 
 17 Cox, 278 
 
 83, 960 
 
 — . . 
 
 13 Cox, 49 
 
 . 862, 364 
 
 
 lMoa374 
 
 . 866 
 
 
 R.&R.35d 
 
 . 466 
 
 
 11,11 
 
 
Ixiv 
 
 TABLE OF CASES CITED. 
 
 
 
 PAOX. 
 
 
 Hall, R. v., . 
 
 1 T. R. 320 
 
 . 677 
 
 Haswell, R. v., 
 
 Hallidpy, — 
 
 6 Times L. R. 109 
 
 . 172, 238 
 
 Hathaway, — 
 
 Hallard, — . . 
 
 2EastP. C. 498 
 
 . 45» 
 
 Haughton, — 
 
 Hamilton, — . 
 
 8 C. & P. 49 
 
 .384.386 
 
 Hawkes, — 
 
 "^ • • 
 
 1 Leaoh, 348 .. . 
 
 . 385 
 
 Hawkeswood, R. 
 
 • 
 
 1 C. & K. 212 
 
 . 450 
 
 Hawkins, — 
 
 
 3 Ruse. 173 ... 
 
 . 680 
 
 _ 
 
 Hamilton v. Massie, . 
 
 18 O. R. 585 
 
 27, 83, 959 
 
 Hawtin, — 
 
 Hamilton v. Walsh^ 
 
 23 N. B. Rep. 540 
 
 . S35 
 
 Haynes, — 
 
 Hamilton v. R.,. . 
 
 2 Cox, 11 ... 
 
 . 408 
 
 Hayw&rd, — 
 
 — 
 
 9 Q. B. 271 
 
 . 857 
 
 Haywood, — 
 
 Hampton's Case, 
 
 2 Russ. 303 . 
 
 . 682 
 
 Hazell, — 
 
 Hancock, R. v,. . . . 
 
 R. &R. 70 
 
 . 482 
 
 Hazelton, — 
 
 Handcock v. Baker, 
 
 2 B. & P. 260 
 
 22,25 
 
 Heane, — 
 
 Handley, R. v, . 
 
 13 Cox, 79 . . 173, 1( 
 
 », 205, 211, 
 
 Hearn, — 
 
 
 229, 
 
 232, 275 
 
 Heath, — 
 
 — 
 
 Car. & M. 547 . 
 
 . 33S 
 
 Heaton, ~ 
 
 Hanway v. Boultbee, 
 
 4 C. & P. 350 . 
 
 . 621 
 
 Hegarty v. Shine, 
 
 Hapgood, R. v., . 
 
 11 Cox, 471 
 
 . 272, 817 
 
 Hemmings, R. v.. 
 
 Hardingp, — . 
 
 R. & R. 126 
 
 . 323 
 
 Hench, — 
 
 Hardy, — . 
 
 11 Cox, 656 ... 
 
 . 669 
 
 Henderson, — , 
 
 Hare, — . . 
 
 13 Cox, 174 
 
 . 680 
 
 Henderson v. Pres 
 
 Hiirgreaves, R. v., 
 
 2 F. & F. 790 . 
 
 . 732 
 
 Henkers, R. v., . 
 
 Harley, R. v., 
 
 4 C. & P. 369 . 
 
 30, 214 
 
 Hennah, — 
 
 — . . . 
 
 8 L. C. J. 280 . 
 
 . 699 
 
 Henessey, — 
 
 Harman, — 
 
 1 Hale. 634 ... 
 
 . 440 
 
 Kenry, — 
 
 Harmwood, R. v. 
 
 1 East P. C. 440 
 
 . 818 
 
 Henshaw, — 
 
 Harper, R. v., 
 
 14 Cox, 674 . . . . 
 
 502,517 
 
 Hensler, — 
 
 .— 
 
 7Q. B. D. 78 . 
 
 . 617 
 
 Henson, — 
 
 Harrie, . — 
 
 6 C. & P. 105 
 
 . 463 
 
 Henwood, — 
 
 Harris, . — 
 
 5 C. & P. 159 . 
 
 3,219 
 
 Hermann, — 
 
 — . 
 
 5 B. & Aid. 926 . . . 
 
 89 
 
 Heseltine, — 
 
 — . , . 
 
 11 Cox, 659 . . . . 
 
 121,672 
 
 Hevey, — 
 
 — . . . 
 
 2 Leach, 701 ... , 
 
 . 469 
 
 Hewgill, — 
 
 — . . . 
 
 1 Leach, 185 . , . . 
 
 . 643 
 
 Hewins, — 
 
 • — . . 
 
 15 Cox, 75 . . . . 
 
 . 663 
 
 Hewlitt, — 
 
 — . . . 
 
 3 Burr, 1330 . . . . 
 
 . 743 
 
 Heymann v. R., . 
 
 Harrison, — . . , 
 
 1 Leacii, 47 . . . . 
 
 . 316 
 
 Hey wood, R. v., 
 
 — . . . 
 
 12 Cox, 19 . . . . 
 
 . 319 
 
 Hibbert, — 
 
 Hart, .— 
 
 6C. &P. 106 . 
 
 . 394 
 
 
 
 — . . . 
 
 1 Moo. 486 . . . . 
 
 . 602 
 
 Hicklin, — 
 
 Hartel, — 
 
 7 C. & P. 773 
 
 . 760 
 
 Hifikson, — 
 
 Hartley, .— . . 
 
 R. & R. 139 
 
 . 361 
 
 Higgins, — 
 
 Harvey, — 
 
 2 B. & C. 268 . 
 
 . 167 
 
 Higgs, — 
 
 — ... 
 
 1 Leach, 467 ... . 
 
 314, 374 
 
 Hill, — 
 
 — . 
 
 11 Cox, 662 . . . . 
 
 . 548 
 
 — — 
 
 — 
 
 L. R. 1 C. C. R. 284 . 
 
 . 677 
 
 — - — 
 
 Haslaro, — 
 
 1 Leach, 418 ... . 
 
 . 351 
 
 
 
 Hassell — ... 
 
 L. & C. 58 
 
 . 316 
 
 Hilhnan, — 
 
 Crim. Law— 
 
TABLE OF OASES CITED. 
 
 Ixv 
 
 
 
 
 
 PAGE. 
 
 Haswell, R. v 
 
 R. &R. 458 . . 109,110,676 
 
 Hathaway,— 
 
 8 L. C. J. 285 
 
 . 521 
 
 Haughton, — . . • 
 
 5 C. & P. 555 . 
 
 - . 
 
 
 . 576 
 
 Hawkes, — . . • 
 
 2 Moo. 60 . . . 
 
 
 
 . 516 
 
 Hawkeswood, R. v., 
 
 1 Lench, 257 
 
 
 
 502,503 
 
 Hawkins, — 
 
 3 C. & P. 392 
 
 
 
 . 34 
 
 
 1 Den. 584 
 
 
 
 . 367 
 
 Hawtin, — 
 
 7 C. & P. 281 
 
 
 
 . 358 
 
 Haynes, — 
 
 1 F. & F. 666 
 
 
 
 . 172 
 
 Hayw&rd, — 
 
 6 C. & P. 157 
 
 
 
 161,184 
 
 Haywood, — 
 
 R. &R.16 . 
 
 
 
 . 576 
 
 Hazell, — 
 
 11 Cox, 597 
 
 
 
 . 310 
 
 Hazelton, — 
 
 13 Cox, 1 . 
 
 
 
 . 412 
 
 Heane, — 
 
 9 Cox, 433 ; 4 B. & S. 947 . 
 
 
 708, 732 
 
 Hearn, — • ■ 
 
 Warb. Lead Cas. 204 
 
 
 11 
 
 Heath, — 
 
 R. &R. 184 
 
 
 43. 546 
 
 Heaton, 
 
 3 F. & F. 819 . 
 
 
 
 . 286 
 
 Hegarty v. Shine. 
 
 14 Cox, 124 
 
 
 
 . 239 
 
 Hemmings, R. v.. 
 
 4 F. & F. 50 
 
 
 
 327,435 
 
 Hench, — . 
 
 R. & R. 163 
 
 
 
 . 311 
 
 Henderson, — . 
 
 2 Moo. 192 
 
 
 
 408, 718 
 
 Henderson v. Preston, 
 
 16 Cox, 445 
 
 
 
 . 965 
 
 Henkers, R. v., . 
 
 16 Cox, 257 
 
 
 
 . 293 
 
 Hennah, — 
 
 13 Cox, 547 
 
 
 
 . 241 
 
 Henessey, — 
 
 35 U. Q. B. 603 
 
 
 
 . 396 
 
 Henry, — 
 
 21 0. R. 113 
 
 
 
 . 421 
 
 Henshaw, — 
 
 L. & 0. 444 
 
 
 
 . 400 
 
 Hensler, — 
 
 11 Cox, 570 
 
 
 
 43, 398, 405 
 
 Henson, — 
 
 Dears. 24 
 
 
 
 . 131 
 
 Kenwood, — 
 
 11 Cox, 526 
 
 
 
 . 695 
 
 Hermann, — 
 
 14 Cox, 279 ; 4 Q. B. 
 
 D. 28- 
 
 
 . 551, 553 
 
 Heseltine, — 
 
 12 Cox, 404 
 
 
 
 . 564 
 
 Hevey, — 
 
 2 East P. C. 858 (n) 
 
 
 
 . 498 
 
 Hewgill, — 
 
 Dears. 315 
 
 
 
 . 408 
 
 Hewins, — 
 
 9 0. &. P. 786 
 
 
 
 . 838 
 
 Kewlitt, — 
 
 1 F. & F. 91 
 
 
 
 . 25 
 
 Heymann v. R., ■ 
 
 12 Cox, 383 
 
 
 
 . 854 
 
 Hey wood, R. v., 
 
 L. & C. 451 
 
 
 ( 
 
 388, 696, 8.56 
 
 Hibbert, — 
 
 11 Cox, 246 
 
 
 
 . 294 
 
 _ 
 
 13 Cox, 82 
 
 
 
 . 598 
 
 Hicklin, — 
 
 L. R. 3 Q. B. 3(i0 
 
 
 
 . 11, 114 
 
 Hickson, — 
 
 3 L. N. 139 
 
 
 
 . 303. 845 
 
 Higgins, ^- 
 
 2 East, 5 . 
 
 
 
 . 499 
 
 Higgs, — 
 
 2 0. &K. 322 . 
 
 
 
 . 462 
 
 Hill, — 
 
 R. & R, 190 
 
 
 
 . 408 
 
 
 2 Rubs. 95 
 
 
 
 . 477 
 
 ^_ 
 
 2 Moo. 30 . 
 
 
 
 . 493 
 
 ~—' ■ — 
 
 5 Cox, 233 
 
 
 
 . .WS 
 
 Hilhnan, — 
 
 L. & C. 343 
 
 
 
 . 278 
 
 Grim. Law— e 
 
 
 
 
 
 ^ 
 
 *m m f t rt i aijM r^iuw 
 
Ixvi 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 PAGE. 
 
 Hilly ard v. G. T, R., 
 
 8 0. R. 583 131 
 
 Hilton, B. Vm 
 
 Bell, 20 . . . 
 
 
 
 350, 869 
 
 Hinchcliffe's Case, 
 
 . . 1 Lewin, 161 
 
 
 
 . 204 
 
 Hoare, R, v„ 
 
 1 F. & F. 647 . 
 
 
 
 . 316 
 
 Hobson, — 
 
 Dears. 400 
 
 
 
 . 350 
 
 Hoclges, — 
 
 M, & M. 341 
 
 
 
 . 378, 381 
 
 — 
 
 S C. & P. 195 . 
 
 
 
 735, S63 
 
 Hodgson, — 
 
 1 Leach, 6 
 
 
 
 33 
 
 .... 
 
 R. & R. 211 
 
 
 
 . 271 
 
 
 3 C. & P. 422 . 
 
 
 
 . 361, 680 
 
 
 Dears. & V,. 3 
 
 
 
 . 494, 499 
 
 Hogan, — 
 
 2 Den. 277 
 
 
 
 . 149, 150 
 
 Hogg, — 
 
 . . . 5 U. C. Q. B. 142 
 
 
 
 . 82 
 
 Hoggins, — 
 
 R. &R. 145 
 
 
 
 . 361 
 
 Hoke, — 
 
 15 R. L. 92 
 
 
 
 . 502 
 
 Holbrook, — 
 
 . .. 3Q.B.D.60;4Q.B.D 
 
 .42; 
 
 13 Cox, 
 
 
 650; 14 Cox, 185 
 
 
 300, 303 
 
 Holchester, R. v., 
 
 10 Cox, 226 
 
 
 . 758, 761 
 
 Holden, — 
 
 R. & R. 154 
 
 
 
 500, 518 
 
 _ 
 
 . . . 5 B. & Ad. 347 . 
 
 
 
 743 
 
 Holland, — 
 
 2 M. &. Rob. 351 
 
 
 
 . 158 
 
 Hollingberry, — 
 
 4 B & C. 32!) 
 
 
 
 12, 819, 872 
 
 Hollis, R. v., . 
 
 12 Cox, 463 
 
 
 
 . 278 
 
 — 
 
 8 L. N. 229 
 
 
 
 . 293 
 
 — 
 
 15 Cox, 345 
 
 
 
 . 334 
 
 HoUoway, — 
 
 1 Den. 370 
 
 
 
 )7, 382, 868 
 
 HoUoway v. R., . 
 
 2 Den. 2S9 
 
 
 
 . 849 
 
 Holman, R. v., 
 
 L. & C. 177 
 
 
 
 . 690 
 
 Holmes, — 
 
 Dears. 207 
 
 5R. &G. (N. S.)498 
 
 
 
 . 120 
 . 243 
 
 — 
 
 12 Cox, 137 
 
 
 
 . 271 
 
 — 
 
 15 Cox, 343 
 
 
 
 . 412 
 
 Holroyd, — 
 
 2 M. & Rob. 339 
 
 
 
 . 246 
 
 Holt, R. v., 
 
 8 Cox, 411 ; Bell, 280 . 
 
 
 
 . '409 
 
 Hood, - 
 
 1 Moo. 281 . 
 
 
 
 25, 186 
 
 Hoodless, R. v., . 
 
 45 U. C. Q. B. 556 . 
 
 
 
 . 95r, 
 
 Hook, — 
 
 Dears. & B. 606 . 
 
 
 
 . 93 
 
 Hope, — 
 
 17 0. R. 4G3 
 
 
 
 . 416 
 
 Hopley, — 
 
 Warb. Lea<l. Cas. 110 . 
 
 
 
 . 27 
 
 — 
 
 2 F. & V 21I-' 
 
 
 
 . 190 
 
 Horan, — 
 
 6 Ir. R. C. L. 293 
 
 
 
 . 904 
 
 Horner, — 
 
 2 East }\ C. 703 
 
 
 
 . 436 
 
 Hornsby V. Raggett, . 
 
 17 Cox, 428 
 
 
 
 . 134 
 
 Horsey, R, v., 
 
 3 F. & F. 287 
 
 
 
 . 171 
 
 Horton, — 
 
 11 Cox, 670 . 
 
 
 
 . 285 
 
 Howard v. R., 
 
 10 Cox, 54 . 
 
 
 
 680, 857 
 
 Howartii, R. v., . 
 
 > 1 Moo. 207 . 
 
 
 18, 619, 621, 624 
 
 — 
 
 11 Cox, 588 
 
 
 . 405 
 
 Howell, 
 
 9 C. & P. 437 
 
 
 •5 
 
 2, 58, 566 
 
 Howes, R. v., 
 
 Howie, — 
 
 Howley, — 
 Hubbard, — 
 
 Huddell, — 
 
 Hudson, — 
 
 Hughes, — 
 
 Hugiii, _ ; 
 
 Huguet, ex parte, 
 Humphreys, R, v., 
 Hungerford, — 
 Hunt, 
 
 Hunter, 
 
 Huntley, _ 
 
 Hurse, 
 
 Hutchinson, 
 
 Huxley, 
 
 Illidge, R. v„ 
 Ilott V. Wilkes, 
 Instan, R. v.. 
 Ion, — 
 
 Isaacs, — 
 Israel, — 
 
 •Tat'k.soii, R.V., 
 
 •Tnc'obs, 
 
Howes, R. v., 
 
 Howie, — 
 
 Howley, — 
 
 Hubbard, — : 
 
 Huddell, — 
 
 Hudson, — 
 
 Hughes, — 
 
 Hugill, — 
 Huguet, ex parte, 
 Humphreys, R. v., 
 Hungerford, — 
 Hunt, — 
 
 Hunter, 
 Huntley, 
 Hurse, 
 Hutchinson, 
 
 Huxley, 
 
 Illidge, R. v„ 
 Ilott V. Wilkes, 
 Instan, R. v., 
 Ion, — 
 
 Isaacs, — 
 Israel, — 
 
 60 
 
 190 
 
 TABLE OF CASES CITED. 
 
 5 Man. L. R. 339 
 
 11 Cox, 320 . 
 L. & C. 159 
 14 Cox, 565 . 
 20L. C. J.301 
 Bell, 263 
 Bell, 242 
 
 14 Cox, 284 . 
 Warb. Lead. Cas 
 
 7 Cox, 301 . 
 1 Moo. 370 . 
 
 1 F. & F. 355 
 Warb. Lead. Cas 
 
 2 East P. C. 491 
 2 Russ, 517 
 
 12 Cox, 551 . 
 Car. & M. 601 
 
 2 East P. C. B18 
 
 1 Moo. 93 . 
 
 8 C. & P. 642 
 
 8 Cox, 495 . 
 
 3 B. & Aid. 444 
 
 2 Leach, 631 
 Bell, 238 . 
 
 2 M. & Rob. 360 
 
 9 Cox, 555 . 
 R. & R. 412 
 
 1 Leach, 136 (n) 
 Car. & M. 596 
 
 Ixvii 
 
 PAGE. 
 
 . 701 
 . 519 
 . 520 
 . 201 
 . 755 
 . 430 
 29, 35, 34-!, 350 
 88 
 88 
 191 
 3(1}, 365 
 . 401 
 4 .'16, 473 
 . 468 
 . 389 
 . 797 
 . 736 
 . 473 
 213, 235, 61!), 622 
 . 366 
 . 408 
 . 742 
 . 222 
 . 348 
 . 553 
 . 193 
 . 470 
 . 612 
 . 447 
 
 I. 
 
 1 Den. 404 . 
 
 . 519 
 
 3 B. & Aid. 304 . 
 
 . 244 
 
 (1893) 1 q. B. 450 
 
 . 249 
 
 2 Den. 475 . 
 
 . 504, 5-.'S. -,.-3 
 
 L. & C. 220 
 
 . l.'78 
 
 2 Cox, 263 . 
 
 . 7.-4 
 
 Jackson, R.v., 
 
 
 
 17 Cox, 104. 
 
 3, 219, L-.Mt 
 
 — 
 
 
 
 7 Cox. 357 
 
 . 170 
 
 — 
 
 
 
 1 Leach, 267 . . 
 
 . ;w:, 451 
 
 — 
 
 
 
 3 Camp. 370 . . 
 
 . 402 
 
 . — 
 
 
 
 2 Russ. 49, 7a . 
 
 . S36 
 
 — 
 
 
 
 19 U. C. C. P. 280 . 
 
 S41 
 
 Jacobs, — 
 
 
 
 R. &R. 331 
 
 . L17 
 
 r 
 
 
 
 1 M(M.. 140 ... 
 
 . 281 
 
 !■! 
 
 t 
 
Ixviii 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 
 PAGE. 
 
 Jacobs, R. V , . . 12 Cox, 151 . 
 
 . 313, 325 
 
 _ . 16 S. C. R. 433 . 
 
 . 845 
 
 James, — 
 
 17 Cox, 24 ; 24 Q. B. D. 439 
 
 . 29 
 
 
 
 
 
 5 C. & P. 153 . 
 
 57 
 
 
 
 
 
 12 Cox, 127 . 
 
 410, 705, 844 
 
 — 
 
 
 
 7 C. & P. 55;! 
 
 . 500, 728 
 
 — 
 
 
 
 1 D. & R. 55!) 
 
 . 623 
 
 Jamieson, R. v., 
 
 
 
 7 0. R. 149 
 
 . 139 
 
 Jarrald, — 
 
 
 
 L.&C. 301 
 
 . 486, 672 
 
 Jarvis, — 
 
 
 
 2 M. & Rob. 40 . 
 
 41 
 
 
 
 
 1 Moo. 7 . . . 
 
 . 4U0 
 
 Jeans, — 
 
 
 
 1 C. & K. .539 . 
 
 . 576 
 
 Jefferys v, Boosey 
 
 
 
 4 H. L. Cas. 815 . 
 
 . 612 
 
 Jelly man, R. v.. 
 
 
 
 Warb. Lead. Cas. 57 . 
 
 . 117, 121 
 
 Jenkins, — 
 
 
 
 11 Cox, 250 
 
 . 201 
 
 
 
 
 R. & R. 244 
 
 462, 463 
 
 Jenks V. Turpin, 
 
 
 
 13 Q. B. D. 505 . 
 
 . 134, 135 
 
 Jennings, R. v.. 
 
 
 
 Dears. & B. 447 . 
 
 . 356 
 
 
 
 
 20 L. C. J. 291 . 
 
 . 767, 792 
 
 Jennison, — 
 
 
 
 L. & C. 157 
 
 . 400, 409 
 
 Jenson, — 
 
 
 
 1 Moo. 434 . 
 
 . 361 
 
 Jepson, ~ 
 
 
 
 2 East P. C. 1115 
 
 . 565 
 
 Jervis, — 
 
 
 
 6 C. & P. 156 
 
 . 347 
 
 Jessop, — 
 
 
 
 16 Cox, 204 . . . 
 
 33, 172, 226 
 
 — 
 
 
 
 Dear.«. & B. 442 . 
 
 . 401 
 
 Jewell, — 
 
 
 
 6 Man. L. R. 4G0 
 
 . 397 
 
 John V. R., 
 
 
 
 15 S. C. R. 384 . 
 
 43, 273 
 
 R. v., . 
 
 
 
 13 Cox. 100 
 
 394, 449 
 
 Johnson, — 
 
 
 
 Car. & M. 218 . 
 
 . 32, 466 
 
 — 
 
 
 
 L. &C. G32 
 
 . 258 
 
 — 
 
 
 
 15 Cox, 481 . 
 
 . 294, 295 
 
 . 
 
 
 
 L. & C. 489 
 
 474, 479, 815 
 
 . — , 
 
 
 
 3 M. & S. 539 .. . 
 
 . . . 692 
 
 . 
 
 
 
 Post. 40 . . . . 
 
 . 780 
 
 — 
 
 
 
 8 Q. B. 102 . 
 
 . 981 
 
 Johnston, — 
 
 
 
 2C. &K. 354 
 
 . 174 
 
 — 
 
 
 
 2 Moo. 254 . 
 
 . 400 
 
 Jolitfe, cxpurtr, . 
 
 
 
 42 L. J. (;>. B. 121 
 
 . 624 
 
 Jonea, R. v.. 
 
 
 
 11 Cox, 544 . . . . 
 
 . 193 
 
 — — — . . 
 
 
 
 12 Cox, 628 . . . , 
 
 . .199 
 
 — 
 
 1 • 
 
 
 
 2 C. k K. 398 ; 1 Den. 218 . 
 
 . 223 
 
 _ 
 
 
 
 
 11 Cox, 358 . . . . 
 
 . 285 
 
 — 1 
 
 
 
 15 Cox, 284 .... 
 
 . 285 
 
 _ 
 
 
 
 1 Den. 188 . 
 
 . 333, 372 
 
 — 
 
 
 
 8C. &P. 2S8 
 
 . 307 
 
 _ 
 
 
 
 . Dears. & B. 55.") . 
 
 .377 
 
 _ 
 
 
 
 1 Den. 5.51 . . . 
 
 . 402, 027 
 
 — 
 
 
 
 , 15 Cox, 475 .... 
 
 . 409 
 
 — . 
 
 
 
 
 1 Leach, 537 
 
 . 401 
 
 Jones, R, v., 
 
 V. R., . 
 
 Jordan, R. v.. 
 
 Jordin v. Crump 
 Joyce, R. v., 
 Judah, — . 
 
 Justices, The, R, v., 
 
 Kain, R. v., 
 
 Kay, — . 
 
 Kaylor, — 
 Kealey, — . 
 Keary, — , 
 Kearley v. Tyler, 
 Keena, R. v., 
 Keighly v. Bell, 
 Keir v. Leeman, 
 Keith, R. v., 
 Kellelier, — 
 Kelly, — 
 
 Kemp V. Neville 
 Kennett, R. v., 
 Kenny. — 
 Kenrick, — 
 Kerr, — 
 
 Ktrrisran, — 
 
 Ke.ssal, — 
 
 Kew, — 
 
 Key, _ 
 
 Kfvn, — 
 
 Kilham, — 
 
 KuiiIht, — 
 
Jones, R. v., 
 
 .*. _ 
 
 V. R., 
 
 Jordan, R. v., 
 
 Jordin v. Cnimp 
 Joyce, R. v., 
 Judah, — . 
 
 Justices, The, R, v., 
 
 TABLE OF CASES CITED. 
 
 2 Moo. 2«)3 . 
 4 B. & Ad. 345 
 2 Camp. 131 
 
 2 Moo. 04 . 
 1 Leach, 452 
 14 Cox, 3 . 
 2Rus8. 3(54 . 
 14 Cox, 528 . 
 
 3 L. N. 309 . 
 9 C. & P. 118 
 Warb. Lead. Cas 
 
 7 C. & P. 432 
 
 8 M. & W. 782 
 L. & C. 576 
 
 7 L. N. 38.-) 
 
 8 L. N. 124 
 
 18 Cox, 143, 196 
 
 Ixix 
 
 PAOE. 
 
 562, 572 
 
 . 597 
 
 087, 692 
 
 691 
 
 755 
 
 827 
 
 836, 
 
 903 
 
 790 
 
 8 
 
 28 
 
 457 
 
 244 
 
 519 
 
 413 
 
 413 
 
 904 
 
 Kain, R. v., 
 
 8 C. & P. 187 
 
 . 454 
 
 • • 
 
 15 Cox, .388 . 
 
 . 758 
 
 Kay, — . . 
 
 16 Cox, 292. 
 
 . 282 
 
 — . 
 
 11 Cox, 52t> ; L. R. 1 C. C. 1 
 
 El. 257 . 524 
 
 Kaylor, — 
 
 1 Dor. Q. B. R. 364 . 
 
 . 290 
 
 Kealey, — . 
 
 2 Den. 68 . 
 
 . 682 
 
 Keary, — . . . . 
 
 14 Cox, 143 . 
 
 . 862 
 
 Kearley v. Tylor, . 
 
 17 Cox, 328 . 
 
 12 
 
 Keena, R. v., 
 
 11 Cox, 123 . 
 
 . 360 
 
 Keighly v. Bell, . 
 
 4 F. & F. 763 
 
 22 
 
 Keir v. Leeman, . 
 
 9 Q. B. 371 . 
 
 . 104 
 
 Keith, R. v.. , 
 
 Dears. 486 . 
 
 . 526 
 
 Kelleher, — 
 
 14 Cox, 48 . . 
 
 . 413 
 
 Kelly, - . : 
 
 R. & R. 421 
 
 31 
 
 — . 
 
 2 C. & K. 379 . 
 
 32 
 
 — 
 
 6 U. C. C. P. 372 
 
 .55 
 
 Keuip V. Neville 
 
 10 C. B. N, S. 523 
 
 . 623 
 
 Kennett, R. v., . 
 
 5C. &P. 282 
 
 56 
 
 Kenny. — 
 
 13 Cox, 397 
 
 . 318 
 
 Kenrick, — 
 
 D. & M. 208 
 
 , 406 
 
 Kerr, — 
 
 26 V. C. C. P. 214 
 
 615, 860, 871 
 
 — 
 
 3 L. N. 299 
 
 . 785 
 
 Kt'rrigan, — 
 
 L. & C. 383 
 
 . 412 
 
 Kessal, — 
 
 1 C. & P. 437 
 
 . 185 
 
 Kew, — 
 
 12 Cox, 355 
 
 . 193 
 
 Key, — 
 
 2 Den. 347 
 
 . 717, 779 
 
 Ktvn, — 
 
 13 Cox, 403 
 
 606, 609, 779 
 
 Kilhaiji, — . . 
 
 11 Cox, 561 
 
 406, 408 
 
 KiiulHT, — 
 
 3 Cox, 223 
 
 . 981 
 
Ixx 
 
 TABLE OF CASES CITED. 
 
 
 
 PAGE. 
 
 King, R. v., 
 
 18 0.R. 5f)6 
 
 . 12, 236 
 
 , 
 
 R. & R. 332 ... 
 
 . 31 
 
 , 
 
 1 Cox, 3fi . 
 
 . 106 
 
 _ , 
 
 12 Co.x, 73 ... 
 
 . 368 
 
 , 
 
 7Q. B. 782 
 
 . 498, m 
 
 ■ — 
 
 2 Chit, Rep. 217 
 
 . 742 
 
 — V. Poe, 
 
 30J.P. 178 
 
 . 622 
 
 Kingston, R. v. 
 
 8 East 41 
 
 . 692, 693 
 
 Kinloch's Case, . 
 
 Post. 16 . . . . 
 
 755, 790 
 
 Kinnear, R. v., 
 
 2M. &Rob. 117 
 
 . 516 
 
 — ; 
 
 2 B, & Aid. 462 . . 
 
 . 787 
 
 Kinsman, — 
 
 James (N. S.) 62 
 
 . 606 
 
 Kipps, — 
 
 4 Cox, 167 
 
 . 294 
 
 Kirkham, — 
 
 8 C. & P. 115 
 
 . 184 
 
 — 
 
 2 Starkie Ev, 279 . . 
 
 . 459 
 
 Kirkwood, — 
 
 1 Moo. 304 .... 
 
 . .32 
 
 Kitson, — 
 
 Dears. 187 ... 
 
 . mo 
 
 Kneeshaw v. Collier, . 
 
 30 U. C. C. P. 265 . 
 
 . 104 
 
 Knewland, R, v., 
 
 2 L(;ach, 721 .. . 
 
 438, 860 
 
 Knight, — 
 
 12 Cox, 102 ... 
 
 . 331 
 
 — 
 
 L. & C. 378 
 
 . 717 
 
 — . 
 
 14 Cox, 31 .... 
 
 . 8.54 
 
 Knock, — 
 
 14 Cox, 1 
 
 . 23 
 
 Kno widen v. R., 
 
 9 Cox, 483 ; 5 B. & S. 532 . 613, 731, 732 
 
 Kolligs, In re, . 
 
 6 R. L. 213 
 
 . 619 
 
 Labonchere, R. v.. 
 
 W Cox, 419 ... 
 
 , 303 
 
 Labrie, — 
 
 M. L. R. 7 Q. B. 211 
 
 . 288 
 
 Lackey, — 
 
 IP. &B. (X. B.)194 
 
 . 237 
 
 Lalanne, — 
 
 3 L. N. 10 
 
 . S70 
 
 Laliberte, — 
 
 . . 1 S. C. R. 117 . . . . 
 
 •. 271 
 
 Lambert, — 
 
 2 Cox, 309 . ... 
 
 , 367 
 
 Lamere, — 
 
 8 L. C. J. 281 . ... 
 
 , 767, 792 
 
 Lamirande, ex parte, . 
 
 10 L. C. .J. 280 
 
 . 508 
 
 Lancaster, R. v.. 
 
 16 Cox, 7.S7 
 
 82 
 
 Lane v. Bennett, 
 
 1 M. & W. 70 . . . 
 
 605, 633 
 
 Langford, R. v., 
 
 Car. k M. 602 
 
 . 58 
 
 Langhurst, — 
 
 10 Cox, 3.-)3 . . . . 
 
 . 713 
 
 Langmead, — 
 
 L. & C. 427 ... 
 
 352, 820 
 
 Langton, — 
 
 13 Cox, 345 ... 
 
 . 413 
 
 Lantz, — 
 
 . 19 N. S. Rep. 1 
 
 . 256 
 
 Lapier's Case, 
 
 1 Leach, 320 .. . 
 
 . 436 
 
 Laprise, R. v 
 
 3 L. .-;. 139 
 
 . 119 
 
 Lara, — ... 
 
 2 East P. C. 81<) 
 
 , 431 
 
 Larkin, — . ,. . 
 
 Dears, 365 ... 8 
 
 10, 857, fe70 
 
 Lat"^ 1, — 
 
 9 Cox, 516 
 
 . 694 
 
 Latin? r, — . . , 
 
 16 Cox, 70 ; 17 (I B. D. 369 233, 
 
 234,238,-578 
 
 Laurier, R. v,, 
 Lavallee, — 
 Lawes, — 
 Lawrence, — 
 Laws V, Eltringl 
 Lea, R. v,, 
 
 ■ V. Charrini 
 
 Le Dante, R. v 
 Ledbitter, — 
 
 Ledger, 
 Ledwith v. Catch 
 Leech, R, v,, 
 Leete v. Hart, . 
 Lefrcy, R. v,, 
 Lee, . — 
 
 Lees, — 
 
 Leigh, — 
 
 Leniott's Case, 
 Lennard, R. v., 
 Leonard, — 
 
 Levasseur, — 
 
 Levecque, — 
 Levinger, 
 
 Lewis, — 
 
 Leynian v, Latimer 
 Lincv, R, V,, 
 Light, — 
 Liii!?. — 
 Liiicisay v, Cundy 
 Lister, R. V,, 
 
 Lithgo, — 
 
 Little, _ 
 
 Littlechild, — 
 Living.stone v, Massi 
 I-loyd, R, v., 
 
Laurier, R. v., 
 Lavallee, — 
 Lawes, — 
 Lawrence, — 
 Laws V. Eltringham 
 Lea, R. v., 
 
 V. Charriugton 
 
 Le Dante, R. v., 
 Ledbitter, — 
 
 Ledger, — 
 
 Ledwith v, Catchpoles, 
 Leech, R. v., 
 Leete v. Hart, . . 
 Lefrcy, R. v., 
 Lee, . — . 
 
 Lees, — 
 
 Leigh, — 
 Leniott's Case, 
 
 Lennard, R. v. 
 
 Leonard, — 
 
 Levasseur, — 
 
 Levecque, — 
 Levinger, 
 
 Lewis, — 
 
 Leynian v. Latimer, 
 Lnicv, R. v.. 
 Light, — 
 Ling, — 
 Lindsay v. Cundy 
 Lister, R. v., 
 
 Lithgo, — 
 
 Little, — 
 
 Littlechild, — 
 Livingstone v. Massey, 
 Lloyd, R. v., 
 
 TABLE OF CASES CITED. 
 
 11 R. L. 184 
 10 R. L. 29!) 
 
 1 C. & K. 02 . 
 4 C. & P. 231 
 
 15 Cox, 22 ; 8 Q. B. D. 283 
 
 2 Moo. a ... 
 
 16 Co.x, 704 ; 23 Q. B. D. 45 
 
 2 G. & O. (N. S.) 401 
 
 1 Moo. 76 
 
 3 C. & K. 108 
 
 2 F. .<: F. 857 
 Cald. 2'Jl . 
 Dears. 042 
 37 L. J. C. P. 157 
 L. R. 8 Q. B. 134 
 Warb. Lead. Cas. 
 
 4 F. & F. 03 
 L. & C. 309 
 
 8 Cox, 233 
 12 Lewin, 154 
 L. & C. 418 
 1 Leach, 52 
 Kel. 64 
 
 1 Leach, 90 
 
 2 Russ. 78 
 
 3 L. X. 138 
 
 9 L. N. 3S6 
 30 U. C. Q. B. 509 
 
 22 O. R. C90 
 
 6 C. & P. 101 
 2 C. & P. 628 
 2 Russ. 841 
 2 Russ. 10C7 
 Dears, t B. 182 
 
 14 Cox, 51 
 
 12 Cox, 451 
 Dears. & B. 332 
 
 5 (l L. R. 3.59 ; 2 L. N. 410 
 
 13 Cox, 583; 2 Q.B.D, 96; 3 App, 
 Dears, k B. 209 
 
 Dears. &B. 118 
 R. & U. ;V)7 
 
 15 Cox, 319 
 
 L. R. il. B. 293 
 
 23 U. C. (i. B. 156 . 
 
 10 Cox, 235 ; 19 Q. B. D. 213 
 2 East P. C. 1122 ... 
 
 7 C. & P. 318 .. . 
 
 19 O. R. 352 .... 
 
 Ixj 
 
 XI 
 
 P.\OE. 
 . 303 
 . 418 
 474, 486 
 465, 472, 475 
 . 578 
 724, 726 
 . 648 
 . 236 
 . 105 
 
 . m 
 
 . 192 
 . 619 
 . 627 
 . 026 
 . 624 
 40 
 170, 797 
 . 400 
 . 407 
 . 808 
 . 407 
 . 391 
 . 326 
 . 546 
 . 388 
 . 709 
 . 121 
 . 141 
 . 508 
 . 215 
 . 464 
 . 505 
 558, 578, 981 
 606 
 977 
 409 
 622 
 854 
 Cas. 459 904 
 131, 133 
 367 
 481 
 72, 807 
 096 
 602 
 88 
 223 
 272 
 274, 867 
 
 k 
 
Ixxii 
 
 TABLE OF CASES CITED. 
 
 
 
 PAOK. 
 
 ■ ■ • 
 
 Lock, R. v., 
 
 12 Cox, 244 .... 
 
 118, 261 
 
 Margetts, R. 
 
 Lockett, — 
 
 7 C. & P. 300 
 
 33 
 
 Marks, 
 
 Loom, — • 
 
 1 Moo. 160 .... 
 
 . 836 
 
 Markuss, 
 
 Lopez, — 
 
 Dears. & B. 525 
 
 . 609 
 
 Marriott, 
 
 Lord Mayor, — 
 
 16 Cox,' 81 ; 16 Q. B. D. 772 
 
 . 304 
 
 Marsden, 
 
 1 — . 
 
 . 16 Cox, 77 .... 
 
 . 730 
 
 
 Sanchar, — 
 
 9 Cox, 189 .... 
 
 39 
 
 Marsh, — 
 
 Lovel, — 
 
 2 M. & Rob. 39 ... 
 
 . 44 
 
 
 Lovell, — < 
 
 8Q. B. D. 185 
 
 . 325 
 
 Marshall, — 
 
 tm— •m 
 
 2 M. & Rob. 236 ... 
 
 . 361 
 
 
 Lovelass, — 
 
 6C. &R596 
 
 . 71 
 
 Martin, — 
 
 Lovett, — 
 
 9 C. & P. 462 . 
 
 . 757 
 
 
 
 Lowe V. Routledge, 
 
 1 Ch. App. 47 ; L. R. 3 H. L. IOC 
 
 . 611 
 
 
 
 Low's Case, 
 
 4 Me. 437 .... 
 
 . 734 
 
 
 
 Lows V. Telford, 
 
 13 Cox, 226 .... 
 
 26,60 
 
 ■— 
 
 Luck, E. v., 
 
 3 F. & F. 483 . 
 
 . 34 
 
 ■■ , , 
 
 Luniley. — 
 
 11 Cox, 274 .... 
 
 . 283 
 
 
 Lynch, — 
 
 . 5C. &P. 324 . 
 
 . 184 
 
 ~" — 
 
 — 
 
 20 L. C. J. 187 . 703, 728, 853, 855 | 
 
 — — — ^^ 
 
 Lynn, — 
 
 L Leach, 497 
 
 . 139 
 
 _^ 
 
 Lyon, — 
 
 R. & R. 255 
 
 . 502 
 
 
 Lyons, — 
 
 1 Leach, 185 .. . 
 
 . 458 
 
 — 
 
 Macarthy, R. v., 
 
 M. 
 Car. &M. 625 .... 
 
 . 713 
 
 _ 
 
 Macauley, — 
 
 1 Leach, 287 .... 
 
 . 436 
 
 
 
 Macdaniel, — 
 
 1 Leach, 44 ... 
 
 . 173 
 
 Masters, — 
 
 Macdonald, — 
 
 L. &C. 85 
 
 . 361 
 
 Mason, — 
 
 MacintoFb, — 
 
 2 Leach, 883 .. . 
 
 . 502 
 
 — . 
 
 Mackenzie, 
 
 2 Man. L. R. 168 
 
 . 142 
 
 _ 
 
 Mackerel, — 
 
 4 C. & P. 448 . 
 
 . 577 
 
 , 
 
 Macklin, — 
 
 5 Cox, 216 
 
 .- 903 
 
 , 
 
 Mi\cleod, — 
 
 12 Cox, 534 
 
 196, 197 
 
 , 
 
 V. Atty.-Gen. 
 
 N.S.\V. 17 Cox, 341 ; (1891) A. C. 455 
 
 280, 611, 
 
 .__ 
 
 
 
 728, 730 
 
 Matthews, — 
 
 Madox, R, v.. 
 
 R. &R. 92 
 
 . 392 
 
 V. Bidd 
 
 Mttguire, — 
 
 13 Q. L. R. 99 . . 303, 7 
 
 71, 772, 786 
 
 Maxwell, R. v., 
 
 Maher, — 
 
 7L. N. 82 
 
 149 
 
 May, — 
 
 Mailloux, — 
 
 3 Pugs. (N. B. 493) . 
 
 11,55 
 
 
 Maloney, — 
 
 9 Cox, 6 
 
 . 771 
 
 Mayers, — 
 
 Mankeltow, — 
 
 Dears. 159 ... 
 
 . 293 
 
 Mayhew, v. Lock, 
 
 Manners, — 
 
 7C. &P. 801 . 
 
 32 
 
 Mayle, R. v., 
 
 Manninjf, — 
 
 Warb. Lead. Caa. 7 . 
 
 . 28 
 
 Maynard, R. v., 
 
 — 
 
 2C. &K. 903(n) 
 
 41 
 
 Mayor of St. John, 
 
 — 
 
 12 Q. B. D. 241 
 
 . 598 
 
 Mazagora, R. v., . 
 
 Mansell v, R., 
 
 Dears. & B. 375 
 
 . 785, 849 
 
 Mazeau, — 
 
 Mansfield, R. v.. 
 
 Car. & M. 140 . 
 
 . 351 
 
 Meade's case, 
 
 Marcus, — 
 
 2C. &K. 356 . 
 
 . 4!»7 
 
 
#^^1 
 
 TABLE OF CASES CITED. 
 
 Ixxiii 
 
 
 
 
 
 
 FAOE. 
 
 Margetts, R. v., . 
 
 2 Leach, 930 458 
 
 Marks, — . . . 
 
 10 Cox, 367 
 
 
 . 683, 843 
 
 MarkusB, — 
 
 4 F. & F. 336 . 
 
 
 
 
 . 197 
 
 Marriott, — . . . 
 
 8 C. & P. 425 . 
 
 
 
 
 143, 198 
 
 Marsden, — . . . 
 
 11 Cox, 90 
 
 
 
 
 . 236 
 
 — . . . 
 
 17 Cox, 297 
 
 
 
 
 . 274 
 
 Marsh, — . Ht . 
 
 1 Den. 505 
 
 
 
 
 43, 405 
 
 — . . . 
 
 6 A. & E. 236 
 
 
 
 
 734, 849 
 
 Marshall, — . . . 
 
 11 Cox, 490 
 
 
 
 
 362, 363 
 
 — . . . 
 
 R. &. R. 75 
 
 
 
 
 . 502 
 
 Martin, — 
 
 9 C. & P. 213, 215 
 
 
 
 . 43 
 
 — 
 
 21 L. C. J. 156 
 
 
 
 88 
 
 — 
 
 2 Moo. 123 
 
 
 
 118, 817 
 
 — . . . 
 
 5 C. & P. 128 
 
 
 
 
 158, 209 
 
 — 
 
 3C.&P. 211 
 
 
 
 
 . 188 
 
 — 
 
 11 Cox, 136 
 
 
 
 
 . 189 
 
 — 
 
 14 Cox, 663 ; 8 Q 
 
 . B. I 
 
 X 54 
 
 
 207, 237 
 
 — 
 
 6 C. & P. .'562 
 
 
 
 
 . 271 
 
 — . . 
 
 11 Cox, 343 
 
 
 
 . 3 
 
 79, 555, 699 
 
 — 
 
 10 Cox, 383 
 
 
 
 
 . 401 
 
 — 
 
 R. & R. 108 
 
 
 
 
 . 458 
 
 — 
 
 14 Cox, 375 
 
 
 
 
 . 502 
 
 — 
 
 R. & R. 324 
 
 
 
 
 . 538 
 
 — 
 
 16 Q. L. R. 281 
 
 
 
 
 . 750 
 
 — • . 
 
 12 Cox, 204 
 8A. &E. 481 
 
 
 
 
 . 829 
 . 857 
 
 — 
 
 1 Den. 398 ; 3 Cox, 44 
 
 
 
 . 867 
 
 Masters, — . , 
 
 50 J. P. 104 
 
 
 
 . 764 
 
 Mason, — 
 
 17 U. C. C. P. 534 
 
 
 
 . 104 
 
 — 
 
 1 East P. C. 239 
 
 
 
 . 163 
 
 — 
 
 . 22 U. C. C. P. 246 
 
 
 m,3 
 
 96, 706, 709 
 
 — 
 
 2 T. R. 581 
 
 
 
 . 400 
 
 — 
 
 R. & R. 419 
 
 
 
 , 436 
 
 — 
 
 24 U. C. C. P. 58 
 
 
 
 . 450 
 
 — 
 
 2 C. & K. 622 . 
 
 
 
 . 530 
 
 Matthews, — 
 
 14 Cox, 5 
 
 
 
 . 572 
 
 V. Biddulph, 
 
 4 Scott, N. R. 54 
 
 
 
 . 622 
 
 Maxwell, R. v., , 
 
 10 L. C. R. 45 . 
 
 
 
 . 714, 756 
 
 May, — 
 
 16 L. T. 362 
 
 
 
 . 232 
 
 — 
 
 L. & C. 13 
 
 
 
 . 362 
 
 Mayers, — 
 
 12 Cox, 311 
 
 
 
 . 270, 817 
 
 Mayhew, v. Lock, 
 
 2Mar8h. 377;7Taun. 
 
 63 
 
 
 . 624 
 
 Mayle, R. v., 
 
 11 Cox, 150 
 
 
 
 . 362 
 
 Maynard, R. v., 
 
 R. & R. 240 
 
 
 
 . 746 
 
 Mayor of St. John, R. v., 
 
 Chip. Mss. 155 
 
 
 
 . . 131 
 
 Mazagora, R. v., . 
 
 R. & R. 291 
 
 
 
 . 500 
 
 Mazeau, — 
 
 9 C. & P. 676 . 
 
 
 
 . 509 
 
 Meade's case. 
 
 1 Lewin. 184 
 
 « 
 
 
 
 . 204 
 
 s 
 
 'fill; 
 
Ixxiv 
 
 TABLE OF CASES CITED. 
 
 
 
 
 PAGE. 
 
 Meakin, R. v., . . . . 
 
 11 Cox, 270 
 
 . 404 
 
 Meany, — . . . • 
 
 L. & C. 213 
 
 
 . 770 
 
 Mears, — . . . 
 
 2 Den. 7'J 
 
 
 . 129 
 
 Medley, — 
 
 i; C. & P. 292 . 
 
 
 . 131 
 
 Meere'H case, 
 
 2 Russ. 519 
 
 
 . 370 
 
 Mehegan, R. v., . 
 
 7 Cox, 1-15 
 
 
 . 253 
 
 Mellish, — 
 
 R. & R. 80 
 
 4 
 
 . 358, 361 
 
 Mellor, - . . 
 
 Dears. & B. 468, 494 
 
 
 779, 785, 868, 872 
 
 Mercier, — , . . 
 
 (,>. R. 1 Q. B. 541 
 
 
 . 752 
 
 ■' -^— —' a a 
 
 1 Leach, 183 
 
 
 . 753 
 
 Merriman v. Hundred of C 
 
 lip- 
 
 
 
 penham, 
 
 2 East P. C. 709 
 
 
 . 439 
 
 Micliiit'l, R. v., . 
 
 2 Moo. 120 
 
 
 30, 174, 215 
 
 Middleton, — . . . 
 
 12 Cox, 200, 417 . 
 
 
 . 307, 329 
 
 Middlehnrst, R. v., 
 
 I Burr. 400 
 
 
 . 819 
 
 Mij,'otti V. Colville, 
 
 14 Cox, 203, 305 ; 4 C. 
 
 P..D 
 
 . 233 . 965 
 
 Miles, R. v., . 
 
 17Cox, 9;24Q.B.D. 
 
 423 
 
 239, 266, 718, 977 
 
 Millhouse, R. v., 
 
 ISCu.v, 022 
 
 
 . 764 
 
 Milford, — . . 
 
 20 0. R. 306 
 
 
 . 433 
 
 Miller, — 
 
 13 Cox, 179 
 
 
 . 294 
 
 — . . 
 
 2 :^Ioo. 249 
 
 
 . 365 
 
 :\Iilloy, - . . 
 
 L. N. 95 
 
 
 . 798 
 
 Mills, - . 
 
 Dear.s. & B. 205 
 
 
 . 401, 404 
 
 Mitchell, — 
 
 17 Cox, 503 
 
 
 . 201 
 
 — 
 
 2 Den. 4(58 
 
 
 . 446 
 
 — . . 
 
 2 Q. B. 030 
 
 . 
 
 . (>27 
 
 — 
 
 3 Cox, 93, 
 
 
 . 752, 852 
 
 V. Defries, 
 
 2 U. C. Q. B. 430 . 
 
 
 . 27 
 
 Moah, R. v.. 
 
 Dears. 020 
 
 
 . 367 
 
 Mocl>' rd, R. v„ . . 
 
 11 Cox, 16 . . , 
 
 
 . 333 
 
 Moffat, — 
 
 1 Leach, 431 
 
 
 . 502 
 
 Moffatt V. Barnard, . 
 
 24 U. C. Q. B. 498 
 
 
 . 9S1 
 
 Mogg, R. V 
 
 4 C. & P. 364 . 
 
 
 . 576 
 
 Mogul S. S. Co, V. McGrego 
 
 r, 23 Q. B. D. 598 . 
 
 
 . 241, 597 
 
 Moir, R. v.. 
 
 Ro.scoe, Cr. Ev. 714 
 
 
 25, 240 
 
 Moland, R, v., . . . 
 
 2 Moo. 276 
 
 
 38, 412 
 
 Mole, — 
 
 1 C. & K. 417 
 
 
 . 332 
 
 Monaghan, — 
 
 11 Cox, eo8 
 
 
 . 248 
 
 Mondelet, — 
 
 21 L. C. J. 154 . 
 
 
 . 293 
 
 Moukninn, — 
 
 8 Man. L. R. 509 
 
 
 16, 257 
 
 Moody, — ... 
 
 L. & C. 173 
 
 
 . 345, .520 
 
 Moore, — 
 
 1 Leach, 314 
 
 
 . S3 
 
 — ... 
 
 3 B. & C. 184 . 
 
 
 . 1.31 
 
 — ... 
 
 13 Cox, 544 
 
 
 . 2S6 
 
 — . . 
 
 L. & C. 1 
 
 
 . 329 
 
 — ■ , • . . 
 
 1 Leach, 335 
 
 
 . 430 
 
 -^ . . . . 
 
 2 Dor. Q. B. R. 52 
 
 
 . 010 
 
 Moi'sey, 
 
 11 Cox, 143 
 
 
 510, ,-.17 
 
 Morby, . . . 
 
 Warb. Lead. Cas. 115 
 
 
 , 143 
 
 Morby, R. v., 
 Morfit, — 
 Morgan, — 
 Morin, v. R. 
 Morris, R. v., 
 
 V, Wis 
 
 Morrison, R. \ 
 
 Mortin v. Sho 
 Morton, R. v. 
 Moss, — 
 Most, — 
 Mountford, R. 
 Mucklow, 
 Miilcahy, v. 
 Mullholland.R 
 Muller, 
 Munday, 
 Murphy, 
 
 V. Ei 
 Murrow, R. v 
 Murry, — 
 Mussett, — 
 Mutterx, — 
 
 Mycock, — 
 
 MacDaniel's C 
 
 MacFarlane v 
 
 MacGrath, R. 
 
 MiicKenzie, 
 
 McAthey, 
 
 McConohy, 
 
 McCorkill, 
 
 McDonagh, 
 
 McDonald, 
 
 McEneany, 
 McFee, 
 

 TABLE OF CASES CITED. 
 
 Ixxv 
 
 
 
 
 PAGB. 
 
 Morby, R. v., 
 
 15 Cox, 35 . . . 
 
 . 199 
 
 Morfit, — . . 
 
 R. & R. :i07 
 
 . 333, 339 
 
 Morgan, — . . . 
 
 14 Co.\, 337 .. . 
 
 . 201 
 
 Morin, v. R. 
 
 16 Q. L. R. 366 ; 18 S. C. R 
 
 407 785, 872 
 
 Morris, R. v., 
 
 10 Co.x, 480 
 
 226, 267, 721 
 
 — . . . . 
 
 R. & R. 270 .. . 
 
 . 320 
 
 — 
 
 il C. & P. 349 . 
 
 . 323 
 
 V. Wise, . 
 
 2 F. & F. 51 . . . 
 
 382, 621, 622 
 
 Morrison, R. v., . 
 
 Dell, 158 
 
 . 519- 
 
 — 
 
 . 2P. &B. (N. B.)682 
 
 . 710 
 
 Mortin v. Shoppee, 
 
 3 C;. & P. 373 . 
 
 . 260 
 
 Morton, R. v.. 
 
 2 East P. C. 955 
 
 . 394, 503 
 
 Moss, — .... 
 
 Dears. & B. 104 . 
 
 . 430 
 
 Most, — 
 
 14 Co.x, 583 ; 7 Q. B. D. 244 
 
 73, 225 
 
 Mountford, R. v., 
 
 1 Moo. 441 
 
 . 222 
 
 Mucklow, — . . 
 
 1 Moo. IGO 
 
 . 327 
 
 Mulcahy, v. R. . . 
 
 L. R. 3 H. L. 306 
 
 
 47 
 
 Mullholland.R. v., 
 
 4P.&B. (X. B.)512 . 
 
 
 . 824 
 
 Muller, 
 
 10 Cox, 43 
 
 
 . 808 
 
 Munday, — . ... 
 
 2 Leacli, 850 
 
 
 . 377 
 
 Murphy, — . 
 
 GC.&P.103 
 
 
 . 35 
 
 — ... 
 
 6 C. & P. 103 
 
 
 61 
 
 — 
 
 9 L. N. 95 
 
 
 . 97 
 
 — 
 
 17 0. R. 201 
 
 
 . 135 
 
 — ; 
 
 1 Cox, 108 
 
 
 . 213 
 
 — — — 
 
 8C.&P.297 
 
 
 256, 693 
 
 — 
 
 6 Cox, 340 
 
 
 . 388 
 
 — 
 
 2 East P. C. 949 
 
 
 . 515 
 
 — 
 
 2Q. L.R.3S3 . 
 
 
 . 780 
 
 — 
 
 17<,».L.R. 305 . 
 
 
 . 869 
 
 V. Eills, 
 
 2 Han. (X. B.) 347 
 
 
 . 620 
 
 Murrow, R. v. 
 
 1 Moo. 456 
 
 
 . 243 
 
 Murry, — 
 
 2 East P. C. 496 
 
 
 . 459 
 
 MiLssett, — 
 
 26 L. T. 429 
 
 
 . 5S6 
 
 Mutters, — 
 
 L. &C.491 
 
 
 . 133 
 
 — 
 
 L. &C.511 
 
 
 . 317 
 
 Mycock, — 
 
 12 Cox, 28 
 
 
 . 294 
 
 MacDaniel's Case 
 
 Fost. 121 . 
 
 
 . 98 
 
 MacFarlane v. R., 
 
 16 S. C. R. 393 . 
 
 
 . 256 
 
 MacGrath, R. v., 
 
 11 Cox, 347 
 
 
 . 438 
 
 MacKenzie, — 
 
 () 0. R. 165 
 
 ■ * 
 
 . 677 
 
 Mc.\they, — 
 
 L. & C. 250 
 
 
 . 351 
 
 McConohy, — 
 
 5 R. L. 74(5 
 
 
 . 696 
 
 McCorkill, — 
 
 8 L. C. J. 283 
 
 
 . 521 
 
 McDonagh, — 
 
 28 L. R. Ir. 204 . 
 
 
 . 587 
 
 McDonalti, — 
 
 8 Man. L. R. 491 
 
 
 . 454 
 
 — 
 
 10 O. K. 553 
 
 
 . 579 
 
 McEneany, — 
 
 14 Cox, 87 . 
 
 
 . 750 
 
 McFee, ~ 
 
 13 0. R. 8 . 
 
 
 . 517 
 
 1 :» 
 
 ! ; 
 
 I 
 
Ixxvi 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 
 
 
 rAOB. 
 
 McGrath, R. v., . Warb. Lead. Cas. 140 .. . a25 
 
 — 
 
 
 14Ccx, 598 
 
 
 . 56(> 
 
 McGreeay, — 
 
 
 17 Q. L. R. 196 . 
 
 , 
 
 
 . 597 
 
 McGregor, — 
 
 
 li B. & P. 106 ; R. & ] 
 
 [1.23 
 
 
 . 360 
 
 McHolme, — 
 
 
 8 Ont. P. R. 452 
 
 
 
 . ♦•.19 
 
 Mcintosh, — 
 
 
 2 Cox, 379 . 
 
 
 
 . 158 
 
 _ 
 
 
 2 East P. C. 942 
 
 
 
 . 519 
 
 Mclntyre, — 
 
 
 2 P. E. I. Rep. 154 
 
 
 
 . 905 
 
 _ 
 
 
 2 Cox, 379 
 
 
 
 . 158 
 
 McKale, — 
 
 
 11 Cox, 32 . 
 
 
 
 . 312 
 
 _ 
 
 
 2 East P. 0. 942 
 
 
 
 . 519 
 
 McKay, - 
 
 
 2S N. B. Rep. 564 
 
 
 
 . 123 
 
 McKeever, — 
 
 
 Ir. R, C. L. 86 
 
 
 
 . 561 
 
 McKenzie, — 
 
 
 17 Cox, 542; (1892) 2 C 
 
 I B. 
 
 519 
 
 . 593 
 
 V. Gibson, 
 
 
 8 U. C. Q. B. 100 
 
 
 
 . 6l6 
 
 McLaughlin, R. v., 
 
 3 Allen (N.B.) 159 
 
 
 
 . 981 
 
 McLeod, — 
 
 
 -. P. R. (Ont.) 181 
 
 
 
 . 750 
 
 McMahon, 
 
 
 18 0. R. 502 
 
 
 
 . 201 
 
 McNamara, — 
 
 
 20 0. R. 489 
 
 
 
 . 126, 135 
 
 McNaughten, — 
 
 
 14 Cox, 576 
 
 
 
 . 54 
 
 McNevin, — 
 
 
 2 R. L. 711 
 
 
 
 . 508 
 
 McPheraon, — 
 
 
 Dears. & B. 197 . 
 
 
 44. 385, 478. 812 
 
 V. Daniels, 
 
 
 10 B. & C. 272 . 
 
 
 
 . 167 
 
 MuQuame, R. v.. 
 
 
 22U. C. Q. B.600 
 
 
 
 . 413 
 
 McQuiggan, — 
 
 
 2 L. C. R. 346 . 
 
 
 
 . 281, 286 
 
 N. 
 Napper, R. v., . 1 Moo. 44 672 
 
 Nash, — 
 
 
 
 2 Den. 493 . 
 
 
 
 497, 499 
 
 V. R., 
 
 
 
 !) Cox, 424 . 
 
 
 
 . 854 
 
 Nasmith, R. v., 
 
 
 
 42 U. C. Q. B. 242 
 
 
 
 
 . 149 
 
 Nattrass, ~ 
 
 
 
 15 Cox, 73 . 
 
 
 
 
 563 
 
 Naylor, — 
 
 
 
 1 Dor. Q. B. R. 364 . 
 
 
 
 
 290 
 
 — 
 
 
 
 10 Cox, 149 
 
 
 
 
 408 
 
 Neale, - 
 
 
 
 !» C. & P. 431 
 
 
 
 
 57 
 
 — 
 
 
 
 1 Den. 36 . 
 
 
 
 
 818 
 
 Negus, — 
 
 
 
 12 Cox, 492 
 
 
 
 
 364 
 
 Nelson, — 
 
 
 
 1 0. R. .500 
 
 
 
 
 799 
 
 Nettleton, — 
 
 
 
 1 Moo. 259 . 
 
 
 
 
 365 
 
 Neville, -^ 
 
 
 
 « Cox, 69 . 
 
 
 
 
 842 
 
 Newboult, — 
 
 
 
 12 Cox, 148 
 
 
 
 
 !>60 
 
 Newill, - 
 
 
 
 1 Moo. 458 . 
 
 
 
 
 562 
 
 Newman, — 
 
 
 
 Dears. 85 ; 1 E. & B. 26 
 
 8 . 
 
 
 
 301 
 
 — 
 
 
 
 2 Den. 390 . 
 
 
 
 
 801 
 
 Newton, — 
 
 
 
 11 Ont. P. R. 101 
 
 
 
 135, 142 
 
 — 
 
 
 
 1 C. & K. 469 
 
 
 
 . 256 
 
 — 
 
 
 
 2 M. & Rob. 503 . 
 
 
 
 1:82, 736 
 
 — 
 
 
 
 3 Cox. 492 . 
 
 
 
 
 693 
 
 Newton, R. v. 
 Nichol, — 
 Nicholas, — 
 Nicholls, — 
 
 Nisbett, 
 Noake, 
 Noakes, 
 Noon, - 
 
 Norris, 
 
 North, 
 Norton, 
 Nott, 
 
 Nugent, — 
 Nunn, — 
 Nutbrown's Cas 
 
 Gates, R. ▼., 
 O'Brien, — 
 
 Ex parte 
 
 O'Connell v. R., 
 O'Connor, R, v., 
 Oddy, 
 
 O'Donnell, — 
 Ogden, — 
 O'Kelly V. Harv( 
 Oldham, R. v., 
 Olifier, — 
 Oliver, — 
 
 O'Neill, - 
 
 V. Longma 
 
 Orchard, R. v.. 
 Organ, — 
 Orman, — 
 Orton, — 
 
 O'Rourke, — 
 
 Osborn, — 
 
 V. Gillett, 
 
I 
 
 TABLE OF CASES CITED. 
 
 Ixxvii 
 
 
 
 
 
 
 
 
 HAGK. 
 
 Newton, R. v 13 Q. B. 716 850 
 
 Nichol, — 
 
 
 
 R. & R. 130 
 
 
 • 
 
 . 262 
 
 Nicholas, — 
 
 
 
 1 Cox, 218 . 
 
 
 
 
 474, 486 
 
 Nicholls, — 
 
 
 
 10 Cox, 170 
 
 
 
 
 . 123 
 
 — 
 
 
 
 13 Cox, 75 . 
 
 
 
 
 144, 199 
 
 — 
 
 
 
 1 F. & F. 51 
 
 
 
 
 . 351 
 
 
 
 
 
 1) C. & P. 267 
 
 
 
 
 . 447 
 
 _ 
 
 
 
 2 Cox, 182 . 
 
 
 
 
 . 818 
 
 Nisbett, 
 
 
 
 C. Cox, 320 . 
 
 
 
 
 . 517 
 
 Noake, — 
 
 
 
 2 C. & K. 620 
 
 
 
 
 . 359 
 
 Noakes, — 
 
 
 
 4 F. & F. 920 
 
 
 
 
 . 197 
 
 Noon, — 
 
 
 
 6 Cox, 137 . 
 
 
 
 
 . 162, 167 
 
 Norris, — 
 
 
 
 R. & R. 60 . 
 
 
 
 
 . 377 
 
 
 
 
 9 C. & P. 241 
 
 
 
 
 . 573 
 
 North, — 
 
 
 
 8 Cox, 433 . 
 
 
 
 
 . 314 
 
 Norton, — 
 
 
 
 16 Cox, 59 . 
 
 
 
 
 . 410, 708 
 
 Nott, — 
 
 
 
 Car. & M. 288 ; 9 Cox, 
 
 301 
 
 
 . 103 
 
 Nugent, — 
 
 
 
 11 Cox, 64 . 
 
 
 
 . 107 
 
 Nunn, — 
 
 
 
 10 P. R. (Out.) 395 
 
 
 
 . 940 
 
 Nutbrown's Case 
 
 
 
 2 East P. C. 496 
 
 
 
 
 . 459 
 
 o. 
 
 Gates, R. ▼., 
 
 Dears. 459 . . . . 
 
 . 407 
 
 O'Brien, — 
 
 5 Q. L. R. 161 . 
 
 . 584 
 
 — 
 
 15 Cox, 29 . . . . 
 
 . 720 
 
 Ex parte 
 
 15 Cox, 180 . . . 
 
 73, 304 
 
 O'Connell v. R., . 
 
 11 CI. & F. 155, 234 . 
 
 72, 691, 697 
 
 O'Connor, R. v., . 
 
 15 Cox, 3 . , . . 
 
 . 430 
 
 Oddy, - 
 
 2 Den. 264 . 
 
 351, r)05, 827 
 
 O'Donnell, — 
 
 7 Cox, 337 . . . . 
 
 . 106 
 
 Ogden, — 
 
 6 C. & P. 681 
 
 . 527 
 
 O'Kelly V. Harvey, 
 
 15 Cox, 435 
 
 53 
 
 Oldham, R. v., . 
 
 2 Den. 472 . 
 
 . 487 
 
 Olifier, — 
 
 10 Cox, 402 
 
 . 294 
 
 Oliver, — 
 
 Bell, 287 
 
 238, 254, 819 
 
 — 
 
 13Co.v, 588 
 
 . 840, 854 
 
 O'Neill, — 
 
 . . 3 P. & B. (N.B.) 49 . 
 
 . 265 
 
 — 
 
 . ' 11 R. L. 3;}4 
 
 . 447, 824 
 
 V. Lonfnnan, 
 
 4 B. & S. 376 
 
 . 594 
 
 Orchard, R. v., . 
 
 S C. & P. .-.Oo 
 
 . 844 
 
 Organ, — 
 
 11 Ont. P. R. 497 
 
 . 142 
 
 Orman, — 
 
 14 Cox, 381 
 
 . 597 
 
 Orton, — 
 
 14 Cox, 226, 436, 546 . 
 
 54, 966 
 
 — 
 
 Warb. Lead. Cas. 54 . 
 
 . 61 
 
 O'Rourke, — 
 
 1 0. R. 464 
 
 . 771 
 
 — 
 
 32U. C.C. P. 388 
 
 . 871 
 
 Osborn, — 
 
 7C. &P. 799 
 
 . 714 
 
 v. Gillett, . 
 
 L. R. 8Ex. 88 . 
 
 . 602 
 
 :i ! 
 
Ixxviii 
 
 TABLE OF CASES CITED. 
 
 
 
 P.\GE. 
 
 Osmaji, R. v., 
 
 15 Cox, 1 . . . 
 
 . 201 
 
 Ouellette, — 
 
 7 R. L. 222 . 
 
 . 708 
 
 Oulaghan, — 
 
 Jebb. 270 . 
 
 . 8.50 
 
 Overton, — ... 
 
 Car. & M. 655 . 
 
 . 869 
 
 Owen, — 
 
 Warb. Lead. Cas. 19 . 
 
 . . . 7,8 
 
 — 
 
 1 Moo. 96 . . . 
 
 . . 31 
 
 — 
 
 :2 Leach, 372 
 
 . 386 
 
 — 
 
 •J C. & P. 83 
 
 . 714 
 
 . — 
 
 1 Moo. 118 . 
 
 . 836 
 
 Owens, — 
 
 1 Moo. 205 . 
 
 . 576 
 
 Oxford, — 
 
 Warb. Lead. Cas. 21 . 
 
 8 
 
 Oxfordshire, R. v., 
 
 1 B. & Ad. 289 . 
 
 . 575 
 
 Oxley.R. v., 
 
 3 C. & K. 317 . 
 
 89 
 
 Packer, R. v., 
 
 P. 
 
 16 Cox, 57 
 
 . 128 
 
 Paddle, - - . • . 
 
 R. & R. 484 
 
 223 
 
 Page, — 
 
 8 C. & P. 122 . 
 
 . 527, 553 
 
 Pain V. Boughtwood, . 
 
 16 Cox, 747 
 
 . 295 
 
 Paine, R. v.. 
 
 7 C. & P. 135 . 
 
 . 467 
 
 Palliser, — . . 
 
 4 L. C. J. 276 . 
 
 . 422 
 
 Palmer, — 
 
 2 Leach, 978 
 
 30 
 
 - 
 
 R. & R. 72 
 
 . 504, 518 
 
 Paquet, — 
 
 2 L. N. 140 
 
 . 708 
 
 Parish, — 
 
 7 C. & P. 782 
 
 . 714 
 
 Parker, — 
 
 2 East P. C. 592 
 
 . 377 
 
 — 
 
 2 Moo. 1 
 
 . 402 
 
 Parkin, — 
 
 1 Moo. 45 
 
 . 770 
 
 Parkinson, — 
 
 2 Den. 459 
 
 . 872 
 
 Parke's Case, 
 
 2 Leach, 614 
 
 . 314 
 
 Parkins, R. v., 
 
 1 C. & P. 548 
 
 . 761 
 
 Parnell, — 
 
 14 Cox, 508 
 
 . 597 
 
 Parry, — 
 
 7 C. & P. 836 
 
 . 724 
 
 Partridge, — 
 
 7 C. & P. 551 
 
 . 333 
 
 Pascoe, — . , 
 
 1 Den. 456 
 
 . 106 
 
 Passey, — 
 
 7 C. & P. 282 . 
 
 33 
 
 Patent Eureka & Sanitary 
 
 
 
 Manure Co. 
 
 13 L. T. 365 
 
 . 742 
 
 Patience, R. v.. 
 
 7 C. & P. 795 
 
 . 186 
 
 Patrick and Pepper, . 
 
 1 Leach, 253 
 
 . 684 
 
 Patteson, * R. v.. 
 
 36 U. C. Q. B. 129 
 
 303, 786, 871 
 
 Patterson, — 
 
 27 U. C. Q. B. 142 
 
 . 678 
 
 Paiton, — 
 
 13 L. C. R. 311 . 
 
 . 131 
 
 Patil, ■ — 
 
 17 Cox. Ill ; 25 Q. B. D. 2( 
 
 )2 . 796 
 
 Paxton, — 
 
 3 L. C. L. .T. 117 
 
 . 308 
 
 •^ — — . 
 
 lOL. C. .J.213 
 
 . 780 
 
 — 
 
 2 L. C. L. J. 162 
 
 . 867 
 
 Payne, — 
 
 L. R. 1 C. C. R. 27 
 
 . 110 
 
 Payne, .R. \ 
 Pear , 
 Pearce, 
 
 Pearson, 
 
 Peat, 
 
 Peck, 
 
 Pedley, 
 
 Pelfryman,. — 
 
 Pelham, — 
 
 Pelletier, — 
 
 Peltier, 
 Pembliton, — 
 Peopl^, The, v, i 
 
 . . V. i 
 
 v.] 
 
 v.{ 
 
 Perham, In re, 
 Perkins, R. v. 
 
 Perrott, 
 Perry, 
 
 V. Wat 
 
 Petrie, R. v., 
 
 Phelps, 
 
 Philips, 
 Philipps, 
 
 Phillips, 
 
 Phillpot, 
 
 Philp, 
 
 Philpotts, 
 
 Phipoe, 
 
 Piche, 
 
 Pickford, 
 
 Pickup, 
 
 Pierce, 
 

 TABLE OF CASES CITED. 
 
 Payne, 
 
 .R. v., 
 
 12 Cox. 118 
 
 Pear . 
 
 — _ . . 
 
 1 Leach 212 
 
 Pearce, 
 
 — , 
 
 2 East P. C. 603 
 
 
 
 — 
 
 R. & R. 174 . 
 
 Pearson, 
 
 — 
 
 11 Cox, 493 
 
 Peat, 
 
 — 
 
 1 Leach, 228 
 
 Peck, 
 
 — 
 
 2 Russ. 449 
 
 
 — 
 
 9 A. & E. 686 . 
 
 Pedley, 
 
 — 
 
 1 Leach, 325 
 
 Pelfryman, 
 
 — 
 
 2 Leach, 563 
 
 Pelham, 
 
 — . 
 
 8 Q. B. 959 
 
 Pelletier, 
 
 — 
 
 1 R. L. 565 
 
 
 — 
 
 15 L. C. J. 146 
 
 Peltier, 
 
 — 
 
 28 St. Tr. 529 
 
 Pembliton, 
 
 — 
 
 12 Cox, 607 
 
 Peoplp, Thi 
 
 B, V. Alper 
 
 1 Parker, 333 
 
 
 V. Mosher 
 
 2 Parker, 195 
 
 
 V. Murray 
 
 14 Cal. 159 
 
 
 V. Santvoi 
 
 jrd . 9 Co wen, 655 
 
 Perham, In 
 
 t re, . 
 
 5 H. & N. 30 
 
 Perkins, 
 
 R.Y., 
 
 4 C. & P. 537 
 2 Den. 459 
 
 Perrott, 
 
 — 
 
 2 M, & S. 379 
 
 Perry, 
 
 — 
 
 Dears. 471 
 
 
 — 
 
 15 Cox, 169 
 
 
 — 
 
 10 R. L. 65 
 
 > 
 
 r. Watts 
 
 3 M. & G. 775 . 
 
 Petrie, 
 
 R.V., 
 
 1 Leach, 294 
 
 
 
 — 
 
 20 0. R. 317 
 
 Phelps, 
 
 — 
 
 Car. & M. 180 
 
 ~-.m 
 
 _ 
 
 2 Moo. 240 
 
 
 — 
 
 1 Russ. 781 
 
 Philips, 
 
 — 
 
 8 C. & P. 736 . 
 
 Philipps, 
 
 — 
 
 6 East, 463 
 
 
 — 
 
 2 East P. C. 662 
 
 Phillips, 
 
 — 
 
 2 Moo. 252 
 
 
 
 — 
 
 1 Lewin, 105 
 
 
 — 
 
 R. &R. 369 
 
 
 
 — 
 
 . . . 11 Cox, 142 
 
 
 — : 
 
 3 Cox, 226 
 
 Phillpot, 
 
 — 
 
 Dears. 179 
 
 Philp, 
 
 — 
 
 1 Moo. 2.-3 
 
 Philpotts, 
 
 — 
 
 1 C. & K. 112 . 
 
 Phipoe, 
 
 — 
 
 2 Leach. 673 
 
 Piche, 
 
 — 
 
 30 U. C. C. P., 409 
 
 Pickford, 
 
 — 
 
 4C. &P. 237 . 
 
 Pickup, 
 
 — 
 
 10 L. C. J. 310 . 
 
 Pierce, 
 
 — 
 
 13 0. R. 226 
 
 — 
 
 — 
 
 6 Cox, 117 
 
 Ixxix 
 
 PAGE. 
 
 . 097 
 308,374 
 309, 372 
 383, 476, 677 
 . 267 
 . 4.35 
 . 367 
 
 498, 590 
 . 88 
 . 859 
 . 144 
 . 97 
 . 709 
 73 
 . 578 
 . 124 
 . 288 
 . 119 
 . 615 
 . 594 
 35,61 
 . 350 
 . 413 
 
 230, 826 
 . 298 
 . 352 
 . 837 
 . 385 
 
 789, 829 
 17, 622 
 
 820, 822 
 
 . 825 
 
 8 
 
 ". 61 
 
 337, 374 
 . 58 
 . 505 
 . 615 
 . 789 
 . 824 
 
 149, 150 
 
 559, 562 
 
 402, 408 
 
 394,448 
 . 232 
 . 450 
 . 415 
 
 286, 287 
 . 628 
 
 k\1s 
 
 1:. 
 
 ''■fr: 
 
 { u. 
 
Ixxx 
 
 TABLE OF CASES CITED. 
 
 Pierce, R. v., 
 
 16 Cox, 213 
 
 
 Bell, 235 
 
 Pigott, — 
 
 11 Cox, 44 
 
 Pike, - 
 
 1 Leach, 317 
 
 Pinkney, — 
 
 2 East P. C. 818 
 
 Pinney, — 
 
 5 C. & P. 254 
 
 . 
 
 3 B. & Ad. 947 
 
 Piot, Ex parte, . 
 
 15 Cox, 208 
 
 Pitman, R. v.. 
 
 2 C. & P. 423 . 
 
 Pitts, — 
 
 Car. & M. 284 
 
 Plante, — 
 
 7 Man, L. R. 537 
 
 Plummer, — 
 
 Kel. 109 . 
 
 Pooock, — 
 
 17 Q. B. 34 
 
 Pointon v. Hill, 
 
 12 Q. B. D. 306 
 
 Pool, R. v.. 
 
 9 C. & P. 728 
 
 Poole, — 
 
 Dears. & B. 345 
 
 Pope, — 
 
 6 C. & P. 346 
 
 Pipplewell, — 
 
 20 0. R. 303 
 
 Potter, — 
 
 2 Den. 235 
 
 Poulton, — 
 
 5 C. & P. 329 . 
 
 Power V, Canniflf 
 
 1.3 U. C. Q. B. 403 
 
 Powles, R. v., 
 
 4 C. & P. 571 . 
 
 Powner, — 
 
 12 Cox, 235 
 
 Poynton, — 
 
 L. & C. 247 
 
 Pratt, 
 
 1 Moo. 250 
 
 — 
 
 8 Cox, 334 
 
 Preedy, — 
 
 17 Cox, 433 
 
 Pressy, — 
 
 10 Cox, 035 
 
 Prestney, — 
 
 3 Cox, 505 
 
 Preston, — 
 
 2 Den. 353 
 
 Price, — 
 
 7 C. & P. 178 
 
 ■ — 
 
 12 Q, B. D. 247 
 
 — . 
 
 8 C. & P. 19 
 
 — 
 
 9 C. & P. 729 . 
 
 V. Seeley 
 
 10 CI, & F. 28 . 
 
 Prince, R. v., 
 
 13 Cox, 138 
 
 
 
 11 Cox, 193 
 
 Pritchard, ~ 
 
 L. & C. 34 ; 8 Cox, 461 
 
 
 
 7 C. & P. 303 . 
 
 Privett, — 
 
 1 Den, 193 
 
 Proud, — 
 
 L. & C, 97 ; 9 Cox, 22 
 
 Provost, 
 
 M-, L. R. 1 Q. B. 473 
 
 Prowes, — 
 
 1 Moo. 349 
 
 Pruntney, 
 
 16 Cox, 344 
 
 Puddick, — 
 
 4 F, & F, 497 
 
 Puddifoot, — 
 
 1 'loo, 247 
 
 Pulbrook, — 
 
 9 C. & P, 37 
 
 Pulhatn, — 
 
 9 C, & P. 280 . 
 
 Purchase, — 
 
 Car. & M, 017 
 
 PAOB, 
 
 , 675 
 . 902 
 . 73 
 . 391 
 . 431 
 . 22 
 56,83 
 . 344 
 . 373 
 . 172 
 , 872 
 33,34 
 . 192 
 . 142 
 . 820 
 . 382 
 . 332 
 . 454 
 . 477 
 173, 205 
 . 189 
 . 214 
 500,531 
 . 372 
 . 311 
 . 407 
 . 134 
 . 130 
 . 586 
 , 332 
 . 26 
 , 139 
 . 553 
 . 561 
 21, 622 
 11, 128, 294 
 . 313 
 
 683, 841, 843 
 . 754 
 . 333 
 . 365 
 
 447, 771, 871 
 . 396 
 796, 797 
 274, 760 
 . 836 
 . 520 
 39, 601 
 . 359 
 
 Purwood, R. V. 
 Pym, _ 
 
 Queen, Tlie, v. I 
 Queen's Case 
 Quinn, R. v., 
 
 Radboume, A. v 
 Radcliffe, 
 
 Radford. — 
 
 Rae, 
 
 Rafferty v. The P 
 Ragg, R. v., 
 Ramsay, — 
 Ransford, — 
 Ratcliffe, — 
 
 Rawlins, — 
 
 Ray, 
 
 Rea, — 
 
 Read, — 
 
 Read V. Coker, 
 Reane, R. v., 
 Reardon, — 
 Redford, — 
 Redman, — 
 Rcece, — 
 Reed, — 
 
 Reed V, Nutt, 
 Rfid, R. v., 
 Repnier, — 
 Remon, — 
 Rhodes. — 
 Rioe, R. V, 
 
 Richards, — 
 
 Rieliardson, R. v. 
 
 Crim. Law— f 
 
Purwood, R. V. 
 Pym, — 
 
 Queen, The, v. Bozan 
 Queen's Case 
 Quinn, R. v.. 
 
 TABLE OF CASES CITED. 
 
 3 A. & E. 816 
 
 1 Cox, 339 
 
 Q. 
 
 2 Mauritius Decisions, 35 
 2 Brod. & B. 288 
 
 1 R. & G. (N. S.) 139 
 
 Ixxxi 
 
 FAOK. 
 
 . 133 
 158, 2]0< 
 
 . 721 
 
 807, 80» 
 
 . 7ia 
 
 Radboume, ii. v., 
 Radcliffe, — 
 
 Radford. — 
 
 Rae, — 
 
 Rafferty v. The People, 
 Ragg, R. v., 
 Ramsay, — 
 Ransford, — 
 Ratcliflfe, — 
 
 Rawlins, — 
 
 Ray, - 
 
 Rea, — 
 
 Read, — 
 
 Read v. Coker, 
 Reane, R. v., 
 Reardon, — 
 Radford, — 
 Redman, — 
 Reece, — 
 Reed, — 
 
 Reed v. Nutt, 
 Reid, R. v., 
 Regnier, — 
 Remon, — 
 Rliodes, — 
 Kice, R. V, 
 
 Richards, — 
 
 Ricliardson, R. v. 
 
 Cbim. Law — f 
 
 R. 
 
 1 Leaoh, 457 
 12 Cox, 471 
 Fost. 36, 40 
 
 1 Den. 59 
 
 11 Cox. 554 
 
 12 Cox, 617 
 Bell, 214 . 
 15 Cox, 231 
 
 13 Cox, 9 
 15 Cox, 127 
 Fost. 40 
 
 2 East P. C. 617 
 7 C. & P. 150 
 20 O. R. 212 
 
 12 Cox, 190 
 
 1 Den. 377 
 
 13 C. B. 850 
 
 2 East P. C. 734 
 L. R. 1 C. C. R. 31 
 
 11 Cox,. 367 
 10 Cox, 159 
 2 Rnss. 254 
 Car. & M. 308 . 
 
 12 Cox, 1 . 
 2 Moo. 62 
 17 Cox, 86 ; 24 Q. B. D 
 
 2 Den. 88 
 Ramsay's App. Cas. 188 
 16 O. R. 560 
 
 22 O. R. 480 
 
 3 East, 581 
 
 10 Cox, 155 ; L. R. 1 C 
 Bell, 87 
 
 13 Cox, 611 
 
 11 Cox, 43 
 1 M. & Rob 
 6 C. & P. 366 
 8 O. R. 651 
 
 177 
 
 669 
 
 C. R, 
 
 21 
 
 . 797 
 . 411 
 
 . 754 
 . 504 
 . 324 
 . 177 
 . 407 
 
 73,304 
 
 599, 817 
 . 275 
 . 780 
 . 374 
 . 460 
 . 282 
 . 282 
 260, 269, 275 
 . 260 
 . 437 
 . 349 
 . 36ti 
 . 454 
 . 377 
 11 
 
 121, 141 
 . 519^ 
 . 266. 
 . 821 
 . 708 
 . 141 
 
 508, 795 
 61 
 
 135, 142 
 
 . 377 
 
 42, 601 
 
 452, 454 
 . 672 
 . 361 
 . 872 
 
 J ii 
 
 U:'' 
 
 I *; 
 
l&x;xii 
 
 TABLE OF OASES CmBD. 
 
 
 
 PAGE. 
 
 Richmond, R. v*, 
 
 . 10. &K. 240 . 
 
 . 548 
 
 Ridet, — 
 
 8 0. & P. 539 . 
 
 . 764 
 
 Ridgeley, — 
 
 1 East P. 0. 171 
 
 . 547 
 
 Ridffway, — 
 
 3 F. & F. 838 . 
 
 . 407 
 
 Riel, — 
 
 2 Man. L. R. 321 
 
 . 201 
 
 Riel, V. R., 
 
 16 Cox, 48 ; 10 App. Cfts. 675 
 
 . 47 
 
 Riley, R. v. . 
 
 16 Cox, 191 ; 18 Q. B. D. 481 
 
 . 271, 273 
 
 
 6Cox, 88; Dears. 149 
 
 . 315 
 
 Rinaldi, — 
 
 L. &C. 330 
 
 . 626 
 
 Ring, — 
 
 17 Cox, 491 
 
 42, 44, 814 
 
 Ritchie, — 
 
 1 U. 0. L. J. (N. S.) 272 . 
 
 . 957 
 
 Hitson, — 
 
 11 Oox, 352 .. . 
 
 . 492 
 
 Roadley, — 
 
 14 Cox, 463 
 
 . 276 
 
 Roberts, — 
 
 Dears. 539 ... 
 
 43, 547 
 
 — 
 
 14 Cox, 101 
 
 88, 356 
 
 . . 
 
 3 Cox, 74 ... 
 
 . 351 
 
 — 
 
 2 East P. C. 487 
 
 . 464 
 
 — 
 
 2 East P. C. 956 
 
 . 503 
 
 ■ 
 
 12 Cox, 574 ... 
 
 899, 901 
 
 V. Orchard, 
 
 2H.& 0.769 . 
 
 . 621 
 
 Robertson, R. v.. 
 
 L. & 0. 483 
 
 . 4.51 
 
 Robins, — . . . 
 
 1 0. & K. 456 . 
 
 . 293 
 
 ■ 
 
 1 Leach, 290 .. . 
 
 . 436 
 
 Robinson, — 
 
 Bell, 34 .... 
 
 . 338 
 
 - 
 
 R. & R. 321 
 
 383, 476 
 
 " 
 
 9 L. 0. R. 278 . 
 
 . 414 
 
 
 2 Leach, 749 
 
 . 44!) 
 
 
 2 M. & Rob. 14 . . . 
 
 . 453 
 
 ■ 
 
 1 Moo. 327 . . . . 
 
 . 465 
 
 .... 
 
 10 Cox, 107 . . . . 
 
 . 543 
 
 
 L. & 0. 604 . . - . 
 
 . 554 
 
 •■ 
 
 2 Burr. 800 . . . . 
 
 . 960 
 
 Robshaw v. Smith, 
 
 38 L. T. N. S.424 
 
 . 298 
 
 Robson, R. v., . 
 
 L. & 0. 93 
 
 . 320 
 
 
 Warb. Lead. Cas. 139 
 
 . 345 
 
 Roche, — . . . 
 
 1 Leach, 134 . . . . 
 
 717, 718 
 
 Roden, — . . . 
 
 12 Cox, 630 . . . . 
 
 . 175 
 
 Roderick, — . . . 
 
 7 0. & P. 795 . . . . 
 
 . 817 
 
 Roe, — . . . 
 
 11 Cox, 554 . . . . 
 
 . 324 
 
 Roebuck, — . . . 
 
 Dears. & B. 24 . 43, 3£ 
 
 18, 401, 815 
 
 Roffers, — . . . 
 
 14 Cox, 22 
 
 . m- 
 
 :! — , . . 
 
 1 Leach, 89 . . . . 
 
 . 461 
 
 
 9 0. & P. 41 
 
 . 51!) 
 
 — . , . 
 
 2 Moo. m .... 
 
 . 54H 
 
 •r^ - — . . . 
 
 2 B. 0. L. R. 119 
 
 . 764 
 
 Roigier, — . . . 
 
 ID. &E. 284 . . . . 
 
 . 135 
 
 - — — . . . 
 
 2 D. & R. 431 . 
 
 . 430 
 
 Rolfe, — . . . 
 
 Fost. 2«56 
 
 . 974 
 
 Hose, — . . . 
 
 15 Oox, 640 . . . . 
 
 22 
 
 Ryley V. Brown, 
 Rymal, R. v., 
 Rymes, — 
 
TABLE OF CASES CITED. 
 
 Ixxxiii 
 
 
 
 PAGE. 
 
 E jse Milne, R v. 
 
 4 P. & B. (N. B.), 394 
 
 . 776 
 
 Rosenberf^, — 
 
 IC. &K. 233 
 
 . 318 
 
 Rosinski, — 
 
 1 Moo. 19 
 
 . 262 
 
 R088, — 
 
 M.L.R.1Q.B.2£7;28L.C. 
 
 J. 261 97, 871 
 
 Rosser, — 
 
 7C. &P. 648 
 
 387, 789, 791 
 
 Rothwell, — 
 
 12 Cox. 147 
 
 . 165 
 
 Rouleau, — 
 
 . . 16 Q. L. R. :*W . 
 
 . 776 
 
 Rowed, — 
 
 3Q. B. 180 
 
 . 121 
 
 Rowlands, ■ — 
 
 2 Den. 364 
 
 594, 596, 851 
 
 Rowley, — 
 
 Archbold, 632 
 
 . 165 
 
 — 
 
 R. & R. 110 
 
 . 523 
 
 Rowton, — 
 
 L. & C. 520 
 
 . ^<66 
 
 Roxburgh, — 
 
 12 Cox, 8 . 
 
 . 236 
 
 Roy, - 
 
 IIL. C. J. 89 
 
 430, 597 
 
 Ruck, — 
 
 1 Russ. 757 (n) . 
 
 . 609 
 
 Ruckmaboye v. 
 
 Lulloobhoy 
 
 
 Mottichund 
 
 8M00. P. C. 4 . 
 
 . 633 
 
 Rudge, R. v., 
 
 13 Cox, 17 
 
 345, 398, 820 
 
 Riidland, — 
 
 4 F. & F. 495 , 
 
 . 273, 274 
 
 RugST, — 
 
 12 Cox, 16 
 
 . 148 
 
 Russell, — 
 
 1 Moo. 356 33, ! 
 
 J26, 228, 840, 851 
 
 — 
 
 1 Moo. 377 
 
 . 465, 472 
 
 — 
 
 Car. & M. 247 
 
 . 734 
 
 — 
 
 Ramsay's App. Cas. 199 
 
 . 750 
 
 Russett, — 
 
 17 Cox, 534 
 
 . 312, 398 
 
 Ryalls V. R., 
 
 11 Q. B. 781, 795 
 
 . 692 
 
 Ryan, R. v.. 
 
 2 M. & Rob. 213 
 
 214, 221 
 
 _ 
 
 2 Moo. 15 . 
 
 . 233. 705, 981 
 
 Ryland, — 
 
 L. R. 1 C. C. R. 99 
 
 . 143, 708 
 
 — 
 
 11 Cox, 101 
 
 . 275, 817 
 
 Ryley v. Brown, 
 
 17 Cox, 79 
 
 . 718 
 
 Ryraal, R. v., 
 
 17 0. R. 227 
 
 . 416 
 
 Rymes, — 
 
 3 C. & K. 326 
 
 . 840 
 
 :i| 
 
 :iS 
 
 ns 
 
 ! 1 
 
 ■HI 
 
 ■hi 
 
 ''i 
 
 '» 
 
 S. 
 
 S. V. S., . . . . 
 
 16 Cox, 566 
 
 . 602 
 
 Sainsbury, R. v.. 
 
 4T. R. 451 
 
 . 530 
 
 Sainsbury v. Matthews, 
 
 4 M. & W. 343 . 
 
 . 838 
 
 Salmon, R. v., . 
 
 14 Cox, 494 
 
 . 149, 199 
 
 Salvi, — 
 
 10 Cox, 481 (n) . 
 
 . 170, 721 
 
 Samuels, — 
 
 16 R. L. 576 
 
 . 697 
 
 Sanders, — 
 
 9C. &P. 79 
 
 . 477 
 
 Sandoval, — 
 
 Warb. Lead Gas. 43 . 
 
 . 52 
 
 Sansome, — 
 
 1 Den. 545 
 
 . 981 
 
 Satchwell, — 
 
 12 Cox, 449 
 
 . 662 
 
 Sattler, — . . . 
 
 Dears & B. 525 . 
 
 . 609 
 
 Saunders, — 
 
 Plowd.475 
 
 . 37 
 
 — 
 
 13 Cox, 116 
 
 . 122, 141 
 
 J i ,.1- 
 ■) I ■ 
 
 I I 
 
 ■ii 
 
Ixxxiv 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 PAGE. 
 
 .. .,.j .. 
 
 Saunders, R. v., . 
 
 7C. &P.277 198 
 
 Shillito V. Th(»ni 
 
 
 14 Cox, 180 
 
 
 
 . 243 
 
 Shimmin, R. v., 
 
 — 
 
 8 C. & P. 265 . 
 
 
 
 . 261 
 
 Shott, — 
 
 Savage, — 
 
 13 Cox, 178 
 
 
 
 . 281, 282 
 
 Shukawl, — 
 
 — 
 
 IC. &K. 75 
 
 
 
 . 713 
 
 Shunner, — 
 
 Sawyer, — 
 
 R. &R. 294 • 
 
 
 
 . 611 
 
 Shuttleworth, R. 
 
 Scalbert, - 
 
 2 Leach, 620 
 
 
 
 . 789 
 
 
 Schleter, — 
 
 10 Cox, 409 
 
 
 
 . 764 
 
 SiU'aCase, . 
 
 Schmidt, — 
 
 Warb. Lead Cas. 180 
 
 
 
 . 349 
 
 Simmonsto, R. v., 
 
 Schohl V. Kay, . 
 
 5 Allan (N. B.), 244 
 
 
 
 . 602 
 
 Simons, — 
 
 School, R. v., . 
 
 26 U. C. Q. B. 212 
 
 
 
 . 692 
 
 
 Scott, — 
 
 28 L. C. J. 264 . 
 
 
 
 . 149 
 
 Simpson, — 
 
 -- 
 
 R. & R. 13 
 
 
 
 . 683 
 
 w „_ 
 
 
 1 Leach, 401 
 
 
 
 . 716 
 
 , • 
 
 Scott V, R 
 
 2 S. C. R. 349 ; 21 L. ( 
 
 IJ.i 
 
 225 
 
 . 39-^ 
 
 Sinclair's Case, 
 
 Scott, ex ih: ri' , 
 
 9 B. & C. 446 
 
 
 
 . Gl'l 
 
 Sirois, R, v.. 
 
 Scully, E, V, . 
 
 1 C. & P. 319 
 
 
 
 . 204 
 
 Skeen, — 
 
 S3ari», — 
 
 1 Leach, 415 
 
 
 
 . 332 
 
 Skeet, — 
 
 Seh'y, — 
 
 16 0. R. 255 
 
 
 
 . 508 
 
 Slack, — 
 
 Selitiiv, -- 
 
 6 L. N. 197 
 
 
 
 . 303 
 
 Sloane, — 
 
 S()iis, 
 
 7 C. & P. 850 
 
 
 
 173, 200 
 
 Slowly, — 
 
 Selten, S. ... . 
 
 11 Cox, 674 
 
 
 
 . IC-O 
 
 Small, — 
 
 Selway, — 
 
 8 Cox, 235 . 
 
 
 
 . 443 
 
 Smiley, — 
 
 Semple, — 
 
 1 Leach, 420 
 
 
 
 309,859 
 
 Smith, — 
 
 Senecal, — 
 
 8 L. C. J. 287 
 
 
 
 841, 843 
 
 __ 
 
 Senior, — . . . 
 
 1 Moo. 346 . 
 
 
 1 
 
 74, 197, 206 
 
 
 Seme, — . . . 
 
 16 Cox, 311 
 
 
 
 . 211 
 
 
 Serva, — . . . 
 
 1 Den. 104 . 
 
 
 
 . 606 
 
 
 
 Sessinghurst-house Case, R. 1 
 
 r., 1 Hale, 461 . 
 
 
 
 . 33 
 
 
 Seward, R. v., . 
 
 1 A. & E. 706 
 
 
 
 . rm 
 
 
 Shannon, — . . . 
 
 23 X. B. Rep. 1 . 
 
 
 
 . 266 
 
 
 Sharp, — . . . 
 
 5 P. R. Ont. 135 . 
 
 
 
 . 610 
 
 ' 
 
 Sharpe, — . . . 
 
 Dears. & B. 160 . 
 
 
 
 . 139 
 
 
 
 — . . . 
 
 Dears. 415 . 
 
 
 
 . 028 
 
 
 -- . . . 
 
 2 Lewin, 233 . . 
 
 
 
 . 628 
 
 
 Shaw, 
 
 6 C. & P. 372 
 
 
 
 . 172 
 
 
 — . . . 
 
 L. & C. 579 
 
 
 
 . 809 
 
 
 
 — . . . 
 
 23 U. C. Q. B. 616 
 
 
 
 . 981 
 
 _^^ __, 
 
 Sheen, — . . . 
 
 2 C. & P. 63 1 
 
 
 
 71. S 831 
 
 _^,__ 
 
 Shepherd, — . . . 
 
 L. & C. 147 
 
 
 
 . 143 
 
 _ 
 
 — . ■ . . 
 
 11 Cox, 119 
 
 
 
 . 37S 
 
 
 
 Sheppard, — . . . 
 
 K. & R. 16-i 
 
 
 
 . 500 
 
 __. 
 
 — . . . . '. 
 
 1 Leach, 22t . . 
 
 
 
 . 519 
 
 
 — . . . 
 
 11 Cox, 302 
 
 
 
 . 567 
 
 
 
 Sliepperd, — . . . 
 
 9 C. & P. 121 
 
 
 
 . 311 
 
 _ 
 
 Sherlock, — . . . 
 
 Warb. Lend. Cas. 53 . 
 
 
 
 84 
 
 __ 
 
 Sherwooil, — . . . 
 
 Dears, k B. 251 . 
 
 
 
 . 407 
 
 
 Sherwood's Caije, 
 
 1 C. & K. 556 . 
 
 
 
 . 166 
 
 
 
 Shickle; R. v 
 
 11 Cox, 189 
 
 
 
 . 324 
 
 1 
 
'■;n/ 
 
 TABLE OF CASES CITED. 
 
 Ixxxv 
 
 
 
 
 
 
 
 PAGE. 
 
 Shillito V. Thompson, . . 1 Q. B. D. 12 133 
 
 Shimmin, R. v., . 
 
 
 15 Cox, 122 
 
 
 
 . 764 
 
 Shott, — 
 
 
 ^ 8 C. & K. 206 
 
 
 
 . 843 
 
 Shnkard, — 
 
 
 R. &R. 200 
 
 
 
 . 504 
 
 Shurmer, — 
 
 
 16Cox, »4 . 
 
 
 
 . 796 
 
 Shuttleworth, R. v., 
 
 
 82 U. C. Q. B. 372 
 
 
 
 . 108 
 
 — 
 
 
 8 Den. 341 . . 
 
 
 
 . 779 
 
 Sill's Case, . 
 
 
 Dears.. 132 . 
 
 
 
 706, 857 
 
 Simmunsto, R. v., 
 
 
 1 0. * K. 164 
 
 
 
 . 252 
 
 Simons, — 
 
 
 2 East P. C. 731 
 
 
 
 . 437 
 
 __ 
 
 
 
 2 East P. C. 712 
 
 
 
 . 440 
 
 Simpson, — 
 
 
 
 1 Lewin, 172 
 
 
 
 . 196 
 
 -■ — 
 
 
 
 Dears. 421 . 
 
 
 
 .. 384 
 
 ■ — 
 
 
 
 5 Jur. 462 . 
 
 
 
 . 745 
 
 Sinclair's Case, 
 
 
 
 2 Lewm, 49 
 
 
 
 . 221 
 
 Sirois, R. v., 
 
 
 
 , 27 N. B. Rep. 610 
 
 
 
 624, 852 
 
 Skeen, — 
 
 
 
 Bell, 97 
 
 
 
 . 370 
 
 Skeet, — 
 
 
 
 4F. &F. 931 
 
 
 
 34 
 
 Slack, — 
 
 
 
 M. L. R. 7 Q. B. 408 
 
 
 
 . 366 
 
 Sloane, — 
 
 
 
 92 Au. Leg. 144 . 
 
 
 
 . 146 
 
 Slowly, — 
 
 
 
 12 Cox, 269 
 
 
 
 . 311 
 
 Small, — 
 
 
 
 8 C. & P. 46 
 
 
 
 . 310 
 
 Smiley, — 
 
 
 
 22 0. R. 686 
 
 
 
 . 1.S7 
 
 Smith, — 
 
 
 
 L. & C. 607 
 
 
 
 . 143 
 
 — 
 
 
 
 8 C. & P. 160 
 
 
 
 173, 203 
 
 — 
 
 
 
 11 Cox, 210 
 
 
 
 181, 191 
 
 -_ 
 
 
 
 2 L. N. 223 
 
 
 
 . 149 
 
 — 
 
 
 
 8 C. & P. 153 
 
 
 
 . 198 
 
 _ 
 
 
 
 16 Cox, 170 
 
 
 
 . 201 
 
 — 
 
 
 
 Dears. 55C . 
 . Dears. 494 . 
 
 
 
 . 217 
 . 350 
 
 _ 
 
 
 
 R. & R. 267 
 
 
 
 361, 367 
 
 — 
 
 
 
 R. &R.016 
 
 
 
 . 364 
 
 — 
 
 
 
 1 Den. 510 . 
 
 
 
 . 450, 869 
 
 — 
 
 
 
 R. & R. 417 
 
 
 
 457, 467 
 
 _ 
 
 
 
 2 East P. C. 497 
 
 
 ' 
 
 . 458 
 
 _ — — 
 
 
 
 1 M. & Rob. 256 . 
 
 
 
 . 461 
 
 — 
 
 
 
 1 Moo. 178 . 
 
 
 
 . 463 
 
 — 
 
 
 
 2 M. & Rob. 115 . 
 
 
 
 . 477 
 
 — 
 
 
 I 
 
 4P. R. (Ont), 215 
 
 
 
 . 508 
 
 _ — 
 
 
 
 2 Moo. 295 . 
 
 
 
 . 516 
 
 — — — ■ 
 
 
 
 1 Den. 79 . 
 
 L. & 0. 168 
 
 
 
 . 619 
 
 . 520 
 
 
 
 
 
 4 C. & P. 569 
 
 
 
 5(>_', 573 
 
 
 
 
 
 L. i C. 131 . 
 
 
 
 . 615 
 
 - 
 
 
 
 34 U. C. <i. B. 552 
 
 
 
 719, 820 
 
 — 
 
 
 
 T9 O. R. 714 
 
 
 
 . 724 
 
 — 
 
 
 
 1 F. & F. 36 
 
 
 
 . 728 
 
 — _ — 
 
 
 
 1 Rums. 749 . 
 
 
 
 . 771 
 
 If' 
 
 
 -,:J 
 
 .!'! 
 
 4 , 
 
 'I 
 
 i ^^ 
 
Ixxxvi 
 
 TABLE OF OASES CITED. 
 
 
 
 
 
 
 P.\OE. 
 
 Smith, R. v., 
 
 R. & R. 339 . . .797 
 
 — 
 
 38 U. 0. Q. B. 218 
 
 868, 870, 872 
 
 — 
 
 Temple k Mews' Cr. App. 
 
 Das. 214 . 869 
 
 
 12 Cox, 597 
 
 . 903 
 
 V. R. 
 
 M. L. R. 4 Q. B. 325 
 
 . 142 
 
 
 2 L. N. 223 
 
 . 149 
 
 V. Brandram, 
 
 2 M. & G. 244 
 
 
 
 . 838 
 
 V. KnowHen, 
 
 2 M. k G. 561 
 
 
 
 . 8S8 
 
 V. Thomasson, 
 
 16 Cox, 740 
 
 
 
 . 691 
 
 Smyth, R. v.. 
 
 5 C. & P. 201 
 
 
 
 60 
 
 Smythies, R. v., . 
 
 1 Den. 498 
 
 
 
 . 728 
 
 Snelling, — 
 
 Dears. 219 
 
 
 
 . 619 
 
 Snow V. Hill, 
 
 15 Cox, 737 ; 14 ( 
 
 J. B. 
 
 D. 58 
 
 8 . .134 
 
 Snowley, R. v., . 
 
 4 C. & P. 390 
 
 
 
 . 358 
 
 Scares, — 
 
 K. & R. 25 
 
 
 
 31, 518 
 
 Societe St. Louis v, Vi! 
 
 leneave, 21 L. C. J. 309 
 
 
 
 . 139 
 
 Solomons, R. v,, . 
 
 17 Cox, 93 
 
 
 
 . 312, 39S, 399 
 
 Somerton, — 
 
 7 B. & C. 463 
 
 
 
 .361 
 
 Souoie, — 
 
 IP. &B. (N.B.), 
 
 611 
 
 
 . 800 
 
 Sj>anner, — 
 
 12 Cox, 155 
 
 
 
 . 468, 469 
 
 Sparrow, — 
 
 Bell, 2(»8 
 
 
 
 . 254 
 
 Speed, — 
 
 15 Cox, 24 
 
 
 
 .406 
 
 Spelman, v. R. 
 
 13 L. C. J. 154 
 
 
 
 . 855 
 
 SfH-rcer, R. v., 
 
 10 Cox, 525 
 
 
 
 . 197 
 
 — 
 
 3 C. & P. 420 
 
 
 
 . 402 
 
 — 
 
 2 East P. C. 712 
 
 
 . 440 
 
 — 
 
 Dears. & B. 131 
 
 
 . 5G1 
 
 — 
 
 1 C. & K. 159 . 
 
 
 . 099 
 
 — 
 
 R. & R. 299 
 
 
 . 364 
 
 Spiller, — 
 
 5 C. & P. 333 . 
 
 
 . 196 
 
 Spilling, — 
 
 2 M. & Rob. 107 
 
 
 . ■ . 196 
 
 Spires v. Barrick 
 
 14 U. C. Q. B. 424 
 
 
 25 
 
 Spriggs, R. v.. 
 
 IM. &Rob. 367 
 
 
 . 464 
 
 Sproule, In re, 
 
 12 S. C. R. 140 . 
 
 
 750, 870 
 
 Sprungli, R. v., . 
 
 4 Q. L. R. 110 . 
 
 
 
 . 610 
 
 Squire, — 
 
 R. & K. 3i9 
 
 
 
 . 361 
 
 Stainer, — 
 
 11 Cox, 483 
 
 
 
 . 366 
 
 Stancliffe, — 
 
 11 Cox, 318 
 
 
 
 901, 902 
 
 Standley, — 
 
 R. & R. 305 
 
 
 
 :«, 32a 
 
 Stannard, — 
 
 L. & C. 349 
 
 
 
 123, i;J5 
 
 St. Amour, — 
 
 5 R. L. 469 
 
 
 
 . 732 
 
 ^tansfeld, — 
 
 8 L. N. 123 
 
 
 
 . 417, 855 
 
 Stanton, — 
 
 5 Co.\, 324 
 IC. &K.415 
 
 
 
 . 266 
 . 273 
 
 Stapylton, — 
 
 8 Cox. 69 
 
 
 
 . 680 
 
 Staroy v. Chilworth Mfg 
 
 '. Co. 17 Cox, 55 
 
 
 
 . 534 
 
 Steel, R. v., . 
 
 13 Cox. 159 
 
 
 
 . 300 
 
 — 
 
 1 Leach, 451 
 
 
 
 . 755 
 
 — - V. Smith, 
 
 1 E. & Aid. 94 . 
 
 
 
 . 677 
 
 Steels, R. v., 
 Stephens, — 
 
 V. Myei 
 
 Stephenson, R. v., 
 
 Sterling, 
 
 Steniberg, 
 
 Sterne, 
 
 Stevens, 
 
 Stevenson v. Wilsoi 
 Steventon, R. v., 
 
 Steward, 
 
 Stewart, 
 
 Stiles, __ 
 
 St. George, 
 
 Stitt, __ 
 
 St. John Long, R. v., 
 
 St. Laurent, v. R. 
 Stock, R, v., 
 
 St<KJdart, — 
 
 Stokes, 
 
 Stone, 
 
 Stonnell, — 
 Stopford, — 
 
 Story, — 
 
 Stowe, 
 
 Strachan, — 
 
 ''trahan, — 
 
 Strange, — 
 
 Stroulger, — 
 
 ^tubbs, — 
 
 Studd, _ 
 
 Sturge, — 
 
 Summers, — 
 
 Suprani, R, y. 
 
 Suter, 
 
 Sutton, _ 
 
 Svon Seborg, — 
 
Steels, R. v., 
 Stephens, — 
 
 atephenson, R. v., 
 
 Sterling:, 
 
 Steniberg, 
 
 Sterne, 
 
 Stevens, 
 
 Stevenson v. Wilson, 
 Steventon, R. v., 
 
 Steward, 
 
 Stewart, _ 
 
 Stiles, 
 
 St. George, 
 
 Stitt, __ 
 
 StJohn Long, R. v., 
 
 St. Laurent, v. R 
 Stock, R. v.," 
 
 Stocldart, 
 
 Stokes, 
 
 Stone, 
 
 Stonnell, 
 
 Stopford, ~ 
 
 Story, __ 
 
 Stowe, 
 
 •■^trachan, 
 
 ■^trahan, — 
 
 Strange, 
 
 Stroulger, — 
 
 "^tubbs, -_ 
 
 Studd, __ 
 
 Sturge, -_ 
 
 Summers, 
 
 Suprani, R. 
 
 Suter, 
 
 'Sutton, 
 
 v.. 
 
 Sven Seberg, _ 
 
 D. 331 
 
 TABtJS. OP CASKS GJ[1J«i,. 
 
 11 Co.N, 5 
 
 Warb. Lpad. Ow.' 37 
 
 1^' R- 1 Q. B. 702 
 
 11 Cox, 609 
 
 4 C. & P. 349 
 
 13Cox,679;13Q. B. 
 
 ^- & 0. 166 
 
 1 Leach, 99 
 
 8 L. >r. 132 
 
 1 Leach, 473 
 
 5 East 244 
 
 ^L. C. J.254 
 
 1 C. & K. 55 
 
 2 East P. C. 702 ' 
 
 R. &R.363 
 
 R- & R. 288 
 
 25 U. a C. P. 440 
 
 5 Irvine. (Scotch) 310 
 13 Cox, 296, 
 
 8 1*-R. (Oot.)297 
 2 Russ. 316 
 
 9 C. & p. 483 
 
 ^U. C. C. P.30 
 4 C. & p. 398 
 
 4 C. & P. 423 
 
 7 Q. L. R. 47 ; 
 
 1 Moo, 87 
 R- «fe R. 185 
 
 1 y. & F. 311 
 
 1 I>en, 181 
 
 I Cox, 142 
 
 II Cox, 643 
 
 R. & R. 81 
 
 2«. &0. (N.S.)121 
 
 20U.C.C.P.ii2 
 
 7 Cox, 85 
 
 219, 220, 
 
 S C. & p. 172 
 
 Itj Cox, 88 
 
 I>ears. 555 
 
 1*> Cox, 258 
 
 3 E. & B. 734 
 
 11 Cox, 248 
 
 1-i R. L. 577 
 
 10 Cox, 577 
 ** C. & p. 291 
 
 2 Str. 1074 
 
 11 Cox, 520 
 
 6L 
 
 N. 269 
 
 hxxvii 
 
 PAoa. 
 
 • 401 
 
 • VI 
 
 ■ I3ii 
 
 ■ 766 
 
 ■ 26a 
 
 139 
 
 . 797 
 
 • 615 
 
 • 698 
 36, 692, 8?0 
 
 • 676 
 
 ■ m 
 
 • 436 
 
 30, 31, 618 
 
 43 
 
 521, 628 
 
 ■ 722 
 
 ■ 799 
 . 957 
 
 • 836 
 756, 821, 825 
 
 • 279 
 . 196 
 
 ■ 196 
 
 • 472 
 309, 374 
 
 ■ 460 
 
 • 758 
 
 • 676 
 . 402 
 
 • 519 
 
 698 
 
 235 
 
 402 
 201 
 677 
 370 
 
 3, 690 
 865 
 
 870 
 
 869 
 
 842 
 
 700 
 
 695 
 
 407 
 341 
 646 
 610 
 
 k 
 
Ixxxviii 
 
 TABLE OF CASES CITED. 
 
 
 
 PAOE. 
 
 Swalwell, R. v., . 
 
 12 0. R. 301 ... 
 
 . 940 
 
 Sw Ukins, — 
 
 4 C. & P. 548 
 
 . 561, 760 
 
 Swindall, — 
 
 2 C. & K. 230 . 
 
 33, 36 
 
 — 
 
 2 Cox, 141 
 
 . 102 
 
 Symonds v. Kurtz 
 
 16 Cox, 726 
 
 14 
 
 
 tacey, 
 
 R. v., 
 
 R. & R. 452 ... 
 
 . 677 
 
 Tatfs, 
 
 — 
 
 4 Cox, 169 ... 
 
 . 365 
 
 Taft, 
 
 — 
 
 1 Leach, 172 .. . 
 
 . 501 
 
 Tancock, 
 
 — 
 
 13 Cox, 217 ... 
 
 . 717 
 
 Taplin, 
 
 — 
 
 2 East. P. C. 712 
 
 . 437 
 
 Tasse, 
 
 — 
 
 S L. X. 98 ... 
 
 . 304 
 
 Tfttlook, 
 
 — 
 
 13 Cox, 328 
 
 . 344 
 
 V 
 
 . Harris, 
 
 3 T. R. 176 ... 
 
 . 496 
 
 Taijrlor, 
 
 R. v., 
 
 1 Leac h, 360 
 
 35 
 
 
 — 
 
 2 Lewiti, 215 
 
 . 182 
 
 
 — 
 
 13 Cox, 68 
 
 40, 61 
 
 
 — 
 
 9 C. & P. 672 . 
 
 . 104 
 
 
 — 
 
 11 Cox, 261 
 
 238, 819 
 
 
 
 — 
 
 12 C(.x, 627 
 
 . 318 
 
 
 
 — 
 
 10 Cox, J44 ... 
 
 . 367 
 
 
 
 — 
 
 R. & R. 418 
 
 . 386 
 
 
 — 
 
 1 Leacli, 214 .. . 
 
 . 502 
 
 
 
 — 
 
 1 F ^ F. 511 . 
 
 . 564 
 
 
 — 
 
 15 Oo:;, 265 
 
 597, 764 
 
 
 — 
 
 11 Cox, 340 
 
 . 713 
 
 
 — 
 
 1 C. & i:. 213 . 
 
 . 518 
 
 V 
 
 . Newman 
 
 9 Cox, 314 ; 4 B. & S. 89 
 
 . 375 
 
 V 
 
 . McCuUough 
 
 8 0. K. 300 
 
 . 602 
 
 Teague, 
 
 R. v., 
 
 2 East P. C. 079 
 
 . 503 
 
 Tew, 
 
 — 
 
 Deurs. 42! 1 
 
 752, S66 
 
 Thayer, 
 
 — 
 
 oL. N. 162 . . . 
 
 . .598 
 
 Theal, 
 
 V. R. 
 
 7 S. C. R. 307 
 
 20(t, 687 
 
 The World, 
 
 R. v.. . . 
 
 13 Cox, 305 
 
 . 304 
 
 Thoman, 
 
 — 
 
 12 Cox, 54 ... 
 
 . 578 
 
 Thomas, 
 
 — 
 
 Warb. Lead. Csm. 79 
 
 329, 430 
 
 
 — 
 
 Can-. Supp. 3i 'd. 295 
 
 . 38t) 
 
 
 — 
 
 2 Moo. 16 ... 
 
 . 520 
 
 
 — 
 
 13Co.\-, 52 
 
 555, 600 
 
 Thompson, 
 
 — 
 
 1 ]Moo. 80 ... 
 
 . 185 
 
 
 
 — 
 
 1 Moo. 78 ... 
 
 3.'1, ;W3 
 
 
 
 — 
 
 L. & C. 2.33 
 
 313, 402 
 
 
 — 
 
 1 Den. 549 
 
 . 317 
 
 
 — 
 
 1 Leach, 338 
 
 . 385 
 
 - — 
 
 — 
 
 2 Leach, 771 .. . 
 
 . 459 
 
 ■ 
 
 — 
 
 2 East P. C. 515 
 
 . 460 
 
 .—- 
 
 — 
 
 2 Cox, .377 
 
 . 474 
 
 Thomp.son, R. 
 
 Thorley, 
 Thorn, 
 
 Thurbom, - 
 Tiemey, - 
 
 Timmins, 
 Timothy v. Simi 
 Tisdale, R. 
 Tite, 
 Titley, 
 Tivey, 
 
 Tivnan, In re 
 Todd, R. 
 
 Toland, 
 Tolfrie, 
 ToUett, 
 Tolson, 
 Tongue, 
 Topping, — 
 
 Topple, — 
 
 Tori^ey, — 
 
 Tower, — 
 
 Towers, — 
 
 Towle, — 
 
 Townley, R. v., 
 Townly's Case, 
 Townsend, R. v., 
 
 Tracey, — 
 
 Trainer, — 
 Tranchant, — 
 Trapshaw, — 
 Trebilcock, — 
 ■ Tremblay, — 
 
 V. Bemier, 
 
 Tremearne,R. v., 
 Trenfield, — 
 Treveth, — 
 Trevehner, — 
 Tiioranzie, — 
 Triiloe, — 
 Tucker, — 
 Tuck well, — 
 Tulley V. Corrie, 
 Turner, R. v., 
 
TABLE OF CASES CITED. 
 
 Ixxxix 
 
 1 
 
 
 PAG El 
 
 1 Thompson, R. v., 
 
 11 Cox, 362 . . . . 
 
 . 488 
 
 1 
 
 13 Cox, 181 . . . . 
 
 . 799 
 
 p Thorley, — 
 
 1 Moo. 343 . . . . 
 
 . 358 
 
 Thorn, — 
 
 2 Moo. 210 . . . , 
 
 . 520 
 
 Thurborn, — 
 
 1 Den. 387 . . . . 
 
 307, 329 
 
 Tierney, — 
 
 R. & R. 74 
 
 . 49 
 
 — 
 
 2I> U. C. Q. B. 181 .. . 
 
 552, 860 
 
 Timmins, — 
 
 Bell, 27G 
 
 . 293 
 
 Timothy v. Simpson, . 
 
 1 C. M. & R. 757 
 
 21, 622 
 
 Tisdale, R. v., 
 
 20 U. C. Q. P 272 
 
 . ) J, 
 
 Tite, — 
 
 L. & C. 21) : f< Cox, 458 
 
 . m 
 
 Titley, — 
 
 14Cox, .')02 . . . . 
 
 *^"i ** 
 
 Tivey, - 
 
 1 C. & K. 704 
 
 . P- 
 
 Tivnan, In re 
 
 5 B. & S. 07!) . . . . 
 
 
 Todd, R. v., 
 
 1 Cox, 57 . . . . 
 
 •M), 506 
 
 Toland, — 
 
 22 O. R. 505 
 
 . 608 
 
 Tolfrie, — 
 
 IM.x). 243 
 
 . 317 
 
 ToUett, — 
 
 Car. & M. 112 
 
 317, 318 
 
 Tolsoii, — 
 
 1« Cox, (i29 ; 23 Q. B. D. 168 
 
 11, 280, 295 
 
 Tongue, — 
 
 Bell, 28!) .... 
 
 . 365 
 
 Topping, — 
 
 7 Cox, 103 ... 
 
 . 280 
 
 Topple, — 
 
 3 R. & C. (N. S.) 566 
 
 . 369 
 
 Torijey, — 
 
 12 Cox. 45 
 
 11 
 
 Tower, — 
 
 4P. &B. (X. B.)168 
 
 . 670 
 
 Towers, — 
 
 12 Cox, 530, 
 
 189, 209 
 
 Towle, — 
 
 R. & R. 314 .. . 
 
 35, 228 
 
 — 
 
 2 Marsh. 466 
 
 . 692 
 
 Townley, R, v., . 
 
 12. Cox 59 . 
 
 . 324 
 
 Townly's Case, 
 
 Fost. 7 . . . . 
 
 . 780 
 
 Tov/nsend, R. v., 
 
 Car. & M. 178 . 
 
 . 356 
 
 — 
 
 1 Den. 107 .... 
 
 . 361 
 
 Tracey, — 
 
 6 Mod. 30 . 
 
 . 29 
 
 Trainer, — 
 
 4 F. & F. 105 .. . 
 
 . 194 
 
 Tranchant, — 
 
 1) L. N. 3;J3 ... 
 
 . 450 
 
 Trapshaw, — 
 
 1 Leach, 427 .. • 
 
 . 461 
 
 Trebilcock, — 
 
 Dears. & B. 4.')3 . . . i 
 
 (32, 771, 8«58 
 
 ■ Tremblay, — 
 
 18 L. C. J. 1.58 . 
 
 . 746 
 
 V. Bemier, . 
 
 21 S. C. R. 309 . 
 
 . 602 
 
 Tremearne,R. v,. 
 
 R. & M. 147 .. . 
 
 . 706 
 
 Trenfield, — 
 
 1 F. & F. 43 
 
 . JiOO 
 
 Treveth, — . 
 
 15 Cox, 289 
 
 . 766 
 
 Trevehner, — 
 
 2 M. & Rob. 476 
 
 . 382 
 
 Tiicransne, — 
 
 15 0'R. 2!»4 
 
 . 766 
 
 Triiloe, — 
 
 2 Moo. 260 
 
 173, 206 
 
 Tucker, — 
 
 1 Moo. 134 ... 
 
 . 452 
 
 Tuck well, — 
 
 Car. &M. 215 . 
 
 . 32 
 
 Tulley V. Corrie, . 
 
 10 Cox, 640 
 
 . 241 
 
 Turner, R. v., 
 
 9 Cox, 145 . 
 
 . 285 
 
 — 
 
 1 Moo. 347 . 
 
 351, 601 
 
 '11' 
 
 m 
 
 • i» I, 
 
 ■I ' I 
 
 •^1 
 
 
 V 
 
 iif ! 
 
 ! 'M 
 
IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 // 
 
 
 1.0 
 
 1.1 
 
 M 12.5 
 
 ^ ... I 
 
 2.2 
 
 
 
 1-25 1.4 1.6 
 
 
 ^ 
 
 6" 
 
 ► 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 873-4503 
 
^^% 
 
 '^^A^ 
 '^. ^ 
 
 p 
 
 
 ^ 
 
 i. 
 
 
xc 
 
 TABIili OF CASBS OtTBP. 
 
 • 
 
 
 PAOB. 
 
 Turner, B, v., . 
 
 11 Cox, 661 
 
 . 8i» 
 
 — . . 
 
 1 Leaoh, 305 
 
 . 461. 
 
 — 
 
 1 Moo. 289 ; 4 B. & Aid. 610 558, ^OB^ im^ 
 
 
 
 8684,991; 
 
 Turton, — 
 
 6 Cox, 386 
 
 . 86g. 
 
 TwQse, — 
 
 ,Varb. Le«d.Cas.l 
 
 . li 
 
 IVlerk - . . 
 
 8 C. & P. 616 
 
 9 
 
 — 
 
 1 Moo. 428 
 
 . . . . m> 
 
 Tyewi — 
 
 Re & R. 402 
 
 . 3«0< 
 
 Tylney, — 
 
 1 Den. 319 . 
 
 496, 49^,61$< 
 
 Tymms, — 
 
 11 Cox, 646 
 
 .849 
 
 Tyell, - . . 
 
 L. R. 1 C. C. R. 177 
 
 . 868' 
 
 Tyrie, - 
 
 11 Cox, 241 
 
 U. 
 
 . 8» 
 
 United States v. Holmes, 
 
 1 Wall. Jr. 1 
 
 . 10 
 
 Upton, B. v., 
 
 5 Cox, 298 . 
 
 . . .248 
 
 Vamplew, R. v., . 
 
 V. 
 3 F. & F. 520 
 
 8 
 
 Van Butchell, R. v., . 
 
 3 C. & P. 629 
 
 . UNI 
 
 Vanderoomb, — 
 
 2 Leach, 708 
 
 . 718, 8R» 
 
 Vane's (Sir H.) Case, . 
 
 Kel. 15 
 
 . 28 
 
 Varley, R. v., . 
 
 1 East P. C. 164 
 
 . 8« 
 
 Vaughan, — 
 
 8 C. & P. 276 
 
 . 607 
 
 Vaux's Case, 
 
 4 Rep. 44 . 
 
 . . .726 
 
 Verelst, R. v.. 
 
 3 Cainp. 432 
 
 . . 268 
 
 Villensky, — 
 
 {18!»2) 2 Q. B. 597 
 
 . 349> 365 
 
 Vilmont v. Bentley, 
 
 12 App. Cas. 471 
 
 . 906 
 
 Vincent, R. v., 
 
 9 C. & P. 91 
 
 . 53,57,73 
 
 — 
 
 2 Den. 464 
 
 . 688;841 
 
 Vodden, — 
 
 Dears. 229 
 
 .770 
 
 Vonhoff, — . . . 
 
 lOL. C. J. 292 . 
 
 . 771 
 
 Vreones, — . . . 
 
 17 Cox, 267 ; (1891) 1 Q 
 W. 
 
 . B. 360 . .100 
 
 Wade, R. v 
 
 11 Cox, 549 
 
 .328 
 
 — . . . 
 
 10 Cox, 573 
 
 . ■■ : 721 
 
 — . . . 
 
 1 Moo. 86 
 
 . 790,860 
 
 Wainwright, R. v.. 
 
 18 Cox, 171 
 
 . 768i79^ 
 
 Waite, - 
 
 (1892) 2 Q. B. 600 
 
 «,»23 
 
 ■-'■'— '■ — . . 
 
 17 Cox, 554 
 
 .2715 
 
 Wakeling, — 
 
 R. & R. 504 
 
 . . ■;■■ 4017 
 
 Walker, — 
 
 13:Cox, 94 
 
 .■ '■■■^ :''->ify 
 
 
 7 0, R. 186 
 
 . ■■/..<■-** 
 
 •^•~ — 
 
 IC. &P.320 
 
 ' ./ ■.■mM2, 
 
 to—,;?-; _ 
 
 2 M. & Rob. 446 
 
 . 266 
 
 Walker, R. v.. 
 
 V. Mtt5 
 
 W«lkley, R. v, 
 
 Wallace, — 
 
 Walne, ^ 
 Walabv v. Ank 
 Walsh, R. v., 
 Walter, 
 Walteti export 
 Waltert, R. v., 
 Walton, — 
 Warburton,:— 
 Ward, ^ 
 
 Wardle, — 
 Warren, — 
 Warshaner,— 
 WaBon, ex parti 
 Waters, R. v., 
 
 Watkins, — 
 Watson, — 
 
 V. Bodd 
 
 Watts, R. v., 
 WaveU, — 
 Waverton, — 
 Wealand, R. v., 
 Weaver, — 
 Webb, — 
 
 Webster, — 
 
 V. Wj 
 
 Wedge, R. v., 
 
 Weeks, — 
 
 Weir, — 
 
 Welch, - 
 
 Wellard, — 
 Wells, - 
 •— — V. Abrah 
 Wellings, R. v. 
 
TABLE OF CASES GIXBD.' 
 
 XOL- 
 
 
 
 PAGE. 
 
 Wslker, R. v., 
 
 1 Moo. IM ... 
 
 . .823,371' 
 
 
 Dears. & B. 600 
 
 . 36» 
 
 — 
 
 Dears. 358 ... 
 
 . 682 
 
 V. Muyor of London 
 
 , IIC0.X, 280 
 
 . aos^ 
 
 W»lkley, R. v„ . 
 
 4 0. & P. 132 . 
 
 . 800 
 
 — — • * 
 
 2EastP. 0.953 . . 
 
 . em 
 
 Wallace, — 
 
 2 Moo. 200 
 
 . 86r 
 
 — . . . 
 
 4 0. & P. 132 . 
 
 . 360 
 
 Walne, ^ 
 
 110ox,647 
 
 . 406 
 
 Walsbv V. Anley, 
 
 3 E. & E. 516 . 
 
 . SM' 
 
 Walsh, R.V., . 
 
 1M(H). 14 
 
 . 321 
 
 Walter, — 
 
 14 0ox, 579, 
 
 . 760' 
 
 Walteri ex parte. 
 
 Ramsay App. Oas. 183 
 
 . . 121 
 
 Waltert, R. v., . 
 
 1 Moo. 13 .... 
 
 . 482 
 
 Walton, — . . 
 
 L.& 0.288 
 
 . 461 
 
 Warburton,— 
 
 llOox, 584 
 
 . m 
 
 Waid, ^ 
 
 10 Cox, 42 ... J 
 
 124, 46:{, C80 
 
 — 
 
 10 Cox, 573 .. . 
 
 . 721, 78» 
 
 Wardle, — 
 
 Oar. &M. 647 . 
 
 . 790" 
 
 Warren, — 
 
 16 0.R. 590 
 
 136, 141- 
 
 Warshaner, — 
 
 1 Moo. 466 
 
 626,867 
 
 Wason, ex parte. 
 
 38 L. J. Q. B. 302 . 
 
 . 730 
 
 Waters, R. v.. 
 
 12 Cox, 390 
 
 . ii<y 
 
 — 
 
 1 Den. 366 . . . . 
 
 703^868 
 
 Watkins, — 
 
 2 Moo. 217 . . . . 
 
 . 82fr 
 
 Watson, — 
 
 Dears. & B. 348 
 
 . 401. 
 
 V. Boddell, 
 
 14M. &W. 57 
 
 . 68» 
 
 Watts, R. v., . 
 
 e Cox. 304 .. . 
 
 . 394- 
 
 WaveU, - 
 
 I Moo. 224 
 
 410, 524 
 
 Waverton, — 
 
 2 Den. 340 . . . . 
 
 . 857 
 
 Wealand, R. v 
 
 16 Cox, 402 ; 20 Q. B. D. 827 
 
 . 796 
 
 Weaver, — 
 
 L. R. 2 0. 0. R. 85 . 
 
 . 123 
 
 Webb, - 
 
 1 M. & Rob. 405 
 
 . 158 
 
 — 
 
 2 Lewin, 196 .. . 
 
 . 195 
 
 — 
 
 1 Moo. 431 .. . 
 
 . 382 
 
 — 
 
 1 Den. 338 
 
 . 706, 807 
 
 — 
 
 4 F. & F. 862 
 
 . 761 
 
 Webster, — 
 
 16 Q. B. D. 136 . 
 
 . 129 
 
 — 
 
 L. &C. 77 
 
 . 345, 841 
 
 V. Watts, 
 
 11 Q. B. 311 .. . 
 
 . . 2JL 
 
 Wedge, R. v., . 
 
 5 C. & P. 298 
 
 . ., 1% 
 
 Weeks, — 
 
 L. & C. 18 
 
 •„;.•■>** 
 
 Weir, - 
 
 IB. & 0.288 
 
 ;:, . w 
 
 Welch, — 
 
 2Deu.,78, ..... 
 
 . 604,6^ 
 
 -— • — 
 
 13 Cox, 121 ... 
 
 . 674 
 
 Wellard, - . . . 
 
 14Q. B. p. 63 . 
 
 . . ., !»• 
 
 Wells, — 
 
 1 F. & F. 109 
 
 . . m 
 
 ^ — V. Abrahams, . 
 
 L. R. 7 Q, B. 554 
 
 ..m 
 
 WellinRs, R. V. . 
 
 14Cox, 1Q6 
 
 . '..m 
 
 iv^'J 
 
 
 
 :#■ ' 
 
 
xcu 
 
 TABLE OF CASES CITED. 
 
 
 
 PAGE. 
 
 Welman, R. v. . 
 
 Dears. 188 ; 6 Cox, 153 
 
 . 409 
 
 Welsh, — 
 
 11 Cox, 336 
 
 . 163 
 
 — — — 
 
 13 Cox, 121 ... 
 
 . 678 
 
 Welton, — 
 
 9 Cox, 297 ... 
 
 . 839, 841 
 
 Wemysg v. Hopkins, . 
 
 . L. R. 10 Q. B. 378 
 
 . 266 
 
 Wenmouth, B. v., 
 
 8 Cox, 348 . . ... 
 
 . 467, 476 
 
 West, R. v., . 
 
 2 C. & K. 784 . . 
 
 . 208, 275 
 
 — 
 
 Dears. 402 ... 
 
 . 332 
 
 — 
 
 Dears. & B. 575 
 
 . 400 
 
 — 
 
 1 Den. 258 ... 
 
 . 509 
 
 — — — 
 
 2 Russ. 10S7 .... 
 
 . 677 
 
 V. Smallwood, 
 
 3M.&W. 418 . 
 
 14 
 
 V. The State, 
 
 1 Wis. 209 ... 
 
 . .. 123 
 
 Westbeer, R. v., . 
 
 1 Leach, 12 ; 2 Str. 1133 
 
 371, 812 
 
 Western, R. v., , 
 
 11 Cox, 93 ... 
 
 . 842 
 
 Westley, — 
 
 11 Cox, 139 
 
 267, 716 
 
 — 
 
 Bell, 193 .... 
 
 . 843 
 
 Weston, — 
 
 14 Cox, 34« .... 
 
 . 199, 764 
 
 Westwood, — 
 
 R & R. 495 
 
 . 460, 482 
 
 Whalley, — 
 
 2Cox(, 231 .... 
 
 . 829 
 
 Wheatly, — 
 
 2 Burr, 1125 ... 4, 
 
 JO, 703, 706 
 
 Wheeldon, — 
 
 8 C. & P. 747 . . . 4' 
 
 n, 472, 475 
 
 Wheeler, — . . . 
 
 3C. &P. 585 . . 
 
 . 470 
 
 Whelan, — 
 
 28 U. C. Q. B. 2, 108 . 
 
 782, 849 
 
 Whiley, - . . 
 
 R. & R. 90 . 
 
 . 502 
 
 Whitchurch, R. v., 
 
 16Cox,743;24Q.B.D.420 . 2- 
 
 19, 596, 869 
 
 White, R. V 
 
 R. & R. 99 . 
 
 . 34 
 
 — 
 
 12 Cox, 83 .... 
 
 . 151 
 
 — . . . 
 
 Dears. 203 ... . 
 
 . 322 
 
 — . . . 
 
 IF. &F. 605 
 
 . a52 
 
 — . . . 
 
 2 M(X>. 91 
 
 . 366 
 
 — . . . 
 
 1 Den. 208 . . . 
 
 . 524 
 
 — . . . 
 
 21 U. C. C. P. 354 . 
 
 . 677 
 
 — . . . 
 
 3 Canip. 98 ... . 
 
 . 761 
 
 • — . . . 
 
 2 Cox. 192 ... , 
 
 . 766 
 
 — . . . 
 
 1 Leach, 430 . . . . 
 
 . 850 
 
 V.R., . . . 
 
 13 Cox, 318 
 
 . 855 
 
 V. Feast, . 
 
 L. R. 7 Q. B. 353 . 
 
 . 586 
 
 Whitehead, R. v., . . . 
 
 SC.frK.202 
 
 . 196 
 
 Whitehurst v. Fincher, 
 
 17 C > 
 
 . 134 
 
 Whiteley, R. v 
 
 1 Lc 173 
 
 . 185 
 
 Whiteman, — . . . 
 
 Dear». 353 
 
 378, 578 
 
 Whittinjrham, R. v., . 
 
 9 C. & P. 2.34 . . . . 
 
 . 573 
 
 Wickham, — . 
 
 10 A. & E. 34 . . 40 
 
 1, 402, 408 
 
 Wigrg. - . . 
 
 2 Salic. ««0 
 
 
 Wild's Case, . . . 
 
 2 Lewin, 214 . . . . . 
 
 . 204 
 
 WUey, R. v 
 
 2 Deu. 37 
 
 349, 816 
 
 Wilkes, - ... 
 
 4 Burr. 2577 
 
 . mi 
 
 Wilkins,- . . . 
 
 L. & C. 89 . . . . . 
 
 . 241 
 
 Wilkinson, R. v 
 Wilkinson's Cast 
 Wilkinson v. Du 
 Wilks' Case, 
 Williams, R. v., 
 
 V. E. i. Co, 
 
 Williamson, R. v. 
 
 Winterbotham — 
 Winterbottam — 
 Withers, — 
 
 Wolloston, — 
 Woldtenholme — 
 
 WcK!d, _ 
 
TABLE OF CASES CITED. 
 
 XCIU 
 
 
 
 
 
 PAOK. 
 
 Wilkinson, R. v R. & R. 470 .. . . 
 
 . 319 
 
 Wilkinson's Case, 
 
 
 1 Leach, 321 . 
 
 . 322 
 
 Wilkinson v. Button, . 
 
 
 3 B. & S. 821 . . . 
 
 . 266 
 
 Wilks' Case, 
 
 
 2 East P. C. 957 . . 
 
 . 497, 616 
 
 Williams, R. v., . 
 
 
 
 1 Den. 39 .. . 
 
 30, 216 
 
 
 
 
 lSalk.383 . . . 
 
 . 186, 141 
 
 _— , 
 
 
 
 11 Cox, 684 . 
 
 . 231 
 
 ._ ... , 
 
 
 
 8 C. & P. 286 . . . 
 
 . 281 
 
 
 
 
 1 C. & K. 195 
 
 . 316 
 
 
 
 
 1 Moo. 107 . 
 
 . . . 341 
 
 , 
 
 
 
 6 C. & P. 626 . 
 
 . 868 
 
 ■ 
 
 
 
 7 C. & P. 354 . . . 
 
 . 410 
 
 - 
 
 
 
 9 Cox, 338 . 
 
 . 678 
 
 ■ 
 
 
 
 12 Cox, 101 . 
 
 . 799 
 
 
 
 
 
 2 Camp. 646 . 
 
 . 819 
 
 
 
 
 1 Leach, 536 . 
 
 . 966 
 
 V. E. i. Co. 
 
 
 
 3 East, 192 .. . 
 
 . 144 
 
 Williamson, R. v.. 
 
 
 
 3 C. & P 635 . . . 
 
 . 196 
 
 — 
 
 
 
 11 Cox, 328 . 
 
 . 404 
 
 Willis, - 
 
 
 
 1 Moo. 376 . 
 
 . 308 
 
 
 
 
 12 Cox, 192 . 
 
 . 700 
 
 Willot, . - 
 
 
 
 12 Cox, 68 . . . 
 
 . 411 
 
 Willoughby, — 
 
 
 
 2 East P. C. 944 . . 
 
 . 618 
 
 Willshire, — 
 
 
 
 14 Cox, 541 .. . 
 
 . 286 
 
 Wilson, — 
 
 
 
 Dears. & B. 127 . 
 
 . . . 277 
 
 - 
 
 
 
 8 C. & P. Ill . . . . 
 
 . . . 312 
 
 — 
 
 
 
 R. & R. 115 . 
 
 . 460 
 
 — 
 
 
 
 1 Den. 284 ... 
 
 . 493,;:02 
 
 
 
 
 12 Cox, 622 . 
 
 . 799 
 
 
 
 
 2 Moo. 52 
 
 . 349, 859 
 
 Windhill Local Board v 
 
 .Vii 
 
 It 17 Cox, 41 ; 45 Ch. D. 361 
 
 . 104,407 
 
 Winkworth, R. v,, 
 
 
 4C &P. 444 . . 
 
 . 437 
 
 Winslow, — 
 
 
 8 Cox, 397 
 
 . 176 
 
 Winsor, — 
 
 
 10 Cox, 276 ; 7 B. & S. 49< 
 
 ) 721,788,850,869 
 
 
 
 C B. & S. 143 . . 
 
 . . . 726 
 
 Winterbotham — 
 
 
 22 St. Tr. 823 
 
 . . . 72 
 
 Winterbottam — 
 
 
 1 Den. 41 . . . 
 
 . . . 517 
 
 Withers, — 
 
 
 1 East P. C. 295 
 
 . 186 
 
 Wollaston, — 
 
 
 12 Cox, 180 
 
 118, 119, 121, 281 
 
 WolHtenholme — 
 
 
 11 Cox, 313 
 
 . 367 
 
 Wot;d, - 
 
 
 1 Moo. 278 
 
 . 216 
 
 
 
 14 Cox, 46 
 
 . 272 
 
 — 
 
 
 3 B.-& Ad. 667 
 
 . 851 
 
 V. Burgress, 
 
 
 16 Cox, 729 . . 
 
 . 293,534 
 
 Woodfield, R. v.. 
 
 
 16 Cox, 314 
 
 . 791 
 
 Woodhead, — 
 
 
 1 >L ft Rob. 649 
 
 . 389 
 
 Woodhall, - 
 
 
 12 Cox, 240 
 
 . 447, 811, 860 
 
 W oodhurst, — 
 
 
 12 Cox, 443 
 
 . . . 262 
 
 Woodward, — 
 
 
 
 L. &C. 122 
 
 . 360 
 
XCIV 
 
 TABLE OF CASES CITED. 
 
 
 
 
 
 PAOB. 
 
 Woodward, H. v., . . 1 Moo. 323 
 
 . 661, 672 
 
 Wooldridge, — 
 
 1 Leach, 307 
 
 . 644 
 
 Wodf, - 
 
 1 Chit. Rep. 401 
 
 . 787 
 
 Woolford, — 
 
 1 M. & Rob. 384 
 
 . 348 
 
 WooHey, — 
 
 1 Den. 559 
 
 . 401, 848 
 
 Woolmer, — 
 
 1 Moo. 334 
 
 . . . 177 
 
 Wootton V. Dawkins, 
 
 . . 2C. B. N. S. 412 
 
 . 244 
 
 Worrall, R. v., 
 
 . . 7C. &P. 516 . . 
 
 • . . 377 
 
 Wright, - . 
 
 9C. &P.754 
 
 . 174 
 
 
 
 4F&F. C67 
 
 . 273 
 
 . 
 
 
 7 Co.x, 413 .. . 
 
 . 335 
 
 ■ — 
 
 
 . . 7C. &P. 159 . . 
 
 . 392 
 
 . _ ... 
 
 
 Styles, 156 .. . 
 
 . 443 
 
 ___ — 
 
 
 1 Lewin, 2C8 
 
 . 682 
 
 ■ __ — 
 
 
 2 F. & F. 320 
 
 . 706, 843 
 
 . — 
 
 
 1 Burr. 543 
 
 .960 
 
 Wycherley, — 
 
 
 8 a & P. 262 
 
 . 850 
 
 Wynne, — 
 
 
 2EastP.C. 664 . 
 
 . 332 
 
 Y. 
 
 
 Yates, R. v., ... 15 Cox, 272 . 
 
 . 732 
 
 V. R. 
 
 
 
 15 Cox, 686 . . . . 
 
 . 732 
 
 Yeadon, R. v., 
 
 
 
 L. & C. 81 . 
 
 238, 254, 819 
 
 Young, — 
 
 
 
 . 8C. &P. 644 
 
 . 35, 180 
 
 . — 
 
 
 
 1 Rubs. 291 . . . 
 
 . . . Ill 
 
 — 
 
 
 
 10 Cox, 371 
 
 . 185 
 
 — 
 
 
 » 
 
 14 Cox, 114 
 
 . 270, 869 
 
 — 
 
 
 
 6 0. R. 410 
 
 . 353 
 
 — 
 
 
 
 3 T. R. 98 
 
 . 401 
 
 — 
 
 
 
 1 Leach, 511 . . . 
 
 . 687 
 
 V. R. 
 
 
 
 3 T. R. 98, 105, 106 
 
 . 692 
 
 Zollverein, The . . . I Sw. Adm. Rep. 96 . 
 
 . 610 
 
 Zulueta, R. v., 
 
 f 
 
 . 
 
 1 C. & K. 215 ; 1 Cox, 20 . 
 
 . 612,767 
 
 L] 
 
 A. &E. 
 
 B. & Ad. 
 B. & Aid. 
 B. AC. 
 B. drP. 
 B.&S. 
 Bing. 
 
 Bred, dt B. 
 Burr. 
 
 C. B. 
 
 C. B. N. S. 
 
 01. & P. 
 
 C.&D. 
 
 C.&K. 
 
 Car. & M. 
 
 C. dfP. 
 
 Cald. 
 Camp. 
 Carr. Supp. 
 Chit. 
 
 Chit. Rep. 
 C. L. J. 
 C. L. T. 
 C. M. (ft R. 
 Co. 
 . C. P. D. 
 C. 8. C. 
 C. S. L. C. 
 C. S. U. C. 
 
 I 
 i 
 I 
 E 
 B 
 B 
 B 
 
 C( 
 
 C< 
 
 01 
 
 Or 
 
 Ca 
 
 Oa 
 
 Ca 
 
 Cai 
 
 Cai 
 
 Cai 
 
 Chi 
 
 Chi 
 
 Can 
 
 Can 
 
 Croj 
 
 Ook( 
 
 Law 
 
 Com 
 
 CoDf 
 
 Conj 
 
 ^- * I'. Dow] 
 
 D. & M. Davii 
 
 D. & R. Do^j 
 
 IJeara. Dean 
 
 Dears. A B. Deart 
 
 ^«°- Denia 
 
 I>or.Q. B.R. Doric 
 
 I>ouK. Doug] 
 
 E. <& B. Eiiig , 
 
 E.B.&E. Ellis.. 
 
LIST OP ABBREVIATIONS. 
 
 ■IP 
 
 
 
 [, 
 
 A. <&£. 
 
 B. & Ad. 
 B. <& Aid. 
 B. &C. 
 B. <feP. 
 
 B. (&S. 
 Bing. 
 Brod. & B. 
 Burr. 
 
 C. B. 
 
 C. B. N. S. 
 CI. & F. 
 C. &D. 
 C.«SeK. 
 Car. & M. 
 C.«feP. 
 Cald. 
 Camp. 
 Carr. Snpp. 
 Chit. 
 Chit. Bep. 
 
 C. Li. J. 
 
 C. L. T. 
 
 C. M. & R. 
 
 Co. 
 
 C. P. D. 
 
 C. 8. C. 
 
 C. S. L. C. 
 
 C. S. U. C. 
 
 D. &L. 
 D. &M. 
 
 D. &R. 
 Dears. 
 Dears. & B. 
 Den. 
 
 Dor. Q. B. B. 
 Doug. 
 
 E. d;B. 
 £. B. ± E. 
 
 Adolphas and Ellis, Baports 
 
 Barnewall and Adolphus' " 
 
 Barnewall and Alderson's " 
 
 Barnewall and CreBsweU's *' 
 
 Bosanqnet and Puller's " 
 
 Best and Smith's " 
 
 Bingham's E. B " 
 
 Broderip and Bingham's ' 
 
 Burrows' " 
 
 Common Bench ** 
 
 Common Bench New Series " . , 
 
 Clark & Finelly's " 
 
 Crawford and Dixon's " 
 
 Carrington and Kirwan's N. P. Reports 
 
 Carrington and Marshman " " 
 
 Carrington and Payne's ** " 
 
 Caldecott's Reports 
 
 Campbell's Reports 
 
 Carrington's Oriminal Law 
 
 Chitty's " 
 
 Chitty's Reports 
 
 Canada Law Journal, Ont 
 
 Canadian Law Times, Ont. 
 
 Crompton, Meeson <& Roacoe 's Reports 
 
 Coke's Reports 
 
 Law Reports, Common Pleas Division 
 
 Consolidated Statutes of Canada 
 
 Consolidated Statutes of Lower Canada 
 
 Consolidated Statutes of Upper Canada 
 
 Dowling and Lowndes' Reports 
 
 Davison and Merivale's " 
 
 Dowling and Ryland's " 
 
 Dearsley's " " 
 
 Dearsley and Bell's Crown Caam 
 
 Denison's Crown Cases 
 
 Dorion's Queen's Bench Reports, Montreal 
 
 Douglas Reports 
 
 Ellis and Blackburn's Ruperts 
 Ellis, Blackburn and Ellis' " 
 
 !r;rr,il 
 
 
 :^''f-1 
 
 i' 
 
XCVl 
 
 LIST OF ABBREVIATIONS. 
 
 L. 
 
 E.<&E. 
 Ex. D. 
 
 F.&F. 
 Fost. 
 
 G.&D. 
 G. &0. 
 
 H. &C. 
 H.&N. 
 Han. 
 
 111. 
 Ind. 
 Inst. 
 Ir. R. C. 
 Ir. L. R. 
 
 J. P. 
 Jur. 
 
 Eel. 
 
 L. &C. 
 L. C. J. 
 L. C. L. J. 
 L. C. R. 
 LA. Raym. 
 L.J. 
 L.N. 
 
 L. R. C. C. R. 
 L. R. C. P. 
 L. R. H. L. 
 L. R. P. C. 
 L. R. Q. B. 
 L. T. 
 
 Ellis and Ellis' " 
 
 Law Reports, Exchequer Division 
 
 Foster and Finlason'a " 
 Foster's Crown Cases 
 
 Gale and Davison's Reports 
 
 Geldert and Oxley's Nova Scotia Reports 
 
 Hurlstone and Coltman's 
 Hurlstone and Norman's ' 
 
 Hannay's New Brunswick " 
 
 , Illinois State 
 Indiana Reports . 
 Coke's Institutes 
 Irish Common Law Reports 
 Irish Law Reports 
 
 Justice of the Peace 
 Jurist . 
 
 Eelyng's Crown Cases 
 
 Leigh and Cave's Crown Cases 
 
 Lower Canada Jurist 
 
 Lower Canada Law Journal 
 
 Lower Canada Reports 
 
 Lord Raymond's " 
 
 Law Journal (England) 
 
 Legal News, P. Q. 
 
 Law Reports, Crown Cases Reserved 
 
 Law Reports, Common Piers 
 
 Law Reports, English and Irish Appeals 
 
 Law Reports, Privy Council 
 
 Law Reports, Queen's Bench 
 
 Law Times Reports 
 
 M. & G. Manning and Granger's Reports 
 
 M. & M. Moody and Malkin's '• 
 
 M. & Rob. Moody and Robinson's " 
 
 M. & S. Maule and Selwyn's " 
 
 M. & W. Meeson and Welsby's " 
 
 Man. L. R. Manitoba Law Reports 
 
 Marsh. Marshall's Reports 
 
 M. L. R. Q. B. Montreal Law Reports, Queen's Bench 
 
 Me. Maine State Reports 
 
 Mod. Modern Reports 
 
 Moo. Moody's Crown Cases 
 
 N. B. Rep. 
 N. S. Rep, 
 
 O. R. 
 Ont. A. R. 
 
 P. &B. 
 
 Plow. 
 
 P. R. (Ont.) 
 Pugs. 
 P. Wms. 
 
 Q.B. 
 Q. B. D. 
 Q. L. R. 
 
 R. &C. 
 R. (ftM. 
 R. (ftR. 
 Rep, 
 R. L. 
 
 R. 8. B. C. 
 R. S. N. B. 
 R. S. N. S. 
 Russ. 
 R. <fe G. 
 
 Salk. 
 
 S. C. R. I 
 
 St. Tr. 1 
 
 Str. I 
 
 Taun. 
 T. R. 
 T. Raym. 
 Tyr. 
 
 U. C. C. P. 
 U. C. Q. B. 
 
 Warb. Lead. Ca 
 W. R. 
 
 Wheat. 
 Wil. 
 
 Cbim. LA^ 
 
LIST OF ABBREVIATIONS. 
 
 XCVll 
 
 N. B. Rep. New Brunswick Reports 
 
 N. S. Rep. Nova Scotia Reports 
 
 O. R. Ontario Reports 
 
 Ont. A. R. Ontario Appeal Reports 
 
 P. <& B. Pugsley and Barbidge, New Brunswick Reports 
 
 Plow. Plowden's K. B. Report 
 
 P. R. (Ont.) Practice Reports, Ontario 
 
 Pu^s. Pugsley's New Brunswick Reports 
 
 P. Wms. Peere Williams, E. B. Reports 
 
 Q. B. Queen's Bench • 
 
 Q. B. D. Law Reports, Queen's Bench Division 
 
 Q. L. R. Quebec Law Reports 
 
 R. <& C. Russell & Chesley's Nova Scotia Reports 
 
 R. & M. Ryan and Moody's Reports 
 
 R. & R. Russell and Ryan's Reports 
 
 Rep. Coke's Reports. 
 
 R. L. Revue Legale, P. Q. 
 
 R. 8. B. C. Revised Statutes of British Columbia 
 
 R. S. N. B. Revised Statutes of New Brunswick 
 
 R. S. N. S. Revised Statutes of Nova Scotia 
 
 Russ. Russell on Crimes, 4th ed. 
 
 R. & G. Russell and Geldert's Nova Scotia Reports 
 
 Salk. Salkeld's Reports 
 
 S. C. R. Supreme Court of Canada Reports 
 
 St. Tr. State Trials 
 
 Str. Strange's Reports 
 
 Taun. Taunton's 
 
 T. R. Term. 
 
 T. Raym. T. Raymond's " 
 
 Tyr. Tyrwhitt's " 
 
 U. C. C. P. Upper Canada Common Pleas 
 
 11. C. Q. B. Upper Canada Queen's Bench 
 
 
 Warb.Lead. Cas. Warburton's Leading Cases on Criminal Law 
 VV. R. Weekly Reporter 
 
 Wheat. Wheaton's Reports 
 
 Wil. Wilson's K. B. Reports. 
 
 Crim. Law— o 
 
 1 
 
An 
 
 TTER Majest 
 ■*■■*- of Comm 
 
 1. This Act 
 
 3 This Ac 
 
 3> In this i 
 them in this sect 
 
 («) The exi 
 passed or to be p 
 legislature of th 
 legislature of an 
 province include 
 
 8. 2 (rt). 
 
 (6) The expr 
 Solicitor-Oeneral 
 under this Act, 
 district of Keewa 
 
 CaiM. La^ 
 
55-56 VICTORIA. 
 
 CHAP. 29. 
 
 An Act respecting the Criminal Law. 
 
 
 ii'f 
 
 If" I 
 
 i-;i'-i! 
 
 n 
 
 ■'in' . 
 
 «M' 
 
 ii 
 
 
 H 
 
 ER Majesty, by and with the advice and consent of the Senate and House 
 of Commons of Canada, enacts as follows : — 
 
 TITLE I. 
 
 INTRODUCTORY PROVISIONS. 
 
 PART I. 
 
 PRELIMINARY. 
 
 la This Act may be cited for all purposes as The Criminal Code, 1892. 
 COMMKNCKMKNT OP AcT. 
 
 3 This Act shall come into force on the first day of July, 1893. 
 
 Interpretation Clause. 
 
 3> In this Act the following expressions have the meanings assigned to 
 them in this section unless the context requires otherwise : 
 
 («) The expression "any Act," or "any other Act," includes any Act 
 passed or to be passed by the Parliament of Canada, or any Act passed by the 
 legislature of the late province of Canada, or passed or to be passed by the 
 legislature of any province of Canada, or passed by the legislature of any 
 province included in Canada before it was include<l therein ; R. S. C. o. 174, 
 8. 2 («). 
 
 (6) The expression " Attorney-General " means the Attorney-General or 
 Solieitor-Oeneral of any province in Canada in which any proceedings are taken 
 under this Act, and, with respect to the North-west Territories and the 
 district of Keewatin, the Attorney -General of Canada; R. S. C. c. 150, s. 2 (a). 
 
 Grim. Law — 1 
 
PRELIMINARY. 
 
 [Sec. » 
 
 Sec. 3] 
 
 (c) The expfewion "banker" includes any director of any incorporate 
 bank or banking company ; R. S. C. c. 164, a. 2 (^r). 
 
 (d) The expreasion "cattle," includes any horse, mule, ass, swine, sheep, 
 or goat, as well as any neat cattle or animal of th« bovine siiecies, and by what- 
 ever technical or familiar name known, and shall apply to one animal as well 
 as to many ; R. S. 0. c. 172. s. 1, (amended) ; 24-25 V. o. 96, s. 10, (Imp.). 
 
 (e) The expression " Court of Appeal " includes the following courts : 
 R. S. C. c. 174, 8 2 (h). 
 
 (i) In the province of Ontario, any division of the High Court of 
 
 Justice ; 
 
 (ii) In the province of Quebec, the Court of Queen's Bench, appeal 
 
 side; 
 
 (iii) In the provinces of Nova Scotia, New Brunswick and British 
 
 Columbia, and in the North-west Territories, the Supreme Court in bane; 
 (iv) In the province of Prince Edward Island, the Supreme Court of 
 
 Judicature ; 
 
 (v) In the province of Manitoba, the Court of Queen's Bench ; 
 
 {f) The expression " district, county or place " includes any division of 
 any province of Canada for purposes relative to the administration of justice in 
 criminal cases; R. S. C. o. 174, s. 2 (/). 
 
 {(/) The expression "document of title to goods" includes any bill of lad- 
 ing, India warrant, dock warrant, warehou8e-keei)er's certificate, warrant or 
 order for the delivery or transfer of any goods or valuable thing, bought and 
 sold note, or any other document used in the ordinary course of business as 
 proof of the ixjssession or control of gtwds, authorizing or purporting to 
 authorize, either by endorsement or by delivery, the possessor of such docu- 
 ment to transferor receive any gootls thereby represented or therein mentioned 
 or referred to: R. S. C. c. 164", s. 2 (a); 24-25 V. c. 90, s. 1, (Imp.). 
 
 (h) The expression "document of title to lands " includes any deed, map, 
 paper or parchment, written or printed, or partly written and partly printed, 
 being or containing evidence of the title, or any part of the title, to any real 
 projjerty, or to any interest in any real property, or any notarial or registrar's 
 copy thereof, or any duplicate instrument, memorial, certificate or document 
 authorized or required by any law in force in any part of Canada respecting 
 registration of titles, and relating to such title ; R. S, C. c. 104, s. 2 (b) ; 
 24-25 V. c. 90, s.l, (Imp.). 
 
 (i) The expression " explosive substance " includes any materials for 
 making an exi)losive substance ; also any apparatus, machine, implement, or 
 materials used, or intended to bo used, or adapted for causing, or aiding in 
 causing, any explosion in or with any explosive substance ; and also any part of 
 any such apparatus, machine or implement; R. S. C. c. 150, s. 2 (b); 46 V. 
 c. 3, s. 9, (Imp.). 
 
 ij) Finding the indictment includes also exhibiting an information and 
 making a presentment ; R. S. C. c. 174, s. 2 (d), (amended). 
 
 (k) Having {in one's possession, includes not only having in one's own 
 personal possession, but also knowingly — 
 
 (i) having in the actual possession or custody of any other person ; 
 and 
 
 ■elf or 
 R. S. C. 
 0. 45, 8. 
 
 If there 
 knowleclge t 
 
 possession, ii 
 each and all 
 
 ii) The , 
 
 information i 
 
 tion or other 
 
 (»») The 
 
 holic, spirituc 
 
 liquor a pari 
 
 intoxicating • 
 
 (n) The i 
 
 two or more ji 
 
 any person ha' 
 
 R. S. C. a 174 
 
 (o) The e; 
 loaded with gu 
 other destructi 
 or other destr 
 5C.&P. 159; 
 
 (o-l) The : 
 orders, rules ai 
 Orders for the . 
 to Her Majestj 
 of whatever nai 
 are subject ; 
 
 ip) The exr 
 town, village, c 
 any province of 
 right of holding 
 
 (P-l) In th( 
 "newspaper" 8 
 news, intelligem 
 printed for sale 
 vals not exceed! 
 papers, parts or 
 in order to be di 
 not exceeding M 
 ments ; 51 V. c. 
 (<?) The expr 
 nine o'clock in tl 
 flay, and the exj: 
 six o'clock in the 
 R.S.C.C. 1.64, s. 
 

 Sec. 3] 
 
 INTERPRETATION CLAUSE. 
 
 8 
 
 (ii) having in any place (whether belonging to or occupied by one's 
 
 self or not) for the use or benefit of one's self or of any other person ; 
 
 R. S. C. c. 104, 8. 2,(0 ; 0. 166, s. 2; c. 167, s. 2 ; o. 171, a. 3 ; 60-61 V. 
 
 c. 46, 8. 2 (e). 
 
 If there are two or more persons, any one or more of whom, with the 
 knowledge and consent of the rest, have any thing in his or their custody or 
 possession, it shall be deemed and taken to be in the custody and possession of 
 each and all of them ; 
 
 (i) The expressions "indictment" and "count" respectively include 
 information and presentment as well as indictment, and also any plea, replica- 
 tion or other pleading, and any record ; R. S. C. c. 174, s, 2 (c), (amended) ; 
 
 (m) The expression " intoxicating liquor " means and includes any alco- 
 holic, spirituous, vinous, fermented or other intoxicating liquor, or any mixed 
 liquor a part of which is spirituous or vinous, fermented or otherwise 
 intoxicating ; R. S. C. c. 161, s. 1 (d). 
 
 (n) The expression " justice " means a justice of the peace, and includes 
 two or more justices, if two or more justices act or have jurisdiction, and also 
 any person having the power or authority of two or more justices of the pajvce ; 
 R. S. C. o. 174, s. 2 (b). 
 
 (o) The expression " loaded arms" includes any gun, pistol or other arm 
 loaded with gun|M)wder, or other explosive substance, and ball, shot, slug ot 
 other destructive material, or charged with compressed air and ball, shot, slug, 
 or other destructive material , R.S. C. o. 102, s. 1 (amended); R. v. Harris^ 
 5C. & P. 169; R. v. Jackson, 17 Cox, 104 ; 24-25 V. c. 100, s. 19, (Imp.). 
 
 (o-l) The expression "military law" includes The Militia Act and any 
 orders, rules and regulations made thereunder, the Queen's Regulations and 
 Orders for the Army ; any Act of the United Kingdom or other law applying 
 to Her Majesty's troops in Canada, and all other orders, rules and regulations 
 of whatever nature or kind soever to which Her Majesty's troops in Canadik 
 are subject ; 
 
 (p) The expression " municipality " includes the corporation of any city^ 
 town, village, county, township, parish or other territorial or local division of 
 any province fif Canada, the inhabitants whereof are incorporated or have tho 
 right of holding property for any purpose ; R. S. C. c. 164, s. 2 (.;'). 
 
 (p-1) In the sections of this Act relating to defamatory libel the word 
 "newspaper" shall mean any paper, magazine or periodical containing public 
 news, intelligence or occurrences, or any remarks or observations thereon,, 
 printed for sale and published periodically, or in parts or numbers, at inter- 
 vals not exceeding thirty-one days between the publication of any two suchi 
 papers, parts or numbers, and also any paper, magazine or periodical printed^ 
 in order to be dispersed and made public, weekly or oftener, or at intervals^ 
 not exceeding thirty-wie days, and containing only or principally advertise- 
 ments ; 51 V. c. 44, s. 1 (amended). 
 
 (q) The expression "night " or " night time " means the interval between 
 nine o'clock in the afternoon and six o'clock in the forenoon of the following 
 day, and the expression "day " or "day time " includes the interval between 
 six o'clock in the forenoon and nine o'clock in the afternoon of the same day ;; 
 R. S. C. c. 164, s. 2 ; 24-25 V. c. 96. s. 1, (Imp.). 
 
 V 
 
 '-■-■4- 
 
4 
 
 PRELIMINARY. 
 
 [Sec. 3 
 
 (r) The expression " offensive wsapon " includes any gun or other firearm, or 
 air-gun, or any part thereof, or any sword, sword-Made, bayonet, pike, pike- 
 head, spear, spear-head, dirk, dagger, knife, or other instrument intended for 
 cutting or stabbing, or any metal knuckles, or other deadly or dangerous 
 weapon, and any instrument or thing intended to be used as a weapon, and 
 all ammunition which may be used with or for any weapon ; R. S. C. o. 151, 
 
 8. 1 (C). 
 
 (s) The expression "peace officer" includes a mayor, warden, reeve, 
 sheriff, deputy-sheriff, sheriff's officer, and justice of the peace, and also the 
 warden, keeper or guard of a penitentiary and the gaoler or keeper of any 
 prison, and any police officer, police constable, bailiff, constable or other i)er8on 
 employed for the preservation and maintenance of the public peace, or for the 
 service or execution of civil process ; (new), 
 
 (t) The expressions "person," "owner," and other expressions of the 
 same kind include Her Majesty and all public bodies, bodies corix>rate, socie- 
 ties, companies, and inhabitants of counties, parishes, municipalities or other 
 districts in relation to such acts and things .\3 they are capable of doing and 
 owning respectively ; (new). See R. S. C. c. 1, s. 4. 
 
 (u) The expression "prison" includes any penitentiary, common gaol, 
 public or reformatory prison, lock-up, guard rnom or other place in which per- 
 sons charged with the commission of offences are usually kept or detained in 
 custody ; (new). 
 
 [v] The expression "property " includes : 
 
 (i) Every kind of real and personal property, and all deeds and instru- 
 ments relating to or evidencing the title or right to any property, or giving 
 A righb to recover or receive any money or goods ; 
 
 (ii) Not only such property as was originally in the possession or 
 under the control of any person, but also anj' property into or for which 
 the same has been converted or exchanged and anything acquired by such 
 conversion or exchange, whether immediately or otherwise ; 
 
 (iii) Any postal card, postage stamp or other stamp issued or prepared 
 for issue by the authority of the Parliament of Canada, or of the legislature 
 of any province of Canada, for the payment to the Crown or any corpor- 
 ate body of any fee, rate or duty, and whether still in the possession of 
 the Crown or of any person or corporation ; and such postal card or stamp 
 shall be held to be a chattel, and to be equal i'l value to the amount of the 
 postage, rate or duty expressed on its face in words or figures or both ; 
 E. S. C. c. 164. s. 2; 24-25 V. c. 06, s. 1, (Imp.), 
 ()«) The expression "public officer'" includes any inland revenue or 
 
 customs officer, officer of the army, navy, marine, militia. North-west m.. anted 
 
 police, or other officer engaged in enforcing the Irsws relating to the revenue, 
 
 customs, trade or navigation of Canada; (Nev ,. 
 
 (x) The expression "shipwrecked person' includes any person belonging 
 
 to, on board of, or having quitted any vessel wrecked, stranded, or in distress at 
 
 any place in Canada ; R. S. C . c. 81, s. 2 (h), (J vvcmled). 
 
 (,y) The expression "Superior Court of Criminal Jurisdiction " means and 
 
 includes the following courts : 
 
 (i) In the province of Ontario, the three divisions of the High Court 
 of Justice 
 
Sec. 3] 
 
 INTERPRETATION CLAUSE. 
 
 5 
 
 (ii) In the province of Quebec, the Court of Queen's Bench ; 
 
 (iii) In the provinces of Nova Scotia, New Brunswick and British 
 Columbia, and in the North-west Territories, the Supreme Court; 
 
 (iv) In the province of Prince Edward Island, the Supreme Court of 
 Judicature ; 
 
 (v) In the province of Manitoba, the Court of Queen's Bench (Crown 
 side); (New). 
 
 (z) The expression "territorial division" includes any county, union of 
 counties, township, city, town, parish or other judicial division or place to 
 which the context applies ; R. S. C. c. 174, s. 2 (g). 
 
 {aa) The expression "testamentary instrument" includes any will, codicil, 
 or other testamentary writinf!^ or appointment, as well during the life of the 
 testator whose testamentary disposition it purports to be as after his death, 
 whether the same relates to real or pprsonal property, or both ; R. S. C. o. 104, 
 s. 2(t). 
 
 (bh) The expression "trustee" means a trustee on some express trust 
 created by some deed, will or instrument in writing, or by parol, or otherwise, 
 and includes the heir or i)ersonal representative of any such trustee, and every 
 other person upon or to whom the duty of such trust has devolved or come, 
 whethf^r by appointment of a court or otherwise, and also an executor and 
 administrator, and an official manager, assignee, liquidator or other like officer 
 acting under any Act relating to joint stock companies, bankruptcy or 
 insolvency, and any person who is, by the law of the province of Quebec, an 
 " adTHtnislratcur" or "ftdeiconimissaire "; and the expression "trust " includes 
 whatever is by that law an "ailminiatration " or " fidiiconiniission" ; R. S. C. 
 c. 10*, s. 2 (c), {Amended) ; 24-25 V. c. 90, s. 1, (Imp,). 
 
 (cc) The expression " v.-vluable security " includes any order, exchequer 
 acquittance or other security entitling or evidencing? the title of any person to 
 any share or interest in any public stock or fund, whether of Canada or of any 
 province thereof, or of the United Kingdom, or of Great Britain or Ireland, or 
 aTiy British colony or possession, or of any foreign state, or in any fund of any 
 body corporate, company or society, whether within Canada or the United 
 Kingdom, or any British colony or possession, or in any foreign state or country, 
 or to any deposit in any savings bank or other bank, and also includes any 
 debenture, deed, bond, bill, note, warrant, order or other security for money 
 or for payment of money, wlietiier of Canada or of any province thereof, or of 
 the United Kingdom or of any British colony or possession, or of any foreign 
 state, and any document of title to lands or goods as hereinbefore defined 
 wheresoever such lands or goods are situate, and any stamp or writing which 
 secures or evidences title to, or interest in any chattel personal, or any release, 
 receipt, discharge or other instrument, evidencing payment of money, or the 
 delivery of any chattel personal ; and every such valuable security shall, where 
 value is material, be deemed to be of value equal to that of such unsatisfied 
 money, chattel personal, share, interest or deposit, for the securing or payment 
 of which, or delivery or transfer or sale of which, or for the entitling or 
 evidencing title to which, such valuable security is api>licable, or to that of 
 such mcmey or chattel jiersonal, the payment or delivery of which is evidenced 
 by such valuable security ; 53 V. c. 37, s. 20; 24-26 V. c. 90, s. 1, (Imp.). 
 
6 
 
 PRELIMINARY. 
 
 [Sees. 
 
 4-6 
 
 Seoe. 7-10] 
 
 (dd) The expression " wreck " includes the cargo, stores and tackle of any 
 vessel and all parts of a vessel separated therefrom, and also the pnjperty of 
 shipwrecked persons ; R. S. C. c. 81, s. 2. 
 
 (ee) The expression " writing " includes any mode in which, and any 
 material on which, words or figures whether at length or abridged are written, 
 printed or otherwise expressed, or any map or plan is inscribed ; R. S. C. 
 c. 164, 8. 2 ; see R. S. C. o. 1, s. 4. 
 
 Interpretation ov Other Words. 
 4« Thb expressions "mail," "mailable matter," "post letter," "post 
 letter bag," and "post office "when used in this Act have the meanings 
 assigned to them in The Post Office Act, and in cverii case in which the offence 
 dealt with in this Act relates to the subject treated of in any other Act, the words 
 and expressions used herein in respect to such offence shall have the meaning 
 assigned ti them in such other Act, 
 
 The Post Office Act is c. 35 of the Revised Statutes. 
 
 Carnal Knowledge Defined. 
 
 Seo. 4a. — Carnal knowledge is complete upon penetration to any, even 
 to the slightest degree, and even without the emission of seed ; (amendment of 
 1893). 
 
 Offences Against Imperial Statutes. 
 
 S* No person shall be proceeded against for any offence against any Act 
 of the Parliament of England, of Great Britain, or of the United Kingdom of 
 Great Britain and Ireland, unless such Act is, by the express terms thereof, or 
 of some other Act of such Parliament, made Gi)plinable to Canada or some por- 
 tion thereof as part of Her Majesty's dominions or possessions. 
 
 By 28-29 V. c. 63 (Imp.), any colonial law repugnant to 
 
 any Act of the Imperial Parliament is, to the extent of that 
 
 repugnancy, void. 
 
 Punishments. 
 
 ©• Every one who commits an offence against this Act is liable as herein 
 provided to one or more of the following punishments : — 
 
 {a) Death, ss. 65, 68, 127, 129, 231, 267, 935 to 949 ; ss. 6, 7, c. 146 
 R. S. C. 
 
 (6) Imprisonment, ss. 950 to 956 ; 
 
 (c) Whipping, s. 957 ; ' 
 
 id) Fine, s. 958 ; 
 
 («) Finding sureties for future good behaviour, s. 958 ; 
 
 (/) If holding office under the Crown, to Ikj removed therefrom, s. 961 ; 
 
 itl) To forfeit any jjension or superannuation allowance, s. 961 ; 
 
 (h) To be disqualified from holding office, from sitting in Parliament and 
 from exercising any franchise, s. 961. 
 
 (t) To pay costs, s. 832 ; 
 
 iJ) To indemnify any [lerson suffering loss of property by commission of 
 his offence, s. 836. 
 
 Why is this enactment limited to offences against " this 
 Act" ? 
 
 MJ 
 
 f- All rule 
 stances a justifi 
 remain in force 
 except in so fan 
 
 8- The mat 
 to be justifioatio 
 
 " We rega 
 
 important poi 
 
 it desirable tl 
 
 arises of so u 
 
 decided with r 
 
 being so fram 
 
 to which the 
 
 become the du 
 
 find him guil 
 
 defence on the 
 
 be pardoned I 
 
 declaring the ] 
 
 that the comm 
 
 preserved in a 
 
 have endeavou] 
 
 ('S""e. 7 ante), h 
 
 •• No persor 
 omission of such p« 
 
 That is the 
 capacity of an 
 be admitted : s 
 
 Oh 
 
 10. No |)er8oi 
 
 omission of such |)er 
 
 years, unless he wai 
 
 conduct, and to app 
 
SeoB. 7-10] 
 
 COMMON LAW RULES. 
 
 PART II. 
 , MATTERS OF JUSTIFICATION OR EXCUSE. 
 
 Common Law Rules. 
 
 7. All rules and principles of the common law which render any circum- 
 stances a justification or excuse for any act, or a defence to any charge, shall 
 remain in force and be applicable to any defence to a charge under this Act 
 except in so far as they are hereby altered or are inconsistent herewith. 
 
 8. The matters provided for in this part are hereby declared and enacted 
 to be justifications or excuses in the case of all charges to which they apply. 
 
 •* We regard this as one of the most difficult as well as most 
 important portions of the draft Code. . . . We do not think 
 it desirable that, if a particular combination of circumstances 
 arises of so unusual a character that the law has never been 
 decided with reference to it, there should be any risks of a code 
 being so framed as to deprive an accused person of a defence 
 to which the common law entitles him, and that it might 
 become the duty of the Judge to direct the jury that they must 
 find him guilty, although the facts proved that he had a 
 defence on the merits, and would have an undoubted claim to 
 be pardoned by the Crown. While, therefore, digesting and 
 declaring the law as applicable to the ordinary cases, we think 
 that the common law, so far as it affords a defence, should be 
 preserved in all cases not expressly provided for. This we 
 have endeavoured to do by section 19 of the draft Code." — 
 {Sue. ? ante), Imp. Comm. Rep. 
 
 Children Under Seven. 
 
 9* No person shall be convicted of an offence by reason of any act or 
 omission of such person when under the age of seven years. 
 
 That is the common law: 4 Blacks. 23. No proof of the 
 capacity of an infant under seven to commit a crime can 
 be admitted: see R. v. Owen, Warb. Lead. Cas. 19. 
 
 Children Between Seven and Fourteen. 
 
 10* No i)er8()n shall be convicted of an offence by reason of an act or 
 omission of such (Ktrson when of the age of seven, but under the age of fourteen 
 years, unless he was competent to know the nature and consequences of his 
 conduct, and to appreciate that it was wrong. 
 
 \ 
 
 •*»■'.■ 
 
 I; 
 
8 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sec. 11 
 
 ^Bsa 
 
 
 Such an infant is presumed to be incapable to commit 
 any crime until the contrary is proved, and such a proof 
 must be clear and beyond all doubt : 4 Blacks. 23. 
 
 A boy under fourteen cannot, in law, commit a rape ; 
 section 266; nor the offence of carnally knowing a girl 
 under fourteen, under section 269, R. v. Waite, [1892], 
 2 Q. B. 600, nor, any of the offence? , where carnal con- 
 nection with a woman is a necessar}'^ ingredient of the 
 offence, or any attempt to commit rape or any of the above 
 mentioned offences: compare R. v. Eldershaw, 3 C. & P. 396 ; 
 R. V. Groombridge, 7 C. & P. 582 ; R. v. Philips, 8 C. & P. 
 736; R. V. Jordan, 9 C. & P. 118 ; R. v. Brimilow, 2 Moo. 
 122, 1 Russ. 8 ; R. v. Allen, 1 Den. 364. 
 
 A person of the age of fourteen and upwards is pre- 
 sumed to have capacity to commit any crime until the 
 contrary is proved : see R. v. Owen, Warb. Lead. Cas. 19 ; 
 R. V. Vamplew, 3 F. & F. 520. 
 
 Insanity. 
 
 11* No iierson shall be convicted of an offence by reason of an act done or 
 omitted by him when labouring under natural imbecility, or disease of the 
 mind, to such an extent as to render him incapable of appreciating the nature 
 and quality of the act or omission, and of knowing that such act or omission 
 was wrong. 
 
 2. A person labouring under specific delusions, but in other respects sane^ 
 shall not be acquitted on the ground of insanity, under the provisions herem- 
 after contained, unless the delusions caused him to believe in the existence of 
 some state of things which, if it existed, would justify or excuse his act or 
 omission. 
 
 3. Every one shall be presumed to be sane at the time of doing or omitting 
 to do any act until the contrary is proved. 
 
 See 3 Burn's Just. 180; 1 Russ. 11; R. v. Oxford, Warb. 
 Lead. Cas. 21, and eases there cited; R. v. Davis, 14 Cox, 563; 
 R. V. Dubois, 17 Q. L. R. 203; R. v. Dove, 3 Stephen's 
 Hist. 426. 
 
 " Section 22 {sec. 11, ante), which relates to insanity, ex- 
 presses the existing law. The obscurity which hangs over the 
 subject cannot altogether be dispelled until our existing ignorance 
 as to nature of the will and the mind, the nature of the organs 
 by which they operate, the manner and degree in which those 
 
 Sec.l2] 
 
 operations e 
 diseases whi 
 
 " The fri 
 and anxiety 
 be altogethe 
 nature of th 
 case, be left 
 facts in each 
 
 It must be b( 
 
 which is appl 
 
 put forward i; 
 
 and we thinl 
 
 ment which t 
 
 " In the ci 
 
 the ofiender \ 
 
 not to such J 
 
 words where t 
 
 in a greater or 
 
 can apportion 
 
 making allowa 
 
 "But in a c 
 
 to the executi 
 
 cannot be 8ucc< 
 
 would be both 
 
 occur which C8 
 
 by such an app 
 
 ■•• Except I 
 
 diate death or gr 
 
 commission of the < 
 
 subject to such thn 
 
 who is not a party 
 
 rendered liim subje* 
 
 in paragraplis a, b, 
 
 piracy, offences dee 
 
 forcible abduction, 
 
 Ji- V. Tyler, 8 C. d- 
 
Sec. 12] 
 
 COMPULSION BY THREATS. 
 
 ^ 
 
 operations are interfered with by disease, and the nature of the 
 diseases which interfere with them, are greatly diminished. 
 
 " The framing of the definition has caused us much labour 
 and anxiety; and though we cannot deem the definition to 
 be altogether satisfactory, we consider it as satisfactory as the 
 nature of the subject admits of. Much latitude must, in any 
 case, be left to the tribunal which has to apply the law to the 
 facts in each particular case. 
 
 It must be borne in mind, that although insanity is a defence 
 which {r applicable to any criminal charge, it is most frequently 
 put forwaid in trials for murder, and for this oflfence the law — 
 and we think wisely — awards upon conviction a fixed punish- 
 ment which the Judge has no power to mitigate. 
 
 " In the case of any other o£fence if it should appear that 
 the offender was afflicted with some unsoundness of mind, but 
 not to such a degree as to render him irresponsible — in other 
 words where the criminal element predominates though mixed 
 in a greater or less degree with the insane element, the Judge 
 can apportion the punishment to the degree of criminality, 
 making allowances for the weakened or disordered intellect. 
 
 " But in a case of murder this can only be done by an appeal 
 to the executive ; and we are of opinion that this difficulty 
 cannot be successfully avoided by any definition of insanity which 
 would be both safe and practicable, and that many cases must 
 occur which cannot be satisfactorily dealt with otherwise than 
 by such an appeal." — Imp. Comm. Rep. 
 
 Compulsion by Threats. 
 
 12« Except OH hereinafter provided, compulsion by threats of imme- 
 diate death or grievous bodily harm from a person actually present at the 
 commission of the oflfence shall be an excuse for the commission, by a iwrson 
 subject to such threats, and who believes such threats will be executed, and 
 who is not a party to any association or conspiracy, the being a party to wliich 
 rendered him subject to compulsion, of any oflfence other than treason as defined 
 in paragraphs a, b, c, d and e of sub-section one of section sixty -five, murder, 
 piracy, oflfences deemed to be piracy, attempting to murder, assisting in rai)e, 
 forcible abduction, robbery, causing grievous bodily harm, and arson ; See 
 R V. TyUr, 8 C. cD P. 616, Warb. Lead Cas. 31. 
 
 m ' 
 
 1^ 
 
 t. 
 
 ''Htl 
 
 
 i 
 
 
 : 1 
 
 
 
 |: 
 
 1 
 
 1 
 
 k 
 
 
10 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sec. 12 
 
 " There can be no doubt that a man is entitled to preserve 
 his own life and limb ; and, on this ground, he may justify 
 much which otherwise would be punishable. The cases of a 
 person setting up as a defence that he was compelled to commit 
 a crime is of everyday occurrence. There is no doubt on the 
 authorities that compulsion is a defence where the crime is not 
 of a heinous character. But killing an innocent person, accord- 
 ing to Lord Hale, can never be justified. He lays down the 
 stern rule : ' If a man be desperately assaulted and in peril of 
 death, and cannot otherwise escape, unless to satisfy his 
 assailant's fury, he will kill an innocent person there present, 
 the fear and actual force will not acquit him of the crime and 
 punishment of murder, if he commit the fact; for he ought 
 rather to die himself than kill an innocent.' On the trials for 
 high treason in 1746, the defence of the prisoners was in many 
 cases that they were compelled to serve in the rebel army. The 
 law was laid down somewhat more favourably for the prisoners 
 than it had been before, as the defence of compulsion was stated 
 to apply not merely to furnishing provisions to the rebel army, 
 but even to joining and serving in that army. It was laid down 
 {See Foster 14) that, ' The only force that doth excuse is force 
 upon the person and present fear of death ; and this force 
 and fear of death must continue all the time the party 
 remains with the rebels. It is incumbent on every man who 
 makes force his defence, to show an actual force, and that he 
 quitted the service as soon as he could.' It is noticeable that 
 though most of those who set up this defence must have fought 
 in actual battle and must have killed, or at least assisted in 
 killing the loyalists, and so brought themselves within the stern 
 rule laid down by Hale, it was never suggested that this made a 
 difference. We have framed section 23 {sec. 12, ante) of our 
 Draft Code, to express what we think is the existing law, and 
 what at all events we suggest ought to be the law." — Imp. 
 Comm. Rep. 
 
 As to homicide by necessity, see R. v. Dudley, 14 Q. B. D. 
 273, Warb. Lead. Cas. 102; United States v. Holmes, 
 1 Wall, jr., 1. 
 
 Sees. 13,14] 
 
 18» No pi 
 
 oflfenoe dues so 
 husband. 
 
 This al< 
 married wo 
 treason and 
 under coerc 
 Cas. 26, and 
 1 Russ. 33, Qi 
 
 14. The fact 
 any oflFenoe comm 
 
 See R, V. 
 
 Car. & M. 308 
 
 in Warb. Lead 
 
 Where the 
 having been w: 
 is immaterial: 
 criminal purpoj 
 it is wilfully dc 
 thing: 4th Rep 
 
 In R. V. Cra\ 
 
 *nt guilty, biit i 
 
 acting contrary 
 
 ignorance of tl; 
 
 ignorance of faci 
 
 i^isi mens sit r 
 
 Tolson, IQ Cox, ( 
 
 and cases there 
 
 ^' V. Hicklin, J 
 
 Cox, 421, and cas 
 
 Though drunii 
 where the intenti, 
 the offence itself, \ 
 at the time may b 
 
li 
 
 ^•^3.14J COMPULSION OP WIPE. 
 
 1« le Compulsion of Wiric. (jv,,„^ 
 
 Jnis alters the law aii „«. 
 •narried woman i„ presencT f k T """"-itted by a 
 
 under coercion: R. v. To^etj 2^ "'^"^ ''«»'• «»mmitt^ 
 
 C^. 26, and caaes there cS Vv B^ '\ "'""• '^■ 
 1 K"88. 33, and Greaves' note W. ^'""'"""'e, 1 fo^. jgg. 
 
 C».rM^;S;T!rH;,f 3'r^i\«-^ «^ ^ V. Reed 
 •n Warb. Lead. Ca,. 204 ^^ '*"' «■ ^- H^™, cited 
 
 .'-Sre:tiS;dte"&^ ? «* ^^P^^^^ »pon i^ 
 ^.immaterial: 7th Ccrim L r """''" "* the offender 
 C"n.i»al purposes, the'^intenTion toTo"!.'*"' ^''- !»• ^ - 
 J » wilfully done. Inten«on and m J ''°' ^^'''^ '^''^-'e 
 tlung: 4th Rep. XV. and 7th Rep 2" "' "<""•« «■"»« 
 
 In R V. Crawshaw. BelJ 9ftQ +1, • 
 «>' guilty, bit that h d d noTkl:-'"'^^"'' ">" ''^f^d- 
 «ct.ng contrary to w. But slid th! ^""iT *'"" •>« ™« 
 Jg-orance of the statute is '„ t """j ""' "'^^"dants 
 
 ignorance of fact, and the rue Ihat.? °' '"'"• ^» »" 
 «w vmts sit rear see R 7 p ""'"^ "-"»/««< '^«m 
 Tolson, 16 Cox. 629, 2?q B d 3'J' ,«» ^38; R , 
 «nd cases there cited- E v V ' ^'"■"'- ^d. Cas, 72 
 
 R- V. Hicklin, L. R aV'B ;r "J^"''- ^- «"«• l^' 
 
 '^;:"'r -- *^ -«er s!!LX:.""'" " 
 
 the offence iteelf, theict thaTih'' '^'"'^ '^ "» ^'«'""^nt of 
 --time maybe taC:i::::-rro„7y;tX;- 
 
 ifiiii 
 
 •4 ' i 
 
 
 
 A I 
 f' ' 
 
 
 ,1 
 
 
12 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sees. 15, 1» 
 
 ;^! '^1 
 
 considering whether he had the intention necessary to con- 
 stitute the offence charged: R. v. Cruse, Warb. Lead. Cas. 24, 
 and cases there cited: R. v. Doherty, 16 Cox, 306; R. v. 
 Carroll, 7 C. & P. 145; 1 Russ. 12, and Greaves' note. 
 
 Ignorance of the law, an excuse in a specified case under 
 section 21, post. 
 
 As to liability, in criminal law, of masters for the acts 
 of their servants: see R. v. Stephens, Warb. Lead. Cas. 37; 
 Bond V. Evans, 16 Cox, 461, 21 Q. B. D. 249 ; R. v. Bennett^ 
 Bell, 1 ; R. V. Allen, 7 C. & P. 153 ; Chisholm v. Doulton, 16 
 Cox, 675, 22 Q. B. D. 736, and cases there cited; Kearley v. 
 Tylor, 17 Cox, 328; Elliott v. Osbora, 17 Cox, 346; Brown 
 V. Foot, 17 Cox, 509. 
 
 ExKCUTioN OF Sentence. 
 
 15» Every ministerial officer of any court authorized to execute a lawful- 
 sentence, and every gaol.^r, and every person lawfully assisting such ministe- 
 rial officer or gaoler, is justified in executing such sentence. 
 
 That is common law. What the law requires, it justifies. 
 Quando aliquul niandatur, mandatur et omne per quod 
 pervenitur ad ilhul (5 Rep. 115 b.) See post, sections 18^ 
 & 19, as to erroneous sentences, and note under section 16 a» 
 to the word justified. 
 
 Execution of PnooEss. 
 in* Every ministerial officer of any court duly authorized to execute any 
 lawful process of such court, whether of a civil or a criminal nature, and every 
 person lawfully assisting him, is justified in executing the same ; and every 
 gaoler who is required under such process to receive and detain any person {» 
 justified in receiving and detaining him. 
 
 See note under preceding section, and R. v. King, 18- 
 O. R. 566. 
 
 " There is a diflference in the language used in the sections 
 in this part which probably requires explanation. Sometimes 
 it is said that the person doing an act i? "justified " in so doing 
 under particular circumstances. The effect of an enactment 
 using that word would be not only to relieve him from punish- 
 ment, but also to afford him a statutable defence against a civil 
 action for what he had done. Sometimes it is said that a 
 
 'j;i "i: 
 
 4^ 
 
8eo. 16] 
 
 EXECUTION OF PROCESS. 
 
 13 
 
 person doing an act in ' protected from criminal responsibility ' 
 under particular circumstances. The effect of an enactment using 
 this language is to relieve him from punishment, but to leave 
 his liability to an action for damages to be determined on other 
 grounds, the enactment neither giving a defence to such an 
 action where it does not exist, nor taking it away where it does. 
 This difference is rendered necessary by the proposed abolition 
 of the distinction between felony and misdemeanour. 
 
 "We think that in all cases where it is the duty of a peace 
 officer to arrest, (as it is in cases of felony) it is proper that he 
 should be protected as he now is, from civil as well as from crim- 
 inal responsibility. And as it is proposed to abolish the distinction 
 between felony and misdemeanour, on which most of the exist- 
 ing law a3 to arresting without a warrant depends, we think it 
 is necessary to give a new protection from all liability (both civil 
 and criminal) for arrest, in those cases which by the schemes of 
 the Draft Code are (so far as the power of arrest is concerned) 
 substituted for felonies. In those cases therefore which are 
 provided for in sections 82, 33, 34, 87, 88, {22, 23, 24, 27, 28, of 
 this Code) the word ' justified ' is used. A private person is, by 
 the existing law, protected from civil responsibility for arresting 
 without warrant a person who is on reasonable grounds believed 
 to'have committed a felony, provided a felony has actually been 
 committed, but not otherwise. In section 85, {25 of this Code) 
 providing an equivalent for this law, the word used is 'justified,' 
 
 " On the other hand, where we suggest an enactment which 
 extends the existing law for the purpose of protecting the person 
 from criminal proceedings, we have not thought it right tl;ai it 
 should deprive the person injured of his right to damages. 
 
 " And in cases in which it is doubtful whether the enactment 
 extends the existing law or not, we have thought it better not to 
 prejudice the decision of the civil courts by the language used. 
 In cases therefore such as those dealt with by sections 29, 80, 81, 
 86, 89, 46, 47, {19, 20, 21, 26, 29, 36, 37, of this Code) we have 
 used the words ' protected from criminal responsibility.' " — Imp. 
 Coram. Eep. 
 
 Parliament clearly assumed that they have the same 
 right to deal with this subject that the Imperial Parliament 
 has:— Qwcere ? 
 
 P 
 
 3? 
 
 #, 
 
14 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Seos. 17, 18 
 
 Execution of Wabrants. 
 
 17* Every one duly authorized to execute a lawful warrant issued by any 
 court or justice of the peace or other person having jurisdiction to issue such 
 warrant, and every person lawfully assisting him, is justified in executing such 
 warrant ; and every gaoler who is required under such warrant to receive and 
 detain any person is justified in receiving and retaining him. , 
 
 See note under section 15: R. v. Davies, 8 Cox, 486, 
 and note under section 16 as to the yfovd justified. 
 
 A warrant can only be executed by the person to whom 
 it is directed, and if executed by any other this other 
 commits a trespass: Symonds v. Kurtz, 16 Cox-, 726. 
 
 Execution of Erroneous Sentence or Process. 
 
 18« If a sentence is passed or process issued by a court having jurisdiction 
 under any circumstances to paaa such a sentence or issue such process, or if a 
 warrant is issued by a court or person havinpr jurisdiction under any circum- 
 stances to issue such a warrant, the sentence passed or process or warrant 
 issued shall be sufficient to justify the officer or person authorized to execute 
 the same, and every gaoler and person lawfully assisting in executing or 
 carrying out such sentence, process or warrant, although the court passing the 
 sentence or issuing the process had not in the particular case authority to pass 
 the sentence or to issue the process, or althouyh the court, justice or other person 
 in the particular case had no jurisdiction to issue, or exceeded its or his jurisdic- 
 tion in issuing the warrant, or tvas, at the time when such sentence was passed or 
 process or warrant issued, out of the district in or for which such court, Justice 
 or person teas entitled to act. 
 
 See West v. Smallwood, 3 M. & W. 418. 
 
 " The latter part of this section (in italics) perhaps extends 
 the law." — Imp. Comm. Rep. 
 
 See note under section 16 as to the word justified. 
 
 " The result of the authorities justifies us in saying that 
 wherever a ministerial officer, who is bound to obey the orders 
 of a court or magistrate (as, for instance, in executing a sentence 
 or effecting an arrest under warrant), and is punishable by 
 indictment for disobedience, merely obeys the order which he 
 has received, he is justified, if that order was within the juris- 
 diction of the person giving it. 
 
 "And we think that the authorities show that a ministerial 
 officer obeying an order of the court, or the warrant of a magis- 
 trate, is justified, if the warrant or order was one which the 
 court or magistrate could, under any circumstances, lawfully 
 
 Sees. 19, 20] 
 
 Issue, thou 
 improperly ; 
 particular ct 
 warrant oivi: 
 terial officer 
 wl.ich the or 
 acting on tl 
 jurisdiction." 
 
 10» Every 
 
 warrant, and ev« 
 
 shall be protecte< 
 
 the belief that th 
 
 or that the warra 
 
 having authority 
 
 the sentence or iss 
 
 some appointmoni 
 
 court, or that the 
 
 other person havir 
 
 mission did not ex 
 
 passing the senten 
 
 authorized by the i 
 
 duly authorized so 
 
 See note u 
 responsibility.' 
 
 " Though ca 
 
 we think we art 
 
 498) in saying 
 
 jurisdiction, the 
 
 the ministerial o 
 
 SsO. Every one 
 
 upon arrests a persor 
 
 grounds that he is th 
 
 cri/nunal respoMibUit, 
 
 if the person arrested 
 
 (2) Every one o 
 
 believing that the per 
 
 for whose arrest the 
 
 receive and detain sue 
 
 ject to the same provii 
 
 in the warrant. 
 
Sec8. 19, 20] 
 
 SENTENCE OR PROCESS. 
 
 15 
 
 issae, though the order or warrant was in fact obtained 
 improperly ; or, though there was a defect of jurisdiction in the 
 particular case, which might make the magistrate issuing the 
 warrant civilly responsible : on the plain principle that a minis* 
 terial officer is not bound to enquire, what were the grounds on 
 wl.ich the order or warrant was issued, and is not to blame for 
 acting on the suppositiou, that the court or magistrate had 
 jurisdiction." — Imp. Comm. Rep. 
 
 Sentence or Process without Jurisdiction. 
 
 10* Every oiBcer, gaoler or person executing any sentence, process or 
 warrant, and every person lawfully assisting such officer, gaoler or person, 
 shnll be protected from criminal responsibility if he acts in good faith under 
 the belief that the sentence or process was that of a court having jurisdiction 
 or that the warrant was that of a court, justice of the peace or other person 
 having authority to issue warrants, and if it be proved that the person passing 
 the sentence or issuing the process acted as such a court under colour of having 
 some appointment or commission lawfully authorizing him to act as such a 
 court, or that the person issuing the warrant acted as a justice of the peace or 
 other person having such authority, although in fact such apix>intment or com- 
 mission did not exist or had expired, or although in fact the court or the person 
 passing the sentence or issuing the process was not the court or the person 
 authorized by the commit<sion to act, or the person issuing the warrant was not 
 duly authorized so to act. 
 
 See note under section 16 as to the words, " criminal 
 responsibility." 
 
 " Though cases of this sort have rarely arisen in practice, 
 we think we are justified by the opinion of Lord Hale (1 Hale^ 
 498) in saying that the order of a court, having a colour of 
 jurisdiction, though acting erroneously, is enough to justify 
 the ministerial officer." — Imp. Comm. Rep. 
 
 Arresting the Wrong Person. {New). 
 
 40. Every one duly authorized to execute a warrant to arrest who there- 
 upon arrests a person, believing in good faith and on reasonable and probable 
 grounds that he is the person named in the warrant, shall be protected from 
 criminal respotuibility to the same extent and subject to the same provision as 
 if the person arrested had been the person named in the warrant. 
 
 (2) Every one called on to assist the person making such arrest, and 
 believing that the person in whose arrest he is called on to assist is the person 
 for whose arrest the warrant is issued, and every gaoler who is required to 
 receive and detain such person, shall be protected to the same extent and sub- 
 ject to the same provisions as if the arrested person had been the person named 
 in the warrant. 
 
 lii 
 
 •3 
 
 1 
 
 
 
 I, 
 '■ 
 
 I' I! 
 
 ^!i^'' 
 
 
 I 
 
 
 f 
 
16 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Seofl. 21, 22 
 
 See note under section 16 as to the words " criminal 
 responsibility." 
 
 " This is new. As an of&oer arresting for felony without 
 warrant is by the common law justified even if he by mistake 
 arrests the wrong person, we think that the man who arrests 
 any person with a warrant for any offence shall at least be 
 protected from criminal responsibility. The right of action is 
 not affected by it." — Imp. Comm. Rep. 
 
 Irrboular Warrant or Process. 
 
 Sll» Every one acting under a warrant or process which is bad in law on 
 account of some defect in substance or in form apparent on the face of it, if he 
 in (^ood faith and without culpable ignorance and negligence believes that the 
 warrant or process is gfxxl in law, shall be protected from criminal responsibility 
 to the same extent and subject to the same provisions as if the warrant or 
 process were gnoA in law, and ijnnrance of the law shall in such case be an 
 excuse: Provided, that it shall be a question of law whether the facts of which 
 there is evidence may or may not constitute culpable ignorance or negligence in his 
 30 believing the warrant or process tp be good in law. 
 
 See note under section 16 as to the words "criminal 
 responsibility." 
 
 " It is at least doubtful on the existing authorities whether a 
 person honestly acting under a bad warrant, defective on the 
 face of it, has any defence, though only doing what would have 
 been his duty if the warrant was good. The section, as framed, 
 protects him. The proviso is new, but seems to be reasonable. 
 It does not touch the question of civil responsibility." — Imp. 
 Comm. Bep. 
 
 See R. V. Monkman, under section 263 post. 
 
 ARRK8T Bv Peace Officer. 
 
 33> Every peace officer who, on reasonable and probable grounds, believes 
 that an offence for which the offender may be arrested without warrant has 
 been committed, whether it has been committed or not, and who, on reasonable 
 and probable grounds, believes that any person has oommitted that offence, is 
 justified in arresting such psrson without warrant, whether such person is 
 guilty or not. 
 
 "Peace Officer" defined, section 3. See note under 
 section 16, as to the word justijied. Section 552 defines 
 for what offence an arrest may be made without warrant. 
 This section 22 is a re-enactment of the law as to felonies. 
 
Sect. 23-27] PERSONS ASSISTING PEACE OFFICER. 
 
 17 
 
 Pkrhons Ahhihcino Pkacr Okpiorr. 
 
 88* Every one called upon to asBiHt a Tieaoe officer in the arrest of • 
 person iiu8i>ecte<l of having cuinniitti'<1 >4uch offeno«< tt laitt aforeHaid, ia juit(fied 
 in awiiating, if he knows that the persun culling on him for aasiiitance is a peace 
 officer, and does not know lli t there in no reasonable grounds for the 
 suspicion. 
 
 This is the common law. »SV^ note under section 16 as 
 
 to the word justified. 
 
 Arrest Without Warrant. 
 
 84. Every one is ju»tificd in arresting without warrant any person whom 
 he finds committing any offence for which the offender may be arrested without 
 warrant, or may be arrested when found committing. 
 
 See note under section 16 as to the vforiX justified. 
 
 See section 552, post, as to arrests. It is not clear that 
 it was necessary to enact in these sections that a person who, 
 being by law duly authorized to do so, arrests any one with- 
 out warrant is justified in so doing. 
 
 The words "finds committing" in this and similar 
 enactments are to be construed strictly: R. v. Phelpj, 
 Car. & M. 180. See remarks under section 552, i^ost. 
 
 Arrest Aktrr Commission ok an Offence. 
 
 89* If any offence for which the offender may be arrested without 
 warrant has been committed, any one who, on reasonable and probable 
 grounds, believes that any per3(m is guilty of that offence is juitified in 
 arresting him without warrant, whether such person is guilty or not. 
 
 See sub-section 4, section 552. See note under section 
 
 16 as to the word justified. 
 
 Arrest for Major Offences Committed bt Night. 
 
 80. Every one is protected from criminal responsibilitti for arresting 
 without warrant any jierson whom he, on reasonable ond probable grounds, 
 believes he finds committing by night any offence for which the offender may 
 be arrested without warrant. 
 
 "Night" defined, section 3. By sub-section 3, section 
 552, any person may arrest without warrant any one 
 whom he finds by night committing any oftence against 
 this Act. See note under section 16 as to the words 
 "criminal responsibility." 
 
 Arrest by Peace Officer. 
 
 87* Every peace officer is justified in arresting without wanant any 
 person whom he finds committing any offence. 
 Crim. Law— 2 
 
 m 
 
 t 
 
 A. 
 
 I 
 
 
 
 I 
 
 f 
 
 •■r. 
 
18 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sees. 28-30 
 
 
 See note under section 16 as to the word justified. 
 " Peace officer " defined, section 3. As to arrest without 
 warrant see section 552, sub-section 3, which applies only 
 to offences against this Act. An officer is bound to arrest 
 in many cases, but the Code has no reference to it. 
 
 Arhest of Person Cojimittinc. an Ofkknce by Night. 
 
 3S* Every one is justified in arresting without warrant any person 
 whom he finds by night committing? any offence. 
 
 2. Every peace officer is justified in arresting without warrant any person 
 whom he finds lying or loitering in any highway, yard or other place by night, 
 and whom he has good cause to suspect of having cooimitted or being about to 
 commit any offence /or which an offender viaii be arrested icithuut warrant. 
 
 The words in italics are a clear error, as reference to 
 
 sub-section 7, section 552 will show. See sub-sections 4 
 
 and 7 of section 552. " Nij^ht " and " peace officer " 
 
 defined, section 3. See note under section 16 as to tho 
 
 word justified. 
 
 Arrest During Flight 
 
 20. EJvery one is protected from criminal responsihility for arresting 
 without warrant any person whom he, on reasonable and probable grounds, 
 believes to have committed an offence and to be escaping from and to be freshly 
 ■pursued by those whom he, on reasonable and probable grounds, believes to 
 have lawful authority to arrest that person for such offence. 
 
 See sub-section 4, section 552. See note under section 
 16 as to the words "criminal responsibility." 
 
 " This is believed to extend the common law, which applies 
 only to the arrest of persons actually guilty. It does not affect 
 the question of civil liability." — Imp. Comm. Rep. 
 
 This and all these 9Jiin sections were necessary in the 
 Imperial Code because it contained no section as section 
 552 of this Code, under which the arrests it authorizes to 
 be made relieves in law the parties making them from all 
 liability whatever, without it beinp; necessary to enact it 
 expressly. Wiiat the law authorizes it justifies, and these 
 enactments are superfluous besides being diffuse and, per- 
 haps, in part at least, idtra vires. 
 
 Statutory Power of Arrest. 
 3(L Nothing in this Act shall take away or diminish .inv authority given 
 by any Act in force for the time being to arrest, detain or put any restraint on 
 any person. 
 
 Sees. 31-33] 
 
 31. Every 
 cuting any sent 
 one lawfully asf 
 bility, as the oaa 
 any force used 
 process or warra: 
 in a less violent : 
 
 See note 
 section 16 i 
 responsibility 
 
 See Dilloi 
 
 32- It is th€ 
 
 it with him, and i 
 
 2. It is tlie d 
 warrant, to give 
 which he acts, or 
 
 3. A failure t 
 deprive the person 
 son arrestiu'j, o/p, 
 the inqiiirif whethe 
 arrest effected, by » 
 
 " This [sub. 
 —Imp. Comm. 
 
 See Codd v 
 B. V. Cumptor 
 
 Peace Officer P 
 
 33. Every p( 
 warrant, any perse 
 witliout warrant, a 
 the person to be iir 
 may be necessary 
 be prevented by «• 
 
 See note u 
 " Peace officer 
 
 " It is also J 
 the exercise of ^ 
 in a reasonable 
 guilty of such ej 
 quality of his ac 
 
 See section 
 
Sec8. 31-33] 
 
 MODE OF ARRESTING. 
 
 19 
 
 Mode of Ahrestino. 
 31. 'Kvery uuv Justified or protected from criminal responsibility in exe- 
 cuting any sentence, warrant or process, or in making any arrest, and every 
 one lawfully assisting him, is justified, or protected from criminal responsi- 
 bility, as the case may be, in using such force as may be necessary to overcome 
 any force used in resisting such execution or arrest, unless the sentence, 
 process or warrant can be executed or the arrest effected by reasonable means 
 in a less violent manner. 
 
 See note under sections 33 & 45, post, and note under 
 section 16 as to the words "justified" and "criminal 
 responsibility." 
 
 See Dillon v. O'Brien, 16 Cox, 245. 
 
 Duty of Persons Arresting. 
 
 32- It is the duty of every one executmg any process or warrant to have 
 it with him, and to produce it if required. 
 
 2. It is the duty of every one arresting another, whether with or without 
 warrant, to give notice, where practicable, of the process or warrant under 
 which he acts, or of the cause of the arrest. 
 
 3. A failure to fulfil cither of the two duties last mentioned shall not of itself 
 deprive the person executinij the process or warrant, or his assistants, or the per- 
 son arrestiwj, of protection from criminal responsihilitji, but shall be rdevaat to 
 the inqiiiri/ whether the process or ivarrant mi'/ht not have been execute I, or the 
 arrest effected, by reasonable means in a less violent manner. 
 
 " This {sub-section 3) is believed to alter the common law." 
 — Imp. Comm. Rep. 
 
 See Codd v. Cabe, 1 Ex. D. 352; K. v. Carey, 14 Cox, 214 ; 
 R. V. Cumpton, Warb. Lead. Cas. 215, and cases there cited. 
 
 Peace Ofi'icek Puevknting Escape frojc Arrest for Major Offen'ces, 
 
 33. Every i)eace officer proceeding lawfully to arrest, with or witliout 
 warrant, any person for any offence for which the offender may be arre?<ted 
 witliout warrant, and every one lawfully assisting in such arrest, ia just ifii'd, if 
 the \)erson to be arrested takes to flight to avoid arrest, in using such force as 
 may be necessary to prevent liis escape by such flight, unless such escape can 
 be prevented by reasonable means in a less violent manner. 
 
 See note under section 16 as to the word justified.. 
 " Peace officer " defined, section 3. 
 
 " It is also a principle of the common law that all powers', 
 the exercise of which may do harm to others, must be exercised 
 in a reasonable manner, and that if there is excess, the person 
 guilty of such excess is liable for it according to the nature and 
 quality of his act." — Imp. Comm. Rep. 
 
 See section 57, post 
 
 '» 
 
 
 
20 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sec8. 34-38 
 
 Privatb Person Preventing such Escape. 
 
 34. Every private person proceedinff lawfully to arrest without warrant 
 any person for any offence for which the offender may be arrested without 
 warrant is justified, if the person to be arrested takes to flight to avoid arrest, 
 in using such force as may be necessary to prevent his escape by flight, unless 
 such escape can be prevented by reasonable means in a less violent manner : 
 Provided, that such force w neither intended nor likely to cause death or grievous 
 h'niilij luirm. 
 
 See note under section 16 as to the word justified. 
 " There is some obscurity as to the existing law on this 
 point." — {2'he irnnh in italics) — Imp. Coram. Rep. 
 
 Other Preventing Escape from Arrest. 
 
 35* Every one proceeding lawfully to arrest any person for any cause 
 iDther than such offence as in the last section mentioned is justified, if the per- 
 -son to be arrested takes to flight to avoid arrest, in using such force as may be 
 "necessary to prevent his escape by flight, unless such escajje can be prevented 
 •by reasonable means in a less violent manner: Provided such force is neither 
 intended nor likely to cause dea'h or grievous bodily harm. 
 
 See note under preceding section. 
 
 Preventing Escape or Rescue in Major Offences, 
 
 30« Every one who has lawfully arrested any person for any offence for 
 which the offender may be arrested without warrant is protected from crimiiml 
 responsibility in using such force in order to prevent the rescue or escape of the 
 person arrested as he believes, on reasonable grounds, to be necessary for that 
 purpose. 
 
 '• This seems to extend the law so far as regarils private 
 persons ; 2 Hale, 88." — Imp. Comm. Rep. 
 
 See note under section 10 as to the words "criminal 
 responsibility." 
 
 Preventing Escape or Rescue in Minor Offences. 
 
 37. Every one who has lawfully arrested any person for any cause other 
 than an offence for which the offender may be arrested without warrant is 
 protected from criminal responsibility in using such force in order to prevent 
 his escape or rescue as he believes, on reasonable grounds, to be necessary for 
 that purpose : Provided that such force is neither intended nor likely to cause 
 death or grievous bodily harm. 
 
 See note under preceding section. 
 
 Preventing Breach of the Peace. 
 
 38. Every one who witnesses a breach of the peace is justified in inter- 
 fering to prevent its continuance or renewal and may detain any person 
 committing or about to join in or renew such breach of the peace, in order t^ 
 gi^'° bim into the custody of a peace officer: provided that the person inter- 
 
 iS^ecs. 39-41] 
 
 faring uses no n 
 continuance or rei 
 portioned to the d 
 such breach of the 
 
 See sectioE 
 
 39. Every .p( 
 person lawfully ass 
 he finds committin 
 probable grounds, 
 peace 
 
 2. Every peace 
 into his charge as h 
 or whom such peact 
 have, witnessed sue 
 
 " Peace offi( 
 
 See Timothy 
 
 Brewster, 2 Q. 
 
 Webster v. Wal 
 
 as to the word \ 
 
 V 
 
 St 
 40. Every sheri 
 head officer of any c 
 justice of the peace, i 
 peace officer is justifi, 
 able and probable gi 
 as is not disproportioi 
 grounds, believes to b 
 
 " Peace office] 
 punislnnent, sec 
 IG a.s to tlie w 
 2 L. C. J. 251. 
 endeavour to sup 
 
 41. Every one, v 
 faith in obedience to < 
 other head oficer or ac 
 or by any magistrate o 
 justified in obeying th 
 unlawful, and is protec 
 he, on reasonable and p 
 into effect such orders. 
 
 2. It shall be a ques 
 unlawful or not. 
 
l^ecB. 39-41] 
 
 SUPPRESSION OF RIOT. 
 
 21 
 
 fering uses no more force than is reasonably necessary for preventing the 
 continuance or renewal of such breach of the peace, or than is reasonably pro- 
 portioned to the danger to be apprehended from the continuance or renewal of 
 such breach of the peace. 
 
 See section 142, post. 
 
 S9. Every peace officer who witnesses a breach of the peace, and every 
 person lawfully assisting him, is justified (bound ?) in arresting any one whom 
 he finds committing such breach of the peace, or whom he, on reasonable and 
 probable grounds, believes to be about to join in or renew such breach of the 
 peace 
 
 2. Every peace officer is justified in receiving into custodj' any person given 
 into his charge as having been a party to a breach of the peace by one who has, 
 or whom such peace officer, upon reasonable and probable grounds, believes to 
 have, witnessed suoh breach of the peace. 
 
 " Peace officer " defined, section 3. 
 See Timothy v. Simpson, 1 C. M. & R. 757 ; Baynes v. 
 Brewster, 2 Q. B. 375; Price v. Seeley, 10 CI. & F. 28; 
 Webster v. Watts, 11 Q. B. 311. See note under section 16 
 as to the word justified. 
 
 Suppression op Riot by Magistrates. 
 
 40. Every sheriff, deputy sheriff, mayor or other head officer or acting 
 head officer of any county, city, town or district, and every magistrate and 
 justice of the peace, is justified in using and ordering to be used, and every 
 peace officer is justified in using such force as he, in good faith, and on reason- 
 able and probable grounds, believes to be necessary to suppress a riot, and 
 as is not disproportioned to the danger w hiuh he, on reasonable and probablo 
 grounds, believes to be apprehended from the continuance of the riot. 
 
 " Peace officer" defined, section 3. "Riot" defined, and 
 
 punishment, section 80 et seq. See note under section 
 
 16 as to the word jadified. See Stevenson v. Wilson, 
 
 2 L. C. J. 251. A sheriff or other officer is bound to 
 
 endeavour to suppress a riot : s. 140 post. 
 
 Other Suppkkssion of Riot. 
 
 4:1 • Every one, whether subject to military law or not, acting in good 
 faith in obedience to orders given by any sheriff, deputy-sheriff, mayor or 
 otlier head oficer or acting head officer of any county, city, town or district, 
 or by any magistrate or justice of the i)eace, for the suppression of a riot, is 
 justified in obeying the orders so given unless such orders are manifallif 
 unlawful, and is protected from criminal rtsponsibility in using such force as 
 he, on reasonable and probable grounds, believes to be necessary for carrying 
 into effect such orders. 
 
 2. It shall be a question of law whether any particular order is nuinifcsily 
 unlawful or not. 
 
 
 ':*i;! 
 
 i.| !■ 
 
 •It. 
 
22 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sees. 42-45 
 
 Sec. 46] 
 
 See note under section 16 as to the word justified. 
 
 "Military law" defined, section 3. "Riot" defined, 
 section 80. 
 
 " The protection given by this and the following sections to 
 persons obeying the orders of magistrates and military officers 
 is, perhaps, carried to an extent not yet expressly decided ; but 
 see the language of Tindal, C.J., in R, v. Pinney, 6 C. & P. 254, 
 and Willes, J., in Keighly v. Bell, 4 F. & F. 763."— Imp. 
 
 Comm. Rep. 
 
 Suppression of Riot, Other Casks. 
 
 42. Every one, whether subject to military law or not, who in good 
 faith and on reasonable and probable grounds believes that serious mischief 
 will arise from a riot before there is time to i)r()cure the intervention of any 
 of the authorities aforesaid, hjusti/ed in using such force as ho, in good faith 
 and on reasonable and probable grounds, believes to be necessary for the 
 suppression of such riot, and as is not disproportioned to the danger which he, 
 on reasonable grounds, believes to be apprehended from the continuance of 
 the riot. 
 
 See note under preceding section. 
 
 Protkction of Persons Subject to Military Law. 
 
 43. Every one who is bound by military law to obey tlie lawful command 
 of his superior officer is jvstijied in obeying any command given him by his 
 superior officer for the suppression of a riot, unless such order is manifestly 
 unlawful. 
 
 2. It shall be a question of law whetiier any particular order is manifestly 
 unlawful or not. 
 
 See note under section 41. 
 
 Prevention of Major Ofkenoks. 
 
 44. Every one is justified in using such force as may be reasonably 
 necessary in order to prevent the commission of any offence for which, if 
 committed, the offender might be arrested witliout warrant, and the com- 
 mission of which would be likely to cause immediate and serious injury to the 
 person or property of any one ; or, in order to prevent any act being done 
 which he, on reasonable grounds, believes would, if conmiittod, amount to 
 any of such offences. 
 
 See section 552 as to offences for which arrest without 
 
 wari'ant is authorized, and remarks thereunder. See note 
 
 under section IG, as to the word j unified. See Handcock 
 
 V. Baker, 2 B. & P. 260, and R. v. Rose, 15 Cox, 540. 
 
 Sklf-Defknoe— Unprovoked Assault. 
 
 45. Everyone unlawfully assaulted, not hnrini/ jimmdrd siir/i assaidt, is 
 justified in repelling force by force, if the force he uses is not meant to cause 
 
 death or grievo 
 purixise of self-( 
 causes death or ( 
 hension of deatl 
 assault was origi 
 and if he believt 
 himself from dea 
 
 See note i 
 remarks und 
 and cases in 
 on Self-Defer 
 
 "We take 
 
 though it sane 
 
 property agains 
 
 prevent crimes 
 
 offenders to jus 
 
 the force used i 
 
 be prevented co 
 
 that the mischi 
 
 pated from, the 
 
 mischief which 
 
 will explain anc 
 
 seem to have h 
 
 thought it ad vis 
 
 only ought to be 
 
 law at present." 
 
 4C Every ont 
 provoked an assault 
 to such assault, if he 
 or grievous bodily hi 
 voked, and in the h 
 own preservation frc 
 not commence the as 
 did not endeavour i 
 arose, to kill or do 
 necessity arose he de 
 far as was practicabl 
 
 2. Provocation, \ 
 may be given by blov 
 
 See note und 
 
^?lj ' 
 
 Sec. 46] 
 
 SELF DEFENCE. 
 
 23 
 
 death or grievous bodily harm, and ia no more than is necessary for the 
 pur|>ose of self-defence ; and every one so assaulted is justified, though he 
 causes death or grievous bodily harm, if he causes it under reasonable appre- 
 hension of death or grievous bodilj' harm from the violence with which the 
 assault was originally made or with which the assailant pursues his purpose, 
 and if he believes, on reasonable grounds, that he cannot otherwise preserve 
 himself from death or grievous bodily harm. 
 
 See note under section 16 as to the word justified. See 
 remarks under section 265, post : R. v. Knock, 14 Cox, 1, 
 and cases in Archbold, 755 ; 3 Blacks. 4 ; Horrigan, Cases 
 on Self-Defence, 720 ; see section 229, 2)ost. 
 
 "We take one great principle of the common law to be, that 
 though it sanctions the defence of a man's person, liberty and 
 property against illegal violence and permits the use of force to 
 prevent crimes, to preserve the public peace, and to bring 
 offenders to justice, yet all this is subject to the restriction that 
 the force used is necessary ; that is, that the mischief sought to 
 be prevented could not be prevented by less violent means ; and 
 that tlie mischief done by, or which might reasonably be antici- 
 pated from, the force used is not disproportioned to the injury or 
 mischief which it is intended to prevent. This last principle 
 will explain and qualify many of our suggestions. It does not 
 seem to have been universally admitted, and we have therefore 
 thought it advisable to give our reasons for thinking that it not 
 only ought to be recognized as the law in future, but that it is the 
 law at present." — Imp. Comm. Rep. 
 
 Self Defence— Puovokkd Assault. 
 
 4©« Every one who has without justification assaulted another, or lias 
 provoked an assault from that other, may nevertheless justify force subsequent 
 to such assault, if he uses such force under reasonable apprehension of death 
 or grievous bodily harm from the violence of the person first iissaulted or pro- 
 voked, and in the belief, on reasonable grounds, that it is necessary for his 
 own preservation from death or grievous bcnlily harm : Provided, tliat he did 
 not commence the assault with intent to kill or do grievous bodily hirni, and 
 did not endcfavour at any time before the necessity ft)r preserving himself 
 arose, to kill or do grievous bodily harm : Provided also, that before such 
 necessity arose he declined further conflict, and quitted or retreated from it as 
 far as was practicable. 
 
 2. Provocation, within tlie meaning of this and the last preceding section, 
 may be given by blows, words or gestures. 
 
 See note under preceding section, and section 229, post. 
 
 H.i 
 
 % 
 
24 
 
 JUSTIFICATION OR EXCUSE. 
 
 [Sees. 47-61 
 
 Sees. 62, 53] 
 
 Prevention ok Insult. 
 
 4T. Every one ia justified in using force in defence of his own person, or 
 that of any one under his protection, from an assault accompanied with insult : 
 Provided, that he uses Tin more force than is necessary to prevent such assault, 
 or the repetition of it : Provided also, that this section shall not justify the 
 wilful infliction of any hurt or mischief disproportionate to the insult which 
 the force used was intended to prevent. 
 
 See note under section 16 as to the word justified. 
 
 " This perhaps extends the law, but it appears reasonable." 
 
 —Imp. Comm. Rep. 
 
 Defence of Moveable Property. 
 
 48. Every one who is in peaceable possession of any moveabje property or 
 thing, and every one lawfully assisting liim, is justified in resisting the taking 
 of such tiling by any tresiJasser, or in retaking it from such trespasser, if in 
 either case he does not strike or do bodily h.irm to such trespasser ; and if, after 
 any one being in peaceable possession as aforesaid has laid hands upon any such 
 thing, such trespasser persists in attempting to keep it or to take it from the 
 possessor, or from any one lawfully assisting him, the trespasser shall be deemed 
 to commit an assault without justification or provocation. 
 
 See note under section 16 as to the word justijied. 
 
 " This puts the possessor in the position of a person acting 
 in self defence contemplated by section 45." — Imp. Comm. Rep. 
 
 See note under section 53, post. 
 
 Defence of Moveable Property, Other Case. 
 
 40. Every one who is in peaceable possession of any moveable property 
 or thing under a claim of right, and every one acting under liis authority, is 
 protected from criiniim'. re.sponsihiltij for defending such possession, even 
 against a person entitled by law to the possession of such property or thing, if 
 he uses no m jre force than is necessary. 
 
 This and the preceding and the next eleven sections are 
 
 given as the existing law. See note under section 16 as to 
 
 the words " Criminal responsibility." 
 
 Illegal Defence of Moveable Property. 
 
 BO. Every one who is in peacsable possession of any moveable property 
 or thing but neither claims right thereto nor acts under tlieautliority of a person 
 claiming right thereto, \» neither justified nor protected from criminal responsi- 
 bility for defending his possession against a person entitled by law to the 
 [possession of such proi)erty or thing. 
 
 See note under preceding section. 
 
 Defence of Dwelling House. 
 
 flil . Every one who is in peaceable possession of a dwelling-house, and every 
 one lawfully assiiiting him or acting by his authority, ia justified in using sucu 
 
 force aa is tu 
 dwelling-hous 
 any indictable 
 
 See case 
 under sect 
 Horrigan, ( 
 
 99. Ever; 
 every one la wfi; 
 such force as is 
 dwelling-house 
 probable groum 
 to commit any 
 
 See unde 
 
 o3* Every 
 other real prop 
 authority, is just 
 such property, o 
 necessary ; and i 
 to remove him, s 
 justification or p 
 
 See Imp 
 
 iinte, and ca 
 
 Burn, 313 ; I 
 
 Cas. 51 : Co( 
 
 V. Baker, 2 
 
 V. Hood, 1 Mc 
 
 Glass V. O'G 
 
 U. C. Q. B. 5S 
 
 "A fuUrepi 
 
 imperfect repor 
 
 in the annual : 
 
 ordered some 
 
 taking a short 
 
 in going across, 
 
 They refused to 
 
 some slight evi;! 
 
 with a pole. M 
 
 mately proved fa 
 
 to be in danger, 
 
 in similar circuu 
 
S«08. 52, 53] 
 
 DEFENCE OF REAL PROPERTY. 
 
 25 
 
 force as is nccoanary to prevent the forcible breaking: and entering of such 
 dwelling-house, either by night or day, by any person with the intent to commit 
 any indictable offence therein. 
 
 See cases under section 265, post, and Imp. Coram. Rep. 
 under section 16 and section 45, amte, and 53 post ; also 
 Horrigan, Cases on Self Defence, 749 et seq. 
 
 93- Every one who is in peaceable possession of a dwelling-house, and 
 every one lawfully assisting him or actin}; by his autliority, is justified in using 
 such force as is necessary to prevent the forcible breaking and entering of such 
 dwelling-house by night by any parson, if he believes, on reasonable and 
 probable grounds, that such breaking and entering is attempted with the intent 
 to commit any indictable offence therein. 
 
 See under preceding section. 
 
 Dbfence op Real Property. 
 93* Every one who is in peaceable possession of any house or land, or 
 other real property, and every one lawfully assisting him or acting by his 
 authority, is justified in using force to prevent any person from trespassing on 
 such property, or to remove him therefrom, if he uses no more force than is 
 necessary ; and if such trespasser resists such attempt to prevent his entry or 
 to remove him, such trespasser shall be deemed to commit an assault without 
 justification or provocation. 
 
 See Imp. Comm. Rep. under sections 16 and 45 
 ante, and cases under section 2G5, jjoi^t ; 1 lluss. 1028 ; 1 
 Burn, 313 ; Lows v. Telford, 13 Cox, 226, Warb. Lead. 
 Cas. 51 : Cook v. Beal, 1 Ld. Raym. 170 ; Handcock 
 V. Baker, 2 B. & P. 260 ; R. v. Hewlett, 1 F. & F. 91 ; R. 
 V. Hood, 1 Moo. 281 ; Spires v. Barrick, 14 U. C. Q. B. 424 ; 
 Glass V. O'Grady, 17 U. C. C. P. 233 ; Davis v. Lennon, 8 
 U. C. Q. B. 599. 
 
 " A full report of the evidence ir llio case of R. v. Moir, aiul an 
 imperfect report of Lord Tenterden's summing up are to be found 
 in the annual registor for 1830, vol. 72, p. 844. Moir having 
 ordered some fishermen not to trespass on his land by 
 taking a short cut, found the deceased and others persisting 
 in going across. He rode up to them and ordered tbem b:;ck. 
 They refused to go and there was evidence of angry words, and 
 some slight evidence that the deceased threatened to strike Moir 
 with a pole. Moir shot him in the arm, and the wound ulti- 
 mately proved fatal. Before the man died, or indeed was supposed 
 to be in danger, Moir avowed and justified his act, and said that 
 in similar circumstances he would do the same again. This land. 
 
 m 
 
 
 ■I 
 
 Mi 
 
26 
 
 JUSTIFICATION OR EXCtTSE. 
 
 [Sec. 64 
 
 I 
 
 he said, was his castle, and as he could not without the use of 
 firearms prevent the fishermen from persisting in their trespass, 
 ho did use them, and would use them again. Lord Tenterden 
 took a different view of the law. He told the jury that the pre- 
 vention of such a trespass could not justify such an act, and he 
 seems to have left to them as the only justification which on 
 these facts could arise, the question whether the prisoner was in 
 reasonable apprehension of danger to his life from the threats of 
 the deceased. Moir was found guilty of murder and executed. 
 (Sfv this case as since stated in R. v. Price, 7 C. & P. 178, and 
 Eoscoe, Cr. Evid. 714.) . . . The law discourages persons 
 from taking the law into their own hands. Still the law does per- 
 mit men to defend themselves. Vim vi repellere licet viodo fiat 
 modermnim inculpntcc tiitchc, non ad sumcndam vindictum, sed ad 
 pioindfiandinii injuriani: Co. Lit. 162a. And when violence is 
 used for the purpose of repelling a wrong, the degree of violence 
 must not be disproportioned to the wrong to be prevented, or it 
 is not justified. There is no case that we are aware of in which 
 it has been held that homicide to prevent mere trespass is 
 justifiable. The question raised has always been whether it was 
 murder, or reduced by the provocation to manslaughter. . . 
 ]3ut the defence of possession either of goods or land against 
 a mere trespass, not a crime, does not, strictly speaking, justify 
 even a breach of the peace. The party in lawful possession may 
 justify gently laying his hands on the trespasser and requesting 
 liim to depart. If the trespasser resists, and in doing so assaults 
 the i)arty ni possession, that party may repel the assault and 
 for tiiat purpose may use any force which he would be justified 
 in using in defence of his person. {See scetion 45, ante.) As is 
 accnrately said in 1 RoUe's Abt. Trespass, G. 8, "a justification 
 of a battery in liefence of possession, though it arose in the 
 defence of the possession, yet in the end it is the defence of the 
 person." — Imp. Comm. liep. 
 
 ASSKRTION OK RiGHT TO HOUSK OU LaNO. 
 
 54 Every one is justified in peaceably entering in the day-time to take 
 possessif)n of any house or land to the possession of wiiich he, or some jjerson 
 under whose authority he acts, is lawfully entitled. 
 
 2. If any person, not haviwj or actimj under the authority of one haviny 
 peaceable ponscssion of any such house or land with a claim o/ n(/fe<, assaults any 
 
 Sees, 55-fi 
 
 one peacei 
 such entrj 
 cation. 
 
 3. If a 
 claim of ri| 
 as aforesai( 
 shall be dec 
 
 See n 
 
 «5. I, 
 
 8cho(jlmaste 
 pupil or app 
 the circumst 
 
 «6. It 
 
 to use force i 
 "f h^s ship, p 
 necessary, an 
 
 A part 
 
 or a maste 
 
 gaoler his 
 
 who have i 
 
 1 Burn. 31 
 
 V. Lafontai 
 
 As to 1 
 
 I^ead. Cas. 
 
 S7. Ever, 
 with rcivsonabli 
 benefit, proviVl, 
 to the jtatient's 
 
 •SW. Kvery 
 for any excess, a 
 the excess. 
 
 'VrY^ note 
 Hamilton v, 
 
 5®- Xoone 
 and if sudj consei 
 ^'^% of any perse 
 
 >^('C' note 
 responsibility^ 
 
Sees. 55-5ft] 
 
 DISCIPLINE OF MINORS, ETC. 
 
 27 
 
 ona peaceably entering as aforesaid, for the purpose of making him deaist from 
 such entry, tiuoh assault shall be deemed to be without justitication or provo- 
 cation. 
 
 3. If any {leraon having peaceable possession of such house or land with a 
 claim of right, or any person acting by his authority, assaults any one entering 
 as aforesaid, for the purpose of making him desist from such entry, such assault 
 shall be deemed U) be provoked by the person entering. 
 
 See note under preceding section. 
 
 D?8ciPLiNE OK Minors and on Ship. 
 
 as. It is lawful for every parent, or person in the place of a parent, 
 schoolmaster or master, to use force by way of corrtiction towards any child, 
 pupil or apprentice under his care, provided that such force is reasonable under 
 the circumstances. 
 
 50. It is lawful for the master or officer in command of a ship on a voyage 
 to use force for the purjiose of maintaining good order and discipline on board 
 of his ship, provided that ho believes on reasonable grounds, that such force is 
 necessary, and i)rovided also that the force used is reasonable in degree. 
 
 A parent may in a reasonable manner chastise his child, 
 or a master liis servant, or a schoolmaster his scholar, or a 
 gaoler his prisoner, and a captain of a ship any of the crew 
 who have nmtinously or violently misconducted themselves: 
 1 Burn. 314 ; Mitchell v. Defries, 2 U. C. Q. B. 480; Brisson 
 V. Lafontaine, 8 L. C. J. 173. 
 
 As to homicide by correction : see R. v. Hopley, Warb. 
 Lead. Cas. 110; R. v. Griffin, 11 Cox, 402. 
 
 Surgical Operations. 
 
 57. Ijvery one is protected from criminal responsibility for performing 
 with reasonable care and skill any surgical operation uiK)n any iwrson for his 
 benefit, i)rovided that |)erfonning the operation was reasonable, having regard 
 to the )>atient's state at the time, and to all the circumstances of the case. 
 
 Excess. 
 5S. Every one autiiorized by law to use force is criminaUn rcHponxihle 
 for any excess, according to the nature and quality of the lUit which constitutes 
 the excess. 
 
 See note under section 16, and section 45, ante, and 
 Hamilton v. Massie, 18 O. R. 585. 
 
 CONSKNT TO Dk.\TH NoT LaWFUL. 
 
 59. No one has a right to consent to the inflicticm of death upon himself ; 
 and if such consent is given, it shall have no effect upon the criminal rc.^ponai- 
 bility of any person by whom such death may be caused. 
 
 See note under section 16, as to the words "criminal 
 responsibility." 
 
 ¥ 
 
28 
 
 PARTIES TO CO.MMISSION OF OFFENCES. [Sees. 60, «I 
 
 Obedien'ck to De Facto Law. 
 
 90< Every one is protected from erimiwtl rfsponsibility for any act done- 
 in obedience to the laws for the time bein^ made and enforced by thotte in 
 fKtesession (de facto) of the sovereifjn |>ower in atid over the place where the- 
 »ct is done. 
 
 " See 11 Hen. VII., c. 1, Sir H. Vane's case, Kelyng 15, and 
 Foster's 4th discourse, p. 402." — Imp. Conira. Rep. 
 
 PART III. 
 PARTIES TO THE COMMISSION OF OFFENCES. 
 
 61. Every one is a party to and guilty of an offence who — 
 (a) Actually comtnits it ; or 
 
 (h) Does or omits an act for the purpose of aiding any jierson to coramit 
 the offence ; or 
 
 (c) Abets any jKjrson in commission of the olfence ; or 
 
 (d) Counsels or [>rocures any person to commit the offence. 
 
 2. If several [htsous form a common intention to prosecute any unlawful 
 purix)8e, and to assist each other therein, each of tiiem is a party to every offence 
 committed by any one of them in the prosecution of s i^h couimon purfwse, the 
 commission of which offence was, or ought to have beei- known to be a probable- 
 consequence of the prosecution of such comm(/n purpose. 
 
 See in R. v. Jordan, Warb. Lead. Cas. 2, and R. v. Man- 
 ning, Id. 7, a collection of cases on the subject of principals 
 and accessories. 
 
 See section 237, as to aiding and abetting suicide. 
 
 This section is so framed, sa\-s the Imperial Commission- 
 ers' Report, as to put an end to tiie nice distinctions between 
 accessories before the fact and pi-incipals in the second 
 degree, already practically superseded by chapter 145 
 Rivised 8t itatc:?. All are n;)\v priueipals in any offence, and 
 punishable as the actual per[)etrator of the offence, as it 
 always has been in treason and misdemeanour. The prose- 
 cutor may, at his option, prefer an indictment against the 
 accessoj'ies before the fact, and aiders and abettora as prin- 
 cipal of!endei*s, whether the party who actually committed 
 
 f - 
 
 I'vi 
 
 
Sec. 01] 
 
 ACCESSORIES, ETC. 
 
 the offence i8 indicted with them or not ; R. v. Tracey, 6 
 Mod. 30. For instance : A. abetted in the commission of a 
 theft by B. The indictment may charge A. and B. jointly 
 or A. or B. alone as guilty of the offence, in the oi'dinary 
 form, as if they had actually stolen by one and the same 
 act. Or the indictment, after charging the principal of the 
 offence, may charge the accessory or aider as follows : " And 
 the jurors aforesaid do farther present, that G. D., before the 
 said offence was committed as aforesaid, to wit, on ... . 
 did incite, move, procure, aid, counsel, hire and command 
 the said A. B. the said offence in manner and form afore- 
 said to do and commit;" or, "that C. D., on the day and 
 year aforesaid, was present, aidinrf, ahettinfj and assisting 
 the said A. B. to commit the said offence in manner and 
 form aforesaid." And if the actual offender is not indicted, 
 as follows : " The jurors, etc., etc., present, that A. B., or that 
 some person or persons to the jurors aforesaid unknown, 
 on . . . . did steal, etc., etc. And the jurors afore- 
 said do further present that G. D.," . . . (continue as 
 in preceding form). 
 
 In every case where there may be a doubt whether a 
 person be a principal or accessory before the fact, it may be 
 advisable to prefer the indictment against him as a prin- 
 cipal, as such an indictment will be sufficient whether it 
 turn out on the evidence that such peraon was a principal 
 or accessory before the fact, as well as where it is clear that 
 he was either the one or the other but it is uncertain which 
 he was. 
 
 It is no objection to an accessory before the fact being 
 convicted that his principal has been acquitted : R. v. Hughes, 
 Bell. 242 ; R. v. Burton, 13 Cox, 71. And such accessories, 
 aiders and abettors may be arraigned and tried before the 
 actual perpetrator of the offence : 2 Hale, 223 ; R. v. James, 
 17 Cox, 24, 24 Q. B. D. 439. In some cases, as in suicide, 
 for instance, the aiders and abettors or accessories onlj' can 
 be indicted. Where the actual perpetrator and the acces- 
 
 I 
 
80 
 
 PARTIES TO COMMISSION OF OFFENCES. [Sec. 61 
 
 series are jointly indicted all may be found guilty of 
 attempting to commit the offence charged: section 711. 
 And, if an attempt only to commit an offence is charged, all 
 may be found guilty, though the full offence is proved ; 
 section 712, If the offence charged is not proved, but 
 another offence included in it is proved, they may all be 
 found guilty of the offence so proved : section 713. 
 
 The soliciting and inciting a person to commit an offence, 
 where no offence is in fact committed by the person so soli- 
 cited, is an indictable offence : R. v. Gregory, 10 Cox, 459. 
 
 A principal in the first degree is one who is the actor 
 or actual perpetrator of the act. But it is not necessary 
 that he sliould be actually present when the offence is 
 consummated ; for if one lay poison purposely for another 
 who takes it and is killed, he who laid the poison, though 
 absent when it was taken, is a principal in the first degi-ee : 
 Fost. 349 ; R. v. Harley, 4 C. & P. 3(59. So, it is not 
 necessary that the act should be perpetrated with his own 
 hands : for if an offence be conniiitted through the medium 
 of an innocent agent the employer, though absent when 
 the act is done, is answerable as a principal in the first 
 degree: see R. v. Giles, 1 Moo. 166; R. v. Michael, 2 Moo. 
 120 ; R. V. Clifford, 2 C. & K. 202. Thus, if a child, under 
 the age of discretion, or any other instrument excused from 
 the responsibility of his actions by defect of understanding, 
 ignorance of the fact, or other cause, be incited to the com- 
 mission of nmrder or any other crime, the inciter, though 
 absent when the fact was counnitted, is, ex necesmtafe, liable 
 for the act of liis agent, and a principal in the first degree : 
 Fost. 349 ; R. v. Palmer, 2 Leach, <>78 ; R. v. Butcher, Bell, 6. 
 But if the instrument be aware of the consequences of his 
 act he is a ^rijjjcipal in the first degree, and the employer, 
 if he be absent when the fact is committed, is an accessory 
 before the fact, and may now be indicted either as such, or 
 as the actual offender : R. v. Stewart, R. & R. 363 ; R. v. 
 Williams, 1 Den. 39 ; unless the instrument concur in the 
 
See. 61] 
 
 ACCESSORIES, ETC. 
 
 81 
 
 act merely for the purpose of detecting and punishing 
 the employer, in which case he is considered as an innocent 
 agent : R. v. E<innen, 2 Moo. 809. 
 
 Principala in the second degree. — Such were called 
 those who were present, aiding and abetting, at the commis- 
 sion of the fact. 
 
 Presence, in this sense, is either actual or constructive. 
 It is not necessary that the party should be actually present, 
 an ear or eye-witness of the transaction ; he is, in con- 
 struction of law, present, aiding and abetting, if, with the 
 intention of giving assistance, he be near enough to afford 
 it, should the occasion arise, 'i'hus, if he be outside the 
 house, watching to prevent surprise, or the like, whilst his 
 cpmpanions are in the house connnitting a felony, such 
 constructive presence is sufficient to make him a principal 
 in the second degree : Fost. 34-7, 350 ; see 1 Russ. 61 ; 1 Hale, 
 555 ; R. V. Gogerly, R. k R. 343 ; R. v. Owen, 1 Moo. 96. 
 But he nuist be sufficiently near to give assistance. R. v. 
 Stewart, R. & R. 363 ; and the mere circumstance of a prrty 
 going towards a place where a felony is to be committed, in 
 order to assist to carry off the property, and assisting incarry- 
 ing it off, will not make him a principal in the second degi'ee, 
 unless, at the time of the felonious taking, he were within 
 such a distance as to be able to assist in it : R. v. Kelly, R. & 
 R. 421 ; 1 Russ. 27. So, where two persons broke open a 
 warehouse, and stole thereout a quantity of butter, which 
 they carried along the street thirty yards, and then retched 
 the prisoner who, being appri.sed of the robbery, assisted 
 in carrying away the property, it was holden that he was 
 not a principal, but only an accessory after the fact : R. v. 
 King, R. & R. 332 ; R. v. Dyer, 2 East, P. C. 767. And 
 although an act be committed in pursuance of a previous 
 concerted plan between the parties, those who are not 
 present, or so near as to bi' able to afford aid and assist- 
 ance at the time when the offence is committed, are not 
 principals, but accessories before the fact : R. v. Soares, 
 
 f 
 
 ,:?*' »^ *• 
 
 41 
 
32 
 
 PARTIES TO COMMISSION OF OFFENCES. [Sec. 61 
 
 K. & R. 25 ; R. v. Davis, Id. 113 ; R. v Else, Id. 142 ; R. v. 
 Badcock, Id. 249 ; R. v. Manners, 7 C. & P. 801 ; R. v. 
 Howell, 9 C. & P. 437 ; R. v. Tnckwell, Car. & M. 215. So, 
 if one of them has been apprehended before the commis- 
 sion of the offence by tlie other, he can be considered only 
 as an accessory before the fact : R. v. Johnson, Car. & M. 
 218. But presence during the whole of the transaction is 
 not necessary ; for instance, if several combine to for<^e an 
 instrument, and each executes by himself a distinct part of 
 the forgery, and they are not together when the instrument 
 is completed, they are, nevertheless, all guilty as principals : 
 R. V. Bingley, R. & R. 446 : wv 2 East, P. C. 768. As, if 
 A. counsel B. to make the paper, C. to engrave the plate, 
 and D. to fill up the names of a forged note, and they do 
 HO, each without knowing that the others are employed for 
 that purpose, B., C. and D. may be indicted for the forgery, 
 and A. as an accessory : R. v. Dade, 1 Moo. 307 ; for, if 
 several make distinct parts of a forged instrument, each is 
 a principal, though he do not know by whom the other 
 parts are executed, and though it is finished by one alone 
 in the absence of the others : R. v. Kirk wood, 1 Moo. 304 ; 
 R. v. Charles, 17 Cox, 499 ; xee R. v. Kelly, 2 C. & K. 379. 
 There nmst also be a participation in the act ; for 
 although a man be present v» hikt a felony is eonnnitted, 
 if he take no part in it a.id do not act in concert with 
 those who committed it, he will not )je a principal in the 
 seconcl, degree, merely because he did not endeavour to 
 prevent the felony, or appi-eheud the felon : 1 Hale, 439 ; 
 Fost. 350. It is not necessary, iiowever, to prove tliat the 
 party actually aided in the commission of the ofi'eiice ; if 
 he watched for his companions in order to prevent sur^jrise, 
 or remained at a convenient distance in order to favour 
 their escape, if necessary, or was in sucli a situation as to 
 be able readily to come to their assistance, the knowledge 
 of wliich was calculated to give additional confidence to 
 his companions, in contemplation of law he was present 
 aiding and abetting. 8o, a particij)ation, tlie result of a 
 
Sec. 61] 
 
 ACCESSORIES, ETC. 
 
 38 
 
 concerted design to commit a specific ofience, is sufficient 
 to constitute a principal in the second degree. Thus, if 
 several act in concert to steal a man's goods, and he is 
 induced by fraud to trust one of them, in the presence of 
 the others, with the possession of the goods, and then 
 another of the party entices the owner away that he who 
 has the goods may carry them oft", all are guilty as prin- 
 cipals : R. V. Standley, R. & R. 305 ; 1 Russ. 29 ; R. v. 
 Passey, 7 C. & P. 282 ; R. v. Lockett, Id. 300. So, it has 
 been holden, that to aid and assist a person to the jurors 
 unknown to obtain money by ring-dropping, is felony, if 
 the jury find that the prisoner was confederate with the 
 person unknown to obtain the money by means of the 
 practice : R. v. Moore, 1 Leach, 314. So, if two persons 
 driving carriages incite each other to drive furiously, and 
 one of them run over and kill a man, it is manslaughter in 
 both : R. V. Swindall, 2 C. &. K. 230. If one encourage 
 another to commit suicide, and be present abetting him 
 while he does so, such person is guilty of murder as a 
 principal ; and if two persons encourage each other to self- 
 murder, and one kills himself, but the other fails in the 
 attempt, the latter is a principal in the murder of the other : 
 R. V. Dyson, R. & R. 523; R. v. Russell, 1 Moo. 35(5; 
 R. V. Alison, 8 C. & P. 418 ; R. v. Jessop, IG Cox, 204 ; but- 
 nee section 237, post. So, likewise, if several persons com- 
 bine for an unlawful purpose to be carried into effect by 
 unlawful means: Fost. 351, 352; particularly, if it be 
 to be carried into effect notwithstanding any opposition 
 that may be oflfered against it: Fo§t. 353, 354; and if one of 
 them, in the prosecution of it, kill a man, it is murder in all 
 who are present, whether they actually aid or abet or not r 
 xee the Sessinghurst-house case, 1 Hale, 461 ; provided 
 the death were caused by the act of some one of the party 
 in the course of his endeavours to effect the common object. 
 of the assembly : 1 Hawk. c. 31, s. 52 ; Fost. 352. ; R. v. 
 Hodgson, 1 Leach, 6 ; R. v. Plummer, Kel. 109. But it is; 
 
 not sufficient that the common purpose is merely unlawful ;; 
 Grim. Law — 3 
 
 ■I 
 
 ■i 
 
 
34 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. 61 
 
 ' 1' 
 
 it must either be felonious, or, if it be to commit a misde- 
 meanour, then there must be evidence to show that the 
 parties engaged intended to carry it out at all hazards : R. v. 
 Skeet, i F. & F. 931 ; see also R. v. Luck, 3 F. & F. 483 ; 
 R. V. Craw, 8 Cox, 335. And the act must be the result of 
 the confederacy ; for, if several are out for the jjurpose of 
 committing a felony, and, upon alarm and pursuit, run 
 different ways, and one of them kill a pursuer to avoid 
 being taken, the others are not to be considered as principals 
 in that offence : R. v. White, R. & R. 99. Thus, where a 
 gang of poachers, consisting of the prisoners and Williams 
 attacked a game keeper, beat him, and left him senseless 
 upon the ground, but Williams returned, and whilst the 
 gamekeeper was insensible upon the ground took from him 
 his gun, pocket-book and money. Park, J., held that this was 
 robbery in Williams only: R. v. Hawkins, 3 C. & P. 392. The 
 purpose must also be unlawful ; for, if the original object 
 be lawful, and be prosecuted by lawful means, should one 
 of the party in the prosecution of it kill a man, although 
 the party killing, and all those who actually aid and abet 
 him in the act, may, according to circumstances, be guilty 
 of murder or manslaughter, yet the other persons who are 
 present, and who do not actually aid and abet, are not guilty 
 as principals in the second degree: Fost. 354, 355; section 
 62, post. 
 
 A mere participation in the act, without a felonious 
 participation in the design, will not be sufficient : 1 East, P. 
 C. 258 ; R. v. Plummer, Kel. 109. Thus, if a master assault 
 another with malice prepense, and the servant, ignorant of 
 his master's felonious design, take part with him, and kill 
 the other, it is manslaughter in the servant, and murder in 
 the master : 1 Hale, 446. So, on an indictment under the 
 statute, 1 V. c. 85, s. 2, charging A. with the capital offence 
 of inflicting a bodily injury dangerous to life with intent 
 to commit murder, and B. with aiding and abetting him, it 
 was held to be essential, to make out the charge as against 
 
 Sec. 61] 
 
 B., that h 
 
 commit mi 
 
 In the 
 
 the seconds 
 
 Hale consi 
 
 party kille( 
 
 far strainec 
 
 should be d 
 
 422, 452. 1 
 
 persons pre 
 
 the purpose 
 
 were princi 
 
 kins, 4 C. d 
 
 and R. v. C( 
 
 the seconds 
 
 act, would 
 
 ensue ; and 
 
 8 C. &. P. 64 
 
 Aiders a: 
 sories at the 
 principal ha 
 But this do( 
 all those w 
 felony is coi 
 and may be 
 first degree 
 be convictedl 
 first degree 
 Towle, R. & I 
 
 In treas(i 
 felonies in 
 degree and 
 the indictm^ 
 the fact as 
 s. 64 ; provit 
 345 ; R. V. 
 
Sec. 61] 
 
 ACCESSORIES, ETC. 
 
 35 
 
 ^:fr 
 
 B., that he should have been aware of A's. intention to 
 commit murder : R. v. Cruse, 8 C. & P. 541. 
 
 In the case of murder by duelling, in strictness both of 
 the seconds are principals in the second degree ; yet Lord 
 Hale considers that, as far as relates to the second of the 
 party killed, the rule of law in this respect has been too 
 far strained ; and he seems to doubt whether such second 
 should be deemed a principal in the second degree : 1 Hale, 
 422, 452. However, it was holden by Patteson, J., that all 
 persons present at a prize-fight, having gone thither with 
 the purpose of seeing the prize-fighters strike each other, 
 were principals in the breach of the peace : R. v. Per- 
 kins, 4 C. & P. 537 ; see R. v. Murphy, 6 C. & P. 103, 
 and R. v. Coney, 15 Cox, 46 ; and upon the same principle, 
 the seconds in a duel, being participators in an unlawful 
 act, would both be guilty of murder, if death were to 
 ensue ; and so the law was laid down in R. v. Young, 
 8 C. &. P. 644 ; and in R. v. Cuddy, 1 C. & K. 210. 
 
 Aiders and abettora were formerly defined to be acces- 
 sories at the fact, and could not have been tried until the 
 principal had been convicted or outlawed: Fost. 347. 
 But this doctrine is exploded ; and it is now settled, that 
 all those who are present aiding and abetting when a 
 felony is committed are principals in the second degree, 
 and may be arraigned and tried before the principal in the 
 first degree has been found guilty : 2 Hale, 223 ; and may 
 be convicted, though the party charged as principal in the 
 first degree is acquitted : R. v. Taylor, 1 Leach, 360 ; R. v. 
 Towle, R. & R. 314 ; R. v. Hughes, Bell, 242. 
 
 In treason, and in offences below felony, and in all 
 felonies in which the punishment of principals in the first 
 degree and of principals in the second degree is the same, 
 the indictment may charge all who are present and abet 
 the fact as principals in the first degree : 2 Hawk. c. 25, 
 s. 64 ; provided the offence permit of participation : Fost. 
 345 ; R. v. Hughes, Bell, 242 ; or specially as aiders and 
 
 
 ;■ i 
 
36 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. 61 
 
 abettors : R. v. Crishara, Car. & M, 187. But where by 
 particular statutes the punishment was different, then 
 principals in the second degree must have been indicted 
 specially as aiders and abettors : 1 East, P. C. 348, 350 ; 
 R. V. Sterne, 1 Leach, 473. If indicted as aiders and abet- 
 tors, an indictment charging that A. gave the mortal blow, 
 and that B., C. and D. were jDresent aiding and abetting, 
 would be sustained by evidence that B. gave the blow, and 
 that A., C. and D. were present aiding and abetting ; and 
 even if it appeared that the act was committed by a person 
 not named in the indictment, the aiders and abettors might 
 nevertheless be convicted : R. v. Borthwick. 1 East, P. C. 
 350 ; see R. v. Swindall, 2 C. & K. 230. And the same 
 thouo-h the jury say that they are not satisfied which gave 
 the blow, if they are satisfied that one of them did, and 
 that the others were present aiding and abetting : R, v. 
 Downing, 1 Den. 52. When a prisoner was convicted upon 
 an indictment which charged him with rape as a principal 
 in the first count, and as an aider and abettor in the second, 
 it was holden that the conviction upon the first count was 
 good. R. v. Folkes, 1 Moo. 354 ; R. v. Gray, 7 C. & P. 164 : 
 see R. V. Crisham, Car. & M. 187. 
 
 Accessories before the fact. — An accessory before the 
 fact is he who, being absent at the time of the felony com- 
 mitted, doth yet procure, counsel, command or abet another 
 to commit a felony: 1 Hale, 615. 
 
 If the party be actually or constructively present wlien 
 the felony is committed he is an aider and abettor, and not 
 an accessory before the fact; for it is essential, to constitute 
 the offence of accessory, that the party should be absent at 
 the time the offence is committed: 1 Hale, 615; R. v. 
 Gordon, 1 Leach, 515; 1 East, P. C. 352; R. v. Brown, U 
 Cox, 144. 
 
 The procurement may be personal, or through the inter- 
 vention of a third person: Fost. 125; R. v. Earl of Somerset, 
 19 St. Tr. 804; R. v. Cooper, 5 C, & P. 535; it may also be 
 
 Seo. 61] 
 
 direct, by hire, 
 
 by evincing a 
 
 another's felon 
 
 c-29,s. 16; bu 
 
 committed will 
 
 s^-y before th< 
 
 acquiescence, or 
 
 be sufficient to 
 
 procurement mi 
 
 felony repent, a 
 
 countermand hii 
 
 commit the felc 
 
 accessory: 1 Hal 
 
 one crime, and t 
 
 as, for instance, 
 
 commit a larcen 
 
 instead of so do 
 
 the accessory wi 
 
 the principal com 
 
 instead of A., it 
 
 ^t ''^eq, ; but see I 
 
 the accessory is li 
 
 of the unlawful 
 
 command B. to be 
 
 is accessory to th 
 
 617. Or if A. cor 
 
 doing so the hous( 
 
 burning of D.'s h( 
 
 the oflfence comnu 
 
 means from those < 
 
 J- S. to poison A., i 
 
 him, J. W. is, neve 
 
 370 ; section 62, jm 
 
 an intermediate ag( 
 
 should name the pe 
 
 Cooper, 5 C. & P. 5 
 
4^ 
 
 Seo. 61] 
 
 ACCESSORIES, ETC. 
 
 37 
 
 direct, by hire, counsel, command, or conspiracy ; or indirect, 
 by evincing an express liking, approbation, or assent to 
 another's felonious design of committing a felony : 2 Hawk, 
 c. 29, 8. 16 ; but the bare concealment of a felony to be 
 committed will not make the party concealing it an acces- 
 go-y before the fact: 2 Hawk. c. 29, s. 23; nor will tacit 
 acquiescence, or words which amount to a bare permission, 
 be sufficient to constitute this offence: 1 Hale, 616 The 
 procurement must be continuing; for if the procurer of a 
 felony repent, and before the felony is committed actually 
 countermand his order, and the principal notwithstanding 
 commit the felony, the original contriver will not be an 
 accessory: 1 Hale, 618. So, if the accessory order or advise 
 one crime, and the principal intentionally commit another ; 
 as, for instance, to burn a house, and instead of that he 
 commit a larceny ; or to commit a crime against A., and 
 instead of so doing he commit the same crime against B.; 
 the accessory will not be answerable: 1 Hale, 617; but, if 
 the principal commit the same offence against B. bj'^ mistake 
 instead of A., it seems it would ue otherwise : Fost. 370, 
 et seq,; but see I Hale, 617 ; 3 Inst 51. But it is clear that 
 the accessory is liable for all that ensues upon the execution 
 of the unlawful act commanded ; as, for instance, if A. 
 command B. to beat C, and he beat him so that he dies, A. 
 is accessory to the murder: see section 62, post; 1 Hale, 
 617. Or if A. command B. to burn the house of C, and in 
 doing so the house of D. is also burnt, A. is accessory to the 
 burning of D.'s house : R, v. Saundei*s, Plowd. 475. So, if 
 the offence commanded be effectetl, although bv different 
 means from those commanded, as, for instance, if J. W. hire 
 J. S. to poison A., and, instead of poisoning him, he shoots 
 him, J. W. is, nevertheless, liable as accessory : Fost. 369, 
 370 ; section 62, post. Where the procurement is through 
 an intermediate agent it is not necessary that the accessory 
 should name the person to be procured to do the act : R. v. 
 Cooper, 5 C. & P. 535. 
 
 'f 
 
88 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. 61 
 
 Several persons may be convicted on a joint charge 
 against them as accessories before the fact to a particular 
 felony, though the only evidence against them is of sepa- 
 rate acts done by each at separate times and places : E. v. 
 Barber, 1 C. «fe K. 442. 
 
 It may be necessary to observe, that it is only in felonies 
 that there can be accessories ; in high treason, every in- 
 stance of incitement, etc., which in felony would make a 
 man an accessory before the fact, will make him a princi- 
 pal traitor : Fost. 341 ; and he must be indicted as such : 
 1 Hale, 235. Also, all those who in felony would be acces- 
 sories before the fact, in offences under felony are princi- 
 pals, and indictable as such : R. v. Clayton, 1 C. & K. 128 ; 
 R. V. Moland, 2 Moo. 276; R. v. Greenwood, 2 Den. 453; 
 under section 61, ante, that now a2)plies to all o fences. 
 In manslaughter it has been said there can be no acces- 
 sories before the fact, for the offence is sudden and unpre- 
 meditated ; and therefore, if A. be indicted for murder, and 
 B. as accessory, if the jury find A. guilty of manslaughter 
 they must acquit B: 1 Hale, 437, 466,615; 1 Hawk, 
 c. 30, s. 2. Where, however, the prisoner procured and 
 gave a woman poison in order that she might take it and 
 so procure abortion, and she did take it in his absence, and 
 died of its effects, it was held that he might be convicted 
 as an accessory before tlie fact to the crime of manslaugh- 
 ter: R. V Gay lor. Dears. & B. 288. In the course of the 
 argument in that case, Bramwell, B., said : "Suppose a man 
 for mischief gives another a strong dose of medicine,- not in- 
 tending any further injury than to cause him to be sick 
 and uncomfortable, and death ensues, would not that be 
 manslaughter ? Suppose, then, that another had counselled 
 him to do it, would not he who counselled be an accessory 
 before the fact ? 
 
 In R. V. Chad wick, Stafford Sum. Ass. 1850, the prisoner 
 was indicted as a principal for murder by arsenic, and tlie 
 jury found that he procured the ar.senic, and caused it to 
 be administered by another person, but was absent when it 
 
Sec. 02] 
 
 ACCESSORIES, ETC. 
 
 39 
 
 was administered; and thereupon it was objected that the 
 11 & 12 v., c. 46, s. 1, which was similar to chapter 145 Rev. 
 Stat. s. 1, did not apply to murder, but Williams, J., over- 
 ruled the objection, and refused to reserve the point. Where 
 the principal and accessory are tried together, one being 
 charged as principal and the other as accessory, if the prin- 
 cipal plead otherwise than the general issue, the accessory 
 shall not be bound to answer until the principal's plea be 
 first determined : 1 Hale, 624. Where the principal was 
 indicted for larceny in a dwelling-house, and the accessory 
 was charged in the same indictment as accessory before the 
 fact to the said "felony and burglary" and the jury 
 acquitted the principal of the burglary, but found him 
 guilty of the larceny, it seems the judges were of opinion 
 that the accessory should have been acquitted ; for the 
 indictment charged him as accessory to the burglary only, 
 and the principal being acquitted of that, the accessory 
 should have been acquitted also : R. v. Dannelly and 
 Vaughan, R. & R. 310. Where three persons were charged 
 with a larceny, and two others as accessories, in one count, 
 and the latter were also charged separately in other counts 
 with substantive felonies, it was held that, although the 
 pi'incipals were accjuitted, the accessories might be convicted 
 on the latter counts : R. v. Pulham, 9 C. & P. 280. 
 
 If a man be indicted as accessory in the same felony to 
 several persons, and be found accessory to one, it is a good 
 verdict, and judgment may be passed upon him : R. v. Lord 
 Sanchar, 9 Co. 189; Fost. 361; 1 Hale, 624. 
 
 'f 
 
 Okkrncks Committed Difkkukntly. 
 
 03< Every one who counsels or procures another to be a party to an 
 offence of which that other is afterwards guilty is a party to that offence, 
 although it may be coniniitted in a way different from that which was 
 counselled or suggested. 
 
 2. Every one who counsels or procures another to be a party to an offence 
 is a party to every offence whicli that other commits in consequence of such 
 counselling or procuring, and which the jierson counselling or procuring knew, 
 or ought to have known, to be likely to be committed in consequence of such 
 counselling or procuring. 
 
40 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. 63 
 
 
 " This is believed to express the existing law: Fost., part 8, 
 and cases under preceding section." — Imp. Comm. Rep. 
 
 The mere fact of being stakeholder for a prize fight 
 
 where one of the combatants was killed does not make one 
 
 accessory before the fact to the manslaughter: R. v. Taylor, 
 
 13 Cox, 68. 
 
 AoosaaoRT After thk Fact. 
 
 03« An accessory after the fact to an offence is one who receives, comforts 
 or assists any one who has been a party to such offence in order to enable him 
 to escajje, knowinjf him to have been a party thereto. 
 
 2. No married person whose husband or wife has been a party to an 
 offence shall become an accessory after the fact thereto by receiving, comfort- 
 ing or assisting the other of them, and no married woman whose husband has 
 been a party to an offence shall become an accessory after the fact thereto, 6^ 
 receiving, comforting or assitting in hin presence and by his uuthoriti/ any other 
 person who has been a party to such offence in order to enable her husband or 
 such other person to escape. 
 
 The Imperial Commissioners report this section as 
 declaratory of the existing law, but that is an error. A 
 husband, at common law, cannot aid his wife to escape. 
 Then, section 13, ante, seems to have been forgotten in 
 drafting this section 63. 
 
 See as to punishment, sections 531, 532. Accessories 
 after the fact to certain offences, not triable at Quarter 
 Sessions, section 540. See section 627 as to indictment of 
 accessories after the fact in certain cases : see R. v. Lee, 
 Warb. Lead, Cas. 9, for a collection of cases on the subject. 
 
 An accessory after the fact is one who, knowing a 
 felony to have been committed by another, receives, relieves, 
 comforts, or assists the felon: 1 Hale, 618; 4 Bl. Com. 37. 
 Any assistance given to one known to be a felon, in order 
 to hinder his apprehension, trial, or punishment, is suffi- 
 cient to make a man an accessory after the fact ; as, for 
 instance, that he concealed him in the house: or shut the 
 door against his pursuers, until he should have an oppor- 
 tunity of escaping : 1 Hale, 619 ; or took money from 
 him to allow him to escape : or supplied him with 
 money, a horse or other necessaries, in order to enable 
 him to escape : 2 Hawk. c. 29, s. 26 ; or bribed 
 
Sec. 63] 
 
 ACCESSORY AFTER THE FACT. 
 
 41 
 
 the gaoler to let him escape, or conveyed instruments to 
 him to enable him to bre«' ^^rison and escape: 1 Hale, 
 621. 
 
 But merely suffering the principal to escape will not 
 make the party an accessory after the fact, for it amounts 
 at most but to a mere omission: 1 Hale, 619. So, if a 
 person supply a felon in prison with victuals or other 
 necessaries for his sustenance : 1 Hale, 620; or relieve 
 and maintain him if he be bailed out of prison : Id. ; or if a 
 physician or surgeon professionally attend a felon sick or 
 wounded, although he know him to be a felon. »S'ee 
 R. V. Chappie, 9 C & P. 355 ; R. v. Jarvis, 2 M. & Rob. 40. 
 
 A wife is not punishable as accessory for receiving, etc., 
 her husband, although she knew him to have committed 
 felony: 1 Hale, 48, 621; R. v. Manning, 2 C. & K. 903, n.; 
 for she is presumed to act under his coercion ; but see now 
 section 13, ante. But no other relation of persons can 
 excuse the wilful receipt or assistance of felons ; a father 
 cannot assist his child, a child his parent, a husband his 
 wife, a brother his brother, a master his servant, or a 
 servant his master: 1 Chit. 266. (Section 63 ante alters 
 this as to a husband assisting his wife.) Even one may 
 make himself an accessory after the fact to a larceny of his 
 ov.n goods, or to a robbery on himself, by harbouring the 
 thief, or assisting in his escape: Fost. 123. If the wife 
 alone, the husband being ignorant of it, receive any other 
 person being a felon, the wife is accessory, and not the 
 husband : 1 Hale, 621. And if the husband and wife both 
 receive a felon knowingly, it shall be adjudged only the 
 art of the husband, and the wife shall be acquitted : Id. 
 {See now section 13 ante.) 
 
 To constitute this offence it is necessary that the acces- 
 sory have notice, direct or implied, at the time he assists or 
 comforts the felon, that he had committed a felony. 
 It is also necessary that the felony be completed at the 
 time the assistance is given ; for. if one wounds another 
 
 ■I 
 
42 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. G4 
 
 Sec. 64 ] 
 
 mortally, and after the wound given, but before death 
 ensues, a person assist or receive the delinquent, this does 
 not make him accessory to the homicide ; for until death 
 ensues no murder or manslaughter is committed : 2 Hawk, 
 c. 29,8. 35; 4 Bl. Com. 38. 
 
 On an indictment charging a man as a principal felon 
 only, he cannot be convicted of the offence of being an 
 accessory after the fact: R. v. Fallon. L. & C. 217. 
 
 The receipt of stolen goods did not at common law con- 
 stitute the receiver an accessory, but was a distinct misde- 
 meanour, punishable by fine and imprisonment: 1 Hale, 620; 
 see now section 314, post. 
 
 Four prisoners were indicted for murder jointly with 
 two others indicted as accessories after the fact. The 
 prisoners indicted for murder were found guilty of man- 
 slaughter, and the other two guilty of having been acces- 
 sories after the fact to manslaughter. Held, on motion in 
 arrest of judgment, that the conviction against the acces- 
 sories was right: R. v. Richards, 13 Cox, 611 ; see R. v. 
 Brannon, 14 Cox, 894. 
 
 Attempts. 
 
 64. Every one wlio, having an intent to commit an offence, does or omits 
 an act for the purpose of accomplishing his object, is guilty of an attempt to 
 commit the offence intended whither under the circumatancea it waa poaaible to 
 commit such offence or not. 
 
 2. The question whether an act done or omitted with intent to commit an 
 offence is or is not only preparation for the commission of that offence, and too 
 remote to constitute an attempt to commit it, is a question of law. 
 
 The words in italics were given as new law in the Impe- 
 rial Commissioners' Report of 1879 in view of R. v. Collins, 
 L. & C. 471, but that case has since been overruled : R. 
 V. Brown, 24 Q. B. D.357, and R. v. Ring, 17 Cox, 491. 
 
 See sections 528, 529, as to punishment in cases not 
 otherwise provided for, and sections 711, 713 as to verdict 
 of attempt under certain circumstances. 
 
 Attempts to conunit certain crimes are specially provided 
 for in sections 71, 75, 100, 120, 127, 129, 131, 132, 136, 154, 
 
 175, 178, L 
 432, 485, 4J 
 
 A mere 
 
 Some act is 
 
 the commisi 
 
 attempts to 
 
 with it are 
 
 R. v. Hens! 
 
 R. v. Roberf 
 
 An assai 
 
 to commit i 
 
 reporter's nc 
 
 An atten 
 
 such crime : 
 
 rape, robber 
 
 Stephen's Cr 
 
 and an atte 
 
 213, 21;;: s( 
 
 v. Marsh, I D 
 
 art, R. & R. 2i 
 
 17 Cox, 495. 
 
 If A., misi 
 
 to murder B., 
 
 attempt to m 
 
 tlie above sec 
 
 James Sfcephe 
 
 of 1879 woi 
 
 Stephen's Hisi 
 
 " An atteni] 
 ted with inten 
 series of acts o 
 offence, if such 
 rupted, either h} 
 to complete the 
 
 "Everyone 
 does or omits ar 
 
Sec. 64 ] 
 
 ATTEMPTS. 
 
 43 
 
 *i 
 
 175, 178. 185, 189, 232, 238, 241, 2486, 268, 270, 400, 424, 
 432, 485, 488, 492, 494, 496, 500. 
 
 A mere intention to commit a crime is not indictable. 
 Some act is required, but acts only remotely leading towards 
 the commission of an offence are not to be considered as 
 attempts to commit it, whilst acts immediately connected 
 with it are : R. v. Roebuck, Dears. & B. 24 ; 1 Russ. 83 > 
 R. V. Hensler, 11 Cox, 570; R. v. Eagleton, Dears. 515; 
 R. V. Roberts, Dears. 539 ; R. v. Cheeseman, L. & C. 140. 
 
 An assault with intent to commit a crime is an attempt 
 to commit that crime : R. v. Dungey, 4 F. & F. 99. See 
 reporter's note in that case and R. v. John, 15 S. C. R. 384. 
 
 An attempt to commit a crime is an intent to commit 
 such crime manifested by some overt act, and, in cases of 
 rape, robbery, etc., etc., necessarily includes an assault : 
 Stephen's Cr. L. 49 ; in such cases, an assault is an attempt 
 and an attempt is an as.sault ; R. v. Martin, 9 C. & P. 
 213, 21 ' : we annotation to section 711, post; and R. 
 V. Marsh, I Den. 505 ; R. v. Heath, R. & R. 184 ; R. v. Stew- 
 art, R. & R. 288 ; R. V. Fuller, R. & R. 308 ; R. v. Duckworth, 
 17 Cox, 495. 
 
 If A., mistaking a post in the dark for B., and intending 
 to murder B., shoots at the post, he haii not committed an 
 attempt to murder, according to the existing law. Does 
 the above section 64 clian, e the law in this respect ? Sir 
 James Stephens thinks that article 74 of the Draft Code 
 of 1879 would have had that effect in England : 2 
 Stephen's Hist., 225. That article reads as follows : — 
 
 " An attempt to commit an offence is an act done or omit- 
 ted with intent to commit tliat offence, forming part of a 
 series of acts or omissions which would have constituted the 
 offence, if such series of acts or omissions had not been inter- 
 rupted, either by the voluntary determination of the offender not 
 to complete the offence, or by some other cause. 
 
 " Every one who, believing that a certain state of facts exists, 
 does or omits an act, the doing or omitting of which would, if 
 
 If 
 
' j ' uuimi ' . e iiij g . ' 
 
 44 
 
 COMMISSION OF OFFENCES. 
 
 [Sec. 61 
 
 that state of facts existed, be an attempt to commit an offence, 
 attempts to commit that offence, although its commission in the 
 manner proposed was, by reason of tha non-existence of that 
 state of facts at the time of the act or omission, impossible. 
 
 " The question whether an act done or omitted with intent 
 to commit an offence is or is not only preparation for the com- 
 mission of that offence, and too remote to constitute an attempt 
 to commit it, is a question of law." 
 
 This article of the Imperial Draft Code, and of the Bill 
 of 1879, re-appeared in tiio Bill of 1880, somewhat altered 
 in shape and phraseology, but not in substance, as will be 
 seen by comparing it with section 64 of this Code, which 
 reproduces it verbatim as it was in that Bill of 1880. It 
 thus seems clear that, in Sir James Stephen's opinion, the 
 supposed case of attempting to murder by shooting at a 
 post, would constitute ncr, under section 64 of this Code, 
 an indictable attempt to commit murder — Sed qucvre? 
 tiee Baron Bramwell's remarks in R. v. McPherson, Dears. & 
 B. 197, in 1857, long before the decision in R. v. Collins, 
 L. & C. 471. Sir James Stephens took the law as it 
 was then settled by the case of R. v. Collins, which 
 has since been over-ruled by R. v. Ring, 17 Cox, 491, 
 and it was not necessary for him to distinguish between 
 the case of the shooting at a post and the case of 
 putting the hand in an empty pocket. In neither case, in 
 his opinion, is there an indictable attempt to commit a 
 crime. But though it is now unquestionable, under 
 section 64, that the latter case constitutes an attempt to 
 steal, though there was nothing to steal, it docs not follow 
 that the former case constitutes an attempt to murder, 
 though there was no one to kill. Here the assault, a 
 principal ingredient of the offence, is wanting. There was 
 no assault on B., and A. clearly could not be indicted under 
 section 232, -post, because he did not shoot at any person : 
 R. V. Lovel, 2 Moo. & R. 39. But, for an attempt to steal, 
 the overt act, or commencement of execution of the theft is 
 complete by itself when a man puts his hand into the 
 
 
Sec. 64] 
 
 ATTEMPTS. 
 
 45 
 
 pocket of any one to steal whatever there may be in it. 
 No ingredient of t)ie attempt is wanted there. The 
 offender may be arvested inatanter, whilst no one could 
 arrest a man who '.s preparing to shoot at a post, in the 
 case first supposed. 
 
 That is, no doubt, almost the same question in another 
 form, but yet it serves as a test. The shooting in that 
 case is an attempt to attempt to commit murder, whilst in 
 the case of st?aling, the putting the hand in the pocket is 
 the direct attempt to commit the stealing. The shooting is 
 one decrree more remote from the murder than the thrust of 
 the hand in the pocket is from the stealing. There may 
 have been no killing, even if B., the person intended to be 
 murdered, had really been shot at, as the shot might either 
 have missed him or only wounded him, and then A. would 
 have been guilty of an attempt to murder. Whilst, in the 
 other case, if there is in the pocket anything to steal, the 
 stealing itself is the proximate, and only possible, ofTence 
 which the man who thrusts his hand in the pocket can 
 commit. Between the shooting at a person wit^ intent to 
 murder and the m irder there is an intermediate possible 
 offence, that is, the jvttempt to murder, if the pereon shot at 
 is not killed. Bet veen the thrust of the hand in the 
 pocket with intent to steal, and the stealing, there is no 
 such intermediate offence possible. In this last case, there- 
 fore, there is a direct attempt to steal, whilst in the first 
 case there is no attempt to murder, not because a murder 
 was not possible, but because, under the terms of sub- 
 section 2 of section 64, the act of shooting was too remote 
 from the murder to constitute, in law, an attempt to 
 murder, as the^e might have been no murder even if B. had 
 actually been shot at. 
 
 f 
 
 
 '• •! 
 
46 
 
 OFFEN(!ES AGAINST PUBLIC ORDER. 
 
 [Sec. 65 
 
 TITLE II. 
 
 OFFENCES AGAINST PUBLIC ORDER, INTERNAL 
 
 AND EXTERNAL. 
 
 PART IV. 
 
 TREASON AND OTHER OFFENCES AGAINST THE QUEEN'S 
 AUTHORITY AND PERSON. 
 
 69* Treason is — 
 
 (a) The act of killing Her Majesty, or doing her any bodily harm tending 
 to death or destruction, maim or wounding, and the act of imprisoning or 
 restraining her; or 
 
 (6) The forming and manifesting by an overt act an intention to kill Her 
 Majesty, or to do her any bodily harm tending to death or destruction, maim 
 or wounding, or to imprison or to restrain her ; or 
 
 (c) The act of killing the eldes;; son and heir apparent of Her Majesty, or 
 the Queen consort of any King of the United Kingdom of Great Britain and 
 Ireland ; or 
 
 (d) The forming and manifesting, by an overt act, an intention to kill the 
 eldest son and heir apparent of Her Majesty, or the Queen consort of any 
 King of the United Kingdom of Great Britain and Ireland ; or 
 
 (e) Conspiring with any person to kill Her Majesty, or to do her any 
 bodily harm tending to death or destruction, maim or wounding, or conspiring 
 with any person to imprison or restrain her ; or 
 
 ( /) Levying war against Her Majesty either — 
 
 (i) With intent to depose Her Majesty from the style, honour and 
 
 royal name of the Imperial Crown of the United Kingdom of Great 
 
 Britain and Ireland or of any other of Her Majesty's dominions or 
 
 countries ; 
 
 (ii) In order, by force or constraint, to compel Her Majesty to change 
 
 her measures or counsels, or in order to intimidate or overawe both Houses 
 
 or either House of Parliament of the United Kingdom or of Canada ; or 
 
 ig) Conspiring to levy war against Her Majesty with any such intent or 
 for any such purpose as aforesaid ; or 
 
 (h) Instigating any foreigner with force to invade the said United King- 
 dom or Canada or any other of the dominions of Her Majesty ; or 
 
 (t) Assisting any public enemy at war with Her Majesty in such war by 
 any means whatsoe\tT ; or 
 
 ( j) Violating, whether with her consent or not, a Queen consort, or the 
 wife of the eldest son and heir apparent, for the time being, of the King or 
 Queen regnant. 
 
 2. Every one who commits treason is guilty of an indictable otfence and 
 liable to suffer death. 
 
Secfe. 66-68] 
 
 TREASON. 
 
 47 
 
 06. In every case in which it is treason to conspire with any person for 
 any inirpose the act of so conspiring, and every overt act of any such con- 
 spiracy, is an overt act of treason. 25 Edw. Ill, st. 5, c 2. 
 
 Limitation, three years, section 551a, and see sub-section 
 2 of section 551. Not triable at quarter sessions, section 
 540. Compulsion by threats no excuse, section 12. 
 
 Requisites of indictment section 614. 
 
 Special provisions as to trial for treason, section 658. 
 
 Evidence of one witness must be corroborated, section 
 684. Sections 6 and 7 of chapter 146 Rev. Stat, stand 
 unrepealed. 
 
 See Archbold, 755 ; Stephen's Crim. L. 32 ; Sir John 
 Kelyng's Crown Cases, p. 7, and a treatise on treason 
 printed therein; Foster's Cr. Law, discourse on High 
 Treason, 183. 
 
 Also, R. V. Gallagher, 15 Cox, 291, Warb. Lead. Cas. 
 39 ; R. V. Deasy, 15 Cox, 334 ; Mulcahy v. R. L. R. 3 
 H. L. 306; R. v. Riel, 16 Cox, 48, 10 App. Cas. 675; 
 R. v. Davitt, 11 Cox, 676. 
 
 Accessories After the Fact.— (iVeio). 
 
 07> Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who — 
 
 (a) Becomes an accessory after the fact to treason ; or 
 
 (b) Knowing that any person is about to commit treason does not, with all 
 reasonable despatch, give information thereof to a justice of the peace, or use 
 other reasonable endeavours to prevent the commission of the same. 
 
 Not triable at quarter sessions, section 540. Requisites 
 of indictment, section 614. Special provisions for trial, 
 oection 658. This section covera the common law offence 
 of misprision of treason. 
 
 Levying War, Etc., Etc. 
 
 68> Every subject or citizen of any foreign state or country at peace 
 with Her Majesty, who— 
 
 (a) Is or continues in arms against Her Majesty within Canada ; or 
 (6) Commits any act of hostility therein ; or 
 
 (c) ICnters Canada with intent to levy war against Her Majesty, Oi to 
 commit any indictable offence therein for which any person would, in Canada, 
 be liable to suffer death ; and 
 
 Every subject of Her Majesty within Canada who — 
 
 i'" i ■ 
 
 ?,ii ■ 
 
 i 
 
48 
 
 OFFENCES AGAINST PUBLIC ORDER. [Sec. 69, 70 
 
 •i; 
 ;! 
 ft 
 li 
 
 i 
 
 (d) Levies war against Her Majesty in company with any of the subjects 
 or citizens of any foreign state or country at ptta^e with Her Majesty ; or 
 
 (e) Enters Canada in company with any such subjects or citizens with 
 intent to levy war against Her Majesty, or to commit any such offence 
 therein ; or 
 
 (/) With intent to aid and assist, joins himself to any person who has 
 entered Canada with intent to levy war against Her Majesty, or to oommil 
 any such offence therein— is guilty of an indictable oflfence and liable to suffer 
 death. R. S. C. c. 146, ss. 6 & 7. 
 
 Not triable at quarter sessions, section 540. Special 
 
 provisions as to indictment, section 614 Sections 6 and 7 
 
 of chapter 146, Revised Statutes, stand unrepealed. They 
 
 cover the same offences as the above section 68, but the 
 
 punishment is discretionary, and they may be tried by 
 
 court-martial. Every subject of Her Majesty within 
 
 Canada who enters Canada with any foreigner with intent 
 
 to commit any capital offence is, by this enactment, liable 
 
 to suffer death. 
 
 Treasonable Offences. 
 
 60. Every one is guilty of an indictable oflfence and liable to imprison- 
 ment for life who forms any of the intentions hereinafter mentioned, and 
 manifests any such intention by conspiring with any person to carry it into 
 effect, or by any other overt act, or by publishing any printing or writing ; 
 that is to say — 
 
 (a) An intention to depose Her Majesty from the style, honour and royal 
 name of the Imperial Crown of the United Kingdom of Great Britain and 
 Ireland, or of any other of Her Majesty's dominions or countries ; 
 
 (6) An intention to levy war against Her Majesty within any part of the 
 said United Kingdom, or of Canada, in order by force or constraint to compel 
 her to change her measures or counsels, or in order to put any force or 
 constraint upon, or in order to intimidate or overawe both Houses, or either 
 House of Parliament of the United Kingdom or of Canada ; 
 
 (c) An intention to move or stir any foreigner or stranger with force to 
 invade the said United Kingdom, or Canada, or any other of Her Majesty's 
 dominions or countries under the authority of Her Majesty. R. S. C. o. 146, 
 8.3; 11-12 V.c. 12, (Imp.). 
 
 Not triable at quarter sessions, section 540. Limita- 
 tion, 3 years, section 551. . See sub-section 2 of section 551. 
 Special provisions, section 614. See annotation under 
 section 65, ante. 
 
 Conspiracy to Intimidate Leoislaturb. 
 
 70. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who confederates, combines or conspires with any person 
 
Sees. 71-73] 
 
 ASSAULTS ON THE QUEEN. 
 
 49 
 
 to do any act of violence in order to intimidate, or to put any force or 
 constraint upon, any Legislative Council, Legislative Assembly or House of 
 As.sembly. R. S. C. c. 140, s. 4. 
 
 Not triable at quarter sessions, section 540. Special 
 provisions, section 614. 
 
 This enactment does not apply to conspiracies to 
 intimidate the Senate or House of Commons. They are 
 covered partly by sections 65 and 69, ante. 
 
 Assaults on the Queen. 
 
 Tl. Every one is guilty of an indictable offence and liable to seven years 
 impi'lsonment, and to be whipped once, twice or thrice as the court directs, 
 who — 
 
 (rt) Wilfully produces, or has near Her Majesty, any arm or destructive or 
 dangerous thing with intent to use the same to injure the person of, or to alarm, 
 Her Majesty ; or 
 
 {b) Wilfully and witli intent to alarm or to injure Her Majesty, or to break 
 the public peace : 
 
 (i) Points, aims or presents at or near Her Majesty any firearm, loaded 
 01- ot, or any other kind of arm ; 
 
 ^ii) Discharges at or near Her Majesty any loaded arm ; 
 'iii) Discharges any explosive material near Her Majesty ; 
 (iv) Strikes, or strikes at, Her Majesty in any manner whatever; 
 (v) Tlirows anything at or upon Her Majesty ; or 
 (c) Attempts to do a!iy of the things specified in paragraph (b) of this 
 section. 
 
 5 & 6 V. c. 51, (Imp.). Xot ti'iable at quarter sessions, 
 section 540. Special provisions, section 614. As to whipping, 
 section 957. 
 
 Inciting to Mutiny. (Neio.) 
 
 718. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life, who, f t)r any traitorous or mutinous purpose, endeavours to seduo* 
 any jierson serving in Her Majesty's forces by sea or land from his duty and 
 allegiance to Her Majesty, or to incite or stir up any such person to commit 
 any traitorous or mutinous jn-actice. 
 
 37 Geo. III. c. 10, (Imp.); 7 W. IV. & 1 Y. c. 91, (Imp.). Not 
 triable at quarter sessions, section 540. Special provisions, 
 section 614: R. v. Fuller, 1 B. k P. ISO; Archbold, 820; 
 R. v. Tiorney, R. & R. 74. 
 
 Enticing Solimehs ok Seamen to Desert. 
 73. Everj' one is guilty of an indictable offence who, not being an enlisted 
 soldier in Her Majesty's service, or a seauuvn in Her Majesty's naval 
 service — 
 
 CntM. Law— 4 
 
50 
 
 OFFENCES AGAINST PUBLIC ORDER. [Sees. 74-76 
 
 ■I 
 I 
 
 ■I 
 
 (a) By words or with money, or by any other means whatsoever, directly or 
 indirectly persuades or procures, or goes about or endeavours to persuade, pre- 
 vail on or procure, any such seaman or soldier to desert from or leave Her 
 Majesty's military or naval service ; or 
 
 (6) Conceals, receives or assists any deserter from Her Majesty's military or 
 naval service, knowing him to be such deserter, 
 
 2. The offender may be prosecuted by indictment, or summarily before two 
 justices of the peace. In the former ease he is liable to fine and imprisonment 
 in the discretion of the court, and in the latter to a penalty not exceeding two 
 hundred dollars, and not less than eighty dollars and costs, and in default of 
 payment, to imprisonment for any term not exceedinif six months. R. S. C. 
 c. 169, 88. 1 & 4 ; 6 Geo. IV. c. 5, (Imp.). 
 
 Triable at quarter sessions. Section 614 applies, though 
 through error. Arrest of suspected deserters, section 561. 
 
 Resisting Warrant, Etc., Etc, 
 
 T-l. Every one who resists the execution of any warrant authorizing the 
 breaking open of any buildinpf to search for any deserter from Her Majesty's 
 military or naval service is guilty of an offence and liable, on summary convic- 
 tion before two justices of the peace, to a i)enalty of eighty dollars. R, ,S. C. 
 c. 160, s. 7. 
 
 Arrest of deserters, section 561. 
 
 Enticing Militia or Mounted Policb Men to Desert. 
 
 7Sm Every one is guilty of an offence and liable, on summary conviction, 
 to six months' imprisonment with or without hard labour, who — 
 
 (rt) Persuades any man who has been enlisted to serve in any corps of 
 militia, or who is a member of, or ha* engaged to serve in the North-west 
 mounted i)olice force, to dtsert, or attempts to procure or persuade any such 
 man to desert ; or 
 
 {b) Knowing that any such man is about to desert, aids or assists him in 
 deserting ; or 
 
 (c) Knowing that any sucli man is a deserter, conceals such man or aids or 
 assists in his rescue. R. S. C. c. 41, s. 109 ; 52 V, c. 25, s. 4. 
 
 Interpretation of Two Next Sections. 
 
 TO. In the two following sections, unless the context otherwise re- 
 quires — 
 
 (rt) Any reference to a place belonging to Her Majesty includes a place 
 belonging to any department of the Government of the United Kingdom, or 
 of the Government of Canada, or of any province, whether the place is or is 
 not actually vested in Her Majesty ; 
 
 (i) Expressions referring to communications inchide any communication, 
 whether in wliole or in part, and whetiier tlie document, sketch, plan, moc'.fl 
 or information itself or the substance or effect thereof only be communicated ; 
 
 (c) The expression " document '' includes part of a document ; 
 
 (<l) The expressicm "model"' includes design, pattern and s^pecimen; 
 
 Sec. 77] U: 
 
 (e) The ex 
 
 expression of a 
 
 (/) The ej 
 
 enaployment in 
 
 Kingdom, or > 
 
 c- 10, 8. 5. 
 
 Those tf 
 " Official Se( 
 
 • • • Every 
 ment for one yei 
 imprisonment an 
 
 (a) For the j 
 
 (i) Enter 
 Majesty, beir 
 other like pla 
 
 (ii) Wher 
 obtains any i 
 which he is n 
 sketch or plan 
 
 (iii) Whei 
 Canada, belon 
 authority givei 
 fortress, arsem 
 (6) Knowingly 
 sketch, plan, model 
 act which constitut 
 time wilfully and v. 
 municate the same 
 of the state, to be a 
 (c) After havin; 
 Majesty with any d( 
 such place as afores 
 wilfully, and in bro 
 the interests of the s 
 (d) Having poss 
 factory, dockyard, c 
 Majesty, or to the 
 manner the same has 
 the same to any iktsi 
 of the state, to be coi 
 2. Every one wh 
 a foreign state any ir 
 obtained or taken by 
 the same tfj any agen 
 liable to imprisonmen 
 
Sec. 77] UNLAWFULLY OBTAINING INFORMATION. 
 
 51 
 
 (e) The expression " sketch " includes any photograph or other mode of 
 expression of any place or thing ; 
 
 (/) The expression "office under Her Majesty," includes any offic? or 
 employment in or under any department of the Government of the United 
 Kingdom, or of the Government of Canada or of any province. 53 V. 
 c. 10, 8. 5. 
 
 Those three sections are re-enactments of the Imperial 
 " Official Secrets Act of 1889 " 52 & 53 V. c. 52. 
 
 Unlawfully Obtaining Official Information. 
 
 TT* Every one is guilty of an indictable offence and liable to imprison- 
 ment for one year, or to a fine not exceeding one hundred dollars, or to both 
 imprisonment and fine, who — 
 
 (a) For the purpose of wrongfully obtaining information — 
 
 (i) Enters or is in any part of a place in Canada belonging to Her 
 Majesty, being a fortress, arsenal, factory, dockyard, camp, ship, office or 
 other like place, in which part he is not entitled to be ; or 
 
 (ii) When lawfully or unlawfully in any such place as aforesaid either 
 obtains any document, sketch, plan, mixlel or knowledge of anything 
 which he is not entitled to obtain, or takes without lawful authority any 
 sketch or plan ; or 
 
 (iii) When outside any fortress, arsenal, factory, dockyard or camp in 
 Canada, belonging to Her Majesty, takes, or attempts to take without 
 authority given by or on behalf of Her Majesty, any sketch or plan of that 
 fortress, arsenal, factory, dockyard or camp ; or 
 
 (b) Knowingly having possession of or control over any such document, 
 sketch, plan, model, or knowledge as has been obtained or taken by means of any 
 act which constitutes an offence against this and the following section, at any 
 time wilfully and without lawful authority communicates or attempts to com- 
 mimicate the same to any person to whom the same ought not, in the interests 
 of the state, to be communicated at that time ; or 
 
 (c) After having been intrusted in confidence by some officer under Her 
 Majesty with any document, sketch, plan, model or information relating to any 
 such place as aforesaid, or to the naval or military affairs of Her Majesty, 
 wilfully, and in breach of such confidence, communicates the same when, in 
 the interests of the state, it ought not to be communicated ; or 
 
 (d) Having possession of any document relating to any fortress, arsenal, 
 factory, dockyard, camp, ship, office or other like place belonging to Her 
 Majesty, or to the naval or military affairs of Her Majesty, in whatever 
 manner the same has been obtained or taken, at any time wilfully communicates 
 the same to any ijerson to whom he knows tlie same ought not, in the interests 
 of the state, to be communicated at the time ; 
 
 2. Every one who commits any such offence intending to communicate to 
 a foreign state any information, document, sketch, plan, model or knowledge 
 obtained or taken by him, or intrusted to him as aforesaid, or communicates 
 the same to any agent of a foreign state, is gtiilty of an indictable offence and 
 liable to imprisonment for life. 53 V. c. 10, s. 1 . 
 
 m^ 
 
 i-'i'itii 
 
 Mi 
 
 i 
 
 '1:1^1;: 
 
 t' 
 
 I 
 
52 
 
 UNLAWFUL ASSEMBLIES, ETC. 
 
 [Sees. 78, 79 
 
 Not triable at quarter sessions, section 540. No prose- 
 cution without consent of Attorney-General, section 543. 
 Section 614 is made to applj^ though through error. 
 " Having in possession " defined section 3. 
 
 Breach op Official Tkust. 
 
 TS. Every one who, by means of his holding or having held an office 
 under Her Majesty, has lawfully or unlawfully, either obtained possession of 
 or control over any document, sketch, plan or model, or acquired any informa- 
 tion, and at any time corruptly, or contrary to his official duty, communicates 
 or attempts to communicate such document, sketch, plan, model or informa- 
 tion to any person to whom the same ought not, in the interests of the state, 
 or otherwise in the public interest, to be communicated at that time, is guilty 
 of an indictable offence and liable— 
 
 (rt) If the communication was made, or attempted to be made, to a foreign 
 state, to imprisonment for life ; and 
 
 (6) In any other case to imprisonment for one year, or to a fine not exceed- 
 ing one hundred dollars, or to both imprisonment and fine. 
 
 2. This section shall apply to a person holding a contract with Her 
 Majesty, or with any department of the Government of the United Kingdom, 
 or of the Government of Canada, or of any province, or with the holder of any 
 office under Her Majesty as such holder, where such contract involves an obli- 
 gation of secrecy, and to any person employed by any person or body of jjersons 
 holding such a contract who is under a like obligation of secrecy, as if the 
 person holding the contract, and the person so employed, were respectively 
 holders of an office under Her Majesty ; 53 V. c. 10, s. 2. 
 
 See annotation under preceding section. 
 The Imperial Foreign Enlistment Act, 33-34 V. c. 90, 
 applies to Canada. See R. v. Sandoval, Warb. Lead. Cas. 43. 
 
 PAllT \. 
 
 UNLAWFUL ASSEMBLIES, RIOTS, BREACHES OF THE PEACE. 
 
 70. An unlawful assembly is an assembly of three or more persons who, 
 with intent to carry out any ccnnnion i)urpose, assemble in such a manner or 
 so conduct themselves when assembled as to cause persons in the neighbourhood 
 of such assembly to fear, on reasonable grounds, that the persons so assembled 
 will disturb the peace tuniultuously, or will by such assembly needlessly and 
 without any reasonahlt occasion provoke other persons to disturb the peace tumtd- 
 tuously. 
 
 Sec. 79] 
 
 2. Persons 
 conduct thems* 
 made their asse 
 purpose. 
 
 3. An asset 
 house of any oni 
 such house in or 
 
 R. V. Vir 
 435; Beatty 
 49 ; Back v. 
 483 ; R. V. C 
 
 " The def 
 
 on the comm 
 
 assembly is ii 
 
 from it that tl] 
 
 practice for thi 
 
 to go to marke 
 
 obvious thatni 
 
 the conseqnenc 
 
 bands would pr 
 
 fear that they v 
 
 was such as to : 
 
 cases were decic 
 
 a breach of the 
 
 as almost to ma 
 
 to resist those v* 
 
 voured in sectior 
 
 law, although in 
 
 it causes persons 
 
 Jessly, and witho 
 
 turb the peace i 
 
 not as yet been 
 
 The clause as t 
 
 inserted because ( 
 
 Comm. Rep. 
 
 Divers perso 
 being paid, to w 
 combatants fouo 
 attended by a se 
 
Sec. 79] 
 
 UNLAWFUL ASSEMBLIES, ETC. 
 
 53 
 
 2. Persons lawfully assembled may become an unlawful asssembly if they 
 conduct themselves with a common purpose in «uch a manner as would have 
 made their assembling unlawful if they had assembled in that manner for that 
 purpose. 
 
 3. An assembly of three or more persons for the purpose of protecting the 
 house of any one in their number against persons threatening to break and enter 
 such house in order to commit any indictable offence therein is not unlaioful, 
 
 R. V. Vincent, 9 C. & P. 91 ; O'Kelly v. Harvey, 15 Cox, 
 435; Beatty V. CA\\h- s, 15 Cox, 138; T.:' Lead. Cas. 
 49 ; Back v. H( ^s, j ox, 2G3 ; R. v. ClaiKson, 17 Cox, 
 483 ; R. V. Cunningham, 16 Cox, 420. 
 
 " The definition of an unlawful assembly depends entirely 
 on the common law. The earliest definition of an unlawful 
 assembly is in the Year Book, 21 H. VII. 39. It would seem 
 from it that the law was first adopted at a time when it was the 
 practice for the gentry, who were on bad terms with each other, 
 to go to market at the head of bands of armed retainers. It is 
 obvious that no civilized government could permit this practice, 
 the consequence of which was at the time that the assembled 
 bands would probably fight, and certainly make peaceable people 
 fear that they would fight. It was whilst the state of society 
 was such as to render this a prevailing mischief that the earlier 
 cases were decided ; and consequently the duty of not provoking 
 a breach of the peace has sometimes been so strongly laid down 
 as almost to make it seem as if it was unlawful to take means 
 to resist those who came to commit crimes. We have endea- 
 voured in section 84 to enunciate the principles of the common 
 law, although in declaring that an assembly may be unlawful if 
 it causes persons in the neighbourhood to fear that it will need- 
 lessly, and without reasonable occasion, provoke others to dis- 
 turb the peace tumultuously, we are declaring that which has 
 not as yet been specifically decided in any particular case. 
 The clause as to the defence of a man's house has been 
 inserted because of a doubt expressed on the subject." — Imp. 
 Comm. Rep. 
 
 Divers persons assembled in a room, entrance money 
 being paid, to witness a tight between two pei-sons. Tlie 
 combatants fought in a ring with gloves, each being 
 attended by a second, who acted in the same way as the 
 
 i.n: i 
 1 ■!■■■ 
 
 ' 
 
 
 ; 
 
 I, if*;. 
 
 
 V 
 
54 
 
 UNLAWFUL ASSEMBLIES, ETC. 
 
 [Sec. 79 
 
 second at prize fights. The combatants fought for about 40 
 minutes with great ferocity, and severely punished each 
 other. The police interfered and arrested the defendants, 
 who were among the spectators. 
 
 Upon the trial of an indictment against them for 
 unlawfully assembling together for the purpose of a prize 
 fight, the chairman directed the jury that, if it was a mere 
 exhibition of skill in sparring, it was not illegal ; but, if 
 the parties met intending to fight till one gave in from 
 exhaustion or injury received, it was a breach of the law 
 and a prize fight, whether the combatants fought in gloves 
 or not, and left it to the jury to say whether it was a prize 
 fight or not. 
 
 ife^tZ,thatthe jury were properly directed : R. v. Orton, 
 14 Cox, 226 ; see R. v. McNaughten, 14 Cox, 576. 
 
 The appellants with a considerable number of other 
 persons, forming a body called "Salvation Army," assembled 
 together in the streets of a town for a lawful object, and 
 with no intention of carrying out their object unlawfully, 
 or by the use of physical force, but knowing that their 
 assembly would be opposed and resisted by other persons, 
 in such a way as would in all probability tend to the 
 committing of a breach of the peace on the part of such 
 opposing persons. A disturbance of the peace having been 
 created by the forcible opposition of a number of persons to 
 the assembly and procession through the streets of the 
 appellants and the Salvation Army, who themselves used 
 no force or violence, it was — 
 
 Held,hy Field and Cave, JJ., (reversing the decision of the 
 justices), that the appellants had not been guilty of unlaw- 
 full}'' and tumultuously assembling, etc., and could not 
 therefore be convicted of that ofience, nor be bound over to 
 keep the peace. 
 
 Held, also, that knowledge by persons peaceably assem- 
 bling for a lawful object, that their assembly will be forcibly 
 opposed by other persons, under circumstances likely to lead 
 
 R 
 
 See. 80] 
 
 to a breach 
 does not i 
 banks, 15 C 
 A proce 
 fired a pist( 
 nobody was 
 
 ffeld, th 
 case reserv 
 quashed 
 
 On the 
 assembly on 
 of the pros( 
 day previous 
 that B., in m- 
 reason to be 
 Tlie prisoner 
 that they ha 
 and to give 
 meeting, but 
 C. J., and Fis] 
 dis.), tliat tht 
 conduct of tl: 
 explain their < 
 for quashing 
 day that evid 
 has been ini 
 abandoned by 
 case, and thert 
 If a man kno) 
 sumption of L 
 the law will 
 (N.B.), 493. 
 
 80» A riot i 
 l)eace tuinultuouslj 
 
 See R. V. Ki 
 Ccx, 420, and 
 
Sec. 80] 
 
 RIOT, 
 
 55 
 
 to a breach of the peace on the part of such other persons, 
 does not render such assembly unlawful : Beatty v. Gill- 
 banks, 15 Cox, 138 ; see R. v. Clarkson, 17 Cox, 483. 
 
 A procession being attacked by rioters a pei*son in it 
 fired a pistol twice. He appeared to be acting alone and 
 nobody was injured. 
 
 Held, that he could not be indicted for riot, and, on a 
 case reserved, a conviction on such an indictment was 
 quashed : R. v. Corcoran, 26 U. C. C. P. 134. 
 
 On the trial of an indictment for riot and unlawful 
 assembly on the 15th Jan., evidence was given on the part 
 of the prosecution of the conduct of the prisoners on the 
 day previous, for the purpose of showing (as was alleged) 
 that B., in whose office one act of riot was committed, had 
 reason to be alarmed when the prisoners came to his office. 
 The prisoner's counsel thereupon claimed the right to show 
 that they had met on the 14th to attend a school meeting, 
 and to give evidence of what took place at the school 
 meeting, but the evidence was rejected. Held, per Allen, 
 C. J., and Fisher and Dutt', JJ., (Weldon and Wetmore, JJ., 
 dis.), tliat the evidence was properly rejected because the 
 conduct of the prisoners on the 14th, could not qualify or 
 explain their conduct on the following day. It is no ground 
 for quashing a conviction for unlawful assembly on one 
 day that evidence of an unlawful assembly on another day 
 has been impi'operly received, if the latter charge was 
 abandoned by the prosecuting counsel at the close of the 
 case, and there was ample evidence to sustain the conviction. 
 If a man knowingly does acts which are unlawfvil, the pre- 
 sumption of law is that the mens veil exists ; ignorance of 
 the law will not excuse him : R. v. Mailloux, 3 Pugs. 
 (N.B.), 493. 
 
 Riot. 
 80. A riot is an unlawful assemblj' .which has begun to disturb the 
 IH-ace tuniultuously. 
 
 See R. V. Kelly, U. C. C. P. 372 ; R. v. Cunningham, 16 
 Cvx, 420, and remarks under preceding section. 
 
 'If 
 
 * 
 
 1,1 
 
56 
 
 UNLAWFUL ASSEMBLIES, ETC. 
 
 [Sees. 81-83 
 
 
 W 
 
 i 'II 
 iiji. ,i^ 
 
 Section 12 of chapter 147, R. S. C, provided specially 
 for the punishment of a rout. 
 
 Punishment for Unlawful Assembly. 
 
 SI* Every member of an unlawful assembly is K^iilty of an indictable 
 offence and liable to 07ie year's imprisonment. R. S. C. c. 147, s. 11. 
 
 Fine and sureties, section 9o8. See post, under section 
 83, and ante, under section 79. The punishment was two 
 years under the repealed section. 
 
 Punishment ok Riot. 
 
 Htd» Every rioter is guilty of an indictable offence and liable to two years 
 imprisonment with hard labour. R. S. C. c. 1-18, s. 13, 
 
 Fine and sureties, section 958. The punishment was 
 four years under the repealed section. 
 
 Riot Act. 
 
 8S. It is the duty of every sheriff, deputy -sheriff, mayor or other head 
 officer, and justice of the peace, of any county, city or town, who has notice 
 that there are within his jurisdiction persons to the number of twelve or more 
 unlawfully, riotously and tupiultuorsly assembled together to the disturbance 
 of the public peace, to resort to the place where such unlawful, riotous and 
 tumultuous assembly is, and among the rioters, or as near to them as he can 
 safely come, with a loud voice to command, or cause to be command<'d, silcm. e, 
 and after that openly and with loud voice to make, or cause to be matle, a 
 proclamation in these words or to the like effect : — 
 
 "Our Sovereign Lady the Queen charges and commands all persons biiing 
 assembled immediately to disperse and peaceably to depart to their habita- 
 tions or to their lawful business, upon the pain of being guilty of an offence 
 on conviction of which they may be sentenced to imprisonment for life. 
 
 " God Save the Queen." 
 
 2. Ail persons are guilty of an indictable offence and liable to imprison- 
 ment for life who — 
 
 (a) With force and arms wilfully oppose, hinder or hurt any person who 
 begins or is about to make the said proclamation, whereby such proclamation 
 is not made ; or 
 
 (b) Continue together to the number of twelve for thirty minutes after 
 such * ^iroclamation has been made, or if they know that its making was 
 hindered as aforesaid, within thirty minutes after such hindrance. R. S. C. 
 c. 147, ss. 1 & 2. 
 
 The omission of " God Save the Queen" is fatal. R. v. 
 Child, 4 C. & P. 442 ; see sections 40, 41, 42, ante, and 
 Archbold, 955. Limitation, one j^ear, section 551. R. v. 
 Pinney, 3 B. & Ad. 947 : R. v. Kennett, 5 C. & P. 282 : 
 
Sees. 84, 85] IF RIOTERS DO NOT DISPERSE, ETC. 
 
 57 
 
 a 
 
 R. V. Neale, 9 C. & P. 431 ; R. v. Vincent, 9 C. & P. 91 ; R. 
 V. James, o C. & P. 153. 
 
 If Rioters do not Disperse, Etc., Etc. 
 
 >i4. If the iieraons so unlawfully, riotously and tumultuously assembled 
 together as mentioned in the next preceding seotion, or twelve or more of 
 them, continue together, and do not disperse themselves, for the space of 
 thirty minutes after the proclamation is made or after such hindrance as 
 aforesaid, it is the duty of every such sheriff, justice and other officer, and 
 of all persons required by them to assist, to cause such persons to be appre- 
 hended and carried before a justice of the peace ; and if any of the persons so 
 assembled is killed or hurt in the apprehension of such persons, or in the 
 endeavour to apprehend or disperse them, by reason of their resistance, every 
 person ordering them to bo apprehended or dispersed, and every person 
 executing such orders, shall be indemnified against all proceedings of every 
 kind in respect thereof : Provided, that nothing herein contained shall, in any 
 way, limit or affect any duties or powers imjwsed or given by this Act as to 
 the suppression of riots before or after the making of the said proclamation, 
 R. S. C. c. 147, 8. 3. 
 
 See annotation under preceding section, ' 
 
 Riotous Destruction of Buildings. 
 
 85. All persons are guilty of an indictable offence and liable to imprison- 
 ment for life who, being riotously and tumultuously assembled together to the 
 disturbance of the public peace, unlawfully and with force demolish or pull 
 down, or begin to demolish <ir pull down, any building, or any machinery, 
 whether fixed or movable, or any erection used in farming land, or in carrying 
 on any trade or inaiuifacturo, or any erection or structure used in conducting 
 the business of any mine, or any bridge, waggon-way or track for conveying 
 minerals from any mine. R. S. C. c. 147, s. I) ; 24-25 V. c. 97, s. 11, (Imp.). 
 
 See next section. 
 
 Indictment. — That on at J. S., J. W. and 
 
 E. W., together with divers other evil-disposed persons, to 
 the jurors aforesaid unknown, unlawfully, riotously and 
 tumultuously diil assemble together, to the disturbance of 
 the public peace ; and being then and there so unlawfully, 
 riotously and tumultuously assembled together as aforesaid 
 did then and there unlawfully and with force begin to 
 demolish and pull down, the dwelling-house of one J. ^., 
 there situate. 
 
 See note under next section. 
 
 The accused may be convicted of the offence covered by 
 next section, if the evidence warrants it: section 713. 
 
 'f 
 
68 
 
 UNLAWFUL ASSEMBLIES. ETC. 
 
 [Se«. 80 
 
 !'«' 
 
 Riotous Dauaor to Buildings. 
 
 80« All i)er8ons are guilty of an indictable offence and liable to seven 
 years' imprisonmentwho, being riotously and tumultuously assembled together 
 to the disturbance of the public peace, unlawfully and with force injure or 
 damage any of the things mentioned in the last preceding section. 
 
 2. It thalf not be a defence to a ehar<je of an offence against this or the last 
 preceding section that the offender believed he had a right to aet as he did, unless 
 he actually had such a right. R. S. C. c. 147, s, 10 ; 24-25 V. c. {»7, s. 12 (Imp.). 
 
 " Sub-section 2 removes what is at least a doubt. See 
 
 R. V. Langford, Car. &, M. 602 ; R. v. Casey, 8 Ir. Rep. C. L. 
 
 408." — Imp. Coram. Rep. 
 
 See R. V. Phillips, 2 Moo. 252; Drake v. Footitt, 7 
 Q. B. D. 201. 
 
 Iiulictment. — That on at S., J. W. and 
 
 E. VV., together with divers other evil-disposed persons, to 
 the said jurors unknown, unlawfully, riotously, and tumul- 
 tuously did assemble together to the disturbance of the 
 public peace, and being then and there so unlawfully, riot- 
 ously and tumultuously assembled together as aforesaid, 
 did then and there unlawfully and with force injure a 
 certain dv^elling-house of one J. N., there situate. Add a 
 count stating "damage" instead of "injure." 
 
 The riotous character of the assembly must be proved. 
 It must be proved that these three or more, but not less 
 than three, persons assembled together, and that their 
 assembling was accompanied with some such circumstances, 
 either of actual force or violence, or at least of an apparent 
 tendency thereto, as were calculated to inspire people with 
 terror, such as being armed, using threatening speeches, 
 turbulent gestures, or the like. It is a sufficient terror and 
 alarm, if any one of the Queen's subjects be in fact terri- 
 fied : Archbold, 552. Then prove that the assembly began 
 with force to demolish the house in question. It must 
 appear that they began to demolish some part of the free- 
 hold ; for instance, the demolition of moveable shutters is 
 not sufficient : R. v. Howell, 9 C. & P. 437. A demolition 
 by fire is within the Statute. Prove that the defendants 
 were either active in demolishing the house, or present, 
 
Sec8. 87, 88] 
 
 UNLAWFUL DRILLING. 
 
 69 
 
 aiding and abetting. To convict under section 85, the jury 
 must bo satisfied that the ultimate object of the rioters was 
 to demolish the house, and that if they had carried their 
 intention into effect, they would in point of fact have 
 demolished it ; for if the rioters merely do an injury to the 
 house, and then of their own accord go away as having 
 completed their purpose it is not a beginning to demolish 
 within this section. But a total demolition is not necessary, 
 though the parties were not interrupted, and the fact that 
 the rioters left a chimney remaining, will n. t prevent the 
 Statute from applying. But if the demolishing or int;;nt 
 to demolish be not proved, and evidence of riot and injury 
 or damage to the building is produced, the jnry may find 
 the defendant guilty of the offence created by section 86. 
 
 Unlawful Dbillino. 
 
 87. The Governor in Council is authorized from time to time t( j>r -..ibit 
 assemblies without lawful authority of persons for the purpose of tr inin^j or 
 drilling themselves, or of being trained or drilled to the use of arms, or for the 
 purpose of practising military exercises, movements or evolutions, and to pro- 
 liibit jiersons when assembled for any other purpose so training or drilling 
 themselves or being trained or drilled. Any such prohibition may be general 
 or may apply only to a particular place or district and to assemblies of a par- 
 ticular character, and shall come into operation from the publicatio^i in the 
 Canada Gazette of a proclamation embodying the terms of such prohibition, 
 and shall continue in force until the like publication of a proclamation issued 
 by the authority of the Governor in Council revoking such prohibition. 
 
 2. Every person is guilty of an indictable offence and liable to two years' 
 imprisonment who, without lawful authority and in contravention of such 
 prohibition or proclamation — 
 
 (rt) Is present at or attends any such assembly fo- ii^ purpose of training 
 or drilling any other iierson to the use of arms or the praccice of military exer- 
 cises or evolutions ; or 
 
 (h) At any assembly trains or drills any other ; orson to the use of arms or 
 tile practice of military exercises or evolution?-. R. S. C. c. 147, ss. 4 & 5. 
 «0 Geo. III. and 1 Geo. IV. c. 1, (Imp.). IA„^ndeil.) 
 
 Limitation, 6 months, section 551 ; see Archbold, 822. 
 
 Unlawfully Bbing Drilled. 
 
 88. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, without lawful authority, attends, or is present at, any 
 such assembly as in the last preceding section mentioned, for the purpose of 
 being, or who at any such assembly is, ypthout lawful authority and in contra- 
 
 
60 
 
 UNLAWFUL ASSEMBLIES, ETC. 
 
 [Sees. 89, OO 
 
 Sees. !)1, 92] 
 
 ■ ::f I 
 
 
 ▼ention of such prohibition or proclamation, trained or drilled to the use of 
 arms or the practice of military exercises or evolutions. K. S. C. c. 147, s. 0, 
 
 Limitation, 6 months, section 551. 
 
 Forcible Extry or Detainer. 
 
 80« Forcible entry is where a person, whether entitled or not, enters in 
 a manner likely to cause a breach of the peace, or reasonable apprehension 
 thereof, on land then in actual and peaceable possession of another. 
 
 2. Forcible detainer is where a person in actual possession of land, with- 
 out colour of right, detains it in a maimer likely to cause a breach of the peace^ 
 or reasonable apprehension thereof, against a person entitled by law to the 
 possession thereof. 
 
 3. What amounts to actual possession or colour of right is a question of law. 
 
 4. Every one who forcibly enters or forcibly detains land is guilty of an 
 indictable offence and liable to one year's imprisonment. 
 
 Arch bold, 886; R. v. Smyth, 5 C. & P. 201 ; Lows v. 
 Telford, 13 Cox, 22G, VVarb. Lead Can. 51. 
 
 *' Forcible entry and detainer are offences at common law ; 
 and this section, we believe, correctly states the existing law." — 
 Imp. Coinm. Rep. 
 
 Indictment.— That A. D., C. D., E. F., G. H., and J. K, 
 on day of , in the year of our Lord , 
 
 milawfully and injuriously and with a strong hand 
 entered into a certain mill, and certain lands and houses, 
 and the sites of a cei'tain mill and certain houses, with the 
 appurtenances, situate in the parish of , in the said 
 
 county, and then in the possession of one L. M., and unlaw- 
 fully and injuriously and with a strong hand, expelled and 
 put out the said L.M. from the posse'ision of the said 
 premises, in a manner likely to cause a breach of the peace. 
 
 Affray. 
 
 OO. An affray is the act of fighting in any public street or liighway, or 
 fighting to the alarm of the public in any otlier place to wliicli the public have 
 access. 
 
 2. Every one who takes part in an affray is guilty of an indictable offence 
 and liable to one i/eur's imprisonment with hard labour, R. S. C. c. 147, s. 14. 
 
 The words " to the alarm of the public " should be in- 
 serted after the word " fio-htiriir " in the first line. Under 
 section 14, chapter 147 of the Revised Statutes, this offence 
 
 was punish 
 It must noA 
 
 ®l« Ever 
 imprisonment 
 person to fight , 
 other person so 
 
 This was 
 581 ; R. V. P 
 
 "8« In sec 
 
 " prize-fight " me 
 persons who have 
 for them. R. S. 
 
 R. V. Per] 
 103 ; R. V. Co 
 lor, 13 Cox, 6 
 tight is not a 
 the manslaugl 
 being present 
 R. V. Coney, /( 
 
 The follow 
 Statutes are ui 
 
 6. If, at any tii 
 
 any chief of police, j 
 
 has reason to belie 
 
 "bout to engage as j 
 
 with arrest such per 
 
 try offences against t 
 
 upon oath, before sui 
 
 tlie charge, and if he 
 
 the time of his arrest 
 
 require the accused t 
 
 sum not exceeding fi\ 
 
 conditioned that the 
 
 fioni and after the da 
 
 person before whom t 
 
 the gaol of the countv 
 
 or if there is no comw 
 
 to the place where s 
 
 I'-icognizance with sucl 
 
' . 
 
 Sees. i)l, 92] 
 
 CHALLENGE TO FIGHT A DUEL. 
 
 61 
 
 was punishable by three months on summary conviction. 
 It must now be proceeded against by indictment. 
 
 Challenge to Fight a Duel. 
 
 01« Every one is guilty of an indictable offence and liable to three years' 
 imprisonment who challenges or endeavours by any means to provoke any 
 person to fight a duel, or endeavours to provoke any person to challenge any 
 t>ther person so tn do. 
 
 This was an offence at common law : R. v. Rice, 3 East, 
 581 ; R. V. Philipps, 6 East, 463 : 3 Chit. 487. 
 
 Prize Fights, Etc., Etc. 
 
 03> In sections ninety-three to nmety-seven inclusive the expression 
 " prize-fight " means an encounter or fight with fists or hands, between two 
 persons who have met for such purpose by previous arrangement made by or 
 for them. R. S. C. c. 153, s. 1. 
 
 R. V. Perkins, 4 C. & P. 537 ; R. v. Murphy, 6 C. & P. 
 103 ; R. V. Coney, 15 Cox, 46, 8 Q. B. D. 534 ; in R. v. Tay- 
 lor, 13 Cox, 68, it was held that a stakeholder to a prize- 
 tight is not an accessor}^ before the fact nor an abettor to 
 the manslaughter, if one of the combatants is killed, he not 
 being present : see R. v. Orton, Warb. Lead. Cas. 54, and 
 R. V. Coney, Id. 56. 
 
 The following three sections of chapter 153, Revised 
 Statutes are unrepealed. 
 
 0. If, at any time, the sheriff of any county, place or district in Canada, 
 any chief of police, any police officer, or any constable, or other peace officer, 
 has reason to believe that any jwrson within his bailiwick or jurisdiction is 
 about to engage as princii)al in any prize-fight within Canada, he shall forth- 
 with arrest such ijerson and take him before some person having authority to 
 try offences against this Act, and shall forthwitli make complaint in that behalf, 
 ui)on oath, before such person ; and thereupon such person shall inquire into 
 the charge, and if he is satisfied that the {person so brought before him was, at 
 the time of his arrest, about to engage as a principal in a prize-tight, he shall 
 require the accused to enter into a recognizance, with sufficient sureties, in a 
 sum not exceeding five thousand dollars and not less tha!i one thousand dollars, 
 conditioned that the accused will not engage in any such fight within one year 
 from and after the date of such arrest ; and in default of such recognizance, the 
 person before whom the accused has been brought shall commit the accused to 
 the gaol of the county, district or city within which sucii inquiry takes place, 
 or if there is no common gaol there, then to the common gaol which is nearest 
 to the place where such inquiry is had, there to remain until he gives such 
 recognizance with such sureties. 
 
 f 
 
 j, ifc. 
 
 J 'i 
 
 I .ill' 
 
62 
 
 UNLAWFUL ASSEMBLIES, ETC, 
 
 [Sees. 93-96 
 
 7. If any sheriff has reason to believe that a pnze-fight is taking ])lace or 
 is about to take place within his jurisdiction as such sheriif, or that any persons 
 are about to come into Canada at a point within his jurisdiction, from any place 
 outside of Canada, with intent to engage in, or to be coi 3emed in, or to attend * 
 any prize-fight within Canada, he shall forthwith summon a force of the inhabi- 
 tants of his district or county sufficient for the purpose of suppressing and pre- 
 venting such fight ; and he shall, with their ai(i, suppress and prevent the 
 same, and arrest all persons present thereat, or who come into Canada as afore- 
 said, and shall take them before some person having authority to try offences 
 against this Act, to be dealt with according to law, and fined or imprisoned, or 
 both, or compelled to enter into recognizances with sureties, as hereinbefore 
 provided, according to the nature of the case. 
 
 10. Every judge of a superior court or of a county court, judge of the 
 sessions of the peace, stipendiary magistrate, police magistrate, and commis- 
 sioner of police of Canada, shall, within the limits of his jurisdiction as such 
 judge, magistrate or commissioner, have all the powers of a justice of the peace 
 with respect to offences against this Act. 
 
 Challenge to a Prize-fight. 
 
 03. Every one is guilty of an offence and liable, on summary conviction, 
 to a penalty not exceeding one thousand dollars and not less than one hundred 
 dollars, or to imprisonment for a terra not exceeding six months, with or with- 
 ffut hard labour or to both, who sends or publishes, or causes to be sent or 
 published or otherwise made known, any challenge to fight a prize-fight or 
 accepts any such challenge, or causes the same to be accepted, or goes into 
 training preparatory to such fight, or acts as trainer or second to any person 
 who intends to engage in a prize-fight. R. S. C. c. 153, s. 2. 
 
 Principal in a Prize-fight. 
 
 04. Every one is guilty of an offence and liable, on summary conviction, 
 to imprisonment for a term not exceeding twelve months and not less than 
 three months, with or without hard labour who engages as a principal in a prize- 
 fight. R. S. C. c. 153, s. 3. 
 
 Aiders, Abettors, Etc. 
 
 95» Every one is guilty of an offence and liable, on summary conviction, 
 to a penalty not exceeding five hundred dollars and not less than fifty dollar.^, 
 or to imprisonment for a term not exceeding twelve months, with or without 
 hard laljour or to both, who is present at a prize-fight as an aid, second, sur- 
 geon, umpire, backer, assistant or reporter, or who advises, encourages or 
 promotes .- ch tight. R. S. C. c. 153, s. 5. 
 
 See R. V. Coney, 15 Cox, 46," Warb. Lead. Cas. 56, and 
 note under section 92 ante. 
 
 Leaving Canada to Engage in a Prize-fight. 
 
 00. Every inhabitant or resident of Canada is guilty of an offence and 
 liable, on summary conviction, to a penalty not exceeding four hundred dollars 
 and not less than fifty dollars, or to imprisonment for a term not exceeding six 
 months, with or without hard labour or to both, who leaves Canada with intent 
 to engage in a prize-fight without the limits thereof. R. S. C. c. 153, s. 5. 
 
 Sees. 97-99] 
 The in 
 
 difference 
 
 »». If, a( 
 
 origin of the fi{ 
 made is satisfie 
 or result of a qi 
 engage therein, 
 on the result o 
 depended, such 
 upon him a pen 
 
 Section , 
 to prevent b 
 See ante, urn 
 
 "8. Every ( 
 imprisonment wl 
 treaty Indians, o 
 
 («) To make j 
 ment m a riotous 
 calculated to caus 
 
 (6) To do any 
 s. 111. 
 
 Inciting ar 
 punishable by 
 even if that 
 punishment. 
 
 UNLAWEU] 
 SUBST 
 
 "W. Every one 
 ment for life who wi] 
 a nature likely to end 
 '">y injury to pnrdon c 
 
■ l'^: -]: 
 
 Sees. 97-99] 
 
 PRIZE FIGHT. 
 
 63 
 
 The interpretation clause does not state what is the 
 difference between an inhabitant and a resident. 
 
 Trial, Etc. 
 
 OT. If, after hearinp evidence of the circumstances connected with the 
 origin of the fight or intended fight, the person before whom the complaint is 
 made is satisfied that such fight or intended fight was bona fide the consequence 
 or result of a quarrel or dispute between the principals engaged or intended to 
 engage therein, and that the same was not an encounter or fight for a prize, or 
 on the result of which the handing over or transfer of money or property 
 depended, such person may, in his discretion, discharge the accused or impose 
 upon him a penalty not exceeding fifty dollars. R. S. C. c. 153, s. 9. 
 
 Section 7, chapter 147, R S. C, authorizing the sheriff 
 to prevent by force any prize-fight has not been repealed. 
 See ante, under section 92. 
 
 Inciting Indians to Riotous Acts'. 
 
 08. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who ii.Juces, incites or stirs up any three or more Indians, non- 
 treaty Indians, or half-breeds, apparently acting in concert — 
 
 (a) To make any request or demand of any agent or servant of the Govern- 
 ment m a riotous, routous, disorderly or threatening manner, or in a manner 
 calculated to cause a breach of the peace ; or 
 
 (6) To do any act calculated to cause a breach of the peace. R. S. C. c. 43, 
 8. 111. 
 
 Inciting an Indian to commit anv indictable offence is 
 punishable by five years, section 112, chapter 43, R. S. C. 
 even if that indictable offence is itself liable to a lesser 
 punishment. 
 
 ■ tiS 
 
 a 
 
 
 ■I M! 
 
 f 
 
 ■:sl ! 
 
 PART VI. 
 
 UNLAWFUL USE AND POSSESSION OF EXPLOSIVE 
 
 SUBSTANCES AND OFFENSIVE WEAPONS 
 
 -SALE OF LIQUORS. 
 
 00» Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who wilfully causes, by any explosive substance, an explosion of 
 a nature likely to endanger life or to cause serious injury to property, whether 
 any injury to psir-ton or property is actually caused or not. R. S. C. c. IVt, s. 3. 
 
64 
 
 EXPLOSIVE SUBSTANCES, ETC. 
 
 [Sees. 100-102 
 
 See post annotations under sections 247, 248 & 488. 
 
 As to search warrant, section 569 sub-sections 7, 8. — "Ex- 
 plosive substance " defined, section 3. This and the two 
 following sections are re-enactments of the Imperial " Ex- 
 plosive Substances Act of 1883 " : 46 V. c. 3. 
 
 Injuries by Explosive Substances. 
 
 I00< Every one is guilty of an indictable ofiFence and liable to fourteen 
 year.-*' imprisonment who wilfully — 
 
 {a) Does any act with intent to cause by an explosive substance, or con- 
 spires to cause by an explosive substance, an explosion of a nature likely to 
 endanger life, or to cause serious injury to property ; 
 
 (h) Makes or has in his possession or under his control any explosive 
 substance witli intent by means thereof to endanger life or to cause serious 
 injury to property, or to enable any other person by means thereof to endanger 
 life "t to cause serious injury to property — 
 
 Whether any explosion takes place or not and whether any injury to person 
 or property is actually caused or not. R. S. C. c. loO, s. 3. 
 
 See note under preceding section. 
 
 Possession of E.xplosives. 
 
 tOl- Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who makes, or knowingly has in liis possession or under 
 his control, any explosive substance under such circumstances as to give rise to 
 a reasonable suspicion that he is not making it, or has it not in his possession 
 or under his control, for a lawful object, unless he can sliow that he made it or 
 had it in his possession or under his control for a lawful object. R. S. C. c. 150, 
 s. 5; 46 V. c. 3 (Imp.). 
 
 "Having in possession" and "Explosive substance" 
 defined, section 3; R. v. Charles, 17 Cox, 499, is a case 
 under the corresponding section of the Imperial act. 
 
 Possession of Offensive Weapons. 
 
 109* Every one is guilty of an indictable offence and liable to five years' 
 imprisonment who has in his custody or iK)ssession, or carries, any offensive 
 weapons for any purpose dangerous to the public peace. R. S. C. c. 149, s. 4. 
 (Amciided). 
 
 Limitation, 6 months, section 551. " Having in posses- 
 sion " and " Ottlnisive weapon " defined, section 3 ; search 
 warrant, section 569. The following sections of chapter 
 149, Revised Statutes respecting the seizure of arms kept 
 for dangerous purposes are unrepealed. 
 
 Sees. 103-105] 
 
 '^5. AIljus 
 
 place, in Cana 
 
 with the justic 
 
 with respect tc 
 
 respect to all i 
 
 peace under th 
 
 the commissior 
 
 such districts, i 
 
 7. The Go 
 
 suspend the op« 
 
 lar district, com 
 
 the iieriod spec 
 
 shall be suspend 
 
 herein containec 
 
 by proclamation 
 
 again subject to 
 
 mationthis Acts 
 
 103. If tw( 
 
 place in such a i 
 create terror and 
 befor two justice 
 not less than ten 
 term not exceedin 
 
 Limitatior 
 weapon " defii 
 
 104. Every ( 
 ment for ten years 
 under any law rel; 
 and knowing them 
 c. 32, s. 213. (Anu 
 
 As the sect 
 possession and 
 offence. Secti( 
 Act respecting 
 99, of chapter 
 Inland Revenu 
 
 lOfl, Every on 
 
 to a penalty not exce 
 
 to imprisonment for ( 
 
 a soldier, sailor or vo 
 
 Crim. Law- 
 
Sec9. 103-105] CARRYING OFFENSIVE WEAPONS. 
 
 65 
 
 '"~ 5. All justices of the peace in and for any district, county, city, town or 
 place, in Canada, shall have concurrent jurisdiction as justices of the peace, 
 with the justices of any other district, county, city, town or place, in all cases 
 with respect to the carrying into execution the provisions of this Act, and with 
 respect to all matters and things relating to the preservation of the public 
 peace under this Act, as fully and effectually us if each of such justices was in 
 the commission of the i)oace, or was ex officio a justice of the peace for each of 
 such districts, counties, cities, towns or places. 
 
 7. The Governor in Council may, from time to time, by proclamation, 
 susp<>nd the operation of this Act in any province of Canada or in any particu- 
 lar district, county or locality si>eciiied in the proclamation ; and from and after 
 the iwriod specified in any such proclamation, the iwwers given by this Act 
 shall be suspended in such province, district, county or locality ; but nothing 
 herein contained shall prevent the Governor in Council from again declaring, 
 by proclamation, that any such province, district, county or locality shall be 
 again subject to this Act and the powers hereby given, and upon such procla- 
 mation this Act shall be revived and in force accordingly. 
 
 Carrying Offensive Weapons. 
 
 103« If two or more ])ersons ojjenly carry offensive weaiwns in a public 
 place in such a manner and under such circumstances as are calculated to 
 create terror and alarm, each of such persons is liable, on summary conviction 
 befor two justices of the peace, to a penalty not exceeding forty dollars and 
 not less than ten dollars, and in default of payment to imprisonment for any 
 term not exceeding thirty days. R. S. C. c. 148, s. 8. 
 
 Limitation, one month, section 551. "Offensive 
 weapon " defined, section 3. «, 
 
 Being Found With Smuggled goods. 
 
 104% Every one is guilty of an indictable offence and liable to imprison- 
 ment for ten years who is found with any goods liable to seizure or forfeiture 
 under any law relating to inland revenue, the customs, trade or navigation, 
 and knowing them to be so liable, and carrying offensive weapons. R. S. C. 
 c. 32, s. 213. {Amended). 
 
 As the section reads, there must be both the unlawful 
 possession and the carrying of arms to constitute this 
 offence. Section 213, of chapter 32, Revised Statutes, An 
 Act respecting the Customs, is repealed, also sections 98 and 
 99, of chapter 34, Revised Statutes, An Act respecting the 
 Inland Revenue. 
 
 Cakrtino op Arms, Selling Arms. 
 
 10>1« Every one is guilty of an offence and liable on summary conviction 
 to a penalty not exceeding twenty -five dollars and not less than five dollars, or 
 to imprisonment for one month, who, not being a justice or a public officer, or 
 a soldier, sailor or volunteer in Her Majesty's service, on duty, or a constable 
 
 Grim. L.vw — 5 
 
 I! 
 
66 
 
 EXPLOSIVE SUBSTANCES, ETC. 
 
 [Sees. 106, 107 
 
 I'i 
 
 
 i 1 1 ; 
 
 i !:,i>f 
 
 .1 
 
 or other peace officer, and not having a certificate of exemption from the opera- 
 tion of this section as hereinafter provided for, and not having at the time 
 reasonable cause to fear an assault or other injury to his person, family or 
 property, has upon his persona pistol or air-gun elsewhere than in his own 
 dwelling-house, shop, warehouse, or counting-house. 
 
 2. If sufficient cause be shown upon oath to the satisfaction of any justice, 
 he may grant to any ai)plicant therefor not under the age of sixteen years and 
 as to whose discretion and good character he is satisfied by evidence ufjon oath, 
 a certificate of exemption from the oi)eratio i of this section, for such period, 
 not exceeding twelve months, as he deems fit 
 
 3. Such certificate, upon the trial of any offence, shall be primd facie 
 evidence of its contents and of the signature and official character of the per- 
 son by whom it purports to be granted. 
 
 4. When any such certificate is granted under the preceding v)rovisions of 
 this section, the justice granting it shall forthwith make a return thereof to the 
 proper officer in the county, district or place in which such certificate has been 
 granted for receiving returns under section nine hundred and two; and in 
 default of making such return within ninety days after a certificate is granted, 
 the justice shall be liable, on summary conviction, to a penalty of not more 
 than ten dollars. 
 
 5. Whenever the Governor in Coimcil deems it expedient in the public 
 interest, he may by proclamation suspend the operation of the provisions of the 
 first and second sub-sections of this section respecting certificates of exemption, 
 or exempt from such oi)eration any particular part of Canada, and in either 
 case for such period, and witii such exceptions as to the persons hereby affected, 
 as he deems fit. Section 1, c. 1-18. (A mended). 
 
 Limitation, one month, s. 551. 
 
 106* Every one is guilty of an offence and liable on summary conviction 
 to a penalty not exceeding fifty dollars, who sells or gives any jjistol or air-gun, 
 or any ammunition tlierefor, to a minor under tlie age cf sixteen years, unless 
 he establishes to the satisfaction of the justice before whom he is charged that 
 he used reasonable diligence in endeavouring to ascertain the age of the minor 
 l)efore making sucli sale or gift, and that lie had good reason to believe that 
 such minor was not under the age of sixteen. 
 
 2. Every one is guilty of an offence and liable on summitry conviction to a 
 penalty not exceeding twenty-five dollars who sells any pistol or air-gun with- 
 out keeping a record of such sale, the date thereof, and the name of the 
 purchaser and of the maker's name, or other mark by which such arm may be 
 identified. 
 
 Limitation, one month, s. 551. 
 
 lOT. Every one who wlien arrested, either on a warrant issued against 
 him for an offence or while committing an offence, has ujion his person a jiistol 
 oraio-gun is guilty of an offence and liable on summary conviction before two 
 justices of the peace, to a penalty not exceeding fifty dollars and not less than 
 twenty dollars, or to imprisonment for any term not exceeding three months, 
 with or without hard labour. R. S. C. c. 148, s. 2. 
 
 Limitation, one month, s. 551. 
 
 Sees. 108-] 
 
 10§. 
 
 therewith 
 and liable, 
 penalty noi 
 impnsonmt 
 labaur. R 
 
 Limii 
 
 109. 
 
 firearm or i 
 liable, on su 
 exceeding or 
 for any term 
 c. 148, 8. 4. 
 
 Limiti 
 
 no. E 
 
 dirk, metal k 
 like charactei 
 the end, or se 
 being masked 
 pm, is guilt, 
 justices of the 
 ten dollars, an 
 not exceeding 
 
 Limitai 
 
 in. Eve] 
 who is found ii 
 liable, on sumn 
 ^ not exceeding 
 payment therec 
 or without hard 
 
 Limitati 
 The seci 
 repealed sec 
 of chapter 1 
 Improper U 
 pealed. 
 
 118- It is ,, 
 
 or volunteer in H 
 loaded pistols or 
 duty. R. s. C. c 
 
 The wordi 
 
 n 
 
Sees. 108-112] 
 
 CARRYING SHEATH-KNIVES. 
 
 67 
 
 108* Every one who has upon his person a pistol or air-gun, with intent 
 therewith unlawfully to do injury to any other person, is guilty of an offence 
 and liable, on summary conviction before two justices of the peace, to a 
 penalty not exceeding two hundred dollars and not less than^/<y ddlars, or to 
 imprisonment for any term n(jt exceeding six months, with or without hard 
 labour. R. S. C. c. 148, s. 3. 
 
 Limitation, one month, s. 551. 
 
 109* Every one who, without lawful excuse, points at another person any 
 firearm or air-gun, whether loaded or unloaded, is guilty of an offence and 
 liable, on summary conviction before two justices of the peace, to a penalty not 
 exceeding one hundred dollars and not less than <cn dollars, or to imprisonment 
 for any term not exceeding thirty days, with or tvithout hard labour. R. S. C.^ 
 c. 148, 8. 4. 
 
 Limitation, one month, s. 551. 
 
 llO« Every one who carries about his person any bowie-knife, dagger, 
 dirk, metal knuckles, skull cracker, slung shot, or other offensive weapon of a 
 like character, or secretly carries .about his person any instrument loaded at 
 the end, or sells or exposes for sale, pubiioly or privately, any such weapon, or 
 being masked or disguised carries or has in his possession any firearm or air- 
 gun, is guilty of an offence and liable, on summary conviction before two 
 justices of the peace, to a ix»nalty not exceeding fifty dollars, and not less than 
 ten dollars, and in default of payment thereof to imprisonment for any term 
 not exceeding thirty days, tvith or loithout hard labour. R. S. C. c. 148, s. 5. 
 
 Limitation, one month, s. 551. 
 
 Carrying Sheath-Knives in Seaports. 
 
 111. Every one, not being thereto required by his lawful trade or calling,, 
 who is found in ani/ tomi or city carrying about his perscm any sheath-knife is 
 liable, on summary conviction before two justices of the peace, to a i)enalty 
 not exceeding forty dollars and not less than ten dollars, and in default of 
 l)ayment thereof to imprisonment for any term not exceeding thirty days, with, 
 or without hard labour. R. S. C. c. 14S, s. 6. 
 
 Limitation, one month, s. 551. 
 
 The section does not only apply to seaports as the 
 repealed section did. The heading only does. Section 7 
 of chapter 148, Revised Statutes. "An Act respecting the 
 Improper Use of Firearms and other Weapons " is unre- 
 pealed. 
 
 Legal Carrying of Arms. 
 
 lis. It is not an offence for any soldier, public officer, peace officer, sailor 
 or volunteer in Her Majesty's service, constable or other policeman, to carry 
 loaded pistols or other usutd arms or offensive weapons in the discharge of his 
 duty. R. S. C. c. 148, s. 10. 
 
 The words in italics are new. 
 
 V 
 
68 
 
 EXPLOSIVE SUBSTANCES, ETC. 
 
 [Sees. 113-115 
 
 Refusal to Deliver Arms when attendiko a Public Mbetino. 
 
 iS ' 
 
 
 
 (: t 
 
 
 lis. Every one attending a public meeting or being on his way to 
 attend the same who, upon demand made by any justice of the peace within 
 whose jurisdiction such public meeting is appointed to be held, declines or 
 refuses to deliver up, peaceably and quietly, to such justice of the peace, any 
 offensive weapon with wliich he is armed or which he has in his possession, is 
 guilty of an indict.able offence. 
 
 2. The justice of the peace may record the refusal and adjudge the offender 
 to imy a jjenalty not exceeding eight dollars, or the offender ii- y be proceeded 
 against by indictment as in other cases of indictable offences. R. S. C. c. 152, 
 8. 1. 
 
 For a conviction under Indictment, the punishment 
 would be under section 951, post; limitation, one year, sec- 
 tion 551. Sections 1, 2, 3, chapter 152, " An Act respecting 
 the Preservation of Peace at Public Meetings," are un- 
 repealed. 
 
 Coming Armed near a Meeting. 
 
 114. Every one, except the sheriff, deputy sheriff and just ces of the 
 l>eace for the district or county, or the mayor, justices of the ijeace or other 
 peace officer for the city or town resjiectively, in which any public meeting 
 is held, and the constables and special constables employed by them, or any of 
 them, for the preservation of the public peace at such meeting, is guilty of an 
 indictable offence, and liable to a penalty not exceeding one hundred dollars, 
 or to imprisonment for a term not exceeding three months, or to both, who, 
 during any ji.art of the day upon which such meeting is appointed to be held, 
 comes within one mile of the place appointed for such meeting armed witli any 
 offensive weajjon. R. S. C. c. 152, s. 5. 
 
 Limitation, one year, section 551. "Offensive weapon" 
 defined, section 3. 
 
 An offender punishable by three months imprisonment 
 should be liable to conviction upon summary proceedings. 
 
 Lying in wait for Persons returning from Public Meeting. 
 
 115* Every one is guilty of an indictable offence and liable to a penalty 
 not exceeding two hundred dollars, or to imprisonment for a term not exceeding 
 six months, or to both, who lies in wait for any person returning, or expected 
 to return, from any such public meeting, with intent to commit an assault 
 upon such person, or with intent, by abusive language, opprobrious epithets 
 or other offensive demeanour, directed to, at or against such person, to provoke 
 such person, or those who accompany him, to a breach of the peace. R. S. C. 
 c. 152, s. 6. 
 
 Limitation, one year, section 551. Why is the offence 
 under this section indictable ? 
 
 Sees. 116-11 
 
 116.] 
 
 before two j 
 months' imp 
 place in the 
 
 . («) With 
 of the Lieutoi 
 permission, h 
 or with any p 
 (6) Havin 
 such arm or ai 
 same. 
 
 2. The exi 
 arms except sn 
 fixed ammunit 
 
 Section 
 ritories Act 
 
 As to sei 
 
 117. Ever 
 place in which t 
 J'ublic Works is 
 not exceeding fo 
 found in his poss 
 by which such J 
 under his care or 
 
 2. Everyone 
 one hundred doll; 
 defeating the saic 
 or procures to be 
 is at the time in 
 employed on or al 
 
 ***• Upon 
 force in any place 
 J'ublic WorJi;, and 
 no person shall, at 
 sell, barter, or dirt 
 exchange supply 
 have in possession 
 such way. 
 
 2. The provisi, 
 intoxicating liquor 
 a licensed distiller < 
 
 3. Everyone in 
 penalty of forty do] 
 
Sees. 116-118] 
 
 SALE OF ARMS. 
 
 Sale of Arms, North-West Tkrritoriks. 
 
 69 
 
 I10> Every one is guilty of an offence and liable, on stunmary conviction 
 before two justices of the peace, to a penalty of two hundred dollars or to six 
 months' imprisonment, or to both, who, during any time when and within any 
 place in the North- West Territories where section one hundred and one of 
 The North- West Territories Act is in force — 
 
 (a) Without the ijermission in writing (the proof of which shall be on him) 
 o^ the Lieutenant Governor, or of a commissioner appointed by him to give such 
 permission, has in his possession or sells, exchanges, trades, barters or gives to, 
 or with any person, any improved arm or ammunition ; or 
 
 (6) Having such jiermission sells, exchanges, trades, barters or gives any 
 such arm or ammunition to any person not lawfully authorized to possess the 
 same. 
 
 2. The expression "improved arm" in this section means and includes all 
 arms except smooth-bore shot-guns ; and the expression "ammunition" means 
 fixed ammunition or ball cartridge. R. S. C. c. .'50, s. 101. 
 
 Section 101, of chapter 50, R. S. C. the North West Ter- 
 ritories Act, is unrepealed. 
 
 As to search warrant, section 569. 
 
 Protection op Public Works. 
 
 IIT. Every one employed upon or about any public work, within any 
 place in which the Act respecting the Preservation of Peace in the vicinity of 
 Public Works is then in force, is liable, on summary conviction, to a penalty 
 not exceeding four dollars and not less than two dollars for every such we.ajwn 
 found in his possession who, upon or afner the day named in the proclamation 
 by which such Act is brought into focce, keeps or has in his possession, or 
 under his care or control, within any such place, any weapon. 
 
 2. Every one is liable, on summary conviction, to a i)enalty not exceeding 
 one hundred dollars and nc»t less than forty dollars, who, for the jnirpose of 
 defeating the said Act, receives or conceals, or aids in receiving or concealing, 
 or procures to be received or concealed within any place in which the said Act < 
 is at the time in force, any weaiKjn belonging to or in custody of any person 
 employed on or about any public work. R. S. C. c. 151, ss. 1, 5 & G. 
 
 llSa Upon and after the daj' named in any proclamation jjutting in 
 force in any place An Act reiipectimj the Preservation of Peace in the vicinity of 
 Public Works, .and during such period as sucIj proclamation remains in force, 
 no person shall, at any place within the limits specified in such proclamation, 
 sell, barter, or directly or indirectly, for any matter, thing, profit or reward 
 exchange supply or dispose of any intoxicating liquor nor expose, keep or 
 have in possession any intoxicating liquor intended to be dealt with in any 
 such way. 
 
 2. The provisions of this section do not extend to any person selling 
 intoxicating liquor by wholesale and not retailing the same, if such person is 
 a licensed distiller or brewer. 
 
 3. Every one is liable, on summary conviction, for a first offence, to a 
 penalty of forty dollars and costs, and, in default of payment, to imprisonment 
 
 iii; 
 
 f 
 
 ^ 
 
70 
 
 SEDITIOUS OFFENCES, ETC. 
 
 [Sees. 119, 120 
 
 Sec. 121] 
 
 for a term not exceeding three months, with or without hard labour,— and on 
 every subsequent conviction to the said penalty and the said imprisonment in 
 default of payment, and also to further imprisonment for a term not exceeding 
 six months, witli or without hard labour, who, by himself, his clerk, servant, 
 agent or other person, violates any of the provisions of this or of the preceding 
 section. 
 
 4. Every clerk, servant, agenn; or otiier jierson who, being, in the employ- 
 ment of, or on the premises of, another iierson, violates or assists in violating 
 any of the provisions of this or of the preceding section for the jwrson in 
 whose employment or on whose premises he is, is equally guilty with the 
 principal offender and liable to the same punishment. R. S. C. c. 151, ss. 1, 
 13, 14 & 15. 
 
 Chapter 151, Revised Statutes, "An Act respecting the 
 Preservation of Peace in the vicinity of Public Works," 
 is unrepealed. 
 
 CONVEYIXC :(JUOR, FTC, KTC, ETC., TO HkR MaJESTY's ShIPS. 
 
 1 10. Every one is guilty of an offence and liable, on summary conviction 
 before two justices of the jjeace, to a fine not exceeding fifty dollars for each 
 offence, and in default of payment to imprisonment for a term not exceeding 
 one month, with or without hard labour, who, without the previous consent of 
 the officer commanding the ship or vessel — 
 
 (rt) Conveys any intoxicating liquor on board any of Her Majesty's ships 
 or vessels ; or 
 
 {b) Approaches or hovers about any of Her Majestj-'s ships or vessels for 
 the purpose of conveying any such liquor on board thereof ; or 
 
 (c) Gives or sells to any man in Her Majesty's service, on board any such 
 ship or vessel, any intoxicating liquor. 50 51 V. c. 46, s. 1. 
 
 As to arrest without warrant of offenders against this 
 section by any officer, see section 552, sub-section 6 ; as to 
 search for liquor and seizure by such officer, section 573. 
 
 PART VII. 
 SEDITIOUS OFFENCES.— UNLAWFUL OATHS. 
 
 Oaths to Commit Certain Offences. (New). 
 
 130. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who — 
 
 {o.) Administers, or is present at and consenting to the administration of, 
 any oath or any engagement purporting to bind the jjerson taking the same 
 
 to commit any 
 years ; or 
 
 (b) Attemi 
 engagement ; ( 
 
 (c) Takes c 
 
 Not tria 
 
 This ent 
 ter 10 of th 
 5, 6, 7, 8 & 
 
 lai. Ever 
 imprisonment w 
 
 (a) Adminis 
 oath or engagem 
 
 (i)To, 
 
 (ii) Tod 
 offence ; 
 
 (iii) Not 
 or other pers 
 
 (iv) Not 
 or any illegal 
 engagement v 
 any person, or 
 
 (b) Attempts 
 engagement ; or 
 
 (c) Takes any 
 c. 123 (Imp,). 
 
 Not triabL 
 R. V. Love 
 
 Indictmen 
 
 present, that , 
 
 year of our L 
 
 cause to be a( 
 
 engagement, p 
 
 said C. D., no 
 
 associate, confc 
 
 certain unlawf 
 
 and which sai( 
 
 the said C. D. 
 
Sec. 121] 
 
 OTHER OATHS. 
 
 71 
 
 to commit any crime punishable by death or imprisonment for more than five 
 years ; or 
 
 (b) Attempts to induce or compel any person to take any such oath or 
 ongagement ; or 
 
 (c) Takes any such oath or engagement. 52 Geo. III. c. 104 (Imp.). 
 
 Not triable at quarter sessions, section 510. 
 
 This enactment and the two next arr- taken from chap- 
 ter 10 of the Cons. Stat, of Lower Canada, of which sections 
 5, 6, 7, 8 & 9 remain unrepealed. 
 
 Other Unlawful Oaths. (Acio). 
 
 l*il. Every one is guilty of an indictable offence and liable to seven years' 
 imprisonment who — 
 
 (a) Administers or is present at and consenting to the administration of any 
 oath or engagement purporting to bind the person taking the same : 
 
 (i) To engage in any mutinous or seditious purpose ; 
 
 (ii) To disturb the public peace or commit or endeavour to commit any 
 offence ; 
 
 (iii) Not to inform and give evidence against any associate, confederate 
 or other person ; 
 
 (iv) Not to reveal or discover any unlawful combination or confederacy, 
 or any illegal act done or to be done or any illegal oath or obligation or 
 engagement which may have been administered or tendered to or taken by 
 any person, or the import of any such oath or obligation or engagement ; "or 
 
 (b) Attempts to induce or compel any person to take any such oath or 
 engagement ; or 
 
 (c) Takes any such oath or engagement : C. S. L. C. c. 10, s. 1. 37 Geo. III. 
 c. 123 (Imp.). 
 
 Not triable at quarter sessions, section 540. 
 
 R V. Lovelass, 6 C. & P. 596. 
 
 Indictment. — The jurors for our Lady the Queen, 
 present, that A. B. on the day of , in the 
 
 year of our Lord , did unlawfully administer and 
 
 cause to be administered to one C. D. a certain oath and 
 engagement, purporting, and then intended, to bind the 
 said C. D., not to inform or give evidence against any 
 associate, confederate, or other peraon of or belonging to a 
 certain unlawful association and confedei'acy, to wit 
 and which said oath and engagement was then taken by 
 the said C. D. 
 
 
 
 Si '.I 
 ' u ■ 
 
 
... 
 
 7t 
 
 SEDITIOUS OFFENCES, ETC. 
 
 [fiecs. 122, 123 
 
 INDICTMENT FOR TAKING AN UNLAWFUL OATH. 
 Commence as ante] — did unlawfully take a certain oath 
 and engagement, purporting [&c., as in the last precedent] : 
 he, the said C. D., not being th'^n compelled to take the 
 said oath and engagement. 
 
 Compulsion. (New). 
 
 193« Any one who, under Huoh'compulsion as would otherwise excuse 
 him, ofifends against either of the last two preceding sections shall not 1^ 
 excused thereby unless, within the period hereinafter mentioned, he de<jlares 
 the same and what he knows touching tlie same, and the persons by whom and 
 in whose presence, and when and where, such oath or obligation or engagement 
 was administered or taken, by information on oath before one of Her Majesty's 
 justices of the peace for the district or city or county in which such oath or 
 engagement was administered or taken. 8uch declaration may be made by 
 him within fourteen days after the taking of the oatii or, if he is hinden^d from 
 making it by actual force or sickness, then within eight days of the cessation 
 of such hindrance, or on his trial if it happens before the expiration of either of 
 those periods. C. S. L. C. c. 10, s. 2. 
 
 52 Geo. III. c. 104 ; 37 Geo. III. c. 123, (Imp.). 
 
 SKDiTioua Offences Defined. (New). 
 
 1 33» No one shall be deemed to'have a steditious intention only because 
 he intends in good faith — 
 
 (a) To show that Her Majesty has been misled or mistaken in her mea- 
 sures ; or 
 
 (b) To point out errors or defects in'the government or constitution of the 
 Uni ted Kingdom, or of any part of it, or of Canada oi nny province thereof, or in 
 either House of Parliament of the United Kingdom or of Canada, or in any 
 legislature, or in the administration of justice ; or to excite Her Majesty's 
 subjects to atteuipt to procure, by lawful means, the alteration of any matter 
 in the state ; or 
 
 (c) To point out, in order to their removal, matters which are producing or 
 have a tendency to produce feelings of hatred and ill-will between different 
 classes of her Majesty's subjects. 
 
 2. Seditious words are words expressive of a seditious intention. 
 
 3. A seditious libel is a libel expressive of a seditious intention. 
 
 4. A seditious conspiracy is an agreement between two or more iJersons to 
 carry into execution a seditious intention. 
 
 •' This section appears to us to state accurately the existing 
 law. On this very delicate subject, we do not undertake to sug- 
 gest any alteration of the law." — Imp. Comm. Rep. 
 
 R. V. Frost, 22 St. Tr. 471 ; R v. Winterbotham, 22 St. 
 Tr. 823; R. v. Binns, 26 St. Tr. 595; O'Connell v. R., 11 
 
 Sees. 124-126] 
 
 CI. & F. 15 
 Pigott, 11 C 
 
 The trut 
 
 pleaded as a 
 
 L. R. 829; R 
 
 15 Cox, 180 
 
 section 170,j 
 
 194. Everj 
 imprisonment wl 
 or is n party to a 
 
 Fine or s 
 sessions, secti 
 libel, the wor 
 under precedi 
 
 I 
 
 19.5, Every ( 
 imprisonment who 
 degrade, revile or t 
 of any foreign stab 
 any such state. 
 
 Not triabl( 
 
 need not be se< 
 
 1 W. Bl. 517; ; 
 
 Gas. Cr. L. 3; 
 
 Warb. Lead, a 
 
 244, per CoIeri( 
 
 the punishnien 
 
 and friendship 
 
 foreign state v 
 
 appear to be ne( 
 
 Jaw : Stephen, C 
 
 126 P] very one 
 imprisonment who w 
 whereby injury or mil 
 
 Not triable i 
 sureties for the p 
 
Seo8. 124-12G] 
 
 PUNISHMENT. 
 
 73 
 
 CI. & F. 155, 234 ; R. v. Vincent, 9 C. & P. 91 ; R. v. 
 Pigott, 11 Cox, 44 ; R. v. Burns. 16 Cox, 355. 
 
 The truth of a seditious or blasphemous libel cannot be 
 pleaded as a defence to an indictment : R. v. Duffy, 9 Ir. 
 L. R. 329 ; R. v. Bradlaugh, 15 Cox, 217 ; Ex parte O'Brien, 
 15 Cox, 180 ; R. v. Ramsay, 15 Cox, 231 ; see note under 
 section 170, pout. 
 
 Punishment. (New). 
 
 194* Every one i^ fruilty of an indictable offence and liable to two yeaN' 
 impriBonment who siieaks any seditious words or publishes any seditious libel 
 or is n. party to any seditious conspiracy. 
 
 Fine or sureties, section 958. Not triable at quarter 
 sessions, section 540. On an indictment for a seditious 
 libel, the words need not be set out, section 615 ; see note 
 under preceding section. 
 
 Libels on Foreion Sovereigns. (New). 
 
 19.1. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who, without lawful justification, publishes any libel tending to 
 degrade, revile or expose to hatred and contempt in the estin.ation of the people 
 of any foreign state, any prince or person exercising sovereign authority over 
 any such state. 
 
 Not triable at quarter sessions, section 540. Words 
 need not be set out in indictment, section 615 ; R. v. D'Eon, 
 1 W. Bl. 517 ; R. V. Peltier, 28 St. Tr. 529 ; Shirley's Lead. 
 Cas. Cr. L. 3 ; R. v. Gordon, 1 Russ. 351 ; R. v. Bernard, 
 Warb. Lead. Cas. 45 ; R. v. Most, 14 Cox, 583, 7 Q. B. D. 
 244, per Coleridge, C.J. Fine, in lieu of, or in addition to 
 the punishment, section 958. The intent to disturb peace 
 and friendship between the United Kingdom and the 
 foreign state whose sovereign has been libelled would 
 appear to be necessary to constitute thi: offence at common 
 law : Stephen, Cr. L. 99. 
 
 False News. (New). 
 
 186. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who wilfully and knowingly publisher any false news or tale 
 whereby injury or mischief is or is likely to be occasioned to any public interest. 
 
 Not triable at quarter sessions, section 540. Fine and 
 
 sureties for the peace, section 958. 
 
 f 
 
i\l 
 
 Ik 
 
 74 
 
 SEDITIOUS OFFENCES, ETC. 
 
 • [Sec. 127 
 
 fk 'f' r 
 
 The 3 Edw. I. c. 34, and 2 Ric. II. c. 25 (now repealed 
 by 50 & 51 V. c. 59), enact that none be so hardy to tell or 
 publish any false news or tales, whereby discord or 
 occasion of discord or slander, may grow between the 
 King and his people, and the great men of the realm. 
 In Chitty's Crim. Law, vol. 2, 527, is a form of indict- 
 ment for spreading false rumours in order to enhance the 
 price of hops. " It is said to have been resolved by all the 
 Judges that all writers of false news are indictable and 
 punishable ; and probably at this day the fabrication of 
 news likely to produce any public detriment would be con- 
 sidered as criminal " : Starkie on Libel, 546, 1st edition. 
 What would constitute a " publishing " under the above 
 section is not clear. In Chitty's form above cited, the 
 publishing is not by writing. The 3 Edw. I. c. 34, 
 has the words " tell or publish." A publication may be 
 oral or written : 2 Starkie, Libel, 141. 
 
 PART VIII, 
 
 Piracy. (New). 
 1*J7« Every one is guilty of an indictable offence who does any act which 
 amounts to piracy by the law of nations, and is liable to the following punish- 
 ment : — 
 
 {a) To death, if in committing or attempting to commit such crime the 
 offender murders, attempts to murder or v/ounds any person, or does any act 
 by which the life of any person is likely kj be endangered ; 
 
 (I/) To imprisonment for life in all other cases. 
 
 " We have thought it better to leave this offence undefined, 
 as no definition of it would be Siitisfactory which is not recog- 
 nized as such by other nations ; and, after careful consideration 
 of the subject, we have not been able to discover a definition 
 fulfilling such a condition. We may observe as to this that the 
 subject has been much discussed in the courts of the United 
 
 Sees. 128, 129] 
 
 States, and t 
 
 have adopted. 
 
 See Step 
 
 sessions, sect 
 
 I38« Ever} 
 
 ment for life wh 
 
 or who, havmg d 
 
 witiiin Canada w 
 
 (ff) Being a I 
 
 diction of the Ad 
 
 any foreign prince 
 
 Majesty or not, or 
 
 commits any act 
 
 during any war i.. 
 
 enemies ; 
 
 (i) Whether a 
 
 jurisdiction of tlie 
 
 throws overboards 
 
 or laden on board . 
 
 ('■) Being on bo 
 
 jurisdiction of the 
 
 (i) Turns 
 
 any boat, ordna 
 
 (ii) Yields t 
 
 (iii) Brings 
 
 (iv) Counsel 
 
 «1"P. goods or m 
 
 (v) Lay violi 
 
 prevent him fron 
 
 (vi) Confines 
 
 (vii) Makes ( 
 
 i'l) Being a Briti 
 
 ■subject or not) l)eing 
 
 British ship, knowing 
 
 (i) Furnishes 
 
 (ii) Fits out f 
 
 or corresiK)nd -vitl 
 
 (lii) Conspires 
 
 See under pre 
 
 ■ «1I. Every one 
 death who, in committi 
 ^"th intent to mui-dei 
 endanger the life of anj 
 
 See annotation 
 
 t; 
 
Sees. 128, 129] 
 
 PIRATICAL ACTS. 
 
 76 
 
 States, and the result appears to justify the course which we 
 have adopted." — Imp. Comm. Rep. 
 
 See Stephen's, Cr. L. 104. Not triable at quarter 
 sessions, section 540. 
 
 Piratical Acts. {New). 
 
 I38« Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who, witiiin Canada, does any of tlie following piratical acts, 
 or who, having done any of the following piratical acts, comes or is brought 
 witliin Ciinada without having been tried therefor: — 
 
 {a) Being a British subjc^ct, on the sea, or in any place within the juris- 
 diction of the Admiralty of England, under colour of any commission from 
 any foreign prince or state, whether such prince or state is at war with Her 
 Majesty or not, or under pretense of authority from any person whomsoever 
 commits any act of hostility or robbery against other British subjects, or 
 during any war is in any way adherent to or gives aid to Her Majesty's 
 enemies ; 
 
 (b) Whetiier a British subject or not, on the sea or in any place within the 
 jurisdiction of the Admiralty of England, enters into any British ship, and 
 throws overboards or destroys any part of the goods belonging to such ship, 
 or laden on board the same ; 
 
 (c) Being on board any British ship on the sea or in any place within the 
 jurisdiction of the Admiralty of England— 
 
 (i) Turns enemy or rebel, and i>iratically runs away with the shi>% or 
 any boat, ordnance, ammunition or goods ; 
 
 (ii) Yields thtm up voluntarily to any pirate ; 
 
 (iii) Bring.s any seducing message from any pirate, enrmy or rebel ; 
 
 (iv) Counsels or procures any iiersons to yield up or rua away with any 
 ship, go'-ds or merchandise, or to turn pirates or to go over to pirates ; 
 
 (v) Lay violent liands on the commander of any such ship in order to 
 prevent him from fighting in defence of his ship and goods ; 
 
 (vi) Confines the master or commander of any such ship ; 
 
 (vii) Makes or endeavours to make a revolt in the ship ; or 
 {(l) Being a British subject in any part of the world, or (whether a British 
 8uV)ject or not) being in any part of Her Majesty's dominions or on board a 
 British ship, knowingly — 
 
 (i) Furnishes any pirate with any ammunition or stores of any kind ; 
 
 (ii) Fits out any ship or vessel with a design to trade with or supply 
 or corresiKnid -.vitlj any ))irate ; 
 
 (iii) Conspires or corresixjiids with any pirate. 
 
 See under preceding section. 
 
 PUNISHMKNT. (Ncw). 
 
 ISO. Every one is guilty of an indictable offence and liable to suffer 
 death who, iii committing or attempting to commit any piratical act, assaults 
 with intent to mui-der, or wounds, any iwrson, or does any act likely to 
 indiuiger the life of any person. 
 
 See annotation under section 127. 
 
 ;i. 1 
 
 '■.'': \: 
 
 
76 
 
 1^1 
 
 li 1 
 
 I ■ -I 
 
 
 SEDITIOUS OFFENCES, ETC. 
 
 [Sec. 130 
 
 Not Fighting Pirates. (Neio). 
 
 130« Every one ia guilty of an indictable ofiFence and liable to six 
 months' imprisonment, and to forfeit to the owner of the ship all wages then 
 due to him, who, being a master, officer or seaman of any merchant ship which 
 carries guns and arms, does not, when attacked by any pirate, fight and 
 endeavour to defend himself and his vessel from being taken by such pirate, 
 or who discourages others from defending the ship, if by reason thereof the 
 ship falls into the hands of such pirate : 8 Geo. I. c. 24, s. 6, (Imp.). 
 
 Not triable at quarter sessions, section 540; fine or 
 sureties, section 958. 
 
 Sees. 131-132] 
 
 OFFENCEl 
 
 COKRUPT 
 
 B3I. Ever 
 
 yedfs' imprisonn 
 
 («) Holding 
 
 legislature, corn 
 
 obtain for himse 
 
 office, place, or e 
 
 or to be af terwan 
 
 capacity as such ] 
 
 (*) Corruptly 
 
 such bribe as afoi 
 
 Not triabl 
 
 ment for ju( 
 
 Attorney-Gen 
 
 misderneanoui 
 
 " In a gene: 
 
 right to include 
 
 of the kind has 
 
 Bacon and Lor 
 
 on the subject s 
 
 CORRIJI 
 
 133« P^very o 
 
 yeare' imprisoninen 
 
 in) Being a just 
 
 in any capacity for i 
 
 corruptly accepts or 
 
 self, or for any otliei 
 
 or employment, wit! 
 
 tration of justice, or 
 
 protect from detectic 
 
 I'lg to commit any ct 
 
 (!>) Corruptly giv 
 
 as aforesaid with any 
 

 
 
 
 
 * 
 
 i/h ■ 
 
 Seo8. 131.132] 
 
 CORRUPTION OF JUDGES, 
 
 ETC. 
 
 77 
 
 '4 
 
 * 
 
 - 
 
 • 
 
 
 
 1 ". ' 
 
 
 ^^ TTI t:< TTI -VT />< T7< C 
 
 TITLE III. 
 
 k n k T-VTCirn mTTTT" a tmh-ti 
 
 kTTornn A m- 
 
 r/~VlVT /-\T7' 
 
 
 •J 
 ■ ■ J 
 
 j 
 
 I 
 
 LAW AND JUSTICE. 
 
 PART IX. 
 CORRUPTION AND DISOBEDIENCE. 
 
 Corruption of Judges or Members of Parliajient. (Xew). 
 
 131. Everyone is guilty of an indictable offence and liable to fourteen 
 yedfs' imprisonment who — 
 
 (a) Holding any judicial office, or being a member of Parliament or of a, 
 legislature, corruptly accepts or obtains, or agrees to accept, or attempt.s to 
 obtain for himself or any other person, any money or valuable consideration, 
 office, place, or employment on account of anything already done or omitted, 
 or to be afterwards done or omitted, by him in his judicial capacity, or in his 
 capacity as such member ; or 
 
 (i) Corruptly gives or offers to any such j^erson, or to any other person, any 
 such bribe as aforesaid on account of any such act or omission. 
 
 Not triable at quarter sessions, section 540 ; no indict- 
 ment for judicial corruption without the leave of the 
 Attorney-General of Canada, section 544 ; a common law 
 misdemeanour : see R. v. Bunting, 7 O. R. 524. 
 
 " In a general code of the criminal law wc i.a,ve thought it 
 right to include the offence of judicial corrupton. As no case 
 of the kind has occurred (if we except the p.-osecutions of Lord 
 Bacon and Lord Macclesfield) it is not surprising tlip ' the law 
 on the subject should be somewhat vagr.-, --Imp Coram. Rep. 
 
 Corruption of Peace Officers, Etc., Etc. {Xeiv). 
 
 133> Every one is guilty of an indictable offence and liable to fourteen 
 yeai-s' imprisonment who — 
 
 {ft) Being a justice of the peace, peace officer, or public officer, eni ployed 
 in any capacity for the prosecutjpn or detection or piuiishment of offenders, 
 corruptly accepts or obtains, or agrees to accept or attempts to obtain for him- 
 self, or for any otlier jierson, any money or valuable consideration, office, place 
 or employment, with the intent to interfere corruptly with the due adminia 
 tration of justice, or to procure or facilitate tlie commission of any crime, or to 
 protect from detection or punishment any person having committed or intend- 
 ing to commit any crime ; or 
 
 {b) Corruptly gives or oflFers to any such officer as aforesaid any such bribe 
 as aforesaid with any such intent. 
 
 
78 
 
 OFFENCES AGAINST PUBLIC ORDER. 
 
 [Sec. 133 
 
 " Peace officer " defined, section 3. Not triable at quar- 
 ter sessions, section 540 ; a common law misdemeanour ; 
 form of indictment for attempt to bribe a constable : 
 Archbold, 869. 
 
 Frauds upon the Government. 
 
 133« Every one is giiilty of an indictable otfence and liable to a fine of 
 not less than one hundred dollars, find not exceeding one thousand dollars, 
 and to imprisonment for a term not exceeding one year and not less than one 
 month, and in default of payment of such fine to imprisonment for a further 
 time not exceeding six months who — 
 
 (a) Makes any offer, proposal, gift, loan or promise, or who gives or offers 
 any compensation or consideratic;n, directly or indirectly, to any oflficiql or 
 person in the emiiloyment of the Government, or to any member of his family, 
 or to any person under his control, or for his benefit, with intent to obtain the 
 assistance or influence of such oificial or person to promote either the procuring 
 of any contract with tlie Government, for the performance of any work, the 
 doing of any thing, or the furnishing of any goods, effects, food or materials, 
 the execution of any such contract, or the payment of the price, or considera- 
 tion stipulated tlierein, or any part thereof, or of any aid or subsidy, payable 
 in respect thereof ; or 
 
 (h) Being an official or person in tlie employment of the Government, 
 directly or indirectly, accepts or agrees to accept, or allows to be accepted by 
 any jjerson under his control, or for his benefit, any such offer, proposal, gift, 
 loan, promise, compensation or consideration ; or 
 
 (c) In the case of tenders being called for by or on behalf of the Govern- 
 ment, for the performance of any work, the doing of any thing, or the 
 ftmiishing of any goods, effects, food ot materials, directly or indirectly, by 
 himself or by the agency of any other person on his behalf, with intent to 
 (jbtain the contract therefor, either for himself or for any other jierson, pr(i[X)ses 
 to make, or makes, any gift, loan, offer or promise, or offers or gives any con- 
 sideration or compensation wliatsoever to any person tendering for such work 
 or other service, or to any member of his family, or otlic-r person for his benefit, 
 to induce such person to witlidraw his tender for such work or other service, or 
 to compensate or reward him for having withdrawn sucli tender ; or 
 
 ((/) In case of so tendering, accepts or receives, directly or indirectly, (ir 
 permits or allows to be accepted or received by any member of his family, oi 
 by any other person under his ccmtrol, or for his benefit, any such gift, loan, 
 offer, promise, consideration or compensation, as a consideration or reward for 
 withdrawing or for having withdrawn such tAuler ; or 
 
 (t) Being an official or employee of the (Jovernment, receives, directly or 
 indirectly, whether personally, or by or tlirorgh any member of his family, or 
 person under his control, or for his Ueisefit, any gift, loan, promise, compeiisa- 
 titm or consideration wliatsoever, either in money or otherwise, from any pers(jii 
 whomsoever, for assisting or favouring any individual in the transactimi of 
 any business wliatsoever witli the Goveru'iient, or who gives or offers any such 
 gift, loan, promise, compensation or consideration ; or 
 
 Sec. 133] 
 
 {/) By re, 
 
 Government, 
 
 receives from i 
 
 the Governme 
 
 procuring or fi 
 
 any office, plac 
 
 for himself or 
 
 Government; ( 
 
 stances and foi 
 
 fee or reward ; 
 
 (.'/) Having 
 
 nient thereof, | 
 
 after such deal; 
 
 the department 
 
 pennission siiall 
 
 matter or thing 
 
 member of the i 
 
 contrf)], or for hi 
 
 W Being ai 
 
 receives, from su 
 
 any otiier jjerson 
 
 or any person un( 
 
 (i) Any s 
 
 (if) With 
 
 in writing of 
 
 been had, th( 
 
 receives any ,s 
 
 {') Having an 
 
 w.)rk, the doing of 
 
 niaterials, and ha' 
 
 Government by re, 
 
 self or by any per.s 
 
 tosubscrii., f„rni> 
 
 purpose of promoti 
 
 party of candidates 
 
 way of iiiHueiieing , 
 
 2. If th.. value 
 
 "used, received or 
 
 'lollars, the offender 
 
 vahie. 
 
 •5. 1 he words " 
 "f Canada and the i 
 •Majesty in the right 
 5^'-53V.c.<i!»(rmp.) 
 
 ^'ofc triable 
 t^vo years, secti 
 certain curses, 8e< 
 
Sec. 133] 
 
 FRAUDS UPON THE GOVERNMENT. 
 
 79 
 
 (/) By reason of, or under the pretense of, possessing influence with the 
 Government, or with any Minister or official thereof, demands, exacts or 
 receives from any person, any compensation, fee or reward, for procuring from 
 the Government the payment of any claim, or of any portion thereof, or for 
 procuring or furthering the appointment of himself, oi t)f any other person, to 
 any office, place or employment, or for procuring or furthering the obtaining 
 for himself or any other person, of any grant, lease or other benefit from the 
 Government ; or offers, promises or pays to such jjerson, under the circum- 
 stances and for the causes aforesaid, or any of them, any such compensation, 
 fee or reward ; or • 
 
 (;/) Having dealings of any kind with the Government through any depart- 
 ment thereof, pays any commission or reward, or within one year before or 
 after such dfsalings, without the express permission in writing of the head of 
 the dej)artment with which such dealings have been had, the proof of which 
 permission siiall lie upon him, makes any gift, loan, or promise of any money, 
 matter or thing, to any emi>loyee or official of the (government, or to any 
 member of the family of such employee or official, or to any person under his 
 control, or for his benefit ; or 
 
 (/() Being an employee or official of the Government, demands, exacts or 
 receives, from such person, directly or indirectly, by himself, or by or thi'ough 
 liny other ixTscm for his benefit, or permits or allows any member of his family, 
 or any pei'son under his control, to accept or receive — 
 
 (i) Any such commission or reward ; or 
 
 (ii) Within the '^aid pericnl of one year, without the express permission 
 in writing of the head of the dejiartment with which such dealings have 
 been had, the proof of which permission shall lie upon him, accepts or 
 receives any such gift, loan or promise ; or 
 
 ((■) Having any cimtract with the (jroverument for the jHTformance of any 
 work, the doing of auyt'iing, (n- the furnishing of any gixids, effects, food or 
 materials, and having (ir exi>ectiiig to have any claim or demand against the 
 Government by reason of sucli contract, either directly or indirectly, by him- 
 self or by any person on his behalf, subscribes, furnishes or gives, or promises 
 to subscrii ■ , furnish or give, any money or other valuable consideration fm- the 
 purpose of promoting the election of any candidate, or of any number, class or 
 l)arty of candidati's to a legislature or to Parliament, or with the intent in any 
 way of iuHueucing or affecting the result of a provincial or Dominion ek'ction. 
 
 2. If the value of tlie amount or thing paid, offered, given, loaned, pro- 
 mised, received or subscribed, as the case may be, exceeds one thousand 
 dollars, the offender under this section is liable to any fine not exceeding such 
 viilue. 
 
 ;!. 1 lie words " the Government " in this section include the Government 
 of Canada and tiie CJovernment of any province of Cana^la, as well as Her 
 Majesty in the riglit of Canada or of any province thereof. 54-55 V. c. 2;i, s. 1 ; 
 52-53 V. c. till (Imp.). 
 
 Not triable at quarter sessions, section 540 ; limitation, 
 two years, section 551. As to indictments for frauds in 
 certain cases, section GIG. 
 
 i^lf 
 
 ■t ; 
 
80 
 
 OFFENCES AGAINST PUBLIC ORDER. [Sees. 134, 135 
 
 
 Consequences of a Convictiok. 
 
 IS'l* Every person convicted of an offence under the next preceding 
 section shall be incapable of contracting with the Government, or of holding 
 any contract or office with, from, or under it, or of receiving any benefit under 
 any such contract. R. S. C, c. 173, ss. 22, 23 ; 54-55 V. c. 23, s. 2. 
 
 Breach of Trust by Public Officer. {N'e^v). 
 
 13>S> Every public officer is guilty of an indictable offence and liable to 
 five years' imprisonment who, in the discharge of the duties of his office, com- 
 mits luiy fraud or breach of trust affecting the public, whether such fraud or 
 breach of trust would have been criminal or not if committed against a private 
 person. 
 
 Not triable at quarter sessions, section 540 ; fine or 
 sureties, section 958. 
 
 " A. an accountant in the office of the pay jn aster-gen- 
 eral, fraudulently' omits to make certain entries in his 
 accounts, whereby he enables the cashier to retain large 
 sums of money in hit own possession, and to appropriate 
 the interest on such sums to himself after the time wlien 
 they ought to have been paid to the Crown. A. commits a 
 misdemeanour. 2. A., a commissary-general of stores in tiie 
 West Indies, makes contracts with B. to supply stores on 
 the condition that B. should divide the profits with A. A. 
 commits a misdemeanour." — Stephen's Cr. L. 121. 
 
 No such enactment is to be found in the Imperial 
 Draft Code of 1879, nor in the bill of 1880, though, by the 
 latter, it was proposed to supersede the whole of the com- 
 mon law. And that it was so left out intentionall}' is 
 evident from the fact that it was provided for in the bdl 
 of 1879, s. 71, drafted by Sir James Stephens, who took it 
 from his ri.' 'est. Vrt. 121, from which it has been re-pro- 
 duced verba' im in this code 
 
 The de' udant, a government officer, having charge of 
 some public dredging, used his own steam-yacht for tlie 
 purpose of towing the government's dredges, and also used 
 a storehouse of his OAvn for the purpose of stowing govern- 
 ment stores. I'he steam yacht was registered in the name 
 of one of the defendant's friends, in whose name the 
 accounts for the towing were made out and rendered. 
 
 Sec. 136] c 
 
 The accouni 
 in the nam 
 defendant, 
 under s. 42, 
 received th( 
 charged for 
 were not hi 
 had to pay 
 services; alsc 
 were infornK 
 interpose to 
 the defendai 
 R- V. Arnoldi, 
 the report of 
 
 '36t Every c 
 
 exceeding one thot 
 
 imprisonment for a 
 
 and in default of p? 
 
 exceeding six mont 
 
 («) Makes any 
 
 give any money o 
 
 member of a muni 
 
 advantage or to the 
 
 such member either 
 
 council of which he 
 
 council, in favour ol 
 
 submitted to such co 
 
 (*) Makes any o 
 
 give any money ," 
 
 member or to any offi 
 
 to aid in procuring oi 
 
 any contract or advar 
 
 ('■) Makes any of] 
 
 give anf money or otl 
 
 of a municiia] council 
 
 fn)m perforaiiig, or 
 
 any officia' act ; or 
 
 ('0 B( ing a memb 
 accept any such offer, 
 or consideration as is 
 thereof, votes or absta 
 motion, resolution or q 
 official act ; or 
 
 Crim. Law--( 
 
I I 
 
 '^ 
 
 Sec. 136] CORRUPTION IN MUNICIPAL AFFAIRS. 
 
 81 
 
 The accounts for the storage were sent to the government 
 in the name of another friend of the defendant. The 
 defendant, whose duty it was to audit these accounts, 
 under s. 42, c. 29, R. S. C, certified them as correct, and 
 received the amounts. It was proved that the services 
 sjharged for were rendered, and that the prices charged 
 were not higher than what the government would have 
 had to pay to any other person performing the same 
 services ; also that some of the defendant's superior officers 
 were informed of his doings in the matter and did not 
 interpose to stop them. Held, upon a reserved case, that 
 the defendant was guilty of misbehaviour in office : 
 R. V. Arnoldi, 23 O. R. 201. See a form of indictment in 
 the report of that case. 
 
 Corruption in Municipal Affairs. 
 
 1 3©f Every one is guilty of an indictable offence and liable to a fine not 
 exceeding one thousand dollars and not less than one hundred dollars, and to 
 imprisonment for a term not exceeding two years and not less than one month, 
 and in default of payment of such fine to imprisonment for a further term not 
 exceeding six months, who directly or indirectly, — 
 
 (rt) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
 give any money or ether material comjiensation or consideration to any 
 member of a irmnicipul council, whether the same is to inure to his own 
 advantage or to the advantage of any other person, for the purpose of inducing 
 such member either to vo'e or to abstain from voting, at any meeting of the 
 council of which he is a member or at any meeting of a conmiittee of such 
 council, in favour of or against any measure, motion, resolution or question 
 submitted to such council or committee ; or 
 
 {!>) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
 give any money ^" other material compensation or consideration to any 
 member or to any officer of a municipal council for the purpose of inducing him 
 to aid in procuring or preventing the passing of any vote or the granting of 
 any contract or advantage in favour of any person ; or 
 
 (c) Makes any offer, proposal, gift, loan, promise or agreement to pay or 
 give anj^ money or other material compensation or consideration to any officer 
 of a municiia) council for the purpose of inducing him to perform or abstain 
 from perforaing, or to aid in procuring or preventing the performance of, 
 any officia' act ; or 
 
 (d) Bt ing a member or officer of a municipal council, accepts or consents to 
 acc('i)t oiiy such offer, projwsal, gift, loan, promise, agreement, comijensation 
 or consideration as is in thia section before mentioned ; or in oonsideratlon 
 thereof, votes or abstains from voting in favour of or against any measure, 
 motion, resolution or question, or performs or abstains from pertonning any 
 official act ; or 
 
 Grim. Law — 6 
 
 .1 i 
 
82 
 
 OFFENCES AGAINST PUBLIC ORDER. 
 
 [Sec. 137 
 
 (e) Attempts by any threat, deceit, suppression of the truth or other 
 unlawful means to influence any member of a municipal council in giving or 
 withholding his vote in favour of or against any measure, motion, resolution or 
 question, or in not attending any meeting of the municipal council of which he 
 is a member, or of any committee thereof ; or 
 
 (/) Attempts by any such means as in the next preceding paragraph men- 
 tioned to influence any member f)r any officer of a municipal council to aid in 
 procuring or preventing the passing of any vote or the granting of any contract 
 or advantage in favour of any person, or to perform or abstain from performing,, 
 or to aid in procuring or preventing the performance of, any official act : 52 V. 
 c. 42, 8. 2. 
 
 Not triable at quarter sessions, section 540 ; limitation^ 
 two years, section 551; see R. v. Lancaster, 16 Cox, 
 737 ; K V. Hogg, 15 U. C. Q. B. 142. 
 
 Selling Office, Appointjient, Etc., LiC, (New). 
 
 IS?* Every one is guilty of an indictable offence who, directly or indi- 
 rectly — 
 
 (a) Sells or agrees to sell any appointment to, or resignation of any office, 
 or any consent to any such appointment or resignation, or receives, or agrees to 
 receive, any reward or profit from the sale thereof ; or 
 
 (6) Purchases or gives any reward or profit for the purchase of any such 
 appointment, resignation or consent, or agrees or promises to do so. 
 
 Every one who commits any such offence as aforesai(?, in addition to any 
 other penalty thereby incurred, forfeits anj- right which he may have in the 
 office and is disabled for life from holding the 2ame. 
 
 2 Every one is guilty of an indictable offence who, directly or indirectly — 
 
 («) Receives or agrees to receive any reward or profit for any interest, 
 
 request or negotiation about any office, or under pretense of using any such 
 
 interest, malcing any such request or being concerned in any such negotiation ; 
 
 or 
 
 (6) Gives or procures to be given any profit or reward, or makes or procures 
 
 to be made any agreement^for the giving of any profit or reward, for any such 
 
 interest, request or negotiatitni as aforesaid ; i )r 
 
 (c) Solicits, recommends or negotiates in any manner as to any appointment 
 to or resignation of any office in expectation (jf any reward or profit ; or 
 
 {d) Keeps any office or place for transacting or negotiating any business 
 relating to vacancies in, or the sale or purchase of, or appointmient to or 
 resignation of offices. 
 
 The word "office "in this section includes every office in the gift of tiie 
 Crown or of any officer appointed by the Crown, and all commissions, civil, 
 naval and military, and all places'or employments in any public department or 
 office whatever, and all deputations to any such office and every participation 
 in the profits of any office or deputation. 
 
 Common law misdemeanour, 3 Chit. 681. The offence 
 is not triable at quarter sessions, section 540 ; punishment 
 under s. 951. 
 
Sees. 138142] DISOBEDIENCE TO STATUTE LAW. 
 
 83 
 
 Disobedience to Statute Law. 
 
 138> Every one is guilty of an indictable offence anrf liable to one year's 
 imprisonment who, without lawful excuse, disobeys any Act of the Parliament 
 of Canada or of any legislature in Canada by wilfully doing any act which it 
 forbids, or omitting todo any act which it requires to be done, unless some 
 vcnalty or other mode of punishment is exjjressly provided by law. R. S. C. c. 173, 
 s. 25 (amended), 
 
 R. V. Walker, 13 Cox, 94 ; Stephen's Cr. L. Art. 124; 
 fine or sureties, s. 958; see R. v. Hall, 17 Cox, 278, and cases 
 there cited ; Hamilton v. Massie, 18 O. R. 585. 
 
 The offence which had given rise to this last case would 
 probably now be held to be a not indictable one under tlie 
 above section 138. 
 
 Disobedience to Orders of Court. (Xew). 
 
 139. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who, without lawful excuse, disobeys any lawful order other than 
 for the payjnent of money made by any court of justice, or by any person or 
 body of persons authorized by any statute to make or give such order, unless 
 some penalty is imposed, or other mode of proceeding is expressly provided 
 by law. 
 
 Fine or sureties, section 958 ; Stephen's Cr. L. Art. 125 ; 
 Archbokl, 949. 
 
 Neglect op Peace Officer to Suppress Riot. (yexo). 
 
 I<i0. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, being a sheriff, deputy-sheriff, mayor, or other head officer, . 
 justice of the peace, or other magistrate, or other peace officer, of any county, . 
 city, town, or district, having notice that there is a riot within his jurisdiction, 
 without reasonable excuse omits to do his duty in supjjressing such riot. 
 
 Fine or sureties, section 958 ; R. v. Pinney, 3 B. & Ad,. 
 
 947. 
 
 Neglect to Aid Peace Officer to Suppress Riot. (Neio).. 
 
 141. Every one is guj^ty of u\\ mdictable offence and liable to one year's 
 imprisonment who, having reasonable notice that he is required to assist any 
 sheriff, deputy-sheriff, mayor or other head officer, justice of the peace, 
 magistrate, or peace officer in suppressing any riot, without reasonable excuse 
 omits so to do. 
 
 Fine or sureties, section 958 ; " peace officer " defined, 
 section 3 ; R. v. Brown, Car. «& M. 314. 
 
 Neglect to aid Peace Officer. (New). 
 
 142. Every one is guilty of an indictable offence and liable to six months 
 imprisonment who, having reasonable notice that he is required to assist any 
 
 f 
 
84 
 
 OFFENCES AGAINST PUBLIC ORDFR. [Sec«. 143, VA 
 
 ■Mm > 
 
 *;; • 
 
 sheriff, deputy- sheriff, mayor or other head officer, justice of the peace, 
 magistrate, or peace officer, in the execution of his duty in arresting any person, 
 or in preserving the peace, without reasonable excuse onitut su to do. 
 
 See under preceding section ; fine in lieu of or in addi- 
 tion to punishment, section 958 . R. v Sherlock, Warb. 
 Lead. Cas. 53 
 
 Indictment. — The jurors for our Lady the Queen pre- 
 sent that heretofore and before the committing of the 
 offence hereinafter mentioned, to wit, on the day of 
 
 A. B. was lawfully in the custody of 
 C. T)., a constable of , on a charge of and the 
 
 said A B. on the day aforesaid, committed an assault upon 
 the said G. D., being such constable as aforesaid, and a 
 breach of the peace, with intent to resist such his lawful 
 apprehension ; and the jurors aforesaid, do further present, 
 that the said C. D., as such constable, there being a reason- 
 able necessity for him so to do, called upon E. F., who was 
 then present, for his assistance, in order to prev^ent the said 
 assault and breach of the peace ; and that the said E. F. 
 di<l unlawfully, wilfully, and knowingly refuse to aid the 
 said G. D., being such constable in the execution of his 
 duty in arresting the said A, B., and to prevent an assault 
 and breach of the peace as aforesaid. 
 
 AIlSCONDCCT OF OFFICERS, EtC, EtC. 
 
 143. Every one is guilty of an indictable offence and liable to a fine and 
 imprisonment, who, being a sheriff, deputy-sheriff, coroner, elisor, bailiff, con- 
 stable or other officer intrusted with the execution of any writ, warrant or 
 process, wilfully misconducts himself in the execution of the same, or wilfully, 
 and without tlx- consent of the uerson in whose favour the writ, warrant or 
 process was is.- !, makes any false return thereto. R. S. C. c. 173, s. 29. 
 
 Section 984 as to amount of fine, and section 951 as to 
 imprisonment. 
 
 Obstrccting Peace Officer, Etc. 
 
 144. Every one is guilty of an indictable offence and liable to ten years' 
 imprisonment who resists or wilfully obstructs any public oflScer in the execu- 
 tion of his duty or any person acting in aid of such officer. 
 
 2. Every one is guilty of an offence and liable on indictment to two 
 years' imprisonment, and on summary conviction before two justices of the 
 peace to six months' imprisonment with hard labour, or to a fine of one 
 hundred dollars, who resists or wilfully obstructs— 
 
 Sec. 145] 
 
 {a) A 
 aid of anj 
 
 (h) A 
 goods or ii 
 
 The 
 clause, 
 to the QA 
 
 "Pea 
 See ann( 
 same offi 
 
 145. Pt 
 
 knowledge, m 
 iiI>on oath or a 
 affidavit or ot 
 a.s.sertion beinfi 
 to mislead the 
 section include 
 grand jury. 
 
 2. Every p 
 ally gives his e\ 
 tohtthcr his evid 
 
 3. Every pt 
 
 i.s held in or und 
 
 ur before either 
 
 of either the Sci 
 
 Legislative As.s( 
 
 Powered by law i 
 
 any arbitrator or 
 
 or by any statute 
 
 evidence therein 
 
 ri?ht or liability 
 
 J'M/ice or trihiiml 
 
 o<msUii((eU or not 
 
Sec. 145] 
 
 PERJURY. 
 
 85 
 
 , and 
 I con- 
 it or 
 
 it or 
 
 Is to 
 
 ^ears 
 xecu- 
 
 two 
 If the 
 
 one 
 
 (a) Any peace officer in the execution of his duty or any person acting in 
 aid of any such officer ; 
 
 {h) Any person in the lawful execution of any process against sqy lands or 
 goods or in making any lawful distress or seizure. R. S. C. c. 162, s. 34. 
 
 The punishment was two years under the repealed 
 clause. The increase to ten years gives twelve challenges 
 to the accused, section 668. 
 
 "Peace officor" and "public offi( defined, section 3. 
 See annotation under section 263, ^ ,v hich covers the 
 
 same offence and makes it punishabl two years. 
 
 PART X. 
 
 MISLEADING JUSTICE. 
 
 Perjury. 
 
 145« Perjury in an assertion as to a matter of fact, opinion, belief or 
 knowledge, made by a witness in a judicial proceeding as part of his evidence, 
 upon oath or a'Krmation, whether suuli evidence is given in open court, or by 
 affidavit or otherwise, and whether such evidence is material or not, such 
 assertion being known to such witness to be false, and being intended by him 
 to mislead the court, jury, or person holding the proceeding. Evidence in this 
 section includes evidence given on the voir dire and evidence given before a 
 grand jury. 
 
 2. Every person is a witness witiiin the meaning of this section who actu- 
 ally gives his evidence, whether he was comi^etent to be a witness or not, and 
 whtthcr his evidence was ailmissiblc or not. 
 
 3. Every proceeding is judicial within the meaning of this section v.'hich 
 is held in or under the authority of any court of justice, or before a grand jury , 
 or before either tiie Senate or House of Commons of Canada, or any committee 
 of either the Senate or House of Commons, or before any Legislative Council, 
 Legislative Assembly or House oi Assembly or any committee thereof, em- 
 powered by law to administer an oath, or before .iny justice of the peace, or 
 any arbitrator or umpire, or any person or body of jHirsons authorized by law 
 or by any statute in force for the time being to make an inquiry and take 
 evidence therein uix)n oath, or before any legal tribunal by which any legal 
 ricflit or liability can be established, or he/pre any pcrsmi actimj as a court, 
 jitstice or (rifxtrud, havimj power to hold such jadici'd proccedimj, ivhether duly 
 Constituted or not and whether the proceeding was duly instituted or not before 
 
 
 f 
 
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 A1^ 
 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 «« ^ 12.2 
 
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 I.I 1/^ H^ 
 
 L25 IIIIU 111.6 
 
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 %^'%*' 
 
 ^]^ 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WIST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716)872-4503 
 
86 
 
 MISLEADING JUSTICE. 
 
 [Sec. 145 
 
 M 
 
 ill 
 
 SMcA court or persmv so as to authorize it or him to hold the proceeding, and 
 althotigh such proceeding vxts held in a wrong place or vxis othertoise invalid. 
 
 4. Subornation of perjury is counselling or procuring a person to commit 
 any perjury which is actually committed. 
 
 The words in italics seem to be new law, or settle doubts 
 which have been raised. 
 
 " In framing the above section, we have proceeded on the 
 principle that the guilt and danger of perjury consist in attempt- 
 ing by falsehood to mislead a tribunal de facto e'':ercising judicial 
 functions. It seems to us not desirable that a person who has 
 done this should escape from punishment, if he can show some 
 defect in the constitution of the tribunal which he sought to 
 mislead, or some error in the proceedings themselves." — Imp. 
 Comm. Rep. 
 
 Perjury, by the common law, appears to be a wilful false 
 oath by one who, being lawfully required to depose the 
 truth in any proceeding in a " court " of justice, swears 
 absolutely in a matter of some consequence to the point in 
 question, whether he be believed or not : 3 Russ. 1. 
 
 Hawkins, vol. 1, p. 429, has the word " course " of 
 justice, instead of " court " of justice. 
 
 Bishop, Cr. Law, vol. 2, 1015, says a "course" of 
 justice, and thinks that the word " court " in Russell is a 
 misprint for " course," though Bacon's abridgement, verb. 
 perjury, also has " court" Roscoe, 747, has also " court " 
 of justice, but says that the proceedings are not con- 
 fined to courts of justice; and a note by the editor of the 
 American sixth edition says a " course " of justice is a more 
 accurate expression than a " court " of justice. 
 
 There is no doubt, however, that, according to all the 
 definition of this offence by the common law the party 
 must be lawfully sworn, the proceeding in whjch the oath 
 is taken must relate to the administration of justice, the 
 assertion sworn to must be false, the intention to swear 
 falsely must be wilful, and the falsehood material to the 
 matter in question. Proi^issory oaths, such as those taken 
 by officers for the faithful performance of duties, cannot be 
 the subject of perjury. — Cr. L. Corars., 5th Report, 51. 
 

 Sec. 145] 
 
 PERJURY. 
 
 87 
 
 False swearing, under a variety of circumstances, has 
 been declared by numerous statutes to amount to perjury, 
 and to be punishable as such. But at common law false 
 swearing was very different from perjury. The offence of 
 perjury, at the common law, is of a very peculiar descrip- 
 tion, say the Cr. L. Comrs., 5th Rep. 23, and differs in 
 some of its essential qualities from the crime of false testi- 
 mony, or false swearing, as defined in all the modern Codes 
 of Europe. The definition of the word, too, in its popular 
 acceptation, by no means denotes its legal signification. 
 Perjury, by the common law, is the assertion of a falsehood 
 upon oath in a judicial proceeding, respecting some fact 
 material to the point to be decided in such proceeding ; 
 and the characteristic of the offence is not the violation of 
 the religious obligation of an oath, but the injury done 
 to the administration of public justice by false testimony. 
 
 Here, in Canada, the above section declares to be per- 
 jury all oaths, etc., taken or subscribed in virtue of any law, 
 or I'equired or authorized by any such law, as did the 
 repealed statute; and voluntary and extra-judicial oaths^ 
 being prohibited, it may be said that, with us, every 
 false oath, knowingly, wilfully and corruptly taken^ 
 amounts to perjury and is punishable as such. The inter- 
 pretation Act, c. 1, Rev. Stat., enacts that the word oath 
 includes a solemn affirmation whenever the context applies 
 to any person and case by whom and in which a solemn 
 affirmation may be made instead of an oath, and in like cases 
 the word sworn includes the word affi^rmed or declared. 
 See ss. 23, 24, Can. Ev. Act, 1893. The words "or whether 
 such evidence is material or not " in the above section 145 
 are an important alteration of the lav/ on perjury, as it 
 stands in England. As stated before, by the common law, 
 to constitute perjury, the false swearing must be, besides 
 the other requisites, in a matter material to the point in 
 question. By the above section.this ingredient of perjury is 
 not necessary ; see Stephen's Digest of Criminal Law, xxxiii. 
 
 lit 
 ii:!' . 
 
 Ui'r ■ > .x u 
 
 3 ti 
 
 '.I I- 
 
 
Ill 
 
 8S 
 
 MISLEADING JUSTICE. 
 
 [Sec. 145 
 
 i« 
 
 Ist There must be a lawful oath. — R. v. Qibson, 7 R. 
 L. 673 ; R. v. Martin, 21 L. C. J., 156 ; R. v. Lloyd, 16 
 Cox, 235 ; 19 Q. B. D. 213. 
 
 And, therefore, it must bo taken before a competent 
 jurisdiction, or before an officer who had legal jurisdic- 
 tion to administer the particular oath in question. And 
 though it is sufficient priynd facie to show the ostensible 
 capacity in which the judge or officer acted when the oath 
 was taken, the presumption may be rebutted by other 
 evidence, and the defendant, if he succeed, will be entitled 
 to an acquittal: 2 Chit. 304; R. v. Roberts, 14 Cox, 
 101 ; R. V. Hughes, 14 Cox, 284. 
 
 The words in italics in the above section 145 have 
 altered the law to a large extent as to this requisite of an 
 oath impugned for perjury ; see a collection of cases in 
 R, V. Hughes, Warb. Lead. Cas. 60. 
 
 2nd. The oath must he false — By this, it is intended 
 that the party must believe that what he is swearing is 
 fictitious ; for, it is said, that if, intending to deceive, he 
 asserts of his own knowledge that which may happen to be 
 true, without any knowledge of the fact, he is equally 
 criminal, and the accidental truth of his evidence will not 
 excuse him : 2 Chit. 303. Bishop's first book of the law, 
 117. How far this is the law under the above section 
 remains to be settled by the jurisprudence. And a man 
 may be indicted for perjury, in swearing that he believes a 
 fact to be true which he must know to be false : R. v. 
 Pedley, 1 Leach, 325. 
 
 3rd. The false oath must he knowingly, ^ully, and 
 corruptly taken. — The oath must be taken ^ . the false- 
 hood asserted with deliberation and a consciousness of the 
 nature of the statement made, for if it seems rather to have 
 been occasioned by inadvertency or surprise, or a mistake 
 in the import of the question, the party will not be sub- 
 jected to those penalties which a corrupt motive alone can 
 deserve : 2 Chit. 303. If an oath is false to the know- 
 
Sec. 145] 
 
 PERJURY. 
 
 89 
 
 ledj^ of the party giving it, it is, in law, wilful and 
 oorrupt : 2 Bishop, Cr. L. 1048, et eeq. 
 
 It hath been holden not to be material, upon an indict- 
 ment of perjury at common law, whether the false oath 
 were at all credited, or whether the party in whose preju- 
 dice it was intended were, in the event, any way aggrieved 
 by it or not ; insomuch as this is not a prosecution grounded 
 on the damage of the party but on the abuse of public 
 justice : 8 Bum's Just. 1227 ; and that would be so now 
 under the above section. 
 
 Indictment for Perjvry : The Jurors for Our Lady the 
 Queen present, that heretofore, to wit, at the (asaizea) 
 holden for the county (or district) of on the 
 
 day of before (on^ of the judges of Our Lady 
 
 the Queen), a certain issue between one E. P. and one J. H. 
 in a certain action of covenant was tried, upon which trial 
 A. B. appeared as a witness for and on behalf of the said E. F. 
 and was then and there duly sworn before the said 
 and did then and there, upon his oath aforesaid, falsely, 
 wilfully and coriniptly depose and swear in substance and 
 to the effect following, " that he saw the said 0. H. duly exe- 
 cute the deed on which the said action was brought," 
 whereas, in truth, the said A. B. did not see the said G. H. 
 execute the said deed, and the said deed was not executed 
 by the said G. H., and the said A. B. did thereby commit 
 wilful and corrupt perjury. See forms under s. 611, j^ost. 
 
 Perjury is now triable at quarter sessions, section 540. 
 
 The indictment must allege that the defendants swore 
 falsely, wilfully and corruptly; where the word feloniously 
 was inserted instead of falsely, the indictment, though it 
 alleged that the defendant swore wilfully, corruptly and 
 maliciously, was held bad in substance, and not amendable : 
 R. v. Oxley, 3 C. & K. 817. 
 
 If the same person swears contrary at different times, 
 it should be averred on which occasion he swore wilfully, 
 falsely and corruptly : R. v. Harris, 5 B. & Aid. 926. 
 
90 
 
 MISLEADING JUSTICE. 
 
 [Sec. 145 
 
 As to assignments of perjury, the indictment must 
 assign positively the manner in which the matter sworn to 
 is false. A general averment that the defendant falsely 
 swore, etc., etc., upon the whole matter is not sufficient ; 
 the indictment must proceed by special averment to nega- 
 tive that which is false: 3 Burn's Just. 1235; but see 
 section 616, post. 
 
 Proof. — It seems to have been formerly thought that 
 in proof of the crime of perjury two witnesses were neces- 
 sary ; but this strictness, if it was ever the law, has long 
 since been relaxed, the true principle of the rule being 
 merely this, that the evidence must be something more than 
 sufficient to counterbalance the oath of the prisoner, and 
 the legal presumption of his innocence : section 684, post. 
 The oath of the opposing witness therefore will not avail 
 unless it be corroborated by material and independent cir- 
 cumstances ; for otherwise there would be nothing more 
 than the oath of one man against another, and the scale of 
 evidence being thus in one sense balanced, it is considered 
 that the jury cannot safely convict. So far the rule is 
 founded on substantial justice. But it is not precisely 
 accurate to say that the corroborative circumstances must 
 be tantamount to another witness ; for they need not be 
 such as that proof of them, standing alone, would justify a 
 conviction, in a case where the testimony of a single witness 
 would suffice for that purpose. Thus, a letter written by 
 the defendant, contradicting his statement on oath, will 
 render it unnecessary to call a second witness. Still, evi- 
 dence confirmatory of the single accusing witness, in some 
 slight particulars only, will not be sufficient to warrant a 
 conviction, but it must at least be strongly corroborative of 
 his testimony, or to use the quaint but energetic language 
 of Chief Justice Parker, " a strong and clear evidence, and 
 more numerous than the evidence given for the defendant." 
 When several assignments of perjury are included in the 
 same indictment it does not seem to be clearly settled 
 whether, in addition to the testimony of a single witness, 
 
Sec. 145] 
 
 PERJURY. 
 
 91 
 
 corroborative proof must be given with respect to each, 
 but the better opinion is that such proof is necessary, and 
 that too, although all the perjuries assigned were committed 
 at one time and place. For instance, if a person, on putting 
 in his schedule in the Bankruptcy Court, or on other 
 like occasion, has sworn that he has paid certain creditors, 
 and is then indicted for perjury on several assignments, 
 each specifying a particular creditor who has not been paid, 
 a single witness with respect to each debt will not, it seems, 
 suffice, though it may be very difficult to obtain any fuller 
 evidence. The principle that one witness, with corrobor- 
 ating circumstances, is sufficient to establish the charge of 
 perjury, leads to the conclusion, that without any witness 
 directly to disprove what is sworn, circumstances alone, 
 when they exist in a documentary shape, may combine to 
 the same effect ; as they may combine, though altogether 
 unaided by oral proof except the evidence of their authen- 
 ticity, to prove any other fact connected with the declara- 
 tions of persons or the business of life. In accordance with 
 these views, it has been held in America that a man may 
 be convicted of perjury on documentary and circumstantial 
 evidence alone, first, where the falsehood of the matter 
 sworn to by him is directly proved by written evidence 
 springing from himself, with circumstances showing the 
 corrupt intent; secondly, where the matter sworn to is 
 contradicted by a public record, proved to have been well 
 known to the prisoner when he took the oath ; and thirdly, 
 when the party is charged with taking an oath contrary 
 to what he must necessarily have known to be true, the 
 falsehood being shown by his own letter relating to the fact 
 sworn to, or by any other writings which are found in his 
 poscsession, and which have been treated by him as contain- 
 ino* the evidence of the fact recited in them. 
 
 If the evidence adduced in proof of the crime of per- 
 jury consists of two opposing statements by the piisoner, 
 and nothing more, he cannot be convicted. For, if one only 
 was delivered under oath, it must be presumed, from the 
 
 S,^i, 
 
 f 
 
 ■1 
 
Ill 
 
 98 
 
 MISLEADING JUSTICE. 
 
 [Seal4& 
 
 solemnity of the sanction, that the declaration was the 
 truth, and the other an error or a falsehood ; though the 
 latter, being inconsistent with what he has sworn, may 
 form important evidence with other circumstances against 
 him. And if both the contradictory statements were 
 delivered under oath, there is still nothing to show which 
 of them is false ~vhen no other evidence of the falsity ia 
 given. If, indeed, it can be shown that before making the 
 statement on which perjury is assigned the accused had 
 been tampered with, or if any other circumstances tend to 
 prove that the statement offered as evidence against the 
 prisoner was true, a legal conviction may be obtained, and 
 provided the nature of the statement was such that one of 
 them must have been false to the prisoner's knowledge 
 slight corroborative evidence would probably be deemed 
 sufficient. But it does not necessarily follow that because 
 a man has given contradictory accounts of a transaction on 
 two occasions he has therefore committed perjury. For 
 cases may well be conceived in which a person might very 
 honestly swear to a particular fact, from the best of his 
 recollection and belief, and might afterwards from other 
 circumstances be convinced that he was wrong, and swear 
 to the reverse, without meaning to swear falsely either 
 time. Moreover, when a man merely swears to the best of 
 his memory and belief, it of course requires very strong 
 proof to show that he is wilfully perjured. The rule 
 requiring. something more than the testimony of a single 
 witness on indictments for perjury is confined to the proof 
 of the falsity of the matter on which the perjury is 
 assigned. Therefore the holding of the Court, the pro- 
 ceedings in it, the administering the oath, the evidence 
 given by the prisoner, and, in short, all the facts, exclusive 
 of the falsehood of the statement which must be proved at 
 the trial, may be established by any evidence that would be 
 sufficient were the prisoner charged with any other offence. 
 For instance, if the false swearing be that two persons were 
 together at a certain time, and the assignment of perjury 
 
it 
 
 Sec. 14S] 
 
 PERJURY. 
 
 98 
 
 be that they were not together at that time, evidence by 
 one witness that at the time named the one person was at 
 London, and by another witness that at the same time the 
 other person was in York, will be sufficient proof of the 
 assignment of perjury : 2 Taylor on Evidence, par. 876, 
 et seq. 
 
 On an indictment for perjury alleged to have been 
 committed at the Quarter Sessions, the chairman of the 
 Quarter Sessions ought not to be called upon to give evi- 
 dence as to what the defendant swore at the Quarter 
 Sessions : R. v. Gazard, 8 C & P. 595. 
 
 But this ruling is criticized by Greaves, note n, 3 
 Buss. 86, and Byles, J., in R. v. Harvey, 8 Cox, 99, said that 
 though the judges of Superior Courts ought not to be called 
 upon to produce their notes, yet the same objection was not 
 applicable to the judges of inferior courts, especially where 
 the judge is willing to appear : 3 Burn's Just. 1243. 
 
 In R. V. Hook, Dears. & B. 606, will be found an inter- 
 esting discussion on the evidence necessary upon an indict- 
 ment for perjury. 
 
 The Imperial Statute, corresponding to section 4 of c. 
 154, Rev. Stat., unrepealed, {post, under next section), 
 authorizes the judge to commit, unless such person shall 
 enter into a recognizance and give sureties. Our statute 
 gives power to commit or permit such person to enter into 
 a recognizance and give sureties. 
 
 Greaves remarks on this last mentioned clause : " The 
 crime of perjury has become so prevalent of late years, and 
 so many cases of impunity have arisen, either for want 
 of prosecution, or for defective prosecution, that this and 
 the following sections were introduced to check a crime 
 which so vitally affects the interests of the community. 
 
 " It was considered that by giving to every court and 
 person administering oaths a power to order a prosecution 
 for perjury at the public expense, coupled with a power of 
 commitment in default of bail, many persons would be 
 
 -i- 
 
 •f 
 
 'I 
 
 'J i I 
 
94 
 
 MISLEADING JUSTICE. 
 
 [Sec. 145 
 
 deterred from committing so detestable a crime, and in 
 order to effectuate this object the present clause was 
 framed, and as it passed the Lords it was much better cal- 
 culated to effect that object than as it now stands. 
 
 " As it passed the Lords it applied to any justice of the 
 peace. The committee in the Commons confined it to 
 justices in petty and special sessions, — a change much to be 
 regretted, as a large quantity of business is transacted before 
 a single justice or one metropolitan or stipendiary magis- 
 trate, who certainly ought to have power to commit under 
 this clause for perjury committed before them. 
 
 " Again, as the clause passed the Lords, if an affidavit, 
 etc., were made before one person, and used before another 
 judge or court, etc., and it there appeared that perjury had 
 been committed, such judge or court might commit. The 
 clause has been so altered that the evidence must be given, 
 or the affidavit, etc., made before the judge, etc., who com- 
 mits. The consequence is that numerous cases are ex- 
 cluded; for instance, a man swears to an assault or felony 
 before one justice, and on the hearing before two it turns 
 out he has clearly been guilty of perjury, yet he cannot be 
 ordered to be prosecuted under this clause. Again, an 
 affidavit is made before a commissioner, the court refer the 
 case to the master and he reports that there has been gross 
 perjury, or the court see on the hearing of the case before 
 them that there has been gross perjury committed, yet there 
 is no authority to order a prosecution under this clause, 
 So, again, a man is committed for trial on the evidence of a 
 witness which is proved on the trial to be false beyond all 
 doubt, yet if such witness be not examined, and do not 
 repeat the same evidence on the trial, the court cannot 
 order him to be prosecuted. 
 
 " It is to be observed, that before ordering a prosecution 
 under this clause, the court ought to be satisfied, not only 
 that perjury has been committed, but that there is a 
 ' reasonable cause for such prosecution.' Now it must ever 
 
Sec. 146] 
 
 PERJURY. 
 
 95 
 
 be remembered that two witnesses, or one witness and 
 something that will supply the place of a second witness 
 are absolutely essential to a conviction for perjury. The 
 court, therefore, should not order a prosecution unless it 
 sees that such proof is capable of being adduced at the 
 trial ; and as the court has the power, it would be prudent 
 in every case, if practicable, at once to bind over such two 
 witnesses to give evidence on the trial, otherwise it may 
 happen that one or both may not be then forthcoming to 
 give evidence. It would be prudent also for the court to 
 give to the prosecutor a minute of the point on which, in 
 its judgment, the perjury had been committed, in order to 
 guide the framer of the indictment, who possibly may be 
 wholly ignorant otherwise of the precise ground on which 
 the prosecution is ordered. It is very advisable, also, that 
 where the perjury is committed in giving evidence, such 
 evidence should be taken down in writing by some person 
 who can prove it upon the trial, as nothing is less satisfac- 
 tory or more likely to lead to an acquittal than that the 
 evidence of what a person formerly swore should depend 
 entirely upon mere memory. Indeed, it may well be 
 doubted whether it would be proper to order a prosecution 
 in any case under this Act where there was no minute in 
 writing of the evidence taken down at the time. 
 
 " Again, it ought to be clear, beyond all reasonable 
 
 doubt, that perjury has been wilfully committed before 
 
 a prosecution is ordered" : Lord Campbell's Acts, by Greaves, 
 22. 
 
 See section 691 as to proof of trial at which perjury 
 was committed : R. v. Coles, 16 Cox, 165. 
 
 It is to be observed that this section is merely remedial, 
 and will not prevent a regular record from being still admis- 
 sible in evidence, and care must be taken to have such 
 record drawn up in any case where the particular aver- 
 ments in the former indictments may be essential : Lord 
 Campbell's Acts, by Greaves, 27. 
 
 f 
 
 !» 
 
 ■ .^- I 
 
96 
 
 MISLEADING JUSTICE. 
 
 [See. 148 
 
 Subornation of Perjury. — Subornation of perjury is an 
 offence as perjury itself, and subject to the same punish- 
 ment. 
 
 Section 145, declaring all evidence whatever material 
 with respect to perjury, also applies to subornation of 
 perjury. 
 
 Section 691, as to certificate of indictment and trial, 
 applies also to subornation of perjury. Subornation of 
 perjury, by the common law, seems to be an offence in pro- 
 curing a man to take a false oath, amounting to perjury, 
 who actually taketh such oath : 1 Hawk. 435. 
 
 But it seemeth clear that if the person incited to take 
 such an oath do not actually take it, the person by whom 
 he was so incited is not guilty of subornation of perjury, 
 yet it is certain that he is liable to be punished, not only 
 by fine, but also by infamous corporal punishment : 
 1 Hawk. loc. cit. This crime is incitement, section 530. 
 
 An attempt to suborn a person to commit perjury, upon 
 a reference to the judges was unanimously holden by them 
 to be a misdemeanour : 1 Russ. 85. 
 
 And upon an indictment for subornation of perjury if 
 it appears, at the trial, that perjury was not actually com- 
 mitted, but that the defendant was guilty of the attempt 
 to suborn a person to commit the offence, such defendant 
 may be found guilty of the attempt, section 711. 
 
 In support of an indictment for subornation the record 
 of the witness's conviction for perjury is no evidence 
 against the suborners, but the offence of the perjured wit- 
 ness must be again regularly proved. Although several 
 persons cannot be joined in an indictment for perjury, yet 
 for subornation of perjury they may: 3 Bum's Justice, 
 1246. 
 
 iThdictment, same as irKJictment for perjury to the end, 
 and then proceed : — And the Jurors aforesaid further pre- 
 sent, that before the committing of the said offence by the 
 
Seo. 146] 
 
 PERJURY. 
 
 m 
 
 «»id A. B., to wit, on the day of at C. D. 
 
 unlawfully, wilfully and corruptly did cause and procure 
 the said A. B. to do and commit the said offence in the 
 manner and form aforesaid. 
 
 As perjury, subornation of perjury is now triable at 
 Quarter Sessions. 
 
 Indictment quashed, (for perjury) none of the formalities 
 required by section 140 of the Procedure Act having been 
 complied with : R. v. Granger, 7 L. N. 247. 
 
 These formalities are now required in all indictments, 
 section 641. 
 
 A person accused of perjury cannot have accomplices, 
 and is alone responsible for the crime of which he is 
 accused : R. v. Pelletier, 1 R. L. 565. 
 
 Including two charges of perjury in one indictment 
 would not be ground for quashing it. An indictment that 
 follows the form given by the statute is suflficient : R. v. 
 Bain, Ramsay's App. Cas. 191. 
 
 The non-production by the prosecution, on a trial for 
 perjury, of the plea which was filed in the civil suit where- 
 in the defendant is alleged to have given false testimony, is 
 not material when the assignment of perjury has no refer- 
 ence to the pleading, but the defendant may, if he wishes, 
 in case the plea is not produced, prove its contents by 
 secondary evidence. It is not essential to prove that the 
 facts sworn to by the defendant, as alleged in the indictment, 
 were material to the issue in the cause in'which the defend- 
 ant was examined : R. v. Ross, M. L. R. 1 Q. B. 227 ; 28 
 L C. J. 261. 
 
 As to stenographer's notes and suflBciency of evidence 
 in perjury: see Downie v. R., 15 S. C. R. 358, M. L. R. 3 
 Q. B. 360; R. v. Murphy, 9 L. N. 95 ; R. v. Evans, 17 Cox, 
 37;R. V. Bird, 17 Cox, 387. 
 
 PCNISHJrtSt. 
 
 149. Every one it gnii^^y of aa indictable offenoe aod liable to foHtteen 
 yeaft' imprisonment who oommits perjury or sabomation of perjury. 
 
 Crim. Law— 7 
 
 f 
 
 ■|^ 
 
98 
 
 MISLEADING JUSTICE. 
 
 [Sees. W, 148 
 
 2. 1/the crime w committed in order to procure the conviction of aperao^hfor 
 any crime punishable by death or imprisonment for seven years or m^rre, the 
 punishment may be imprisonment for life. R. S. C. c. 154, s. 1. 
 
 The words in italics are new : see section 221, 'post. 
 The following section of c. 154 E. S. C. is unrepealed. 
 
 4. Any judge of any court of record, or any commissioner before whom any 
 inquiry or trial is held, and which he is by law required or authorized to hold, 
 may, if it appears to him that any person has been guilty of wilful and corrupt 
 perjury in any evidence given, or in any a£5davit, affirmation, declaration, 
 deposition, examination, answer or other proceeding made or taken before him, 
 direct such person to be prosecuted for such perjury, if there appears to such 
 judge or commissioner a reasonable cause for such prosecution,— and may 
 commit such person so directed to be prosecuted until the next term, sittings 
 or session of any court having power to try for perjury in tha jurisdiction 
 within which such perjury was committed, or permit such person to enter into 
 a recognizance, with one or more sufficient sureties, conditioned for the appear- 
 ance of such person at such next t«rm, sittings or session, and that he will 
 then surrender and take his trial and not depart the court without leave,— 
 and may require any person such judge or commissioner thinks fit, to enter 
 into a recognizance conditioned to prosecute or give evidence against such 
 person so directed to be prosecuted as aforesaid. 
 
 S>ee remarks under preceding section. A form of indict- 
 ment under sub-section 2 of this section 146 is given in 
 schedule one, form F. F. post, under s. 611, but the words, 
 " penal servitude " therein are a gross error. Section 684, 
 post, applies to this section 146. Hee MacDaniel's Case, 
 Fost. 121. 
 
 Falsr Oaths. {New). 
 
 147* Every one is guilty of an indictable offence and liable kO seven 
 years' imprisonment who, being required or authorized by law to mpke any 
 statement on oath, affirmation or solemn deolaratioj, thereupon makes a 
 statement which would amount to perjury if made in a judicial proceeding. 
 
 " This is at most a common law miademeanoui: in cases not 
 specially provided for by statute, of which there are a considiii- 
 able number." — Imp. Gomm. Eep. 
 
 This enactment seems unnecessary. It is covered by 
 sub-section 3 of section 146, ante. : section 616, imt 
 applies. 
 
 False Oath, Other Casks. 
 
 148. Every one is guilty of perjury who — 
 
 (a) Having taken or made any oath, affirmation, solemn declaration or 
 affidavit whereby any Act or law in force in Canada, or in any province of 
 
 Sees. 149-151] 
 
 Canada, it is re 
 otherwise assun 
 or affidavit of ai 
 declaration or ai 
 any such fact, n 
 
 (*) Knowing 
 declaration, affii 
 verifying, assuri: 
 80 to do, or kno\ 
 any such affirma 
 thing,— such sta 
 the whole or any 
 
 See notes 
 
 False 
 149. Ever] 
 affirmation or sole 
 but within Canad 
 pose of being used 
 ner as if such fal 
 competent authori 
 R. S. C. c. 154, 8. ; 
 
 150. Every 
 imprisonment who 
 any statement or ( 
 to be made before 
 such notary, make 
 oath in a judicial p 
 
 Section 61 1 
 
 " It may be 
 
 mon law misdei 
 
 made indictable 
 
 151, Every o 
 years' imprisonmen 
 holdinganysuch ju 
 means other than pt 
 
 Section 61 ( 
 the offence ma\ 
 
 " Fabricating 
 as perjury, but ^ 
 An instance occu 
 man with intent 
 
Sees. 149-1511 
 
 PERJURY, ETC. 
 
 99 
 
 Canada, it is required or permitted that facts, matters or things be verified, or 
 otherwise assured or ascertained by or upon the oath, affirmation, declaration 
 or affidavit of any person, wilfully and corruptly, upon such oath, affirmation, 
 declaration or affidavit, deposes, swears to, or makes any false statement as to 
 any such fact, matter or thing ; or 
 
 (6) Knowingly, wilfully and corruptly, upon oath, affirmation, or solemn 
 declaration, affirms, declares, or deposes to the truth of any statement for so 
 verifying, assuring or ascertaining any such fact, matter or thing, or purporting- 
 80 to do, or knowingly, wilfully and corruptly takes, makes, signs or subscribes 
 any such affirmation, declaration or affidavit, as to any such fact, matter or 
 thing, — such statement, affidavit, affirmation or declaration being untrue, in 
 the whole or any part thereof ; R. S. C. c. 154, s. 2. 
 
 See notes under sections 145 & 146, ante. 
 
 False Affidavit odt of Province where it is Used. 
 140* Every person who wilfully and corruptly makes any false affidavit,^ 
 affirmation or solemn declaration, out of the province in which it is to be used 
 but within Canada, before any person authorized to take the same, for the pur- 
 pose of being used in any province of Canada, is guilty of perjury in like man- 
 ner as if such false affidavit, affirmation or declaration were made before a 
 competent authority in the province in which it is used or intended to be used. 
 R. S. C. c. 154, 8. 3. 
 
 False Statements. {New). 
 
 150< Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, upon any occasion on which he is permitted by law to make 
 any statement or declaration before any officer authorized by law to permit it 
 to be made before him, or before any notary public to be certified by him as 
 such notary, makes a statement which would amount to perjury if made on 
 oath in a judicial proceeding. 
 
 Section 616 applies. Fine or sureties, section 958. 
 
 *• It may be doubtful whether this is at jresent even a com- 
 mon law misdemeanour, but we feel no doubt that it ought to be^ 
 made indictable." — Imp. Comm. Rep. 
 
 Fabricating Evidence. {New). 
 
 151. Everyone is guilty of an indictable oflFence and liable to sevfetf 
 years' imprisonment who, with intent to mislead any court of justice or person 
 holding any such judicial proceeding as aforesaid, fabricates evidence by any 
 means other than perjury or subornation of perjury. 
 
 Section 616 applies. A verdict of attempt to commit 
 the offence may be given, section 711. 
 
 «' Fabricating evidence is an oflFence which is not so common 
 as perjury, but which does occur, and is sometimes detected. 
 An instance occurred a few years ago in a trial for shooting at a 
 man with intent to murder him, where the defence was that, 
 
 V- ' 
 
 I 
 
..A -LJ. 
 
 100 
 
 MISLEADINO JUSl'IOE. 
 
 [Sec. 152 
 
 though the acouddd did fird off a pi&tol it was not loaded With 
 ball, and the only intent was to frighten. Evidence was given 
 that a pistol ball was found lodged in the trunk of a tree nearly 
 in the line from where the accused fired to where the prosecutor 
 stood. It was afterwards discovered that the ball had been 
 placed in the tree by those concerned in the prosecution in order 
 to supply the missing link in the evidence. Such an offence is 
 as wicked and as dangerous as perjury, but the punishment as a 
 common law offence (if, irrespective of conspiracy, it be an 
 offence), is only fine and imprisonment." — Imp. Gomm. Rep. 
 
 To mislead a court by the manufacture of false evidence 
 is a misdemeanour. An attempt to do so is also an offence, 
 although in point of fact the court was not misled : 
 R. V. Vreones, 17 Cox, 267, [1891] 1 Q. B. 360. 
 
 Conspiracy to Bsmo Falsb Accusation. {New). 
 
 ISS> Every one is guilty of an indictable offence who conspires to prose- 
 cute any person for any alleged offence, knowing such person to be innocent 
 thereof, and shall be liable to the following punishment : 
 
 (a) To imprisonment for fourteen years if such person might, upon convic- 
 tion for the alleged offence, be sentenced to death or imprisonment for life ; 
 
 (6) To imprisonment for ten years if such person might, upon conviction 
 for the alleged offence, be sentenced to imprisonment for any term less than 
 life. 
 
 A common law misdemeanour. Section 616, post, 
 applies. 
 
 Indictment. — That A. B. and G. D., being evil-disposed 
 persons, and wickedly devising, and intending to deprive one 
 E. F. of his good name, fame, and reputation, and subject 
 him without just cause to the pains and penalties inflicted 
 by law upon persons guilty of an assault, on , did 
 
 unlawfully conspire, combine, confederate, and agree, wil- 
 fully, unlawfully, and without any reasonable or probable 
 cause in that behalf, to charge and accuse the said E. F. of 
 the crime of indecently and unlawfully assaulting the said 
 A. B., knowing the said E. F. to be innocent thereof. And 
 the jurors aforesaid further present, that the said A. B. and 
 C. D., in pursuance of the said conspiracy, combination, 
 confederacy, and agreement on the day aforesaid, falsely 
 
Seo.159] 
 
 ADMINISTERING 
 
 HB, 
 
 101 
 
 m 
 
 and maliciously did cause and procure the said E. ^. to be 
 apprehended and taken into custody by one E. H., then 
 being one of the constables of the police force, and to be 
 conveyed in custody to a certain prison and police-station, 
 and there to be imprisoned. 
 
 Administkrinq Oaths withoot Authobitt. 
 
 1S3- Every justioe of the peace or other person who administers, or 
 causes or allows to be administered, or receives or causes or allows to be received 
 any oath or affirmation touching any matter or thing whereof such justice or 
 other person has not jurisdiction or cognizance by some law in force at the time 
 being, or authorized or required by any such law, is guilty of an indictable 
 offence and liable to a fine not exceeding fifty dollars, or to imprisonment for 
 any term not exceeding three months. 
 
 2. Nothing herein contained shall be construed to extend to any oath or 
 affirmation before any justice in any matter or thing touching the preservation 
 of the peace, or the prosecution, trial or punishment of any offence, or to any 
 oath or affirmation required or authorized by any law of Canada, or by any law 
 of the province wherein such oath or affirmation is received or administered, or 
 is to be used, or to any oath or affirmation which is required or authorized hj 
 the laws of any foreign country to give validity to an instrument in writing op 
 to evidence designed or intended to be used in such foreign country. R, S. C. 
 c. 141, ss. 1, 2. 
 
 Sections 26 and 27 of the Canada Evidence Act of 1893 
 re-enact sections 3 &; 4 of the Act respecting Extra Judicial 
 Oaths, c. 141, R. S. C. 
 
 Section 153 is taken from section 13 of 5 & 6 W. IV, c. 62, 
 of the Imperial Statutes, the preamble of which reads thus : 
 
 " Whereas a practice has prevailed of administering and 
 receiving oaths and affidavits voluntarily taken and made 
 in matters not the subject of any judicial inquiry, nor in 
 any wise required or authorized by any law ; and whereas 
 doubts have arisen whether or not such proceeding is illegal ; 
 for the suppression of such practice and removing such 
 doubts, Her Majesty," etc. 
 
 Sir William Blackstone, before this statute, had said 
 (Vol. IV, p. 137) : " The law takes no notice of any perjury 
 but such as is committed in some court of justice having 
 power to administer an oath ; or before some magistrate or 
 proper officer, invested with a similar authority, in some 
 proceedings relative to a civil suit or a criminal prosecu- 
 
 
 
102 
 
 MISLEADING JUSTICE. 
 
 [Sec. 153 
 
 tion, for it esteems all other oaths unnecessary at least, and 
 therefore will not punish the breach of them. For which 
 reason, it is much to be questioned how far any magistrate 
 is justifiable in taking a voluntary aflfidavit in any extra- 
 judicial matter, as is now too frequent upon every petty 
 occasion, since it is more than possible that, by such idle 
 oaths, a man may frequently, in foro conscienticB, incur the 
 guilt and, at the same time, evade the temporal penalties 
 of perjury." 
 
 " And Lord Kenyon, indeed, in different cases, has 
 expressed a doubt, whether a magistrate does not subject 
 himself to a criminal information for taking a voluntary 
 extra-judicial affidavit." : 3 Bum's, Just. v. Oath. 
 
 Indictment. — The Jurors for our Lady the Queen pre- 
 sent, that J. S. on .... at ... . being one of the Justices 
 of Our said Lady the Queen, assigned to keep the peace in 
 and for the said county (or district), did unlawfully admin- 
 ister to and receive from a certain person, to wit, one A. B., 
 a certain oath, touching certain matters and things, whereof 
 the said J. S., at the time and on the occasion aforesaid, had 
 not any jurisdiction or cognizance by any law in force at 
 the time being, to wit, at the time of administering and 
 receiving the said oath, or authorized, or required by any 
 such law ; the same oath not being in any matter or thing 
 touching the preservation of the peace, or the prosecution, 
 trial or punishment of any offence nor being required or 
 authorized by any law of the Dominion of Canada, or by 
 any law of the said Province of ... . wherein such oath 
 has been so received and administered, and was to be used 
 (if to be used in another Province add " or by any law of 
 the Province of ... . wherein the said oath (or afUdavit) 
 was (or is) to be used ") ; nor being an oath required by the 
 laws of any foreign country to give validity to any instru- 
 ment in writing or to evidence, designed or intended to be 
 used in such foreign country ; that is to say, a certain oath 
 touching and concerning; state the subject-rtiatter of the 
 
Seo. 153] 
 
 ADMINISTERING OATHS. 
 
 103 
 
 oath or affidavit so as to show that it was not one of 
 which the Justice had jurisdiction or cognizance, and 
 was not within the exceptions. 
 
 A county magistrate complained to the bishop of the 
 diocese of the conduct of two of his clergy and to substan- 
 tiate his charge he swore witnesses before himself, as 
 magistrate, to the truth of the facts : held, that the matter 
 before the bishop was not a judicial proceeding, and there- 
 fore that the magistrate had brought himself within the 
 statute against voluntary and extra-judicial oaths, and that 
 he had unlawfully administered voluntary oaths, contrary 
 to the enactment of the statute : R. v. Nott, Car. & M. 
 288, 9 Cox, 301. 
 
 In the same case, on motion in arrest of judgment, it 
 was held, that an indictment under the statute (5 & 6 
 W. IV, c. 62, s. 13) is bad, if it does not so far set out the 
 deposition that the court may judge whether or not it is 
 of the nature contemplated by the statute ; that the depo- 
 sition and the facts attending it should have been distinctly 
 stated, and the matter or writing relative to which the 
 defendant was said to have acted improperly should have 
 been stated to the court in the indictment, so that the 
 court might have expressed an opinion whether the defend- 
 ant had jurisdiction, the question whether the defendant 
 had jurisdiction to administer the oath being one of law, 
 and to be decided by the court ; but the majority of the 
 court thought that it was not necessary to set out the 
 whole oath. Greaves, nevertheless, thinks it prudent to 
 set it out at full length, if practicable, in some counts : 1 
 Russ. 193, note. 
 
 Upon the trial, to establish that the defendant is a 
 justice of the peace, or other person authorized to receive 
 oaths or affidavits, evidence of his acting as such will, 
 prima facie, be sufficient : Archbold. 830. 
 
 And it is not necessary to show that he acted wilfully 
 
104 
 
 MISLEADING JUSTICE. 
 
 [Sees. 164, 155 
 
 i 
 
 in contravention of the Statute : the doing so, even inad-r 
 vertently, is punishable : Id. 
 
 Corrupting Juriks and Witnessks. 
 
 184* Every one is guilty of an indiotable offence and liable to two years' 
 imprisomnent who— 
 
 (a) Dissuades or attempts to dissuade any person by threats, bribes or 
 other corrupt means from giving evidence in any cause or matter, civil or 
 criminal ; or 
 
 (b) Influences or attempts to influence, by threats or bribes or other 
 corrupt means, any juryman in his conduct as such, whether such person has 
 been sworn as a juryman or not ; or 
 
 (c) Accepts any such bribe or other corrupt consideration to abstain from 
 giving evidence, or on account of his conduct as a juryman ; or 
 
 (d) Wilfully attempts in any other way to obstruct, pervert or defeat the 
 course of justice. R. S. C. c. 173, s. 30. (Amended). 
 
 Sub-section (6) covers the common law offence of em- 
 bracery : 4 Blac. Comm. 140 ; sub-section (a) also was a 
 common law misdemeanour ; sub-sections (c) and {d), see 
 
 1 Russ. 265 ; form of indictment, 2 Chit. 235 ; fine in 
 addition to or in lieu of punishment, section 958 ; verdict of 
 attempt on an indictment for principal offence, section 711. 
 
 As to conspiracy to obstruct, pervert, prevent or defeat 
 the course of justice, section 527, post. 
 
 Compounding Penal Actions. 
 
 ISS. Every one is guilty of an indictable offence and liable to a fine not 
 exceeding the penalty compounded for, who, having brought, or under colour 
 of bringing, an action against any person under any penal statute in order to 
 obtain from him any penalty, compounds the said action without any order 
 or consent of the court, ivliethcr any offence has in fact been committed or nut, 
 R. S. C. c. 173, 8. 31. {Amended). 
 
 This applies to qui tarn actions. The words in italics 
 are new. 
 
 See Keir v. Leeman, 9 Q. B. 371 ; R. v. Crisp, 1 B. & 
 Aid. 282; R. v. Mason, 17 U. C. C. P. 534: R. v. Best, 
 
 2 Moo. 124 ; Kueeshaw v. Collier, 30 U. C. C. P. 265 ; 
 Windhill Local Board v. Vint, 17 Cox, 41, 45 Ch. D. 351, and 
 cases there cited, as to compounding misdemeanours. 
 
 The repealed statute, chapter 173, section 31, R. S. C. 
 applied only to the Province of Quebec and had "without 
 
Seo.186] 
 
 COMPOUNDINQ 0PPENC5ES. 
 
 105 
 
 the permisftion or direction of the Crown " instead of " with- 
 out order or consent of the court." 
 
 The court, under the above section 155, would probably 
 require the consent of the Crown before giving its own 
 consent. 
 
 Taking a Reward for Helping to Recover Property Stolen, Etc. 
 
 ISO. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who corruptly takes any money or reward, directly or 
 indirectly, under pretense or upon account of helping any person to recover 
 any chattel, money, valuable security or other property which, by any indict- 
 able oflFence, has been stolen, taken, obtained, extorted, converted or disposed 
 of, unless he has used all due diligence to cause the offender to be brought tu 
 trial for the same. R. S. C. c. 164, s. 89; 24-25 V. c. 96, s. 101, (Imp.). 
 
 As to the meaning of the words " valuable security " 
 and " property," see ante, section 3. 
 
 Indictment — The Jurors for Our Lady the Queen, 
 present that A. B. on unlawfully and corruptly did 
 
 take and receive from one J. N. certain money and reward, 
 to wit, the sum of five dollars of the monies of the said J. N. 
 under pretense of helping the said J. N. to recover certain 
 goods and chattels of him the said J. N. before then stolen, 
 the said A. B. not having used all due diligence to cause the 
 person by whom the said goods and chattels were so stolen, 
 to be brought to trial for the same. 
 
 It was held to be an offence within the repealed statute 
 to take money under pretense of helping a man to goods 
 stolen from him, though the prisoner had no acquaintance 
 with the felon, and did not pretend that he had, and though 
 he had no power to apprehend the felon, and though the 
 goods were never restored, and the prisoner had no power 
 to restore them : R. v. Ledbitter, 1 Moo. 76. The section of 
 the repealed statute, under which this case was decided, 
 was similar to the present section : 2 Russ, 575. 
 
 If a person know the persons who have stolen any pro- 
 perty, and receive a sum of money to purchase such property 
 from the thieves, not meaning to bring them to justice, he 
 is within the statute, although the jury find that he did not 
 
 f 
 
 !■• ; 
 
 
106 
 
 MISLEADING JUSTICE. 
 
 [Se-^s. 167, 168 
 
 mean to screen the thieves, or to share the money with 
 them, and did not mean to assist the thieves in getting rid 
 of the property by procuring the prosecutrix to buy it ' 
 R. V. Pascoe, 1 Den. 456. 
 
 A person may be convicted of taking money on account 
 of helping a person to a stolen horse, though the money be 
 paid after the return of the horse : R. v. O'Donnell, V Cox, 
 337. As to the meaning of the words " corruptly takes ": 
 ■see R. V. King. 1 Cox, 36. 
 
 As to compounding crimes: see R. v. Burgess, Warb. Lead. 
 Cas. 67 ; 16 Q. B. D. 141. 
 
 Unlawfully Advkrtisino Reward. 
 
 197. Every one ia liable to a penalty of two hundred and fifty dollars 
 for each offence, recoverable with co!>ts by any [lerson who sues for the same in 
 any court of competent jurisdiction, who — 
 
 (rt) Publicly advertises a reward for the return of any property which has 
 been stolen or lost, and in such advertisement uses any words purporting that 
 no questions will be asked ; or 
 
 {b) Makes use of any words in any public advertisement purporting that a 
 reward will be given or paid for any property wl.ich has been stolen or lost, 
 without seizing or making any inquiry after the person producing such 
 property ; or 
 
 (c) Promises or offers in any such public advertisement to return to any 
 pawnbroker or other person who advanced money by way of loan on, or has 
 bought, any property stolen or lost, the money so advanced or paid, or any 
 other sum of money for the return of such property ; or 
 
 {d) Prints or publishes any such advertisement. R. S. C. c. 1(54, s. 90. 
 
 The penalty is recoverable under section 929, post. 
 
 Limitation, six months as to offence under (d), sec- 
 tion 551. 
 
 False Certificate of Execution of Sentence op Death. 
 
 158 Every one is guilty of an indictable offence and liable to two years' 
 imprisonment, who knowingly and wilfully signs a false certificate or decla- 
 ration when a certificate or declaration is required with respect to the 
 execution of judgment of death on any prisoner. R. S. C. c. 181, s. li). 
 
 This section seems out of place. It should come after 
 section 946, post. 
 
 Fine in addition to or in lieu of punishment, section 
 958. 
 
Sec. 150] ESCAPES AND RESCUES. 107 
 
 f 
 
 PART XI. 
 ESCAPES AND RESCUES. 
 
 Beino at Laroe While Under Sentence. {New). 
 ISO. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, having been sentenced to imprisonment, is afterwards, and 
 before the expiration of the term for which he was sentenced, at large within 
 Canada without some lawful cause, the proof whereof shall lie on him. 
 5 Geo. IV. 0. 84, s. 22, (Imp.). 
 
 " In dealing with the somewhat intricate subject of escapes 
 and rescues we have made distinctions which are, we think, 
 insufficiently recognized by the existing law, between the com- 
 mission of such offences by peace officers and gaolers, and by other 
 persons." — Imp. Comm. Rep. 
 
 Not triable at quarter sessions, section 540. 
 
 Fine and sureties, section 958. 
 
 Sections 1, 2, 6, 32 et seq. of 53 V. c. 37, are unrepealed. 
 
 Form of indictment : Archbold 884. Proof of a pre- 
 vious conviction, section 694. 
 
 What is an escape. — An escape is where one who is ar- 
 rested gains his liberty without force before he is delivered 
 by due course of law. The general principle of the law on 
 the subject is that as all persons are bound to submit them- 
 selves to the judgment of the law, and to be ready to be 
 justified by it, those who, declining to undergo a legal im- 
 prisonment when arrested on criminal process, free them- 
 selves from it by any artifice, and elude the vigilance of 
 their keepers, are guilty of an offence of the nature of a 
 misdemeanour. It is also criminal in a prisoner to escape 
 from lawful confinement, though no force or artifice be used 
 on his part to effect such purpose. Thus, if a prisoner go 
 out of his prison without any obstruction, the doors being 
 opened by the consent or negligence of the gaoler, or if he 
 escape in any other manner, without using any kind of 
 force or violence, he will be guilty of a misdemeanour : R, 
 V. Nugent, 11 Cox, 64. The officer by whose default a 
 
108 
 
 ESCAPES AND RESCUEa 
 
 [S«o. 169 
 
 ■f: 
 
 i 
 
 prisoner gains his liberty before he is legally discharged is 
 also guilty of the offence of escape, divided in law, then, into 
 two offences, a voluntary escape or a negligent escape. To 
 constitute an escape there must have been an actual arrest 
 in a criminal matter. 
 
 A voluntary escape is where an officer, having the cus- 
 tody of a prisoner, knowingly and intentionally gives him 
 his liberty, or by connivance suffers him to go free, either 
 to save him from his trial or punishment, or to allow him 
 a temporary liberty on his promising to return and, in fact, 
 80 returning: K v. Shuttleworth, 22 U. C. Q. B. 372. 
 Though some of the books go to say that, in this last case, 
 the offence would amount to a negligent escape only. 
 
 A negligent escape is where the party arrested or im- 
 prisoned escapes against the will of him that arrests or has 
 him in charge, and is not freshly pursued and taken again 
 before he has been lost sight of. And in this case, the law 
 presumes negligence in the officer, till evident proof on his 
 part to the contrary. The sheriff is as much liable to 
 answer for an escape suffered by his officers as if he had 
 actually suffered it himself. A justice of the peace who 
 bails a person not bailable by law is guilty of a negligent 
 escape, and the person so discharged is held to have es- 
 caped. 
 
 When was an escape a felony, and when a mis- 
 demeanour. — An escape by a prisoner himself is no more 
 than a misdemeanour whatever be the crime for which he 
 is imprisoned. Of course, this does not apply to prison- 
 breaking, but simply to the case of a prisoner running 
 away from the officer or the prison without force or vio- 
 lence. This offence falls under section 164, post. An officer 
 guilty of a voluntary escape is at common law involved in 
 the guilt of the same crime of which the prisoner is guilty, 
 and subject to the same punishment, whether the person 
 escaping were actually committed to some gaol, or under 
 an arrest only and not committed, and whether the offence 
 
 or impnsonm 
 
Bee. 169] 
 
 PRISON BREAKING, ETC. 
 
 109 
 
 be treason, felony or misdemeanour, so that, for instance, if 
 a gaoler voluntarily allows a prisoner committed for lar- 
 ceny to escape he is j?uilty of a felonious escape, and punish- 
 able as for larceny; whilst if such prisoner so voluntarily 
 by him allowed to escape was committed for obtaining 
 money by false pretenses, the gaoler is then guilty of a 
 misdemeanour, punishable under the common law by tine 
 or imprisonment, or both, but now under sections 165 and 
 166, ^08*. Greaves, note (r), 1 Russ. 587, says that the 
 gaoler might also, in felonies, be tried, as an accessory after 
 the fact, for voluntary escape: see 1 Hale 619, 620. A 
 negligent escape is always a misdemeanour, and is punish- 
 able, at common law, by fine or imprisonment or both. 
 
 What is a prison-breaking, and when was it a felony 
 or a misdemeanour ? The offence of piison-breach is a 
 breaking and going out of prison by force by one lawfully 
 confined therein. Any prisoner who frees himself from 
 lawful imprisonment, by what the law calls a breaking, 
 commits thereby a felony or a misdemeanour, according as 
 the cause of his imprisonment was of one grade or the 
 other : R. v. Haswell, R & R. 458. But a mere breaking is 
 not sufficient to constitute this offence ; the prisoner must 
 have escaped. The breaking of the prison must be an 
 actual breaking, and not such force and violence only as 
 may be implied by construction of law. Any place where 
 a prisoner is lawfully detained is a prison quoad his 
 offence, so a private house is a prison if the prisoner is in 
 custody therein. If the prison-breaking is by a person 
 lawfully committed for a misdemeanour it is, as remarked 
 before, a misdemeanour, but if the breaking is by a person 
 committed for felony then his offence amounts to felony. 
 
 A prisoner was indicted for breaking out from the lock- 
 up, being then in lawful custody for felony. It appeared 
 that the prisoner and another man had been given into the 
 custody of a police officer, without warrant, on a charge of 
 stealing a watch from the person. Thoy were taken before 
 
 f 
 
no 
 
 ESCAPES AND RESCUES. 
 
 [Sea 16t> 
 
 a magistrate. No evidence was taken upon oath but the 
 prisoner was remanded for three days. The prisoner broke 
 out of the lock-up and returned to his home. He appeared 
 before the magistrate on the day to which the hearing of 
 the charge had been adjourned, and on the investigation 
 of the charge it was dismissed by the magistrate, who 
 stated that in his opinion it was a lark and no jury would 
 convict. The prisoner contended that the charge having 
 been dismissed by the magistrate he could not be convicted 
 of prison-breaking, citing 1 Hale, 610, 611, that if a man be 
 subsequently indicted for the original offence and acquitted 
 such acquittal would be a sufficient defence to an indict- 
 ment for breach of prison. But Martin, B., held that a 
 dismissal by the magistrate was not tantamount to an 
 acquittal upon an indictment, and that it simply amounted 
 to this, that the justices did not think it advisable to pro- 
 ceed with the charge, but it was still open to them to hear 
 a fresh charge against him. The prisoner was found 
 guilty : R. v. Waters, 12 Cox, 390. 
 
 What is a rescue, and when was it a felony or a misde- 
 meanour? — Rescue is the forcibly and knowingly freeing 
 another from an arrest or imprisonment. A rescue in the 
 case of one charged with felony is felony in the rescuer 
 and a misdemeanour if the prisoner is charged »vith a mis- 
 demeanour : R. v. Haswell, R. & R. 458. But though, upon 
 the principle that wherever the arrest of a lolon is lawful 
 the rescue of him is a felony, it will not be material whe- 
 ther the party arrested for felony, or suspicion of felony, be 
 in the custody of a private peraon or of an officer, yet, if he 
 be in the custody of a private person, it seems that the 
 rescuer should be shown to have knowledge of the party 
 being under arrest for felony. 
 
 See 1 Russ. 581, et seq. ; 4 Stephen's Comm. 227, et 
 seq. ; 1 Hale, P. C. 595 ; 2 Hawk. p. 183 ; 5 Rep. Cr. L 
 Com., (1840), p. 53 ; 2 Bishop, Cr. L. 1066 ; R. v. Payne. 
 L. R. 1 C. C. R. 27. 
 
S«ci. 160-163] 
 
 PRISON BREAKING, ETC. 
 
 Ill 
 
 ■f 
 
 For forms of indictment : see Archbold," 795 ; 2 Chit. 
 Cr. L. 165; 5 Burn's Just. 137; 3 Bum's Just. 1332; 
 2 Bum's Just. 10 ; R. v. Young, 1 Rusa. 291. 
 
 By section 711, post, upon an indictment for any of 
 these offences the defendant may be found guilty of the 
 attempt to commit the offence charged, if the evidence war- 
 rants it. 
 
 None of the offences under this part XI are triable at 
 quarter sessions, section 540. Fine when punishn^ent not 
 more than five years, section 958. 
 
 AsaisTiNO Escape of Pbisoners of War. (JVew). 
 
 160. Every one is guilty of an indictable offence and liable to five yean' 
 imprisonment who knowingly and wilfully — 
 
 (a) Assists any alien enemy of Her Majesty, being a prisoner of war in 
 Canada, to escape from any place in which he may be detained ; or 
 
 (b) Assists any such prisoner as aforesaid, suffered to be at large on his 
 parole in Canada or in any part thereof, to escape from the place where he is 
 at large on his parole. 52 Geo. Ill, c. 156, (Imp.). 
 
 Breakino Prison. 
 
 16 1 • Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, by force or violence, breaks any prison with intent to 
 set at liberty himself or any other person confined therein on any criminal 
 charge. R. S. C. c. 15.5, s. 4. 
 
 " Prison " defined, section 3. A verdict under next 
 
 section may be given, section 711. See remarks under 
 
 section 159, ante. 
 
 Attempt, Etc., Etc. 
 
 162. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who attempts to break prison, or who forcibly breaks out of his 
 cell, or makes any breach therein with intent to escape therefrom. R. S. C. 
 c. 155, 8. 5. 
 
 " Prison " defined, section 3 ; fine and sureties, section 
 958. 
 
 Escape from Prison, Etc., Etc. 
 
 163. Every one is guilty of an indictable offence and liable to two years* 
 imprisonment who — 
 
 {«) Having been convicted of any offence, escapes from any lawful custody 
 in which he may be under such conviction ; or 
 
 (b) Whether convicted or not, escapes from any prison in which he is law- 
 fully confined on any criminal charge. 
 
 f 
 
 <: II 
 
112 
 
 ESCAPES AND RESCUES. 
 
 [Seos. 164.167 
 
 m 
 
 
 See remarks under preceding setitiona. A verdict of 
 attempt may be given, section 711. 
 
 EsoAPK FROM Lawful Costodt. 
 
 10ft. Every one is gn^il^y of an indictable offence and liable to two years' 
 imprisonment who beincr in lawful custody other than as aforesaid en any 
 criminal charge, escapes from such custody. 
 
 See remarks under preceding sections of this chapter. 
 
 AssiaTiNO Escape in Certain Cases. 
 
 163. Every one is guilty of an indictable offence and liable to seven years' 
 imprisonment who — 
 
 (a) Rescues any person or assists any person in escaping, or attempting to 
 escape, from lawful custody, whether in prison or not, under sentence of death 
 or imprisonment for life, or after conviction of, and before sentence for, or 
 while in such custody, upon a charge of any crime pimishable with death or 
 imprisonment for life ; or 
 
 (6) Being a peace officer and having any such person in his lawful custody, 
 or being an officer of any prison in which any such person is lawfully confined, 
 voluntarily and mtentionally permits him to escape therefrom . 
 
 See remarks under preceding sections of this chapter. 
 
 Assisting Escape in Other Cases. 
 
 166. Every one is guilty of an indictable offence and liable to five years' 
 imt)risonment who — 
 
 {a) Rescues any person, or assists any person in escaping, or attempting to 
 escape, from lawful custody, whether in prison or not, under a sentence of im- 
 prisonment for any term less than life, or after conviction of, and before 
 sentence for, or while in such custody upon a charge of any crime punishable 
 with imprisonment for a term less than life ; or 
 
 (6) Being a peace officer having any such person in his lawful custody, or 
 being an officer of any prison in which such person is lawfully confined, 
 voluntarily and intentionally permits him to escape therefrom. 
 
 Fine and sureties, section 958. See remarks under 
 preceding sections. 
 
 The Code does not provide for the offence of a neghgent 
 escape by the sheriff or gaoler as section 7 of the repealed 
 statute did as to escape from penitentiaries. 
 
 Aiding Escape from Prison. 
 
 107. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who with intent to facilitate the escape of any prisoner lawfully 
 imprisoned conveys, or causes to be conveyed, anything into any prison. 
 U. S. C. c. 155, 8. 6 ; 28-29 V. c. 126. s. 37, limp.). 
 
 See remarks under preceding sections. 
 
 Sees. 168, 169J 
 
 ^ndictTm 
 
 sent, that be 
 
 offence hereij 
 
 , in t 
 
 prisoner, and 
 
 mon gaol in a 
 
 afterwards an 
 
 in custody as 
 
 to be conveye( 
 
 instruments pj 
 
 the said files, 
 
 unlawfully did 
 
 -4. B. then bei 
 
 W. S. as aforeg 
 
 said keeper of 
 
 instruments as 
 
 gaol, and delive 
 
 aforesaid, with 
 
 so being such pr: 
 
 from and out of 
 
 t 
 
 10§. Every one 
 
 imprisonment, who kr 
 authority, directs or r 
 «) discharged, and th 
 K- S. C. 0. 155, 8. 8. 
 
 See remarks i 
 
 w 
 
 . "«»• Everyone™ 
 '"the prison to which h 
 at the time of his escape 
 «uch escape; a„d any i 
 
 penitentiary or prison f, 
 
 Crim. Law- 8 
 
Sees. 168, 169] 
 
 UNLAWFUL DISCHARGE. 
 
 113 
 
 Indictment. — The jurors for our Lady the Queen pre- 
 sent, that before and at the time of the committing of the 
 offence hereinafter mentioned, to wit, on the day of 
 
 , in the year of our Lord , one A. B. was a 
 
 prisoner, and in lawful custody of one W. S., in the com- 
 mon gaol in and for the county of ; and that E. F. 
 afterwards and whilst the said A. B. was such prisoner and 
 in custody as aforesaid, unlawfully did convey and cause 
 to be conveyed into the gaol aforesaid two steel files, being 
 instruments proper to facilitate the escape of prisoners, and 
 the said files, being such instruments as aforesaid, then 
 unlawfully did deliver and cause to be delivered to the said 
 A. B. then being such prisoner in the lawful custody of 
 Tr. S. as aforesaid, without the consent or privity of the 
 said keeper of the said gaol ; which said files being such 
 instruments as aforesaid, were so conveyed into the said 
 gaol, and delivered to the said A. B. by the said E. F. as 
 aforesaid, with the intent to aid and assist the said A. B., 
 so being such prisoner and in custody as aforesaid, to escape 
 from and out of the said gaol, and to facilitate his escape. 
 
 Unlawful Disohargk of Prisoner. 
 
 168. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment, who knowingly and unlawfully, under colour of any pretended 
 authority, directs or procures the discharge of any prisoner not entitled to be 
 80 discharged, and the person so discharged shall be held to have escaped. 
 R. S. C. 0. 155, 8. 8. 
 
 See remarks under preceding sections. 
 
 Punishment. 
 
 169. Every one who escapes from custody shall, on being retaken, serve, 
 in the prison to which he was sentenced, the remainder of his term unexpired 
 at the time of his escape, in addition to the punishment which is awarded for 
 such escape ; and any imprisonment awarded for such offence may be to the 
 penitentiary or prison from which the escape was made. R. S. C. c. 165, s. 11. 
 
 
 1, 
 
 I 1 
 
 i'i 
 
 Cbim. Law— 8 
 
:#ii' 
 
 114 
 
 OFFENCES AGAINST RELIGION, ETC. 
 
 [Sec. 170 
 
 TirLB IV. 
 
 OFFENCES AGAINST RELIGION, MORALS AND 
 PUBLIC CONVENIENCE. 
 
 PART XII. 
 
 OFFENCES AGAINST RELIGION. (New). 
 
 ITO. Every one is guilty of an indictable oflfence and liable to one ye.ar's 
 imprisonment who publishes any blasphemous libel. 
 
 2. Whether any particular published matter is a blasphemous libel or not 
 is a question of fact. But no one is guilty of a blasphemous libel for expressing 
 in good faith and in decent language, or attempting to establish by arguments 
 used in g<x)d faith and conveyed in decent language, any opinion whatever upon 
 any religious subject. 
 
 Fine and sureties, section 958; special enactment as to 
 indictments for libel, section 615. 
 
 The truth of a blasphemous libel cannot be pleaded as a 
 defence : see cases under section 123, ante ; also R. v. 
 Hicklin, L. R. 3 Q. B. 360, and Archbold, 813. 
 
 A blasphemous libel is triable at Quarter Sessions, 
 though not a defamatory nor a seditious libel, section 540. 
 This is new law. 
 
 " This section provides a punishment for blasphemous libels, 
 which offence we deem it inexpedient to define otherwise than 
 by the use of that expression. As, however, we consider that 
 the essence of the offence (regarded as a subject for criminal 
 punishment) lies in the outrage which it inflicts upon the 
 religious feelings of the community and not in the expression of 
 erroneous opinions, we have added a proviso to the effect that no 
 one shall be convicted of a blasphemous libel only for expressing 
 in good faith and decent language any opinion whatever upon 
 any rehgious subject. 
 
 "We are informed that the law was stated by Mr. Justice 
 Coleridge to this effect in the case of R. v. Pooley, tried at 
 Bodmin in 1857. We are not aware of any later authority on 
 the subject." — Imp. Comm. Rep. 
 
Sees. 171, 172] OBSTRUCTING CLERGYMEN, ETC. 
 
 115 
 
 Obstrdcting Clergymbn, Etc., Etc. 
 
 I Yl. Everyone is guilty of an indictable offence and liable to two years* 
 imprisonment who — 
 
 (a) By threats or force, unlawfully obstructs or prevents, or endeavours to 
 obstruct or prevent, any clergyman or other minister in or from celebrating 
 divine service, or otherwise officiating in any church, chapel, meeting-house, 
 school-house or other place /or divine worship, or in or from the performance of 
 his duty in the lawful burial of the dead in any church-yard or other burial 
 place. 24-25 V. c. 100, s. 36, (Imp.). 
 
 172s. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who strikes or offers any violence to, or upon any civil process 
 or under the pretense of executing any civil process, arrests any clergyman or 
 other minister who is engaged in or, to the knowledge of the offender, is aboufe 
 to engage in, any of the rites or duties in the next preceding section men- 
 tioned, or who, to the knowledge of the offender, is going to perform the same,, 
 or returning from the performance thereof. 
 
 These two sections are a re-enactment of s. 1, c. 156, 
 R. S. C. Fine or sureties, section 958. 
 
 The word school-house in the first section is not in the 
 English Act, and the words for divine worship are substi- 
 tuted for of divine worship. In the Revised Statutes it 
 was " used for." 
 
 Indictment for obstructing a clergyman in the discharge 
 of his duty — unlawfully did by force {threats or force). 
 obstruct and prevent one J. N., a clergyman, then being the^ 
 vicar of the parish of B., in the county of M., from cele- 
 brating divine service in the parish church of the said 
 parish (or in the perforiiuince of his duty in the laitful 
 hurial of the dead in the church-yard of the parish church. 
 of the said parish.) 
 
 Prove that J. N. is a clergyman and vicar of the parish 
 of B., as stated in the indictment ; that the defendant by 
 force obstructed and prevented him from celebrating divine 
 service in the parish church, etc., etc., or assisted in doing 
 80 : Archbold. 
 
 Indictmient for arresting a clergyman about to engage 
 in the performance of divine service. — unlawfully did 
 arrest one J. N., a clergyman, upon certain civil process, 
 whilst he, the said J. N., as such clergyman as aforesaid, 
 
 W 
 
 ■I . ,1 
 
 -?^.! 
 
116 
 
 OFFENCES AGAINST MORALITY. [Sees. 173, 174 
 
 III 
 
 was going to perform divine service, he the said (defend- 
 ant) then well knowing that the said J. N. was a clergy- 
 man, and was so going to perform divine service as afore- 
 said. 
 
 Disturbing Fcblio Wobshif. 
 
 178. Evety one is guilty of an offence and liable, on summary ocmviotion, 
 to a penalty not exceeding fifty dollars and costs, and in default of payment to 
 one month's imprisonment, who wilfully disturbs, interrupts or disquiets any 
 assemblage of persons met for religious worship, or for any moral, social or 
 benevolent purpose, by profane discourse, by rude or indecent behaviour, or 
 by making a noise, either within the place of such meeting or so near it as to 
 disturb the order or solemnity of the meeting, R. S. C. c. 156, s. 2. 
 
 The Imperial Statutes corresponding to this clause are 
 52 Geo. III. c. 155, s. 12 ; 15-16 V. c. 36 ; 23-24 V. c. 32. 
 
 The offences against it are punishable by summary con- 
 viction. It seems to be based on c. 92, s. 18, C. S. Can. 
 and c. 22, s. 3. C. S. L. C. 
 
 PART XIII. 
 OFFENCES AGAINST MORALITY. 
 
 Unnatural Offkncbb. 
 
 74. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who commits buggery, either with a human being or with any 
 other living creature. R. S. C. c. 157, s. 1. 24-25 V. c. 100, s. 61, (Imp.). 
 
 Indictment. — in and upon one J. N. did make an 
 
 assault, and then wickedly, and against the order of nature 
 had a venereal affair with the said J. N., and then carnally 
 knew him, the said J. N., and then wickedly, and against 
 the ordjr of nature, with the said J. N., did commit and 
 perpetrate that detestable and abominable crime of buggery. 
 
 Sodomy or buggery is a detestable and abominable sin, 
 amongst Christians not to be named, committed by carnal 
 
 Sec. 174] 
 
 knowledge 
 of nature 
 beast, or bj 
 
 If the < 
 years of ag 
 If by a boy 
 felony in th 
 
 The evic 
 tions; first, 
 have been 
 upon whom 
 and patient 
 Just. 644. 
 
 In R. V. 
 prisoner had 
 of age, to go 
 there, forced 
 his private p« 
 mouth; thej 
 crime of sodo 
 In one cas 
 that the con 
 indictable ; als 
 Jellyman, Wa 
 As in the < 
 constitute the 
 The evider 
 portion as the 
 
 Upon an in 
 
 be convicted of 
 
 The punish 
 
 The defend 
 
 offences created 
 
 warrants it; si 
 
 assaults on peri 
 
See. 174] 
 
 UNNATURAL OFFENCES. 
 
 117 
 
 knowledge against the ordinance of the Creator and order 
 of nature by mankind with mankind, or with brute and 
 beast, or by womankind with brute beast : 3 Inst. 58. 
 
 If the offence be committed on a boy under fourteen 
 years of age, it is felony in the agent only : 1 Hale, 670. 
 If by a boy under fourteen on a man over fourteen, it is 
 felony in the patient only : Archbold, 752. 
 
 The evidence is the same as in rape, with two excep- 
 tions : first, that it is not necessary to prove the offence to 
 have been committed against the consent of the person 
 upon whom it was perpetrated ; and secondly, both agent 
 and patient (if consenting) are equally guilty : 5 Burn's 
 Just. 644. 
 
 In R. V. Jacobs. R. & R. 331, it was proved that the 
 prisoner had prevailed upon a child, a boy of seven years 
 of age, to go with him in a back-jT^ard ; that he, then and 
 there, forced the boy's mouth open with his fingers, and put, 
 his private parts into the boy's mouth, and emitted in hisi 
 mouth ; the judges decided that this did not constitute th^ 
 crime of sodomy. 
 
 In one case the majority of the judges were of opinion 
 that the commission of the crime with a woman was 
 indictable ; also by a man with his wife : 1 Rusa. 939 ; R. v. 
 Jellyman, Warb. Lead. Cas. 57. 
 
 As in the case of rape, penetration alone is sufficient to 
 constitute the offence. 
 
 The evidence should be plain and satisfactory in pro- 
 portion as the crime is detestable. 
 
 Upon an indictment under this section, the prisoner may 
 
 be convicted of an attempt to commit the same, section 711. 
 
 The punishment would then be under the next section. 
 
 The defendant may also be convicted of either of the 
 offences created by sections 178, 260 or 265, if the evidence 
 warrants it; section 713. See section 261 as to indecent 
 assaults on persons under fourteen. 
 
 '^i^W: 
 
 I 1 
 
118 
 
 OFFENCES AGAINST MORALITY. 
 
 [Sec. 175 
 
 Indictment for bestiality. — with a certain cow 
 
 (any animal) unlawfully, wickedly and against the order 
 of nature had a venereal affair, and tlien unlawfully, wick- 
 edly and against the order of nature, with the said cow did 
 commit and perpetrate that detestable and abominable 
 crime of buggery. 
 
 Attempt to Commtt Sodomy. 
 
 1T5. Every one ia guilty of an indictable offence and liable to ten years* 
 imprisonment who attempts to commit the offence mentioned in the next pre- 
 ceding section. R. S. C. c. 157, s. 2 ; 24-25 V. c. ]00, s. G2, (Imp.). 
 
 Indictment. — in and upon one J. N. did make an 
 assault, and him, the said J. N. did then beat, wound and 
 ill-treat, with intent that detestable and abominable crime 
 called buggeiy with the said J. N. unlawfully, wickedly, 
 diabolically, and against the order of nature to commit and 
 perpetrate. 
 
 Where there is consent there cannot be an assault in 
 point of law: R. v. Martin, 2 Moo. 123. A man induced 
 two boys above the age of fourteen years to go with liim 
 in the ev^ening to an out of the way place, where they 
 mutually indulged in indecent practices on each others' 
 persons; Held, on a case reserved, that under these circum- 
 ;8tances, a conviction for an indecent assault could not be 
 upheld: R. v. Wollaston, 12 Cox, 180. But see now section 
 178, ijost. 
 
 But the definition of an assault that the act must l)e 
 ago. lust the tvill of the patient implies the possession of an 
 active will on his part, and, therefore, mere submission by 
 a boy eight years old to an indecent assault and inmioral 
 practices upon his person, without any active sign of dissent, 
 the child being ignorant of the nature of the assault, does 
 not amount to consent so as to take the offence out of the 
 operation of criminal law: R. v. Lock, 12 Cox, 244. But 
 see now section 261, jjost. 
 
 The prisoner was indicted for an indecent assault upon 
 a boy of about fourteen years of age. The boy had con- 
 
Sec. 17G] 
 
 INCEST. 
 
 119 
 
 sented. Held, on the authority ofR. v. Wollaston, 12 Cox, 
 180, that the charge was not maintainable : R. v. Laprise, 
 3 L. J^. 139. See now section 261, post. 
 
 Assault with intent to commit sodomy, section 260, 2)0st. 
 
 Incest. 
 
 ITfi. Every parent and child, every brother and sister, and every grand- 
 parent and grandchild, who cohabit or have sexual intercourse with each 
 other, shall each of them, if aware of their consanguinity, be deemed to have 
 committed incest, and be guilty of an indictable offence and liable to fourteen 
 years' imprisonment, and the male person shall also be liable to be whipped : 
 Provided that, if the court or judge is of opinion that the female accused is a 
 party to such intercourse only by reason of the restraint, fear or duress of the 
 other party, the court or judge shall not be bound to impose any punishment 
 on such person under this section. 53 V. o. 37, s. 8. 
 
 Incest is not an offence at common law. It is a capital 
 offence in Scotland : Wharton L. Lex. v. Iticest. 
 
 In New Brunswick, by c. 145, Rev. Stat., unrepealed, it 
 is indictable, punishment fourteen years. In Prince 
 Edward Island also, under the Act 24 V. c. 27, unrepealed, 
 incest is indictable, punishment twenty-one years. Also, in 
 Nova Scotia, c. 160, R. S. N. S., punishment two years. 
 
 A verdict of common or indecent assault may be given, 
 sections 259, 261, 265, if the evidence warants it, section 
 713. 
 
 Or a verdict of a&sault with intent to commit an indict- 
 able offence, section 263. 
 
 A verdict of attempt to commit incest might als( under 
 certain circumstances be given, section 711. In the United 
 States, in a case of The People v. Murray, 14 Cal. 159, the 
 court seems to have thought that such a verdict could be 
 given. In Connnonwealth v. Goodhue, 2 Met. 193, it was 
 held that one indicted for rape on the person of his daugh- 
 ter might be convicted of incest. But this would not be 
 .lk)wod under this code on a trial for rape, except it' the 
 indictment contained also a count for incest: section 026. 
 Then, the verdict would be on the count for incest, if the 
 prisoner Jiad been tried on both counts together. 
 
 r ■ 1 
 
 iii 
 
 I '! 
 
 ii4-:t 
 
 .if- 
 
120 
 
 OFFENCES AGAINST MORALITY. 
 
 [Sec. 177 
 
 The scienter must be alleged in the indictment. If one 
 cf the parties is not aware of the consanguinity he is not 
 guilty. In Bergen v. The People, 17 111. 426, it was held 
 that the defendant's admission of relationship with the 
 person with whom he held incestuous intercourse was suffi- 
 cient proof of such relationship. 
 
 Indictment. — that on at 
 
 A. B. did unlawfully have sexual intercourse with his 
 daughter, C. B., then and there knowing the said C. B. to be 
 his daughter. (Add another count with "cohabit" instead 
 of "have sexual intercourse." And another one with " com- 
 mit incest" instead of "have sexual intercourse " : Baumer 
 V. The State, 49 Ind. 544, Hawley, American Crim. Rep. 
 vol. 1, 354. 
 
 Indictment against father and daughter jointly. — 
 that on at A. B. and C. B. father and 
 
 daughter, did unlaw fully have sexual intercourse {in another 
 could, "did cohabit" and in a third one, "did commit 
 incest ") together and with one another, the said A. B. then 
 and there knowing the said C. B. to be his daughter, and 
 the said C. B. then and there knowing the said A. B. to be 
 her father. 
 
 Indecent Acts. 
 
 ITT- Every one is guilty of an offence and liable, on suniniary conviction 
 before two justices of the peace, to a fine of fifty dollars or to six months' 
 imprisonment with or without hard labour, or to both fine and imprisonment, 
 who wilfully — 
 
 (a) In the presence of one or more persons does any indecent act in any 
 place to which the public have or are permitted to have access ; or 
 
 (6) Does any indecent act in any place intending thereby to insult or offend 
 any person. 53 V. c. 37, s. 6. 
 
 Section 6 of 53 V. c. 37, is unrepealed. Sub-section {h) is 
 given as new by the Imperial Commission. See Archbold, 
 1051 ; R. V. Holmes, Dears. 207; R. v. Wellard, 14 Q. B. D. 63. 
 
 On an indictment at common law for indecent exposure 
 of the person, Held, that the exposure must be in an open 
 and public place, but not necessarily generally public and 
 open ; if a person indecently exposed his person in a private 
 
Sees. 17«, 179] 
 
 INDECENT ACTS, ETC. 
 
 121 
 
 yard, so that he might be seen from a public road where 
 there were persons passing, an indictment would lie : R. v. 
 Levasseur, 9 L. N. 386 ; Ex parte Walter, Ramsay's App. 
 Cas. 183 ; R. v. Harris, 11 Cox, 659. 
 
 See R V. Reed, 12 Cox, 1, post, under section 208 ; R. v. 
 Crunden, Warb. Lead. Cas. 99. 
 
 Acts op Gross Indkcknoy by a Male Person With Another Male. 
 
 178. Eveiy male person is guilty of an indictable offence and liable to 
 five years' imprisonment and to be whipped who, in public or private, commits, 
 or is a party to the commission of, or procures or attempts to procure the 
 commission by any male person of, any aot of gross indecency with another male 
 person. 53 V. o. 37, s. 5. 48-49 V, c. 69, s. 11 (Imp.). 
 
 Fine and sureties, section 958. Verdict of attempt on 
 an indictment to commit the offence in certain cases, section 
 711 ; see R. v. Jellyman, Warb. Lead. Cas. 57. 
 
 The facts proved in R. v. Wollaston, 12 Cox, 180, would 
 now be indictable under this section. So would the facts 
 proved in R. v. Rowed, 3 Q. B. 180, A verdict of attempt to 
 commit sodomy cannot be given on an indictment under 
 this section. The indictment may simply charge that 
 on at A. B., a male person, in public (in 
 
 another count " in private ") committed {or ivas a pdrt}j to 
 the commission of), (or procured), (or attempted to procure 
 the commission of) an act of gross indecency with C. D., 
 another male person. An indictment charging an attempt 
 by a male person to commit an act of gi'oss indecency with 
 another male person lies under section 529, post. Also 
 under section 260, for an indecent assault by a male person 
 on another male person. 
 
 Publishing Obscene Matter. {New). 
 
 179. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who knowingly, without lawful justification or excuse — 
 
 («) Publicly sells, or exposes for public sale or to public view, any obscene 
 book, or other printed or written matter, or any picture, photograph, model 
 or other object, tending to corrupt morals ; or 
 
 [l] Publicly exhibits any disgusting object or any indecent show ; 
 
 (c) Offers to sell, advertises, publishes an advertisement of, or has for sale 
 or disposal any medicine, drug or article intended or represented as a means 
 of preventing conception or causing abortion. 
 
 •I- " ' !:■' 
 
 f 
 
 t! 
 
 ■m-^ i I 
 
 y. 
 
 '';l- 
 
 
122 
 
 OFFENCES AGAINST MORALITY. 
 
 [Sec. 180 
 
 Sees. 181, 182] 
 
 2. No one shall be convicted of any offeiKe in this section mentioned if he 
 proves that the public good was served by the acts alleged to have been done. 
 
 3. It shall be a question of law whether the occasion of the sale, publishing, 
 or exhibiting is such as might be for the public good, and whether there is evi- 
 dence of excess beyond what the public good requires in the manner, extent 
 or circumstances in, to or under which the sale, publishing or exhibition h 
 made, so as to afford a justification or excuse therefor ; but it shall be a qiieH- 
 tion for the jury whether there is or is not such excess. 
 
 4. The motives of the seller, publisher or exhibitor shall in all cases be 
 irrelevant. 
 
 Fine or sureties, section 958. Allegations in indict- 
 ments, section 615. The corresponding article of the 
 Imperial draft code covered obscene libels. 
 
 " We believe that this section as to obscene publications 
 expresses the existing law, but it puts it into a much more de- 
 fiuite form than at present. We do not, however, think it desir- 
 able to attempt any definition of obscene libel other than that 
 conveyed by the expression itself." — Imp. Coram. Rep. 
 
 Sub-section (c,) section 207, jiost, covers offences which, 
 in certain cases, would fall under sub-section (h) of this sec- 
 tion 179. 
 
 See R. V. Bradlaugh, 3 Q. B. D. 607; Stephen's Cr. L. 
 Art. 172 ; R. v. Adams, 16 Cox, 544, 22 Q. B. D. 66, Warb. 
 Lead. Cas., 58 ; R. v. Saunders, 13 Cox, 116. 
 
 Posting Immoral Books, Etc. 
 
 ISO. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who posts for transmission or delivery by or through the post— 
 
 («) Any obscene or immoral book, pamphlet, newspaper, picture, print, 
 engraving, lithograph, photograph or other publication, matter or thing of an 
 indecent or immoral character ; or 
 
 ('>) Any letter upon the outside or envelope of which, or any post card or 
 post baud or wrapper upon whicli, there are words, devices, matters or things 
 of the character aforesaid ; or 
 
 (c) Any letter or ciroilar concerning schemes devised or intended to deceive 
 and defraud the public or for the purjwse of obtaining money under false pre- 
 tenses. R. S. C. c. 35, s. 103. (Amended). 47-48 V. c. 76, s. 4, (Imp.). 
 
 Fine and sureties, section 958. Indictment, section G16. 
 
 This section does not cover letters or writings of an 
 immoral character. The posting to be indictable under this 
 section must be made within Canada, but whether to be 
 
Sees. 181, 182] 
 
 SEDUCTION, ETC. 
 
 123 
 
 delivered out of Canada or not is immaterial. 
 .28 N. B. Rep. 564. 
 
 R. V. McKay, 
 
 Seduction of Girls Between Fourteen and Sixteen. 
 
 181. Every one is gtiilty of an indictable offence and liable to two years' 
 im))risonment who seduces or has illicit connection with any prirl of previously 
 tliaste character, of or above the age of fourteen years and under the age of 
 sixteen years. R. S. C. o. 157, s. 3 ; 53 V. c. 37, s. 3. {Amended). 48-49 
 V. e. 09, 8. 5, (Imp.). 
 
 Fine and sureties, section 958. Limitation, one year, 
 section 551. One witness only not sufficient if not cor- 
 roborated, section 684. 
 
 Indictment. — . . . . that A. B. on ... . unlawfully 
 f educed and had illicit connection with one C. D. a girl 
 of previously chaste character, and then being of, (or above 
 ike age of) fourteen years and under the age of sixteen 
 years. 
 
 As to evidence of age see R. v. Nicholls, 10 Cox, 476 , 
 R. v. Weaver, L. R. 2 C. C. R. 85 ; R. v. Wedge, 5 C. & 
 P. 298. 
 
 If it is proved that the girl was under fourteen the 
 prisoner must be acquitted. He may then be indicted 
 under section 269. 
 
 Previous chastity, according to a case in the United 
 States, is not to be presumed ; it has to be proved. West 
 V. The State, 1 Wis. 209; see Bishop, Stat. Cr. 639. A con- 
 trary opinion is held in Archbold. The United States 
 case seems to be correct. 
 
 Seduction Under Promise of Marriage. 
 
 188. Every one, above the age of twenty-one yeais, is guilty of an indict- 
 able offence and liable to two years' imprisonment who, under promise of mar- 
 riage, seduces and has illicit connection with any unmarried fem.ale of previously 
 chaste character and under twenty-one years of age. 50-51 V. c. 48, a. 2. 
 
 Fine, section 958. Limitation, one year, section 551. 
 
 One witness must be corroborated, section 684 ; subse- 
 quent marriage between the parties a good defence, section 
 
 184, [Xew). 
 
 ii 
 
 " 
 
 I i 
 
124 
 
 OFFENCES AGAINST MORALITY. [Sees. 183, 184 
 
 Indictment — That A. E. being then above the ago of 
 twenty-one years, did seduce under promise of marriage one 
 C, D. then an unmarried female of previously chaste char- 
 acter and then being, the said C. D., under twenty-one years 
 of age, and had illicit connection with her the said C. D. 
 
 As to proof of a previous chaste character see under 
 preceding section. If the man is married and the girl 
 knows it there can be no offence under this section. The 
 People v. Alger, 1 Parker, 333 , Bishop, Stat. Cr. 647. 
 
 Seduction of Ward. 
 
 183. Every one is guilty of an indictable offence and liable to two year«> 
 imprisonment who, being a guardian, seduces or has illicit connection with his 
 ward, and every one who seduces or has illicit connection with any woman or 
 girl of previously chaste character and under the age of twenty-one years who 
 is in his employment in a factory, mill or workshop, or who, being in a common 
 employment with him in such factory, mill or workshop, is, in respect of her 
 employment or work in such factory, mill or workshop, under or in any way 
 subject to his control or direction. 53 V. o. 37, s. 4. 
 
 Fine, section 958 ; limitation one year, section 551. 
 Evidence of one witness must be corroborated, section G84. 
 Subsequent marriage between the parties a defence, section 
 184. Verdict of attempt in certain cases, section 711. 
 
 The offence by a guardian on his ward need not have 
 been seduction. Illicit intercourse with his ward consti- 
 tutes an offence even if his ward was not of a previously 
 chaste character. 
 
 Indictment. — That on A. B. being the guardian of 
 
 one C. D. unlawfully did seduce and have illicit connoction 
 with the said C. D. his ward. {Add another count chdiylng 
 illicit connection only.) 
 
 The offence by an employer on his employee \6 seduc- 
 tion ; the illicit connection must have been with a woman 
 or girl of previously chaste character. Through an error, 
 however, as the section reads, there is no offence what- 
 ever of the kind provided for. 
 
 Sbduction op Female Passengers on Vessels. 
 
 184. Every one is guilty of an indictable offence and liable to a fine of 
 our hundred dollars, or to one year's imprisonment, who, l>eing the master or 
 
Sec. 185] 
 
 SEDUCTION, ETC. 
 
 125 
 
 other officer or a WAman or other |)er8on employed on board of any vessel, while 
 juch vessel is in any water within the jurisdiction of the Parliament of Canada, 
 under promise of marriage, or by threats, or by tlio exercise of his authority, 
 or by solicitation, or the making of gifts or presents, seduces and has illicit con« 
 nection with any female passenger. 
 
 2. The subsequent intermarriage of the seducer and the seduced is, if 
 pleaded, a go<xi defence to any indictment for any offence against this or either 
 of the two next preceding sections, except in the case of a guardian seducing 
 his ward. R. S. C. c. 65, s. 37. 
 
 Evidence of one witness must be corroborated, section 
 684, (Xew). 
 
 Verdict of attempt in certain cases, section 711. 
 
 Unlawfully Dkkilino Women. 
 
 1 8 'I. Every one is guilty of an indictable oflfenoe, and liable to two years' 
 imprisonment with hard labour, who — 
 
 (a) Procures, or attempts to procure, any girl or woman under twenty-one 
 years of age, not being a common prostitute or of known immoral character, to 
 have unlawful carnal connection, either within or without Canada, with any 
 other person or persons ; or 
 
 (6) Inveigles or entices any such woman or girl to a house of ill-fame or 
 assignation for the purpose of illicit intercourse or prostitution, or knowingly 
 conceals in such house any such woman or girl so inveigled or enticed ; or 
 
 (c) Procures, or attempts to procure, any woman or girl to become, either 
 within or without Canada, a common prostitute ; or 
 
 ((/) Procures, or attempts to procure, any woman or girl to leave Canada 
 with intent that she may becomean inmate of a brothel elsewhere ; or 
 
 (e) Procures any woman or girl to come to Canada from abroad with intent 
 that she may become an inmate of a brothel in Canada ; or 
 
 (/) Procures, or attempts to procure, any woman or girl to leave her usual 
 place of abode in Canada, such place not being a brothel, with intent that she 
 may become an inmate of a brothel within or without Canada ; or 
 
 (ij) By threats or intimidation procures, or attempts to procure, any woman 
 or girl to have any unlawful carnal connection, either within or without 
 Canada ; or 
 
 (h) By false pretenses or false representations procures any woman or girl, 
 not being a commcm prostitute or of known immoral character, to have any 
 unlawful carnal connection, either within or without Canada ; or 
 
 (i) Applies, administers to, or causes to be taken by any woman or girl any 
 druif, intoxicating liquor, matter, or thing with intent to stupefy or overpower 
 10 as thereby to enable any person to have unlawful carnal connection with ^.mo!> 
 woman or girl. 53 V. a 39, a. 9 ; R. S. C. c. 157, a. 7. 
 
 Limitation, one year, section 551. Fine, section 958. 
 
 The 53 V. c. 39, cited under this section, is an Act 
 respecting the Toronto Board of Trade. 
 
 If 
 
 I"' - : r 
 
126 
 
 OFFENCES AGAINST MORALITY. 
 
 [Sec. 185 
 
 Search warrant, section 574. Evidence of one witness 
 must be corroborated, section 684. As to indictments 
 charging false pretenses, fraud or fraudulent means, section 
 616. 
 
 This section is a re-enactment of sections 2 & 3 of 
 48-49 V. c. 69, (Imp.) except (b) which is taken from section 7, 
 chapter 157, R. S. C. Under (a) and (6), the woman or girl 
 must be under twenty-one years of age. 
 
 Forms of indictments. — (A) . . . that A. B., on etc., 
 at etc., unlawfully did procure (or attempt to procure) one 
 C. D,, a girl {or ivoman) then being, the said C. D., under 
 the age of twenty-one years, and not a common prostitute or 
 of known immoral character, to have unlawful carnal con- 
 nection with another person (or other persons.) 
 
 (B) . , . that A. B., on .... at ... . 
 unlawfully inveigled and enticed one C. D., a girl (or woman] 
 then being under the age of twenty-one years, she the said 
 C. D. not b<Mng then a common prostitute or of known im- 
 moral ch-.('ter, to a house of ill-fame (or assignation) for 
 the purpose of illicit intercourse and prostitution . . . 
 
 . . {or, that on .... at A. B. 
 
 unlawfully concealed in a house oi iW-fame {or assignation) 
 one C. D , a girl (or tvoman) then being, the said C. D., un- 
 der the age of twenty-one years and not a common prosti- 
 tute or of known immoral character, and which said C. D. 
 had been unlawfully inveigled and enticed to the said house 
 of ill-fame (or assignation) for the purpose of illicit inter- 
 course and prostitution). ... 
 
 (C.) .... That the said A. B., on etc., at etc., un- 
 lawfully did procure {or attempt to procure) one C. D., a 
 woman (or girl) to become a common prostitute : R. v. Mc- 
 Namara, 20 O. R. 489. 
 
 (D.) "^hat the said A. B., on etc., at etc., unlaw- 
 
 fully did procure (or attempt to procure) C. D., a woman 
 (or girl) to leave Canada with intent unlawfully that she 
 might become an inmate of a brothel elsewhere. 
 
Sec. 1S6] 
 
 SEDUCTION, ETC. 
 
 127 
 
 {E) that A. B.,at . . . 
 
 .on . . . . unlawfully procured {or attempted to 
 procure) one C. D. a woman (or girl) to come to Canada 
 from abroad with intent unlawfully that she might become 
 an inmate of a brothel in Canada. 
 
 (F) . . . that on ... at ... A. B., un- 
 lawfully procured (or attempted to procure) C. D., a woman 
 (or girl) to leave her usual place of abode in Canada, tO' 
 wit, at {naming her abode) such place not being a brothel, 
 with intent that she should for the purposes of prostitution 
 become an inmate of a brothel. 
 
 (G.) . . . . That A. B. on etc., at etc., unlawfully by 
 threats {or i^itiTnidation) procured {or attempted to procure} 
 C. D., a woman {or girl) to have unlawful carnal connec- 
 tion with men. 
 
 (H.) .... That A. B. by false pretenses {or false 
 representations) unlawfully procured C. D., a woman (or 
 (j'lrl) not being a common prostitute or of known immoral 
 character, to have unlawful carnal connection with men. 
 
 (/.) That A. B. on, etc., at etc., unlawfully applied to 
 {or administered to, or caused to be taken by) C. D., a 
 woman (or girl) a certain drug, intoxicating liquor (or 
 matter or thing) with intent to stupefy (or overpower) her 
 so as thereby to enable a man to have unlawful carnal con- 
 nection with her the said C. D. 
 
 Parent or Guardian Puocurino Defilement of Ward. 
 
 186. Every one who, being the parent or guardian of any girl or 
 womim, — 
 
 ((() Procures such girl or woman to have carnal connection with any man 
 other than the procurer ; or 
 
 (/)) Orders, is party to, permits or knowingly receives the avails of the 
 defilement, seduction or prostitution of such girl or woman, 
 
 Ispfuiltyof an indictable otfence, and- liable to fourteen years' imprison- 
 ment if such girl or woman is under the age of fourteen years, and if such giri 
 or woman is of or above the age of fourteen years to five years' imprisonment. 
 53 V. c. 37, 8. 9. 
 
 Limitation, one year, section 551. One witness must be- 
 corroborated, section 684. 
 
128 
 
 OFFENCES AGAINST MORALITY. 
 
 [Sec. 187 
 
 A stranger to a girl under fourteen is liable to imprison- 
 Tnent for life if he procures such girl to have carnal con- 
 nection with any man : sections 61-269 ; but a mother who 
 so procures her child to have carnal connection with a man 
 is punishable hy fourteen years only. And, in the case of a 
 girl between fourteen and sixteen, the mother who procures 
 her prostitution is punishable by five years whilst a stranger 
 is liable only to two ; sections 61-181. This last provision 
 is not a wrong one taken by itself, but to find it in the same 
 section with the firat one shows with what carelessness this 
 legislation has been enacted. For a mother to procure the 
 prostitution of her daughter is less criminal than if done by a 
 stranger to her daughter, if that daughter is less than four- 
 teen years old. But when the daughter is over fourteen 
 and less than sixteen, the procurement of her prostitution by 
 her mother is more criminal than if done by a stranger ! 
 and a guardian who is accessory to the prostitution of his 
 seventeen years old ward is liable to five years, but only to 
 two years if he himself seduces that ward : ss. 183-186. 
 
 HouaEHOLDER PERUITTINa DeBAUOUBRT ON HiS PREMISES. 
 
 ISY. Every one who, being the owner and occupier of any premises, or 
 having, or acting or assisting in the management or control thereof, inducoa 
 or knowingly suffers any girl of such age as in this section mentioned to resort 
 to or be in or upon such premises for the purpose of being unlawfully and 
 carnally known by any man, whether such carnal knowledge is intended to be 
 with any particular man, or generally, is guilty of an indictable offence and— 
 
 (a) Is liable V) ten years' imprisonment if such girl is under the age of 
 fourteen years ; and 
 
 (b) Is liable to two years' imprisonment if such girl is of or above the age 
 of fourteen and under the age of sixteen years. R. S. C. o. 157, s. 5 ; 53 V. 
 0. 37, 8. 3 ; 48-49 V. o. 69, s. 6, (Imp.). 
 
 Limitation, one year, section 551. One witness must be 
 corroborated, section 684. 
 
 A proviso in the Imperial Act, and in chapter 157 of the 
 R S. C. 8. 5, making it a sufficient defence if it appears that 
 the accused had reasonable cause to believe that the girl 
 was above sixteen, has been struck out : see K. v. Packer, 
 16 Cox, 57 ; R. v. Prince, 13 Cox, 138, Warb. Lead. Cas.89. 
 
li '■:!;. 
 
 Sec. 188] 
 
 SEDUCTION, ETC. 
 
 129 
 
 il i 
 
 Indictment under (a) .... that A, B., on . . . . then 
 being the owner and occupier (the Imperial statute has 
 ("or occupier") (or having, or acting, or assisting in the 
 management or control) of certain premises, to wit, a house 
 (describe it by street and number, or as oninutely as pos- 
 sible) did unlawfully induce (or unlawfully and knowingly 
 suffered) a certain girl, to wit, one C. D., then being under 
 the age of fourteen years, to resort to (or to be in, or upon) 
 the said premises for the purpose of being unlawfully and 
 carnally known by a man named W. M. (or by a man) or 
 by men generally. Vary in different counts. If it is proved 
 that the girl is above fourteen, but under sixteen, the con- 
 viction may be under (b) : see R. v. Webster, 16 Q. B. D. 
 136 ; R. V. Barrett, L. & C. 263, and R. v. Stannard, L. & C. 
 349. If it is proved that the girl is above sixteen the con- 
 viction may be, if the evidence warrants it, under section. 
 185. 
 
 Conspiracy to Defile. (New). 
 
 1§8. Every one is gwilty of an indictable offence and liable to two years' 
 imprisonment who conspires with any other person by false pretenses, or false 
 rei)resentations or other fraudulent means, to induce any woman to commit 
 adultery or fornication. 
 
 Fine, section 958 ; requirements of indictment, section 
 616 ; one witness must be corroborated, section 684 : See 
 R. v. Lord Grey, 3 St. Tr. 519 ; R. v. Mears, 2 Den. 79 ; 
 R. v. Delaval, 3 Burr. 1435. Adultery is an indictable 
 offence in New Brunswick : R. v. Egre, 1 P. & B. 189 ;.. 
 R. V. Ellis, 22 N. B. Rep. 440. But it being unlawful, thougli 
 not indictable in the other provinces, the above section has 
 only the effect of reducing the punishment which, on an 
 indictment at common law, for such conspiracy would be. 
 punishable by five years under section 951. 
 
 Indictment for conspiracy to procure a woman to 
 have illicit connection with a num. — That A. B. and 
 C. J)., being persons of wicked and depraved mind and dis- 
 position, and contriving, craftily and deceitfully, to debauch 
 and corrupt the morals of E, F., a woman, on the day 
 
 Cbim. Law — {» 
 
 
 
 f 
 
 t 
 
130 
 
 OFFENCES AGAINST MORALITY. [Sees. 189, 190 
 
 of , did conspire, combine, confederate, 
 
 and agree together, wickedly, knowingly, designedly, and 
 unlawfully, by false pretenses, false representations, and 
 other fraudulent means, to induce the said E. F. to have 
 illicit carnal connection and commit fornication with a man, 
 whose name is to the jurors unknown, {or with A. D.). 
 
 CARN.'iLLy Knowing Idiots. 
 
 ISO* Every one is guilty of an indictable offence and liable to four years' 
 imprisonment who unlawfully and carnally knows, or attempts to have unlaw- 
 ful carnal knowledge of any female idiot or imbecile, insane or deaf and dumb 
 woman or girl, under circumstances which do not amount to rape but which 
 prove that the offender knew, at the time of the offence, that the woman or 
 girl was an idiot, or imbecile, or insane or deaf and dumb. R. S. C. c. 157, s. 3. 
 50-51 V. c. 48, 8. 1. 48-49 V. c. 69, s. 5, (Imp.). 
 
 The words in italics are new : see R. v. Berry, 
 1 Q. B. D. 447. Fine, section 958 ; one witness must be 
 corroborated, section 684; verdict of attempt in certain 
 cases when full offence charged, section 711. 
 
 Indictment. — .... that A. B. on . . . . 
 at . ... unlawfully did indecently assault, and 
 unlawfully and carnally did know (or did attempt to have 
 unlawful carnal knowledge of) a certain female idiot 
 called C. D. {or imbecile and insane woman or girl) called 
 C D. {or deaf and dumb ivoman or girl) called C. D. 
 under circumstances that do not amount to rape, he, the 
 said A. B., well knowing at the time of the said offence that 
 the said woman {or girl) was an idiot, or {as tlie case 
 may be.) 
 
 See E. V. Pressy, 10 Cox, 635, and R. v. Arnold, 1 Russ. 9. 
 
 Consent by the female is not a defence. A verdict of 
 common ansault or indecent assault may be given, section 
 713, but not a verdict of attempt to commit rape. If rape 
 or attempt to commit rape is proved the judge may order 
 that the offender be indicted accordingly. 
 
 Prostitution of Indian Women. 
 
 190« Every one is guilty of an indictable offence and liable to a penalty 
 not exceeding one hundred dollars and not less than ten dollars, or six 
 months' imprisonment — 
 
 Sec. 191] 
 
 (a) Who, b 
 any unenfranch 
 warn, knowing c 
 is in or remains 
 tuting herself tl 
 
 (b) Who, be 
 
 (c) Who, be 
 found in a disorc 
 
 2 Every pen 
 the person who h 
 which any such ; 
 herself therein, is 
 13 not in fact the 
 c. 33, s. 11. 
 
 Section 6t 
 tiie enactmen 
 Indians. The 
 
 *"!• A comm( 
 legal duty, which ac 
 or comfort of the jhi 
 or enjoyment of .iny 
 
 4 Blac. Com 
 1^(J cf seq, and 
 184; R. V.Med 
 R- V. Lister, Dej 
 702 ; R. V. Bre^v 
 « 0. R 583 ; R 
 10L.C.R117; 
 15 Q. L. R 147 ; 
 Mayor of St. Jo 
 ^'iiisance, 102G, 
 

 Sec. 191] 
 
 SEDUCTION, ETC. 
 
 131 
 
 (a) Who, being the keeper of any house, tent or wigwam, allows or suffers 
 any unenfranchised Indian woman to be or remain in such house, tent or wig- 
 wam, knowing or hftving £)robable cause for believing that such Indian woman 
 is in or remains in such house, tent or wigwam with the intention of prosti- 
 tuting herself therein ; or 
 
 (6) Who, being an Indiin woman, prostitutes herself therein ; or 
 
 (c) Who, being an unenfranchised Indian woman, keeps, frequents or is 
 found in a disorderly house, tent or wigwam used for any such purpose. 
 
 2 Every person who appears, acts or behaves as master or mistress, or as 
 the person who has the care or management, of any house, tent or wigwam in 
 which any such Indian woman is or remains for the purpose of prostituting 
 herself therein, is deemed to be the keeper thereof, notwithstanding he or she 
 13 not in fact the real keeper thereof. R. S. C. c. 43, ss. 106 & 107. 50-51 V. 
 c. 33, s. 11. 
 
 Section Q84:,post, applies. Under c. 33, s. 11, 50-51 V. 
 tlie enactment contained in this sectioi> applied only to 
 Indians. The word " unenfranchised " is new. 
 
 :!,;; .ijii!;; 
 
 
 iT 
 
 I'AUT XIV. 
 
 NUISANCES. 
 
 Common Nuisanx'e. 
 
 Iftl • A common nuisance is an unlawful act or omission to discharge a 
 legal chity, which act or omission endangers the lives, safety, health, property 
 or comfort of the jniblic, or by which the public are obstructed in the exercise 
 or t'lijoymcut of any right connuim to all Her Majesty's subjects 
 
 4 Blac. Coinm. 1G6 : 1 lluss. 421 ; Stephen's Cr. L. Art. 
 17G et seq, and cases there cited ; 11. v. JVIoorc, 3 B. ^: C. 
 184 ; R. V. Medley, G C. & P. 292 ; R. v. Henson, Dears. 24 ; 
 R. V. Lister, Dears. & B. 209 ; R. v. Stephens, L. R. 1 Q. B. 
 702 : R. V. Brewster, 8 U. C. C. P. 208 ; Hillyard v. G. T. R. 
 8 0. R. 583; R. v. Duiiiop, 11 L. C. J. 18G; R. v. Bruce, 
 10 L. C. R. 117;' R. v. Patton, 13 L. C. R. 311 : R. v. Brice, 
 15 Q. L. R. 147 ; Brown & Gu^y, 14 L. C. R. 213 ; R. v. The 
 Mayor of St. John, Chipnian MSS. 155 ; 3 Burn's Just. v. 
 Nuisance, 102G, 10G8. 
 
132 
 
 NUISANCES. 
 
 [Sec. 191 
 
 "With regard to nuisances we have, in section 151 and 
 section 152, (192, 193, post), drawn a line between such nuisances 
 as are and such as are not to be regarded as criminal offences. 
 It seems to us anomalous and objectionable upon all grounds that 
 the law should in any way countenance the proposition that it is 
 a criminal oflfence not to repair a highway when the liability to 
 do so is disputed in perfect good faith. Nuisances which en- 
 danger the life, safety, or health of the public stand on a differ- 
 ent footing." 
 
 " By the present law, when a civil right such as a right of 
 way is claimed by one private person and denied by another, the 
 mode to try the question is by an action. But when the right 
 is claimed by the public, who are not competent to bring an 
 action, the only mofle of trying the question is by an indictment 
 or information, which is, in form, the same as an indictment or 
 information for a crime. But it was very early determined that, 
 though it was in form a prosecution for a crime, yet that, as it 
 involved a remedy for a civil right, the Crown's pardon could 
 not be pleaded in bar : see 3 Inst 237. And the legislature, so 
 recently as in the statute 40 and 41 V. c. 14, (allowing defend- 
 ant to i^e a witness) again recognized the distinction." 
 
 *• The existing remedy in such cases is not convenient, but it 
 is not within our province to suggest any amendment." — Imp. 
 Comm. Rep. 
 
 Indictment. — that A. B on 
 
 and on divers other days and times as well before as after- 
 wards, at (set forth the nuisance) (the clefendavt 
 
 will he entitled to particulars. R. v. Purwood, S Ad. & 
 El. 815, sections 611, 629, post) and the same nuisance so 
 as aroresaid done, doth yet continue and suffer to remain 
 to the great damage and common nuisance of all the liege 
 subjects of Her Majesty. And the jurors aforesaid present 
 that the said A. B. on the day and vear aforesaid did com- 
 mit a common nuisance which endangered the lives, safety, 
 health, property or comfort (as the case may be) of the 
 public (or by which the pxdMc are obstructed in the 
 exercise or enjoyment of a right common to all Her Ma- 
 jesty's subjects, to wit, the rir/ht of) to the great damage and 
 
Sees. 192-196] 
 
 NUISANCES. 
 
 133 
 
 common nuisance of all the subjects of Her Majesty, 
 Special forms in 3 Burn, loc. clt.; R. v. Lister, Dears. & B. 
 209 ; R. V. Mutters, L. & C. 491, Saunder's Precedents, 192, 
 et aeq. 
 
 Penalty fob Common Nuisance. (New). 
 
 192* Every one is guilty of an indictable offence and liable to one year's 
 imprisonment or a fine who commits any common nuisance which endangers 
 the lives, safety or health of the public, or which occasions injury to the person 
 of any individual. 
 
 See under preceding section. The words in italics are 
 new law. They are in contradiction with the definition 
 given in the preceding section. 
 
 Nuisances of a Pabticular Chabacteb. (New). 
 
 103* Any one convicted upon any indictment or information for any 
 common nuisance other than those mentioned in the preceding section, shall 
 not be deemed to have committed a criminal offence ; but all such proceedings 
 or judgments may be taken and had as heretofore to abate or remedy the 
 mischief done by such nuisance to the public light. 
 
 See annotation under section 191, ante. 
 
 Selling Things Unfit fob Food. (New). 
 
 194> Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who knowingly and wilfully exposes for sale, or hap in his pos- 
 session with intent to sell, for human food, articles which he knows to be unfit 
 for human food. 
 
 2. Every one who is convicted of this offence after a previous conviction 
 for tlie same crime shall be liable to two years' imprisonment. 
 
 Fine, section 958. A common law misdemeanour: see 
 Shillito V. Thompson, 1 Q. B. D. 12 ; 1 Russ. 169, and cases 
 there cited. The offence is already covered by chapter 107, 
 R S. C: Form, 2 Chit. 555. 
 
 Common Bawdy House Defined. (New). 
 
 lt)5> A common bawdy- liouse is a house, room, set of rooms or place of 
 any kind kei)t for purposes of prostitution. 
 
 Common Gaming House Defined. (New). 
 1<)6« A common gaming-house is — 
 
 (ii) A house, room or place kept by any person for gain, to which (lersona 
 resort for the puri^se of playing at any game of chance ; or 
 
 (>)) A house, room or place kept or used for playing therein at any game of 
 chance, or any mixed game of chance and skill, in which — 
 
 
134 
 
 NUISANCES. 
 
 [Sees. 107, 198 
 
 (i) A bank is kept by one or more of the players exclusively of the 
 others ; or 
 
 (ii) In which any game is played the chances of which are not alike 
 favourable to all the players, including among the players the banker or 
 other person by whom the game is managed, or against whom the game is 
 managed, or against whom the other players stake, play or bet. 8-9 V. 
 c. 109, s. 2 (Imp.). 
 
 Every place where gaming in stocks is carried on is a 
 gaming hou^j : ss. 198 and 201, pos^, and notes thereunder ; 
 see Jenks v. Turpin, 13 Q. B. D. 505. 
 
 Common Betting Housb Defined. 
 
 197* A common betting-house is a house, office, room or other place — 
 
 (rt) Opened, kept or used for the purpose of betting between persons 
 resorting thereto and — 
 
 (i) The owner, occupier, or keeper thereof ; 
 
 (ii) Any person using the same ; 
 
 (iii) Any person procured or employed by, or acting for or on behalf 
 of, any such person ; 
 
 (iv) Any person having the care or management, or in any manner 
 conducting the business thereof ; or 
 
 (6) Opened, kept or used for the purpose of any money or valuable tiling 
 being received by or on behalf of any such person as aforesaid, as or for the 
 consideration, 
 
 (i) For any assurance or undertaking, express or implied, to pay or 
 give thereafter any money or valuable thing on any event or contingency 
 of, or relating to, any horse-race or other race, fight, game or sport ; or 
 
 (ii) For securing the paying or giving by some other person of any 
 money or valuable thing on any such event or contingency. l(i-17 V. c. 
 Ill) ( Imp.). 
 
 See Doggett v. Catterns, 19 C. B. N. S. 765 ; Haigli v. 
 SheffieM, L. B. 10 Q. B. 102; R. v. Preedy, 17 Cox, 488; 
 Whitelmrst v. Fincher, 17 Cox, 70; Davis v. Stephenson, 17 
 Cox, 73; Snow v. Hill, 15 Cox, 737, 14 Q. B. D. 588 ; Ovm- 
 inada v. Hulton, 17 Cox, 307 ; Hornsby v. Raggett, 17 Cox, 
 428. 
 Bawdy-House, Common Gaming or Betting-Housk, Punishment. (Niw). 
 
 10S« Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who keeps any disorderly house, that is to say, any common 
 bawdy-house, common gaming-house or common betting-house, as hereinl*fore 
 defined. 
 
 2. Any one who appears, acts, or behaves as master or mistress, or a« the 
 person having the care, government or management, of any disorderly house 
 shall be deemed to be the keeper thereof, and shall lie liable to be prosecuted 
 
Sees. 199, 200] 
 
 NUISANCES. 
 
 135 
 
 and punished as such, although in fact he or she is not the i-eal owner or keeper 
 thereof. 25 Geo. II. c. .S6, s. 8. 16-17 V. o. 119. 17-18 V. c. 38 '" .p.). 
 
 A common law misdemeanour. Ss. 9 & lu of chapter 
 158, R. S. C, "a,n Act respecting Gaming Houses," as to 
 evidence in such cases, are unrepealed. Fine, s. 958. S. 
 207, post, also provides for the offence of keeping a dis- 
 orderly house. 
 
 Section 575, 2^ost, as to search warrants ; ss. 702, 703, 
 as to evidence in such cases, and ss. 783 & 784, as to sum- 
 mary trial. 
 
 Husband and wife may be indicted together: R. v. 
 Williams, 1 Salk. 3S3 ; R. v. Dixon, 10 Mod. 335 ; R. v. 
 Warren, 10 O. R. 590. *SVe R. v. Crawshaw, Bell, 303; R. 
 V. Barrett, L. & C. 263 ; R. v. Rogier, 1 D & R. 284 ; Jenks 
 V. Turpin, 13 Q. B. D. 505 ; R. v. McNamara, 20 O. R. 489 ; 
 R. V. Stannard, L. & C. 349 ; R. v. Newton, 11 Ont. P. R. 
 101 ; R. V. Rice, Warb. Lead. Cas. 101, as to Avhat is a 
 bawdy house, or a common gaming house. 
 
 Playing or Looking on in Gaming-Holse. 
 
 199< Every one wlio plays or looks on while any other jierson is playing 
 in a eoiniuon R'unincr-liouse is guilty of an otfcnco and liable, on summary con- 
 viction before two justices of the ^leace, to a penalty not exceeding one hundred 
 dollars and not less than twenty dollars, and in default of payment to two 
 months' imprisonment. R. S. C. c. 1.58, s. 6. 
 
 See. R. V. Murphy, 17 O. R. 201 
 
 Obstructing Peace Okfickr Entering Gaming-Hocse. 
 
 300. Every one is guilty of an offence and liable, on summary conviction 
 l»fore two justices of the peace, to a penalty not exceeding one hundred dollars, 
 and to six months' imprisonment, with or without hard labour, who — 
 
 (d) Wilfully i)revents any constable or other officer duly authorized to 
 cntu- any disorderly house, as mentionetl in section one hundred and ninety- 
 eight, from entering the samo or any part thereof ; or 
 
 (!>) Obstructs or delays any such constable or officer in so entering ; or 
 
 (c) By any bolt, chain or other contrivance secures any external or internal 
 door of, or means of access to, any counnon gaming-house so authorized to be 
 entered ; or 
 
 ((/) Uses any means or contrivance whatsoever for the purpose of prevent- 
 inc:, obstructing or delaying the entry of any constable or officer, authorized as 
 ufori'said, into any such disorderly house or any part thereof. R. S. C. c. 158, 
 
 f 
 
136 
 
 NUISANCES. 
 
 [Sees. 201-203 
 
 Gaming in Stocks and Mekchandise. 
 
 S01« Every one is guilty of an indictable offence and liable to five years' 
 iinprisonment, and to a* line of five hundred dollars, who, with the intent to 
 make gain or profit by the rise or fall in price of any stock of any incoriwrated 
 or unincorporated company or undertaking, either in Canada or elsewhere, or 
 of any goods, wares or merchandise— 
 
 («) Without the bona fide intention of acquiring any such shares, goods, 
 wares or merciiandise, or of selling the same, as the case may be, makes or 
 signs, or authorizes to be made or signed, any contract or agreement, oral or 
 written, purporting to be for the sale or purchase of any such shares of stock, 
 goods, wares or merchandise ; or 
 
 {h) Makes or signs, or authorizes to be made or signed, any contract or 
 agreement, oral or written, purporting to be for the sale or purchase of any 
 such shares of stock, goods, wares or merchandise in resi^ect of which no 
 delivery of tlie tiling sold or purchased is made or received, and without tlie 
 honafidc intention to make or receive such delivery. 
 
 2. But it is not an offence if the broker of the purchaser receives delivery 
 on his behalf, of the article sold, notwithstanding that such broker retains or 
 pledges the same as security for the advance of the purchase money or any 
 part thereof. 
 
 o. Every office or place of business wherein is carried on the business of 
 making or signing, or procuring to be made or signed, or negotiating or bar- 
 gaining for the making or signing of such contracts of sale or purchase as are 
 prohibited in this section is a common gaming-house, and every one who as 
 principal or agent occupies, uses, manages or maintains the same is tlie keeper 
 of a common gaming-house. 51 V. c. 42. ss. 1 & 3. 
 
 This is a re-enactment of the Act against bucket shops. 
 Sec section 704, jjost, as to evidence. 
 
 FaEyuENTiNO Places Where Gaming in Stock8 is Carried on. 
 
 303* Every one is guilty of an indictable offence and liable to one 
 year's imurisonuieiit wiio habitually frequents any office or place wherein the 
 Hulking or siijiiing, or procuring to be made or signed, or the negotiating or 
 l)i\rg;dning for the making or signing, of such contracts of sale or purcha.«eas 
 lire mentioned in the section next preceding is carried on. 51 V. c. 42, s. 1. 
 
 Fine, section 958. 
 
 (iAMBLlNG IN PUDLIC CONVEYANCES. 
 
 SOiti Every one is guilty of an indictable offence and liable to one year's 
 imprisoniiicnt who — 
 
 (") In any railway car or steamboat, used as a public conveyance for 
 passengers, by means of any game of cards, dice or other instrument of 
 gambling, or by any device of like character, obtains from any other person 
 any money, chattel, valuable security or projHjfty ; or 
 
 (b) Attempts to commit such offence by actually engaging any i^erson in 
 i.ny :juch game with intent to obtain money or other valuable thing from him. 
 
Sec. 204] 
 
 BETTING AND POOL-SELLING. 
 
 137 
 
 2. Every conductor, master or superior officer in charge of, and every 
 clerk or employee when authorized by the conductor or superior officer in 
 charge of, any railway train or steamboat, station or landing place in or at 
 which any such offence, as aforesaid, is committed or attempted, 7nust, with or 
 without warrant, arrest any person whom he has good reason to believe to have 
 committed or attempted to commit the same, and take him before a justice of 
 the i>eace, and make complaint of such offence on oath, in writing. 
 
 3. Every conductor, master or sui^erior officer in charge of any such 
 railway car or steamboat, who makes default in the discharge of any such duty 
 is liable, on summary conviction, to a iienalty not exceeding one hundred 
 dollars and not less than twenty dollars. 
 
 4. Every company or iierson who owns or works any such railway car or 
 steamboat must keep a copy of this section posted up in some conspicuous 
 part of such railway car or steamboat. 
 
 5. Every company or person who makes default in the discharge of such 
 duty is liable to a ijenalty not exceeding one hundred dollars and not less than 
 twenty dollars. R. S. C. c. 160, ss. 1, 3, 6. (A mended). 
 
 Fine, section 958. 
 
 Betting and Pool-Selling. 
 
 304. Every one is guilty of an indictable offence, and liable to one year'i* 
 imprisonment, and to a fine not exceedi;:<? one thousand dollars, who 
 
 (a) Uses or knowingly allows any part of any premises under his control to 
 be used for the purpose of recording or registering any bet or wager, or selling 
 any uool ; or 
 
 (h) Keeps, exhibits, -ji' employs, or knowingly allows to be kept, exhibited 
 or employed, in any part of any premises under his control, any device or 
 appa/atus for the purpose of retiording any bet or wager, or selling any pool ; 
 or 
 
 ((■) Becomes the custodian or depositary of any money, property or valu- 
 able thing staked, wagered or pledged ; or 
 
 ( /) Records or registers any bet or wager, or sells any pool, upon the 
 result— 
 
 (i) Of any political or municipal election ; 
 
 (ii) Of any race ; 
 
 (iii) Of any contest or trial of skill or endurance of man or boast. 
 
 2. The provisions of this section shall not extend to any person by reason 
 of Ills becoming the custodian or depositary of any money, property or valuable 
 tliiiijf staked, to be paid to the winner of any lawful race, sport, game, or 
 exorcise, or to the owner of any horse engaged in any lawful race, or to bets 
 between individuals or viade on the race course of an incorporated association 
 dunntj the actual progress of a rice meeting. R. S. C. c. 159, s. 9. 
 
 The words in italics are new. Section 783, j)Ost, as to 
 summary trial of offences under this section : see Fulton v. 
 James, 5 U. C. C. P. 182; R. v. Dillon, 10 Ont. P. R 352; R. 
 V. Smiley, 22 O. R. 686. 
 
 1 1 1 
 
138 
 
 NUISANCES. 
 
 LoTTKRlEa. 
 
 [Sec. 205 
 
 \¥''4^^ 
 
 90{|« Kvery one is guilty of an indictable offence and liable to two yean* 
 imprisitnmo.nt and to a Jine not excecdin;/ two thousand dollars, wlio — 
 
 {a) Makes, printH, advertises or publishes, or causes or procures to be 
 made, printed, advertised or jjublished, any proiwsal, scheme or plan for 
 advancing, lending, giving, selling or in any way disposing of any property, by 
 lots, cards, tickets, or any mode of chance whatsoever ; or 
 
 {b) Sel's, barters, exchanges or otherwise disposes of, or causes or procures, 
 or aids or assists in, the sale, barter, exchange or other disposal of, or offers 
 for sale, barter or exchange, any lot, card, ticket oi otiier means or device for 
 advancing, lending, giving, selling or otherwise disixisiuj of any property by 
 lots, tickets or any mode of chance whatsoever. 
 
 2. Every one is guilty of an offence and liable on summary conviction to 
 a penalty of twenty dollars, who buys, takes or receives any such lot, ticket or 
 other device as aforesaid. 
 
 3. Every sale, loan, gift, barter or exchange of any property, by any 
 lottery, ticket, card or other mtxlo of chance depending upon or to be deter- 
 mined by chance or lot, is void, and all such property so sold, lent, given, 
 bartered or exchange.!, is liable to be forfeited to any person who sues for the 
 same by action or information in any court of competent jurisdiction. 
 
 4. No such forfeiture shall affect any right or title to such property 
 acquired by any bunajide purchaser for valuable consideration, without notice. 
 
 5. This section includes the printing or publishing, or causing to be 
 printed or published, of any advertisement, scheme, proposal or plan of any 
 foreign lottery, and the sale or offer for sale of any ticket, chance or sliaru in 
 any 8v.oh lottery, or the advertisement for sale of such ticket, chance or share. 
 
 6. This section does not apply to — 
 
 (a) The division by lot or cliance of any property by joint tenants or 
 tenants in common, or persons having joint interests (droits indivis) in any 
 such property ; or 
 
 (b) Raffles for prizes of small value at any bazaar held for any charit.able 
 object, if permission to iiold the sa!no has been obtained from the city or other 
 municipal council, or from the Mayor, reeve or otiior chief officer of the city, 
 town or other municipality, wherein such bazaar is held and the articles 
 raffled for thereat have first been offered for sale and none of them are of a 
 value exceeding fifty dollars ; or 
 
 (c) Any distribution by lot among the members or ticket holders 
 of any incorporated society established for the encouragement of art, of any 
 paintings, drawings or other work of art produced by the labour of the mem- 
 bers of, or published by or under the direction of, such incorporated society. 
 
 (d) The Credit Fonder du Jias-C'anada or to the Credit Foncier Fruncn- 
 C'anadien. R. S. C. c. 159. 
 
 " Property " defined, section 3. The words in italics are 
 new. By the repealed statute the penalty was only twenty 
 dollars punishable on summary conviction : see s. .575, as to 
 
 .Sec. 20(!] 
 
 ■search warr 
 Widder, 16 1 
 Power V. Ca 
 Villeneuve, i 
 
 Mis 
 
 SOO. Everj 
 
 imprisonment wh 
 
 («) Without I 
 upon him by law 
 dead human body 
 
 {b) Impropcrl; 
 dead human body 
 
 A common 
 a dead body ) 
 offence ; R. y 
 Q. B. J). 2-17 ; 
 079, Wurl). Le 
 R. V. Feist, Dei 
 
 Indictment 
 of in 
 
 yard of and be] 
 in th 
 wilfully did br€ 
 tl.e body of one 
 interred, and th 
 'li'l (bV open, an 
 ^'I'ave aforesaid 
 tJien take and 
 ""y^e»."),afulind( 
 body : Jrd coim 
 ileceiitlv." 
 
Sec. 20<i] 
 
 MISCONDUCT— DEAD BODIES. 
 
 130 
 
 search warrants: R. v. Dodda, 4 O. R. 390; Cronyn v. 
 Widder. 16 U. C. Q. B. 356; R. v. Jamieson, 7 O. R. 149 ; 
 Power V. Canift, 18 U. C. Q. B. 403 ; L*i Socit^te St. Loui.s v. 
 Villeneuve, 21 L. C. J. 309 ; R. v. Crawshaw, Bell, 303. 
 
 Misconduct in Respect of Dea» Bodies. {Xew). 
 
 300> Every one iti guilty of an indiutoble ofTenoe and liable to five yeara' 
 imprisonment who — 
 
 (a) Without lawful excuse, neglects to perfonn any duty either imposf d 
 upon him by law or undertaken by him with reference to the burial of any 
 deivd human body or human remains ; or 
 
 ('') Impioperly or indecently interferes with or offers any indignity to any 
 dead human body or human remains, whether buried or not. 
 
 A common law offence. Fine, section 958. To di*; up 
 a dead body and sell it for purposes of dissection is an 
 offence : R. v. Lynn, 1 Leach, 497. See R. v. Price, 12 
 Q. B. I). 247 ; R. v. Stephenson, 13 Q. B. D. 331, 15 Cox, 
 (j79, Warb. Lead. Cas. 97 , R. v. Sharpe, Dears. & B. 160 ; 
 R. V. Feist, Dears. & B. 590. 
 
 Iiullctment — that A. B. on the day 
 
 of in the year of our Lord the church- 
 
 yard of and belonging to the parish church of the parish of 
 in the said county of unlawfully and 
 
 wilfully did break and enter, and the grave there in which 
 tl.e body of one C. D., deceased, had lately before then been 
 interred, and there was, unlawfully, wilfully and indecently 
 (lid dig open, and the body of him the said C. D. out of the 
 (jrave aforesaid, unlawfully, wilfully and indecently did 
 tiien take and carry away ; 2i}d count {((ftcf 
 
 "iipcii"),iind indecently interfered with the said dead human 
 Iwdy: 'ivd count, charging "improperly" instead of "in- 
 decently." 
 
 vl 
 
140 
 
 VAGRANCY. 
 
 [Sees. 207, 208 
 
 PART XV. 
 
 VAGRANCY. 
 
 307* Every one is a loose, idle or disorderly person or vagrant who— 
 (a) Not having^ any visible means of maintaining himself lives without 
 
 employment ; 
 
 {b) Being able to work and thereby or by other means to maintain himself 
 
 and family wilfully refuses or neglects to do so ; 
 
 (c) Openly exposes or exhibits in any street, road, highway or public place 
 hny indecent exhibition. (Amended). 
 
 {d) Without a certificate signed, within six months, by a priest, clergyman 
 or minister of the Gospel, or two justices of the peace, residing in the munici- 
 pality where the/alms are being asked, that he or she is a deserving object of 
 charity, wanders about and begs, or goes about from door to door, or places 
 himself or herself in any street, highway, passage or public place to beg or 
 r jceive alms ; 
 
 (e) Loiters on any street, road, highway or public place, and obstructs 
 passengers by standing across the footpath, or by using insulting language, or 
 in any other way ; 
 
 (/) Causes a disturbance in or near any street,, road, highway or public 
 place, by screaming, swearing or singing, or by being drunk, or by impeding 
 or incommoding peaceable passengers ; 
 
 iff) By discharging firearms, or by riotous or disorderly conduct in any 
 street or highway, wantonly disturbs the peace and quiec of the inmates of any 
 dwelling-house near such street or highway; 
 
 {h) Tears down or defaces signs, breaks windows, or doors or door plates, 
 or the walls of houses, roads or gardens, or destroys fences ; 
 
 (i) Being a common prostitute or night walker, wanders in the fields, 
 public streets or highways, lanes or places of public meeting or gathering of 
 people, and does not give a satisfactory account of herself ; 
 
 ij) Is a keeper or inmate of a disorderly house, bawdy-house or house of 
 ill-fame, or house for the resort of prostitutes ; 
 
 (k) Is in the habit of frequenting such houses and does not give a satis- 
 factory account of himself or herself : o> 
 
 (/) Having no peaceable profession or calling to maintain himself by, for 
 the most part supports himself by gaming or crime, or by the avails of prosti- 
 tution. R. S. C. c. 157, 8. 8. 
 
 SOS* Every loose, idle or disorderly person or vagrant is liable, on sum- 
 mary conviction before two justices of the peace, to a fine not exceeding fifty 
 dollars or to imprisonment, with or without hard labour, for any tenn not 
 exceeding six months, or to both. R. S. C. c. 167, s. 8. 
 
Sec. 208.] 
 
 VAGRANCY. 
 
 141 
 
 The following section of c. 157, R. S. C. is unrepealed 
 by section 983 and appendix, though repealed by schedule 2. 
 
 (4) If provision is made therefor by the laws of the province in which the 
 conviction takes place, any such loose, idle or disorderly person may, instead 
 of being committed to the common gaol or other public prison, be committed 
 to any house of industry or correction, alms house, work house or reformatory 
 prison. 
 
 A conviction under 32 & 33 V. c. 28, (D.) for that V. L. 
 on was a common prostitute, wandering in the 
 
 public streets of the city of Ottawa, and not giving a satis- 
 factory account of herself contrary to this statute : Held, 
 bad, for not shewing sufficiently that she was asked, before 
 or at the time of being taken, to give an account of herself 
 and did not do so satisfactorily : R. v. Levecque,30 U.C. Q. B. 
 509. See R. v. Arscott, 9 O. R. 541, and Arscott & Lilly, 
 11 0. R. 153 ; R. v. Remon, 16 O. R. 560. There may be a 
 joint conviction against husband and wife for keeping a 
 house of ill-fame : R. v. Warren, 16 O. R. 590 ; R. v. Williams, 
 1 Salk. 383. 
 
 Held, that under the Vagrant Act it is not sufficient to 
 allege that the accused was drunk on a public street, with- 
 out alleging further that he caused a disturbance in such 
 street by being drunk : Ex parte Despatie, 9 L. N. 387. 
 
 It is unlawful for men to bathe, without any screen or 
 covering, so near to a public footway frequented by females 
 that exposure of their persons must necessarily occur, and 
 they who so bathe are liable to an indictment for indecency : 
 R. V. Reed, 12 Cox, 1. 
 
 To keep a booth on a race course for the purpose of an 
 indecent exhibition is a crime : R. v. Saunders, 13 Cox, 116. 
 
 A conviction under 32 & 33 V. c. 28, for keeping a house 
 of ill-fame, imposed payment of a fine and costs to be col- 
 lected by distress, and in default of distress ordered impri- 
 sonment. Held, good : R. v. Walker, 7 O. R. 186. 
 
 The charge again a prisoner, w^ho was brought up on 
 a writ of habeas corpus, was " for keeping a bawdy house 
 for the resort of prostitutes in the City of Winnipeg." 
 
 ilil|!!!|i''i|fi 
 
 li 
 
 '"•■t 
 
 1 1' -I 
 
 >■ ^V 
 
^. 
 
 142 
 
 VAGRANCY. 
 
 [Sec. 208 
 
 ** Keeping a bawdy house " is, in itself, a substantial offence ; 
 so is " keeping a house for the resort of prostitutes." Held, 
 nevertheless, that there was but one offence charged and 
 that the commitment was good : R. v. Mackenzie, 2 Man. 
 L. R. 168. 
 
 See R. V. Rice, 10 Cox, 155, L. R. 1 C. C. R. 21, Warb. 
 Lead. Cas. 101 ; R. v. Bassett, 10 Ont. P. R 386 ; Pointon v. 
 Hill, 12 Q. B. D. 306 : R. v. Daly, 24 L. C. J. 157 ; R. v. 
 Newton 11 Ont. P. R. 101 ; R. v. Organ, 11 Ont. P. R. 497 ; 
 Smith V. R., M. L R. 4 Q. B. 325. 
 
 See s. 576, p. 644, post, as to search warrant. 
 
Sees. 209-211] 
 
 LEGAL DUTIES, t 
 
 
 143 
 
 ^■■■H-^' 
 
 «/ rt 
 
 
 TITLE V. 
 
 OFFENCES AGAINST THE PERSON AND REPUTA- 
 
 j^i..-: ■ ' . ; . • TION. -^ ■[ ^ H Wi ..,, , .,,,., 
 
 PART XVI. 
 
 s . li 
 
 DUTIES TENDING TO THE PRESERVATION OF LIFE. 
 
 Duties— Definition. 
 300* Every one who has charge of any other person unable, by reason 
 either of detention, age, sickness, insanity or any other cause to withdraw him- 
 self from such charge, and unable to provide himself with the necessaries of life, 
 is, whether such charge is undertaken by him under any contract, or is imposed 
 upon him by law, or by reason u 'is unlawful act, under £. legal duty to supply 
 that person with the necess.^rie ' i 'e, and is criminally responsible for 
 omitting, without lawful excus i, <>< form such duty if the death of such 
 person is caused, or if his life i. i^.angered, or his health has been or is 
 likely to be permanently injured, by such omission. 
 
 See section 215, post: R. v. Friend, R. & R. 20; R. v. 
 Shepherd, L. & C. 147 ; R. v. Smith, L. & C. 607 ; R. v. 
 Marriott, 8 C. & P. 425 ; R. v. Ryland, L. R. 1 C. C. R. 
 99; R. V. Morby; Warb. Lead. Cas. 115. 
 
 DUTY OF PARENT OR GUARDIAN, ETC. 
 
 Punishment, Etc. 
 
 310< Every one who as parent, guardian, or head of a family is under a 
 legal duty to provide necessaries for any child n7ider the age of sixteen years is 
 criminally responsible for omitting, without lawful excuse, to do so whUe such 
 child remains a member of his or her household, whether such child is /lelpless or 
 not, if the death of such child is caused, or if his life is endangered or his health 
 is oris likely to be permanently injured, by such omission. 
 
 2. Every one who is under a legal duty to provide necessaries for his wife, 
 is criminally resjwnsible for omitting, without lawful excuse, so to do, if the 
 death of his wife is caused, or if her life is endangered, or her health is or is 
 likely to be permanently injured by such omission. 
 
 See section 2l&, post. 
 
 211. Every one who, as master or mistress, has contracted to provide 
 necessary f(x>d, clothing or lodging for any servant or apprentice under the age 
 of sixteen years is under a legal duty to provide the same, and is criminally 
 reepoiiHible for oni'tting, without lawful excuse, to |)erform such duty, if the 
 
 I II 
 
 i 
 
1 f , 
 
 I i 
 
 144 
 
 OFFENCES AGAINST THE PERSON. [Sees. 212-216 
 
 death of such servant or apprentice is caused, or if his life is endangered, or 
 his health has been or is likely to be permanently injured by such omission. 
 
 See section 215, post. 
 
 212* Everyone who undertakes (except in case of necessity) to administer 
 surgical or medical treatment, or to do any other lawful act the doing of which 
 is or may be dangerous to life, is under a legal duty to have and to use reason- 
 able knowledge, skill and care in doing any such act, and is criminally 
 responsible for omitting, without lawful excuse, to discharge that duty if death 
 is caused by such omission. 
 
 313. Every one who has in his charge or under his control anything 
 whatever, whether animate or inanimate, or who erects, makes or maintains 
 anything whatever which, in the absence of precaution or care, may endanger 
 human life, is under a legal duty to take reasonable precautions against, and 
 use reasonable care to avoid, such danger, and is criminally responsible for the 
 consequences of omitting, without lawful excuse, to perform such duty. 
 
 Omissions Dangerous to Life. 
 
 S14* Every one who undertakes to do any act, the omission to do which 
 is or may be dangerous to life, is under a legal duty to do that act, and is 
 criminally responsible for the consequences of omitting, without lawful excuse, 
 to perform that duty. 
 
 Punishment. 
 
 219. Everyone is guilty of an indictable offence and liable to three 
 years' imprieonment who, being bound to perform any duty specified in sections 
 two hundred and nine, two hundred and ten and two hundred and eleven 
 without lawful excuse neglects or refuses to do so, unless the offence amounts 
 to culpable homicide. {Amendme7it of 1893). 
 
 R. S. C. c. 162, 8. 19, 24-25 V. c. 100, 8. 26 and 31-32 V. 
 c. 122, 8. 37, (Imp.). See Williams v. E. I. Co., 3 East, 192 ; 
 R. V. NichoUs, 13 Cox, 75 ; R. v. Pelham, 8 Q. B. 959. 
 
 Fine in addition to or in lieu of punishment, section 958. 
 
 Sections 210 & 211, which replace section 19 of 
 chapter 162, R. S. C, introduce changes in this part of the 
 statutory law. 
 
 1. In section 210 the words or " head of a family " are 
 added to the words "parent or guardian." 2. The word 
 "necessaries" in section 210, relating to parent and child 
 and husband and wife, is substituted to the words " neces- 
 sary food, clothing or lodging," whilst the words " necessary 
 food, clothing or lodging" are retained in section 211, 
 relating to master and servant or apprentice. 3. The 
 words " while such child remains a member of his or her 
 
 Seo. ^16] 
 
 household, ' 
 210, are ne^ 
 age of sixl 
 words "has 
 words " beir 
 
 These ti 
 
 for word, fr 
 
 exception o: 
 
 addition. T 
 
 these clauses 
 
 " We belie 
 
 state in a clea: 
 
 the subject to 
 
 re-enactment 
 
 re-enactment c 
 
 excitement co] 
 
 Register, vol. £ 
 
 cases where th( 
 
 age with food, ( 
 
 to limit it to se 
 
 but it is right 
 
 Section 160, (2 
 
 same criminal r 
 
 under the age o: 
 
 age." 
 
 The differe 
 
 between nece! 
 
 lodging, is a ri^ 
 
 child, or a husb 
 
 which would ; 
 
 combined) (see ] 
 
 is only obliged 
 
 the necessary 
 
 contracted to so 
 
 The only ch 
 
 contained in the 
 
 require no expl 
 
 Cbim. Law— ^0 
 
Seo. ^15] 
 
 LEGAL DUTIES, ETC. 
 
 145 
 
 household, whether such child is helpless or not," in section 
 210, are new. 4. In both sections the words " under the 
 age of sixteen years" are new. 5. In section 211 the 
 words " has contracted to provide " are substituted to the 
 words " being legally liable." 
 
 These three clauses. 209, 210 & 211, are taken, word 
 for word, from the draft of the Imperial Code, with the 
 exception of sub-section 2 of section 210, which is an 
 addition. The Commissioners say in their report, as to 
 these clauses : — 
 
 " We believe that this part of the draft code will be found to 
 
 state in a clear and compendious form the unwritten law upon 
 
 the subject to which it relates. Section 161, (211 ante) is a 
 
 re-enactment of 24-25 V. c. 100, s. 26, which was itself a 
 
 re-enactment of 14-15 V. o. 11. That statute was passed in the 
 
 excitement consequent on the case of B. v. Sloane, Annual 
 
 Register, vol. 92, p. 144, and was framed so as to embraca all 
 
 cases where there was a contract to supply a servant of whatever 
 
 age with food, clothing and lodging. It has been thought better 
 
 to limit it to servants and apprentices under the age of sixteen, 
 
 but it is right to point out that it is not the existing law. 
 
 Section 160, (210 ante) puts the head of the family under the 
 
 same criminal responsibility towards members of his household 
 
 under the age of sixteen as a master is to a servant of the same 
 
 age." 
 
 The difference in these two sections, 210 and 211, 
 between necessaries and necessary food, clothing or 
 lodging, is a right one. A parent is obliged to supply his-, 
 child, or a husband his wife, with all the necessaries of life, 
 which would include medical attendance (209 & 210 
 combined) (see R. v. Downes, 1 Q. B. D. 25), whilst a master- 
 is only obliged to provide his servant or apprentice with 
 the necessary food, clothing or lodging which he has. 
 contracted to so provide. 
 
 The only change of importance in the two sections is 
 contained in the words " under sixteen years of age," which 
 require no explanation. The provision of the repealed 
 Cbim. Law— ■'0 
 
 p 
 
 m 
 
 m 
 
 :l.i 
 
146 
 
 OFFENCES AGAINST THE PERSON. 
 
 [S%c. 215 
 
 section 19 of chapter 162, R. S. C, as to any bodily harm 
 by a master to his apprentice or servant, now forms a 
 separate section, section 217, ^os^. 
 
 'Indictment under sections 209-315 against a gaoler for 
 not providing a prisoner with the necessaries of life. . 
 
 that A. B. at .... on ... . 
 
 and on divers other days before and after, was the keeper 
 of the common gaol for the District of . . . then and 
 there situate, and as such had charge of all the prisoners 
 therein confined ; and was under a legal duty to provide all 
 said prisoners with the necessaries of life ; that one C. D. 
 was then and there a prisoner detained in the said gaol and 
 as such under the charge of the said A. B, ; that the aaid 
 C. D. was, by reason of his said detention, unable to with- 
 draw himself from such charge and unable to provide 
 himself with the necessaries of life ; that the said A. B. waa 
 then and there under a legal duty to provide the said C. D. 
 with the necessaries of life, but that the said A. B. not re- 
 garding his duty on that behalf, then and there unlawfully 
 did refuse, omit and neglect, without lawful excuse, to pro- 
 vide the said C. D. with the necessaries of life, by means 
 whereof the life of the said C. D. was and is endangered 
 and his health was and is permanently injured (or is likely 
 to be permanently injured.) 
 
 Indictment under sections 210-215, against a father, for 
 not providing necessaries to his child — .... that 
 
 A. B., the father of one C. D., at on . 
 
 . . . and on divers other days, after and before that 
 day, unlawfully did refuse, neglect and omit, without law- 
 ful excuse, to provide for and find the said C. D., his child, 
 -with sufficient food, clothing and lodging, and other neces- 
 saries of life, the said C. D. being then and there a member 
 of the household of his father, the said A. B., and being, 
 then and there, under the age of sixteen years, and the said 
 A. B. being then and there by law in duty bound to pro- 
 ►vide food, clothing and other necessaries of life for the said 
 
Sec. 218] 
 
 LEGAL DUTIES, ETC. 
 
 147 
 
 C. D., his child as aforesaid, by means of which refuel, 
 neglect and omission, the life of the said C. D. was and is 
 endangered, and the health of the said C D. was and is {or 
 is likely to he) permanently injured. 
 
 Indictment under sections 210-215 against a husband 
 for not providing necessaries for hih w' ... that on 
 .... at .... , and on divers other ^^ys b,. .e and after, 
 A. B. the husband of one C. D., being then and there under 
 a legal duty to provide necessary food, clothing, lodging, 
 and all other necessaries for the said C. D., his wife, unlaw- 
 fully did refuse, neglect and omit without lawful excuse to 
 provide for her the necessary food, clothing, lodging and 
 other necessaries, so that the life of the said C. D. was and is 
 thereby endangered, and her health was and is permanently 
 ininved (or is likely to be permanently injured). . , . 
 
 Indictment under sections 211-215 against a master 
 for not providiTig an apprentice with necessary food. — 
 .... That J. S. on . . . . then being the master 
 of J. N. his apprentice, the said J. N. being then under the 
 age of IG years, and the said J. S. having before the said 
 day contracted to provide for the said J. N. as his appren- 
 tice as aforesaid, necessary food {clothing or lodging) 
 unlawfully and without lawful excuse, did refuse, omit and 
 neglect to provide the same, so that the life of the said 
 J. N. Was and is thereby endangered, {or the health of the 
 said J. N. has been or is likely to be permanently injured). 
 {Add counts varying the statement of the injuries sus- 
 taived). 
 
 Prove the apprenticeship, if it was by deed by produc- 
 tion and proof of the execution of the deed, or in case it be 
 in tlie possession of the defendant, and there be no counter- 
 part, by secondary evidence of its contents, after due notice 
 given to the defendant, to produce it. In England, it is 
 said in Archbold that the legal liability of the defendant to 
 provide his apprentice with necessary food, clothing or lodg- 
 ing will be inferred, even if it be nob expressly stipulated 
 
 ! i. 
 
i I . 
 
 \ ! 
 
 i 
 
 148 
 
 OFFENCES AGAINST THE PERSON. 
 
 [Sec. 215 
 
 for, from the apprenticeship itself, but in Canada, upon an 
 indictment under section 211, it must be proved that the 
 defendant had contracted to provide for it, either by parol 
 or in writing. Prove the wilful refusal or neglect of the 
 defendant to provide the apprentice with necessary food, 
 etc., as stated in the indictment, and that by such neglect 
 the prosecutor's life was in danger, or his health was or is 
 likely to be permanently injured. 
 
 An indictment alleged in the first count that the 
 prisoner unlawfully and wilfully neglected and refused to 
 provide sufficient food for her infant child five years old, 
 she being able and having the means to do so. The 
 second count charged that the prisoner unlawfully and 
 wilfully neglected and refused to provide her infant child 
 with necessary food, but there was no allegation that she 
 had the ability or means to do so. The jury returned a 
 verdict of guilty, on the ground that if the prisoner had 
 applied to the guardians for relief she would have had it. 
 Held, that neither count was proved, as it was not enough 
 that the prisoner could have obtained the food on applica- 
 tion to the guardians, and that it is doubtful whether the 
 second count is good in law : R. v. Rugg, 12 Cox, 16. 
 
 It is to be remarked that the indictment in that case 
 was under the common law, as, in England, the statute 
 24 & 25 V. c. 100 applies only to masters and servants. 
 The bill as introduced in the House of Lords extended its 
 provisions to husband and parents, but the Commons 
 restricted it to masters : Greaves, Cons. Acts, 56. By the 
 common law an indictment lies for all misdemeanours of a 
 public nature. Thus it lies for a breach of duty which is 
 not a mere private injury but an outrage upon the moral 
 duties of society ; as for the neglect to provide suilicient 
 food or other necessaries for an infant of tender years 
 unable to provide for and take care of itself, for whom the 
 defendant is obliged by duty to provide, so as thereby to 
 injure its health. 
 
Sec. 216] 
 
 ABANDONING INFANTS, ETC. 
 
 149 
 
 But the parent must have a present means or ability to 
 support the child ; the possibility of obtaining such relief 
 is not sufficient ; and, by the neglect of such duty, the child 
 must have suffered a serious injury. An opportunity of 
 applying to a relieving officer of the union from which the 
 mother would have received adequate relief on application 
 is not a sufficient proof in England of her having present 
 means : R. v. Chandler, Dears. 453; R. v. Hogan, 2 Den, 277 ; 
 R. v. Phillpot, Dears. 179. But these and similar cases are 
 no authorities under our present statute in Canada. 
 
 In an indictment under s. 19, c. 162, R. S. C, it was not 
 necessary to allege that the defendant had the means and 
 was able to provide the food or clothing nor that his 
 neglect to do so endangers the life or affects the health of 
 hi^ wife: R. V. Smith, 2 L. N. 223; R. y. Scott, 
 28 L. C. J. 264 ; but now, in an indictment under section 
 210, it is necessary to allege that the refusal, omission and 
 neglect was without lawful excuse and that by such refusal, 
 omission, and neglect to provide the food, etc., necessary 
 to his wife, her life has been and is endangered, or her 
 health permanently injured, or likely to be permanently 
 injured : see R. v. Maher, 7 L. N. 82 ; R. v. Nasmith, 42 
 U. C. Q. B. 242. 
 
 Held, Armour, J., dissenting, that the evidence of a wife 
 is inadmissible on the prosecution of her husband for 
 refusal to support her, under 32-33 V. c. 20, s. 25 ; R. v. 
 Bissell, 1 0. R. 514. 
 
 As to sections 213 & 214, which are common law rules, 
 see annotation under section 220, jtost, and R. v. Salmon, 
 Warb. Lead. Cas. 113, and cases there cited. 
 
 Abandoning Inkants, Etc., Etc. 
 
 216. Every one i» guilty of an indictable offence and liable to three years' 
 im[)ri8onmeiit who unlawfully abandons or ex|>oses any child under the age of 
 two years, whereby its life is endangered, or its health is permanently injured. 
 
 2, The words "abandon " and "expose^' include a wilful omission to take 
 charge of the child 07t the part of a person legally hound to do so, atw/ any mode of 
 
 J^it. '. 
 
160 
 
 OFFKNCES AGAINST THE PERSON. 
 
 [Sec. 216 
 
 dealinff with it ealeutated to leave it expotcd to riik without protection, R. S. C. 
 c. 162, B. 20. 24.25 V. o. 100, s, 27 (Imp,). 
 
 Fine, section 958. 
 
 The repealed section had the words " or is likely to be 
 permanently injured," and did not have sub-section 2. 
 
 Greavea'lNote. — This clause is new. It is intended to 
 provide for cases where children are abandoned or exposed 
 under such circumstances that their lives or health may be, 
 or are likely to]|be, "endangered : see R. v. Hogan, 2 Den. 
 277 ; R. V. Cooper, 1 [Den. 459, 2 C. & K. 876 ; R. v. PhiU- 
 pot. Dears. 179 ; R. v. Gray, Dears. & B. 303, which show 
 the necessity for this enactment. 
 
 Indictment. — .... unlawfully did abandon and 
 expose a certain child called J. N., then being under the 
 age of t'wo years, whereby the life of the said child was 
 endangered (or i^Aerefty ^Ae health of such child was and 
 is permanently injured). 
 
 In order to sustain this indictment it is only necessary 
 to prove that the defendant wilfully abandoned or exposed 
 the child mentioned in the indictment, that the child was 
 then under two years of age, and that its life was thereby 
 endangered, or its health has been and is permanently 
 injured 
 
 A. and B. were indicted for that they " did abandon and 
 expose a child then being under the age of two years, 
 whereby the life of the child was endangered." A., the 
 mother of a child five weeks old, and B. put the child into 
 a hamper, wrapped up in a shawl, and packed with shavings 
 and cotton wool, and A., with the connivance of B., took 
 the hamper to M., about four or five miles off, to the booking 
 office of the railway station there. She there paid for the 
 carriage of the hamper, and told the clerk to be very careful 
 of it, and to send it to G. by the next train, which would 
 leave M. in ten minutes from that time. She said nothing 
 as to the contents of the hamper, which was addressed, 
 " Mr. Carr'a, Northoutgate, Gisbro, with care, to be deliv- 
 
 ered imme(i 
 
 (a bastard) 
 
 the ordinar; 
 
 the same ev 
 
 from causes 
 
 On proof of 
 
 that there w 
 
 endangered, 
 
 exposure of 
 
 The objectio 
 
 guilty. ffeU 
 
 Falkingham, 
 
 A mother 
 and left it ou 
 her husband, 
 and she called 
 I am gone." 
 stepped over 
 and a luilf aft* 
 child still iyi] 
 bide there for 
 to be taken up 
 was found by i 
 care, it was res 
 that, though t 
 child, yet, as h 
 allowing it to r 
 and exposure c 
 endangered, wit 
 
 ASSAI 
 
 • 17. Every on« 
 imprisonment who, h 
 apprentice or servant, 
 »o any such apprent 
 Mi'vant is endangered 
 "likely to be, pennan 
 
 Chapter 62, 
 Act respecting C 
 
See. 217] 
 
 ASSAULT BY xMASTERS, ETC. 
 
 161 
 
 ered immediately," at which address the father of the dxild 
 (a bastard) was then living. The hamper was carried' bx 
 the ordinary passenger train, and delivered at its addrea» 
 the same evening. The child died three weeks afterwards, 
 f lom causes not attributable to the conduct of the prisoners. 
 On proof of these facts, it was objected for the prisoners 
 that there was no evidence that the life of the child was 
 endangered, and that there was no abandonment and no 
 e.Kposure of the child within the meaning of the statute. 
 The objections were overruled and the prisoners found 
 guilty. HeUlf that the conviction should be affirmed : R. v. 
 Falkingham, 11 Cox, 475, Warb. Lead. Cas. 93. 
 
 A mother of a child under two years of age brought it 
 and left it outside the father's house (she not living with 
 her husband, the father of it). He was inside the house, 
 and she called out, " Bill, here's your child ; I can't keep it. 
 I am gone." The father some time afterwards came out, 
 stepped over the child and went away. About an hour 
 and a half afterwards, his attention was again called to the 
 child still lying in the road. His answer was, " It must, 
 bide there for what he knew, and then the mother ought 
 to be taken up for the murder of it." Later on, the child 
 was found by the police in the road, cold and stiff; but, hy 
 care, it was restored to animation. Held, on a case reserved, 
 that, though the father had not had the custody of the 
 child, yet, as he was by law bound to provide for it, his 
 allowing it to remain where he did was an abandonment 
 and exposure of the child by him, whereby its life was 
 endangered, within the statute : R. v. White, 12 Cox, 83, 
 
 Assault by Masters on Servants, Etc., Etc. 
 
 817. Every one is guilty of an indictable offence and liable to three years' 
 imprisonment who, being legally liable as master or mistress to provide for any 
 apprentice or servant, unlawfully does, or causes to be done, any bodily hiirm 
 to any such apprentice or servant so that the life of such apprentice or 
 lervantis endangered or the health of such apprentice or servant has been, or 
 iB likely to be, permanently injured. R. S. C. c. 62, s, 19. 
 
 Chapter 62, R. S. C. cited under this section is "An 
 Act respecting Copyright." 
 
 % 
 
 i 
 
152 
 
 \ \ 
 
 OFFENCES AGAINST THE PERSON. 
 
 [Sec. 217 
 
 Fine, section 958. Verdict of common assault may be 
 given ; R. v. Bissonette, Ramsay's App. Cas. 190. See 
 annotation under sections 211, 215. 
 
 Indictment. — . . . . that A. B. on ... . then being the 
 master of one J. N., his apprentice, and then being legally 
 liable to provide for the said J. N. as his apprentice as 
 aforesaid, unlawfully in and upon the said J. N. did make 
 an assault, and him the said J. N. did then beat, wound 
 and ill-treat, and thereby then did do, cause and occasion 
 bodily harm to the said J. N. his apprentice as aforesaid, 
 whereby the life of the said J. N. was endangered and 
 his health has been and is permanently injured (07* ia likely 
 to be permanently injured.) 
 
HOMICIDE. 
 
 153 
 
 HOMICIDE. 
 
 J- He common law dpfinin r 
 
 ing with malice aforethoug)" Z^" jLlTa'"/' " ""'^-^""^ WU- 
 defined as " unJawfuUy Wllin. ^1^'"'' "^^^ ^« effect be 
 The objection to these'defi'ZsTs tha" *,"''" ^^-«*^-"^ht." 
 aforethought." is misleading ThL * "'' ^^'Pression .- malice 
 popular sense, would be understood n ''P'''''°»' taken in a 
 homicide may be murder, tt act *1TT"' ""' ^" ^^^^ *^^' 
 greater or less extent, the jury havn^ ^' P^'^'^editated to a 
 whether such a degree of ^^1'" '"'^ '''' *° '^^t-mine 
 name." Premeditation existed as deserved the 
 
 narrow, as Without wh'/t wouM^^comml' Tu^^ ^' °^^'°"«J>^ too 
 tion. homicide might be commiZ i f ^' '"^^'^ P^«"^e^ita- 
 danger and moral guilt in h^hittt 1^^ ^"^°^- P"'^^- 
 
 " Of course, it can be « • f ^ '^^^ ^'^''^'" 
 -.be said to be^e l^Z^ ^ fi'l?? ^'"^-"-^ -t 
 cede the action. But even with t)T' , '"Mention must pre- 
 calculated to mislead an/ol b^ 1?^ "'^T ' "- -Pr-^^^^^ 
 curacy of the definition fs s" 11 mo' ?"'' ''"^"- ^'^« ^"'^- 
 la;d own that a person m^be gJutvTr' 7'^" ""' ^""^ '' 
 in ention to kill or injure the deceased ""^'^ ^"'^ "^ 
 
 only to commit some other I'onTldlh '^"^ ^^^^^ P--«. but 
 dual was a pure accident." ^ '°J^'^ 'o the indivi- 
 
 " This conclusion was arrived at hv «, 
 constructive or implied m^hcl I . ""^^^ ^ootvhe of 
 
 other legal fictions, it is difficult . ?''' ^' '"^ '^^ «ase of 
 
 extended." "^'^'^^^ to say how far the doctrine 
 
 '«-3!!^n'o?ttX^ teirr^" *° -^- "Pon a 
 committee of the House of rJ ''^'^^"">^ considered before a 
 definition of homicidl tfoZTj t^ ^ ' '^"^ '^ "- 
 Gurney. in 1874. It ^-s al^^ \, ^ '^® '^te Mr. RusseU 
 
 
if 
 
 filP« 
 
 m 
 
 154 
 
 HOMICIDE. 
 
 " Each of these bodies reported that the present condition of 
 the law was unsatisfactory, though neither arrived at a definition 
 which was considered satisfactory." 
 
 " The present law may, we think, be stated with su^cient 
 exactness for our present purpose, somewhat as follows: — 
 Murder is culpable homicide by any act done with malice afore- 
 thought. Malice aforethought is a common name for all the 
 following states of mind : — (a) An intent preceding the act to 
 kill or to do serious bodily injury to the person killed or to any 
 other person ; (b) knowledge that the act done is likely to pro* 
 duce such consequences, whether coupled with an intention to 
 produce them or not : (c) an intent to commit any felony ; (d) an 
 intent to resist ah oificer of justice in the execution of his duty. 
 Whether (c) is too broadly stated or not is a question open to 
 doubt, but Sir Michael Foster, perhaps the highest authority on 
 the subject, says (p. 258) * A. shooteth at the poultry of B., and 
 by accident killeth a man. If his intention was to steal the 
 poultry, which must be collected from circumstances, it will be 
 murder by reason of that felonious intent ; but if it was done 
 wantonly and without that intention, it will be barely man- 
 slaughter.' " 
 
 " It seems to us that the law upon this subject ought to be 
 freed from the element of fiction introduced into it by the ex- 
 pression of ' n^alice aforethought,' although the principle that 
 murder may under certain circumstances be committed in the 
 absence of an actual intention to cause death, ought to be main- 
 tained. If a person intends to kill, and dues kill another, or if, 
 without absolutely intending to kill, he voluntarily inflicts any 
 bodily injury known to be likely to cause death, being reckless 
 whether death ensues or not, ho ought, in our opinion, to be 
 considered a murderer if death ensues." 
 
 '• For practical purposes we can make no distinction between 
 a man who shoots another through the head, expressly meauing 
 to kill him, a man who strikes another a violent blow with a 
 sword, care..3ss whether he dies of it or not, and a man who, in- 
 tending for some object of his own to stop the passage of a rail- 
 way train, contrives an explosion of dynamite or gunpowder 
 under the engine, hoping indeed that death may not be caused, 
 
IMPERIAL COMMISSIONERS' REPORT. 
 
 155 
 
 bat determinei to effect his purpose whether it is so caused or 
 not." 
 
 " This is the general object kept in view, both in the Draft 
 Code and in the Bill, but there is some difference in the extent 
 t6 which they go. There is no difference as to the cases in 
 which the death of the person killed or of some other person is 
 intended. The Bill included in the definition of murder, all 
 cases, in which the offender intended to cause, or knew that he 
 probably would cause ' grievous bodily harm ' to any person. 
 The Draft Code would include all such cases, substituting the 
 expression • bodily injury known to the offender to be likely to 
 cause death ' for ' grievous bodily harm,' which, to some extent, 
 narrows the definition given in the Bill. On the other hand, the 
 Draft Code (section 175) includes all cases in which death is 
 caused by the infliction of a ' grievous bodily injury,' for the 
 purpose of facilitating the commission of certain heinous 
 offences. All these cases would fall within the definition of 
 murder given in the Bill, according to which it is murder to 
 kill by the intentional infliction of grievous bodily harm, irre- 
 spectively of the purpose for which it is used. Lastly, section 
 175 in sub-sections (i) & (o) provides that killing by the admin- 
 istration of stupefying things, or by wilfully stopping the breath, 
 for the purpose in either case of committing any of the specified 
 offences, shall be murder, whether the offender knows or not 
 that death is likely to ensue. According to the provisions of the 
 Bill these cases would amount to murder only if the offender 
 knew their danger. The difference between the Draft Code 
 and the Bill upon the whole comes to this : A., in order to facili- 
 tate robbery, pushes something into B.'s mouth to stop his 
 breath and thus to prevent him from crying out ; the death of 
 B., results. This is murder according to the Draft Code. Ac- 
 cording to the Bill, it is murder if A. knew that such an act 
 would probably cause death ; manslaughter if he did not. A few 
 years ago a case occurred in the Western Circuit, which illus- 
 trates the principle on which this portion of the Druft Code is 
 framed better than any hypothetical case. An innocent girl, on 
 iier way to church, had to pass over a stile into a narrow, wooded 
 lane, and then go out of it by a stile on the other side. A ruffian 
 who knew this lay in wait for her, muffled her head in a shawl 
 
 '*f ' ■. 
 
 I, r 
 
 ^^•^-^ 
 
I / 
 
 156 
 
 HOMICIDE. 
 
 to stifle her cries, and proceeded to drag her down the lane 
 towards a wood. She died before she reached it. He was exe- 
 cuted for the murder. It is plain he did not mean to kill her, 
 indeed his object was frustrated in consequence of her not reach- 
 ing the wood alive, and he probably was not aware that stifling 
 her breath for so short a time was dangerous to life ; but as the 
 law at the time was, and now is, the death having been occa- 
 sioned by violence used to facilitate the commission of a rape, the 
 oflfence was murder. And we believe there are few who would 
 not think the law defective if such an oflfence was not murder." 
 
 "Again, A. stabs B. in the leg, not intending to kill him; 
 B. dies. According to the Bill, this would be murder if the jury 
 thought the act showed an intent to do grievous bodily harm, or 
 if, without such intent, it was done with knowledge that it would 
 probably cause death or grievous bodily harm. According to 
 the Draft Code it would be murder if the jury thought the act 
 was meant to cause B. an injury known to A. to be likely to 
 cause death, he being reckless whether it caused death or not. 
 It will thus be seen that the Bill and the Draft Code approach 
 each other very closely." 
 
 " There is no substantial difiference between the provisions 
 of the Draft Code and the Bill dealing with provocation, though 
 the language and arrangement differ. Each introduces an 
 alteration of considerable importance into the common law. By 
 the existing law, the infliction of a blow, or the sight by the hus- 
 band of adultery committed with his wife, may amount to provo- 
 cation which would reduce murder to manslaughter. It is pos- 
 sible that some other insufferable outrages might be held to have 
 the same effect. There is no definite authoritative rule on the 
 subject, but the authorities for saying that words can never 
 amount to a provocation are ^-eighty. We are of opinion that 
 cases may be imagined where language would give a provocation 
 greater than any ordinary blow. The question whether any 
 particular act falls or not within this line appears to us to be 
 pre-eminently a matter of degree for the consideration of the 
 j ury." 
 
 The law takes hd co<jnizance of homicide unless death 
 result from bodily injui-y, occasioned by some act or 
 
GENERAL REMARKS. 
 
 157 
 
 unlawful omission, as contra-distinguished from death 
 occasioned by any influence on the mind, or by any disease 
 arising from such influence : see s. 223 post. The terms 
 " unlawful omission " comprehend every case where 
 any one, being under any legal obligation to supply food, 
 clothing or other aid or support, or to do any other act, or 
 make any other provision for the sustentation of life, or 
 prevention of injury to life, is guilty of any breach of duty : 
 s. 209, ante. It is essential to homicide of which the law 
 takes cognizance that the party die of the injury done 
 within one year and a day thereafter: s. 222, post. In 
 the computation of the year and the day from the time of 
 the injury, the whole of the day on which the act was done, 
 or of any day on which the cause of injury was continuing, 
 is to be reckoned the first. A child in the womb is not a 
 subject of homicide in respect of any injury inflicted in the 
 womb, unless it afterwards be born alive ; it is otherwise if 
 a child die within a year and a day after birth of any 
 bodily injury inflicted upon such child whilst it was yet in 
 the womb : 4 Cr. L. Com. Rep. p. XXXII., 8th of March, 
 1839. R 219, post. 
 
 If a man have a disease which in all likelihood would 
 tenninate his life in a short time, and another give him a 
 wound or hurt which hastens his death, it is murder or 
 other specie'" of homicide as the case may be : s. 224, 
 poxf. And it has been ruled that though the stroke given 
 is not in itself so mortal but that with good care it might 
 be cured, yet if the party die of this w^ound within a year 
 and a day, it is murder or other species of homicide as the 
 case may be. And when a wound, not in itself mortal, for 
 want of proper applications or from neglect turns to a 
 gangrene or a fever, and that gangrene or fever is the 
 immediate cause of the death of the party wounded, the 
 party V>y whom the wound is given is guilty of murder or 
 manslaughter, according to the circumstances; s. 225, 
 p(i.^f. For though tiie fever or gangrene, and not the 
 
 
 m 
 
 nil, 
 
 !'; 
 li! 
 
 
) i 
 
 158 
 
 HOMICIDE. 
 
 wound, be the immediate cause of death, yet the wound 
 being the cause of the gangrene or fever is the immediate 
 cause of the death, causa causati. So if one gives wounds 
 to another, who neglects the cure of them or is disorderly, 
 and doth not keep that rule which a person wounded 
 should do, yet if he die it is murder or manslaughter, 
 according to the circumstances ; because if the wounds had 
 not been the man had not died ; and therefore neglect or 
 disorder in the person who received the wounds shall not 
 excuse the person who gave them : 1 Russ. 700. 
 
 So if a man be wounded, and the wound become fatal 
 from the refusal of the party to submit to a surgical 
 operation : R. v. Holland, 2 M. & Rob. 351 ; R. v. Pym, 1 
 Cox, 339; R. v. TJoIntyre, 2 Cox, 379; R. v. Martin, 5 
 C. & P. 128 ; R. V. Webb, 1 M. & Rob. 405. But it is 
 otherwise if death results not from the injury done, but 
 from unskilful treatment, or other cause subsequent to the 
 injury : 4th Rep. or. L. Com., p. XXXII., 8th of March, 
 1839. S. 226, post. 
 
 Murder is the killing any person under the king's 
 peace, with malice prepense or aforethought, either express 
 or implied by law. Of this description the malice prepense, 
 mialitia precogitata, is the chief characteristic, the grand 
 criterion by which murder is to be distinguished from any 
 other species of homicide, and it will therefore be necessary 
 to inquire concerning the cases in which such malice has 
 been held to exist. It should, however, be observed that 
 when the law makes use of the term malice aforethought, 
 as descriptive of the crime of murder, it is not to be 
 understood merely in the sense of a principle of malevo- 
 lence to particulars, but as meaning that the act has been 
 attended with such circumstances as are the ordinary 
 symptoms of a wicked, depraved, and malignant spirit; a 
 heart regardless of social duty, and deliberately bent upon 
 mischief. And in general any formed design of doing mis- 
 chief may be called malice. And, therefore, not such killing 
 
GENERAL REMARKS. 
 
 159 
 
 only as proceeds from premeditated hatred or revenge 
 against the person killed, but also, in many other cases, 
 such killing as is accompanied with circumstances that 
 show the heart to be perversely wicked is adjudged to be 
 of malice prepense, and consequently murder : 1 Buss. 
 607. 
 
 Malice may be either express or implied hy law. Ex- 
 press malice is, when one person kills another with a sedate, 
 deliberate mind and formed design ; such formed design 
 being evidenced by external circumstances discovering the 
 inward intention ; as lying in wait, antecedent menaces, 
 fonner grudges, and concerted schemes to do the party 
 some bodily harm. And malice is implied by law from any 
 deliberate cruel act committed by one person against an- 
 other, however sudden ; thus, where a man kills another 
 suddenly without any, or without a considerable provoca- 
 tion, the law implies malice ; for no person, unless of an 
 abandoned heart, would be guilty of such an act upon a 
 slight or no apparent cause. So if a man wilfully poisons 
 another ; in such a deliberate act the law presumes malice, 
 though no particular enmity be proved. And where one is 
 killed in consequence of such a wilful act as shows the per- 
 son by whom it is committed to be an enemy to all man- 
 kind, the law will infer a general malice from such depraved 
 inclination to mischief. And it should be observed as a 
 general rule, that all homicide is presumed to be malicious, 
 and of course amounting to murder, until the contrary 
 appears from circumstances of alleviation, excuse or justi- 
 fication ; and that it is incumbent upon the prisoner to make 
 out such circumstances to the satisfaction of the court and 
 jury, unless they arise out of the evidence produced against 
 him. It should also be remarked that, where the defence 
 rests upon some violent provocation, it will not avail, how- 
 ever grievous such provocation may have been, if it appeara 
 that there was an interval of reflection, or a reasonable 
 time for the blood to have cooled before the deadl}' ])urpose 
 
160 
 
 HOMICIDE. 
 
 was effected. And provocation will be no answer to proof 
 of express malice ; so that, if, upon a provocation received, 
 one party deliberately and advisedly denounce vengeance 
 against the other, as by declaring that he will have his bloody 
 or the like, and afterwards carry his design into execution, 
 he will be guilty of murder ; although the death happened 
 so recently after the provocation as that the law might, 
 apart from srch evidence of express malice, have imputed 
 the act to unadvised passion. But where fresh provocation 
 intervenes between preconceived malice and the death, it 
 ought clearly to appear that the killing was upon the ante- 
 cedent malice ; for if there be an old quarrel between A. 
 aiid B. and they are reconciled again, and then upon a new 
 and sudden falling out A. kills B., this is not murder. It 
 is not to be presumed that the parties fought upon the old 
 grudge unless it appear from the whole circumstances of 
 the fact ; but if upon the circumstances it should appear 
 that the reconciliation was but pretended or counterfeit, 
 and that the hurt done was upon the score of the old malice, 
 then such killing will be murder : 1 Russ. 667. 
 
 If a man, after receiving a blow, feigns a reconciliation, 
 and, after the lapse of a few minutes, invites a renewal of 
 the aggression, with intent to use a deadly weapon, and on 
 such renewal uses such weapon with deadly effect, there 
 is evidence of implied malice to sustain the charge of 
 murder. But if, after such reconciliation, the aggressor 
 renews the contest, or attempts to do so, and the other 
 having a deadly weapon about him, on such sudden re- 
 newal of the provocation, uses it without previous intent 
 to do so, there is evidence which may reduce the crime to 
 manslaughter: R. v, Selten, 11 Cox, 674. Mr Justice 
 Hannen in his charge to the jury in that case said : " Now, 
 murder is killing with malice aforethought ; but though 
 the malice may be harboured for a long time for the grati- 
 ^cation of a cherished revenge, it may, on the other hand, 
 je generated in a man's mind according to the character of 
 
GENERAL REMARKS. 
 
 161 
 
 that mind, in a short space of time, and therefore it 
 becomes the duty of the jury in each case to distinguish 
 whether such motive had arisen in the mind of the prisoner, 
 and whether it was for the gratification of such malice he 
 committed the fatal act. But the law, having regard to 
 the infirmity of man's nature, admits evidence of such 
 provocation as is calculated to throw a man's mind off its 
 balance, so as to show that he committed the act while 
 under the influence of temporary excitement, and thus toi 
 negative the malice which is of the essence of the crime of 
 murder. It must not be a light provocation, it must be a; 
 grave provocation ; and undoubtedly a blow is regarded by 
 the law as such a grave provocation; and supposing a. 
 deadly stroke inflicted promptly upon such provocation, a. 
 jury would be justified in regarding the crime as reduced 
 to manslaughter. But if such a period of time has elapsed 
 as would be sufficient to enable the mind to recover its. 
 balance, and it appears that the fatal blow has been struck 
 in the pursuit of revenge, then the crime will be murder."^ 
 Verdict of manslaughter : see s. 229, post. 
 
 In a case of death by stabbing, if the jury is of opinion 
 that the wound w^as inflicted by the prisoner while smart- 
 ing under a provocation so recent and so strong that he 
 may be considered as not being at the moment "the master 
 of his own understanding, the offence will be manslaughter; 
 but if there has been, after provocation, sufficient time for 
 the blood to cool, for reason to resume its seat, before the, 
 mortal wound was given, the offence will amount to.- 
 murder ; and if the prisoner displays thought, contrivance • 
 and design in the mode of possessing himself of the weapon, , 
 and in again replacing it immediately after the blow was; 
 struck, such exercise of contrivance and design denotes; 
 rather the presence of judgment and reason than of violent 
 and ungovernable passion: R. v. Hayward, 6 C. «& P. 157. 
 
 Where a man finds another in the act of adultery with 
 his wife, and kills him or her in the first transport of 
 Cum. Law — 11 
 
 W 
 
162 
 
 HOMICIDE. 
 
 .'(^. 
 
 passion, he is only guilty of manslaughter and that in the 
 lowest degree ; for the provocation is gi-ievous, such as the 
 law reasonably concludes cannot be borne in the first 
 transport of passion ; and the court in such cases will not 
 inflict a severe punishment: 1 Russ. 786 ; see s. 11^, 'post 
 
 But in the case of the moat grievous provocation to 
 which a man can be exposed, that of finding another in the 
 act of adultery with his wife, though it would be but 
 manslaughter if he should kill the adulterer in the first 
 transport of passion, yet if he kill him deliberately, and 
 upon revenge, after the fact, and sufficient cooling time, it 
 would undoubtedly be murder. For let it be observed 
 that in all possible cases deliberate homicide upon a prin- 
 ciple of revf^nge is murder. No man under the protection 
 of the law is to be the avenger of his own wrongs. If they 
 are of a nature for which the laws of society will give him 
 an adequate remedy, thither he ought to resort; but be 
 they of what nature soever, he ought to bear his lot with 
 patience, and remember that vengeance belongeth only to 
 the Most High: Fost. 296. 
 
 So, in the case of a father seeing a person in the act of 
 committing an unnatural ofTence with his son and killing 
 him instantly, this would be manslaughter, but if he only 
 hears of it, and goes in search of the person, and meeting 
 him strikes him with a stick, and afterwards stabs him with 
 a knife, and kills him, in point of law it will be murder : 
 R. V. Fisher. 8 C. & P. 182, Warb. Lead. Cas. 112. 
 
 If a blow without provocation is wilfully inflicted, the 
 law infers that it was done with malice aforethought, and 
 if death ensues the offender is guilty of murder, although 
 the blow may have been given in a moment of passion: R. 
 V. Noon, 6 Cox, 137. 
 
 Even blows previously received will not extenuate 
 homicide upon deliberate malice and revenge, especially 
 where it is to be collected from the circumstances that the 
 
GENERAL REMARKS. 
 
 163 
 
 provocation was sought for the purpose of colouring the 
 revenge : R. v. Mason, 1 East, P. C. 239. 
 
 In R. V. Welsh, 11 Cox, 336, Keating, J., in summing 
 up the case to the jury, said: " The prisoner is indicted for 
 that he killed the deceased feloniously and with malice 
 aforethought, that is to say, intentionally, without such 
 provocation as would have excused, or such cause as might 
 have justified, the act. Malice aforethought means intention 
 to kill. Whenever one person kills another intentionally 
 he does it with malice aforethought ; in point of law the 
 intention signifies the malice. It is for him to show that it 
 was not so by showing sufiicient provocation, which only 
 reduces the crime to manslaughter, because it tends to 
 negative the malice. But when that provocation does not 
 appear the malice aforethought implied in the intention 
 remains. By the law of England, therefore, all intentional 
 homicide is prima facie murder. It rests with the party 
 charged with and proved to have committed it to show, 
 either by evidence adduced for the purpose, or upon the 
 facts as they appear, that the homicide took place under 
 such circumstances as to reduce the crime from murder to 
 manslaughter. Homicide which would be prirtia facie 
 murder may be committed under such circumstances of 
 provocation as to make it manslaughter, and show that it 
 was not committed with malice aforetho aght. The question 
 therefore is, first, whether there is evidence of any such 
 provocation as could reduce the crime from murder to man- 
 slaughter; and if there be any such evidence, then it is for 
 the jury, whether it was such that they can attribute the 
 act to the violence of passion naturally arising therefrom 
 and likely to be aroused thereby in the breast of a reason- 
 able man. The law, therefore, is not, as was represented 
 by the prisoner's counsel, that if a man commits the crime 
 under the influence of passion it is mere manslaughter. 
 The law is, that there must exist such an amount of provo- 
 cation as would be excited by the circumstances in the mind 
 
 
164 
 
 HOMICIDE. 
 
 of a reasonable man, and so as to lead the jury to ascribe 
 the act to the influence of that passion. When the law 
 says that it allows for the infirmity of human nature, it 
 does not say that if a man without su fficient provocatio n 
 gives way to angry passion, and does not use his reason to 
 control it, — the law does not say that an act of homicide 
 intentionally committed under the influence of that passion 
 is excused, or reduced to manslaughter. The law contem- 
 platoH the case of a reasonable man, and requires that the 
 provocation shall be such as that such a man might 
 naturally be induced, in the anger of the moment, to com- 
 mit the act. Now, I am bound to say that I am unable to 
 discover in the evidence in this case any provocation which 
 would suffice, or approach to 8uc>^ as would suffice, to reduce 
 the crime to manslaughter. Iv nas been laid down that 
 mere words or gestures will not be sufficient to reduce the 
 offence, and at all events the law is clear that the provoca- 
 tion must be serious. I have already said that I can 
 discover no proof of such provocation in the evidence. If 
 you can discover it you can give eflTect to it, but you are 
 bound not to do so unless satisfied that it was serious. 
 What I am bound to tell you is that, in law, it is necessary 
 that there should have been serious provocation in order 
 to reduce the crii.ie to manslaughter, as for instance a blow, 
 and a severe blow, something which might naturally cause 
 an ordinary and reasonably minded man to lose his self- 
 control and commit .such an act." Verdict: Guilty of murder. 
 
 So also if a man be greatly provoked, as by pulling his 
 nose or other great indignity, and immediately kills the 
 aggressor, though he is not excusable ae defendendo, since 
 there is no absolute necessity for doing it to preserve him- 
 self, yet neither is it murder for there is no previous malice ; 
 but it is manslaughter. But in this and every other case of 
 homicide upon provocation, if there be a sufficient cooling 
 till e for passion to subside and reason to interpose, and the 
 person so provoked afterwards kill the other, this is delib- 
 
GENERAL REMARKS. 
 
 165 
 
 erate revenge and not heat of blood, and accordingly 
 amounts to murder : 4 Blacks. 191. S. 229, post. 
 
 A packer found a boy stealing wood in his master's 
 ground ; he bound him to his horse's tail and beat him ; the 
 liorse took fright and ran away, and dragged the boy on 
 the ground so that he died. This was holden to be murder. 
 for it was a deliberate act and savoured of cruelty : Fost' 
 292. 
 
 At page 632 of Archbold is cited K. v. Rowley ; a boy 
 after fighting with another ran home bleeding to his father; 
 the father immediately took a staff, ran three-quarters of a 
 mile, and beat the other boy who died of this blow. And 
 this was holden to be manslaughter only. But Mr. Justice 
 Foster, 294, says that he always thought Rowley's case a 
 very extraordinary one. 
 
 Though the general rule of law is that provocation by 
 words will not reduce the crime of murder to that of man- 
 slaughter, special circumstances attending such a provoca- 
 tion might be held to take the case out of the general rule ; 
 s. 229, 2)08t, has "any insult." In R. v. Roth well, 12 Cox, 147, 
 Blackburn, J., in summing up, said : " A person who inflicts 
 a dangerous wound, that is to say a wound of such a nature 
 as he must know to be dangerous, and death ensues, is 
 guilty of murder, but there may be such heat of blood and 
 provocation as to reduce the crime to manslaughter. A blow 
 is such a provocation as will reduce the crime of murder to that 
 of manslaughter. Where, however, there are no blows, there 
 must be a provocation equal to blows ; it must be at least 
 as great as blows. For instance a man who discovers his 
 wife in adultery, and thereupon kills the adulterer, is only 
 guilty of manslaughter. As a general rule of law no pro- 
 vocation of words will reduce the crime of murder to that 
 of manslaughter ; but under special circumstances there 
 may be such provocation of words as will have that effect ; 
 for instance, if a husband, suddenly hearing from his wife 
 that she had committed adultery, and he having no idea of 
 
 . ;; i.l!il 
 
 W^ 
 
](]6 
 
 HOMICIDE. 
 
 sucjh a thing before, were thereupon to kill his wife it 
 might be manslaughter. Now, in this case, words spoken 
 by the deceased just previous to the blows inflicted by the 
 prisoner were these: 'Aye; but I'll take no more for thee, for 
 I will have no more children of thee ; I have done it once, 
 and I'll do it again,' meaning adultery. Now, what you 
 will have to consider is, would these words, which were 
 spoken just previous to the blows, amount to such a provo- 
 cation as would in an ordinary man, not in a man of vio- 
 lent or passionate disposition, provoke him in such a way 
 as to justify him in striking her as the prisoner did." Ver- 
 dict of manslaughter. 
 
 In Sherwood's Case, 1 C. & K. 556, Pollock, C. B., in 
 summing up said ; " It is true that no provocation by words 
 only will reduce the crime of murder to that of man- 
 slaughter ; but it is equally true that every provocation by 
 blows will not have this effect, particularly when, as in this 
 case, the prisoner appears to have resented the blow by using a 
 weapon calculated to cause death. Still, however, if there 
 be a provocation by blows, which would not of itself render 
 the killing manslaughter, but it be accompanied by such 
 provocation by means of words and gestures as would be 
 calculated to produce a degree of exasperation eijuul to 
 that which would be produced by a violent blow, I am not 
 prepared to say that the law will not regard these circum- 
 stances as reducing the crime to that of manslaughter only." 
 
 When A. finding a trespasser upon his land, in the first 
 transport of his passion beat him and unluckily killed liira, 
 and it was holden to be manslaughter, it must be understood 
 that he beat the trespasser, not with a mischievous inten- 
 tion, but merely to chastise him, and to deter him from a 
 future commission of such a trespass. For if A. had 
 knocked his brains out with a bill or hedge stake, or liad 
 killed him by an outrageous beating with an ordinary 
 cudgel, beyond the bounds of a sudden resentment, it 
 would have been murder ; these circumstances being some 
 
 of the genui 
 upon mischi 
 in the legal i 
 annoyed by 
 gave notice t 
 length dischfi 
 and wounded 
 the man died. 
 1 Russ. 718 ; i 
 under s. 53, a 
 Malice in 
 intentionally, 
 dale, J., in M 
 Cresswell, J., i 
 
 '• We must 1 
 legal import of 
 conversation. ; 
 sion of hatred 
 wicked or misch 
 " Thus, in th 
 indictment to b 
 neither necessarj 
 prisoner had an 
 absence of iil-wil 
 is proved that 
 without any just 
 2 B. & C. 268. 
 
 The nature 
 maxim " Culpa I 
 
 Malice afore 
 murder, may be 
 orachuil ajwetii 
 of the mind, but 
 and mental culpa 
 be sufficient to i 
 only manslaught( 
 
GENERAL REMARKS. 
 
 167 
 
 of ihe genuine symptoms of the mala mens, the heart bent 
 upon mischief, which enter in^ the true notion of malice 
 in the legal sense of the word. Moir having been greatly 
 annoyed by persons trespassing upon his farm, repeatedly 
 gave notice that he would shoot any one who did so, and at 
 length discharged a pistol at a pei*son who was trespassing, 
 and wounded him in the thigh, which led to erysipelas, and 
 the man died. Moir was convicted of murder and executed : 
 1 Russ. 718 ; s. 227,2>os<. See Imp. Comm. note on that case 
 under s. 53, ante. 
 
 Malice in its legal sense denotes a wrongful act done 
 intentionally, without just cause or excuse. Per Little- 
 dale, J., in McPherson v. Daniels, 10 B. & C. 272 ; and 
 Cresswell, J., in R. v. Noon, 6 Cox, 137 : — 
 
 •' We must settle what is meant by the term malice. The 
 legal import of this term differs from its acceptation in common 
 conversation. It is not, as in ordinary speech, only an expres- 
 sion of hatred and ill-will to an individual, but means any 
 wicked or mischievous intention of the mind. 
 
 " Thus, in the crime of murder which is always stated in the 
 indictment to be committed with malice aforethought, it i» 
 neither necessary in support of such indictment to show that the 
 prisoner had any enmity to the deceased, nor would proof of 
 absence of ill-will furnish the accused with any defence, when it 
 is proved that the act of killing was intentional and dono 
 without any justifiable cause." Per Best, J., in R. v. Harvey, 
 2 B. & C. 268. 
 
 The nature of implied malice is illustrated by tho 
 maxim " Culpa lata dolo aiqiiiparatur" 
 
 Malice aforethought, which makes a felonious killin ; 
 uiurtler, may be practically defined to be not actual Tnalic^ 
 oradiud aforethought, or any other particular actual state 
 of the mind, but any such combination of wrongful deed 
 and mental culpability as judicial usage has determined to 
 be sufficient to render that murder which else would be 
 only manslaughter. One proposition is plain : that an 
 
 If 
 
168 
 
 HOMICIDE. 
 
 actual intent to take life is not a necessary ingredient in 
 murder, any more than it is in manslaughter. Where the 
 prisoner fired a loaded pistol at a person on horseback, and 
 the ball took effect on another, whose death it caused, the 
 offence was held to be murder; though the motive for 
 firing it was not to kill the man, but only to frighten his 
 horse, aad cause the horse to throw him : 2 Bishop, Cr. L. 
 C75, 676, 682 ; s. 227, post 
 
 In Grey's case the defendant, a blacksmith, had broken, 
 with a rod of iron, the skull of his servant, whom he did 
 not mean to kill, and this was held to be murder; for, 
 says the report, if a father, master, or school-master will 
 correct his child, servant or scholar, he must do it with 
 such things as are fit for correction, and not with such 
 instruments as may probably kill them : Kel. 99. 
 
 A person driving a cart or other carriage happeneth to 
 [kill. If he savr or had timely notice of the mischief likely 
 to ensue, and yet drove on, it will be murder ; for it was 
 wilfully and deliberately done. If he might have seen 
 the danger, but did not look before him, it will be man- 
 slaughter for want of due circumspection. But if the 
 accident happened in such a manner that no want of due 
 care could be imputed to the driver it will be accidental 
 death, and tlie driver will be excused : Fost. 263. 
 
 Further, if there be an evil intent, though that intent 
 extendeth not to death, it is murder. Thus if a man, 
 knowing that many people are in the street, throw a stone 
 over a wall, intending only to frighten them or to give 
 them a little hurt, and thereupon one is killed, this is mur- 
 der : for he had an ill intent, though that intent extendeth 
 not to death, and thougli he knew not the party slain: 
 3 Inst. 57 ; s. 227, post. 
 
 Although the malice in murder is what is called " malice 
 aforefhou;/ht," yet tliere is no particular period of time 
 during which it is necessary it should have existed, or the 
 prisoner should have contemplated the homicide. If, for 
 
169 
 
 GENERAL REMARKS. ,.q 
 
 example, the intent to kill or to W. ,u 
 is executed the instant it sprinl Lt^^^^^^ harm 
 
 ^s as truly n^urder as if if S d" It .^^1' *^^ ^^^««- 
 period: 2 Bishop, Cr. L. 677 ^''' ^^^ ^ longer 
 
 grievous bodily ha™, if death .n tf'" *" "''U <»- 'odo 
 
 -iif in such case, th'o petlToZt" '" '' """''"' ' 
 lie does not J;no,v that it is lo„I!, k ^® '"^"P""- "'""sh 
 -certain, it is manslaught ' r^ 'r*"^ *^'""' ^° ««'e to 
 Tf i- ' (^ampbell, 1] Cot <!9q 
 
 K an action, unlawful in itself u ^ 
 and with intention of mis^hi,^f „ ^'""' ''^"'^■•ately, 
 
 particular individuals, oTT^l^Lf^' "'"•^^ harm t"^ 
 i' where it may, and death „sue at 'f '^\"™'»''tely fall 
 ginal intention of the partv T M? ?" "' ^'''^' ">e ori- 
 739. If a man deliberate y^hL" ^ ""''«'••• ^ ««»■ 
 Ml B., this is murder fl^l'l*' V"" »- him, but 
 poisoned apple to his wife, inten'din„ t„ ^.'''"''^ A. gave a 
 -V. e, ignorant of the matter rvo^! " ^T,", ''""' ""'^ *h« 
 ™i Jied, this was held mu^r i' A "h "'':*° '"""^ " 
 present at the time, endeavour!/. ,' ""^^ he, being 
 girfng the apple to the clild Cl/ T''' ''" ^"'^ f™"' 
 
 So if a pe,»„ give medicm! •'"■'''■ ^'''^'• 
 
 .fertion, by which the wotrisl^llT;"" '° P"'""'-'' -• 
 dearly to be nuu-der, for though nf' *'" ""^^ «■»« held 
 ««""t intended, ihe act' is of ° ''°''*'' "^ ""^ "•"■"an 
 
 ■iciou,, and neces^ariy allied ^ ''""'"•''*^ ""J "»- 
 1"- on whom it /asp^etlt, '/'""' '"«- *° "'e 
 * ■i-i'd. pSst. ' "'■""' •• I East, P. C, 230, 254 ; 
 
 -^^^z:::^::::^-::;^' "r ««.. of co t. 
 
 ''A J-et, if the life of aTothef ^ "."^'■'•"" '" '""««" 
 
170 
 
 HOMICIDE. 
 
 be there : 1 Russ. 741, and Greaves' note to it. That is not 
 law now; see ss. 227, 228, ^osi. 
 
 In R. V. Lee, 4 F. & F. 63, Pollock, C.B., told the jury 
 " that if two or more persons go out to commit a felony 
 with intent that personal violence shall be used in its com- 
 mittal, and such violence is used and causes death, then they 
 are all guilty of murder, even although death was not in- 
 tended." That is now limited to the offences mentioned in 
 s-8. 2, s. 228, post 
 
 Where two persons go out with the common object of 
 robbing a third person, and one of them, in pursuit of tliat 
 common object, does an act which causes the death of that 
 third person, under such circumstances as to be murder in 
 him who does the act, it is murder in the other also : R. v. 
 Jackson, 7 Cox, 357. 
 
 If a man intends to maim and causes death, and it can 
 be made out most distinctly that he did not mean to kill 
 yet if he does acts and uses means for the purpose of 
 accomplishing that limited object, and they are calculated 
 to produce death, and death ensues, by the law of Eng- 
 land that is murder, although the man did not mean to 
 kill. It is not necessary to prove an intention to kill ; it 
 is only necessary to prove an intention to inflict an injury 
 that might be dangerous to life, and that it resulted in 
 death. A party may be convicted upon an indictment for 
 murder by evidence that would have no tendency to prove 
 that there was any intent to kill, nay, by evidence that 
 might clearly show that he meant to stop short of death, 
 and even take some means to prevent death ; but if that 
 illegal act of his produces death that is murder : R. v. 
 Salvi, 10 Cox, note h., 481 ; s. 227, 2)ost. 
 
 " A common and plain rule on this subject," says Bishop 
 2 Cr. L. 694, " is that, whenever one does an act with the i 
 design of committing any felony, though not a felony <biii- 
 gerous to human life, yet, if the life of another is accident- 
 all}' taken, his offence is murder." Or in the language of I 
 
GENERAL REMARKS. 
 
 171 
 
 Baron Bramwell, in R. v. Horsey, 3 F. & F. 287 ; " the law 
 laid down was that where a prisoner, in the course of com- 
 mitting a felony, caused the death of a human being, that 
 was murder, even though he did not intend it ; " see Oreaves' 
 note, 1 Russ. 742. & s. 228, s-s. 2, post 
 
 And if the act committed or attempted is only a mis- 
 demeanour, yet the " accidental " causing of death, in 
 consequence of this act, is murder, if the misdemeanour is 
 one endangering human life : Bishop, 2 Cr. L. 691. 
 
 If a large stone be thrown at one with a deliberate in- 
 tention to hurt, though not to kill him, and, by accident, 
 it kill him, or any other, this is murder : 1 Hale, 440, 1 
 Russ. 742. Also, where the intent is to do some great 
 bodily harm to another, and death ensues, it will be mur- 
 der : as if A. intend only to beat B. in anger, or from pre- 
 conceived malice, and happen to kill him, it will be no ex- 
 cuse that he did not intend all the mischief that followed : 
 for what he did was malum in se, and he must be answer- 
 able for all its consequences : he beat B. with an intention 
 of doing him some bodily harm, and is therefore answerable 
 for all the harm he did. In Foster, 261, it is said : " If an 
 action unlawful in itself be done deliberately and with 
 intention of mischief or great bodily harm to particulars, 
 or of mischief indiscriminately fall it where it may, and 
 death ensue against or beside the original intention of the 
 party, it will be murder. But if such mischievous inten- 
 tion doth not appear, which is matter of fact and to be 
 collocted from circumstances, and the act was done heed- 
 lessly and incautiously, it will be manslaughter, not 
 accidental death, because the act upon which death ensued 
 was unlawful." 
 
 Extreme necessity of hunger does not justify homicide : 
 R. V. Dudley, 15 Cox, 624, 14 Q. B. D. 273. 
 
 If two persons enter into an agreement to commit 
 sulci do toi^^other, and the means employed kill one of them 
 
m 
 
 172 
 
 HOMICIDE. 
 
 only, the survivor is guilty of murder : R. v. Jessop, 16 Cox 
 204; s. 237, 2W8t. 
 
 The circumstance of a person having acted under an 
 irresistible influence to the commission of homicide is no 
 defence, if at the time he committed the act he knew he 
 was doing what was wrong : R. v. Haynes, 1 F. & F. 666 ; 
 see s. 11 ante. 
 
 On an indictment for murder, it being proved that the 
 prisoner, a soldier, shot his officer through the head, the 
 only evidence for the defence being that the act was sudrlen, 
 without apparent motive, and that he had been addicted to 
 drink, and had been suffering under depression ; Held, that 
 this was not enough to raise the defence of insanity; that 
 the sole question was whether the prisoner fired the gun 
 intending to kill; and that his expressions soon after the 
 act were evidence of this, and that alleged inadequacy of 
 motive was immaterial, the question being, not motive, but 
 intent: R. v. Dixon, 11 Cox, 341. 
 
 Killing a man who was out at night dressed in white as 
 a ghost, for the purpose of frightening the neighbourhood, ia 
 murder; it is no excuse that he could not otherwise be 
 taken: 1 Russ. 749. 
 
 Forcing a person to do an act which is likely to produce 
 and does produce death is murder; so, if the deceased tlirew 
 himself out of a window, or in a river, to avoid the violence 
 of the prisoner: 1 Russ. 676; R. v. Pitts, Car. & M. 284; 
 R. V. Halliday, 6 Times L. R. 109 ; s. 220, jwst. 
 
 If two persons fight, and one overpowers the other aiul 
 knocks him down, and puts a rope lound his neck, and 
 strangles him, this will be murder : R. v. Shaw, 6 C. & P. 
 372. 
 
 If a person being in possession of a deadly woapou 
 enters into a contest with another, intending at the time to 
 avail himsel" of it, and in the course of the contest actiially 
 uses it, and kills the other, it will hn murdor ; Init if lie diii 
 
GENERAL REMARKS. 
 
 17S 
 
 not intend to use it whoa he began the contest, but used it 
 in the heat of passion, in consequence of an attack made 
 upon him, it will be manslaughter. If he uses it to protect 
 his own life or to protect himself from such serious bodily 
 harm as would give him a reasonable apprehension that his 
 life was in immediate danger, having no other means of 
 defence, and no means of escape, and retreating as far as he 
 can, it will be justifiable homicide : R. v. Smith, 8 C. & P.. 
 160. 
 
 A person cannot be indicted for murder in procuring 
 another to be executed, by falsely charging him with a. 
 crime of which he was innocent: K v. Macdaniel, 1 Leach,. 
 44; see now s. 221. 
 
 Child 7)utrder. — To justify a conviction on an indict- 
 ment charging a woman with the wilful murder of a child 
 of which she was delivered, and which was bcrn alive, the 
 jury must be satisfied affirmatively that the whole body 
 was brought alive into the world ; and it is not sufficient 
 that the child has breathed in the progress of the birth : R. 
 V. Poulton, 5 C. & P. 329 ; R. v. Enoch, 5 C. & P. 539. If a, 
 child has been wholly produced from the body of its mother, 
 and she wilfully and of malice aforethought strangles it 
 while it is alive, and has an independent circulation, this is 
 murder, although the child ia still attached to its mother by 
 the umbilical cord : R. v. Trilloe, 2 Moo. 260. A prisoner 
 was charged with the murder of her new-born child by 
 cutting off" its head: Held, that, in order to justify a convic- 
 tion for murder, the jury must be satisfied that the entire 
 child was actually born into the world in a living state ; 
 and that the fact of its having breathed is not a decisive 
 proof that it was born alive, as it may have breathed and 
 yet died before birth: R. v. Sellis, 7 C. & P. 850; R. v. 
 Handley, 13 Cox, 79 ; s. 219, poi^t 
 
 An infant in its mother's womb is not considered as a 
 person who can be killed witliin the description of murder 
 or manslaughter. The rule is thus: it must be born, every 
 
 'A- 
 
174 
 
 HOMICIDE. 
 
 part of it must have come from the mother, before the 
 killing of it will constitute a felonious homicide : R. v. 
 Wright, 9 0. & P. 754; R. v. Brain, 6 C. & P. 349 ; 1 Rasa. 
 670; 2 Bishop, Cr. L. 632. Giving a child, whilst in the 
 act of being bom, a mortal wound in the head as soon as 
 the head appears, and before the child has breathed, will, if 
 the child is afterwards born alive and dies thereof, and there 
 is malice, be murder ; but if there is not malice, man- 
 slaughter: R. V. Senior, 1 Moo. 346; 1 Lewin, 183 ; s. 219, 
 post. 
 
 Marder by poisoning. — Of all the forms of deatli by 
 wliicb luman nature may be overcome, the most detest- 
 ablo is 'hat of poison : because it can, of all others, be the 
 kasii prevented either by manhood or forethought : 3 Inst. 
 48. lie that wilfully gives poison to another, that hath 
 provoktj'l him or not, is guilty of wilful murder ; the 
 reason is because it is an act of deliberation odious in law, 
 and presumes malice : 1 Hale, 455. A prisoner was 
 indicted for the murder of her infant child by poison. She 
 purchased a bottle of laudanum, and directed the person 
 who had the care of the child to give it a teaspoonful every 
 night. That person did not do so but put the bottle on 
 the mantel-piece, where another little child found it and 
 gave part of the contents to the prisoner's child who soon 
 after died : held, that the administering of the laudanum 
 by the child was as much, in point of law, an administering 
 by the prisoner as if she herself had actually administered 
 it with her own hand : R. v. Michael, 2 Moo. 120. On a 
 trial for murder by poison; :au 8ia,1>ements made by the 
 deceased in a conversation sh ^rtly before tho ^ :me at which 
 the poison is supposed to have been administered are 
 evidence to prove the state of his health at that time : R. 
 V. Johnston, 2 C. & K. 354. On an indictment for the 
 murder of A., evidence is not admissible that three others 
 in the same fa.nily died of similar poison, and that the 
 prisoner was at all the deaths, and administered .sc.niething 
 
GENERAL REMARKS. 
 
 to two of his patients • K v W i 
 jn indict^ent'against f JoZ^I^'-J ^°^- '''■ On 
 husband by araenic, in Sept^X ^ ' '"'"■''*'• »* her 
 on behalf of the P«>seoutr^"A;;e " »" "1 '^»<''-'^' 
 by her two sons, one of whom d' 7 ^ '"«^ ^'^ tok"" 
 other in Mar* subsequenUyTnd al " "^^""'er and the 
 took a^eniem April LlouW but i^ ^"'^''^ ^°°' '"ho 
 given of a similarity of sl„t "^ °°' <■'«■ P^'of was 
 Evidence was also tended tZ^T '?• *''* f™^ »^«. 
 house with her husband »d son . r" "" ">« »«■"« 
 their tea, cooked their v^als" w"!*''^* ^he prepai^d 
 the four parties: heU. that th fa tl^^'^^uted them to 
 for the pu.pose of pro;inrfi^t .hllr": ""^ '^'^'^^^^^ 
 .ctually died of a«enic; tcondlt th ■ \'''""'^^'' ''™»»"<i 
 accidental; and that it wasTt f; ^ ^I' *""' "«« "ot 
 its tendency to prove orT^ate a '"""""l^'hle by reason of 
 
 f'Y ■■ E. V. Geerin,, ,8 Tt uTlT n" ''"""^^^"' 
 of a husband and wife for iha ^ ' j " ^P°" *he trial 
 
 'onner by administerLg 1 "rnic tfh" "V"" "'°"'- "* *>• 
 rebutting the inference CthraLenrh; 1'" ""'^^ "' 
 accdent evidence was admittedThT .J "^ ^"^ ''''^«° by 
 fet wife had been poisoned nte ^1^ ""!'' ^"-"-^ 
 he woman who waited upon hTr , P'''™™'^ i that 
 erfood, shewed symptom^, of haW„" r^r'""'^"^ ^ated 
 he food was always prepared bvtJ? ,'" ^''°"' 'hat 
 'hat the twoprisoners the ^J^ot ,t ™'" P™"™^: and 
 -..not affected wik any symlr'T' '" "'^ '"«'-. 
 Gainer, 4 F. & F. 346 And Ar I f ? "' °^ P™^°''^ «■ v 
 r»"ook, C.B., in R. V. c:tt^^;o1'•"'■■''f'-'=™™>ti".' 
 ;*™ a prisoner. was ch^;'' ^. ,,^"^' *»»■ '-W. that 
 '"I'l by poison, and the defeti-e wl H . . """*'• "^ her 
 ".. an accidental taking of ",",?!!• "^*»*h resulted 
 
 
 I 4-s • 
 
176 
 
 HOMICIDE. 
 
 MURDER BY KILLING OFFICERS OF JUSTICE. 
 
 Ministers of justice, as bailiffs, constables, watchmen, 
 etc. (either civil or criminal justice), while in the execution 
 of their oflBces, are under the peculiar protection of the 
 law ; "a protection founded in wisdom and equity, and in 
 every principle of political justice, for without it the pub- 
 lic tranquility cannot possibly be maintained, or private 
 property secured. For these reasons the killing of officers 
 so employed has been deemed murder of malice prepense 
 as being an outrage wilfully committed in defiance of the 
 justice of the kingdom. The law extends the same protec- 
 tion to any person acting in aid of an officer of justice, 
 whether specially called thereunto or not. And a public 
 officer is to be considered as acting strictly in discharge of 
 his duty, not only while executing the process intrusted to 
 him, but likewise while he is coming to perform, and 
 returning from the performance of his duty : s. 228, post. 
 
 He is under the protection of the law eundo, morando 
 et redeundo. And, therefore, if coming to perform his otRce 
 he meets with great opposition and retires, and iu the 
 retreat is killed, this will be murder. Upon the same prin- 
 ciples, if he meets with opposition by the way, and is 
 killed before he comes to the place (such opposition being 
 intended to prevent his performing his duty), this will also 
 be murder : Roscoe, 697 ; 1 Russ. 732. But the defendant 
 must be proved to have known that the deceased was a 
 public officer, and in the legal discharge of his duty as 
 such ; for if he had no knowledge of the officer's authoritj' 
 or business the killing will be manslaughter only : s. 229, 
 8-s. 4, 'post. 
 
 In order to render the killing of an officer of justice, 
 whether he is authorized in right of his office or by war- 
 rant, amount to murder, upon his interference with an 
 afFray, it is necessary that he should have given some noti- 
 fication of his being an officer, and of the intent with which 
 he interfered : R. v. Gordon, 1 East, P. C.315, 352: s. S2,ant€. 
 
 Where 
 peace, and i 
 ^im as kne' 
 and such as 
 446. Butii 
 peace, constt 
 killed in end 
 the person b 
 it hath been 
 a sudden affi 
 comes, by con 
 keep the peac 
 tion to be not 
 he who kills 
 might suspect 
 but if the pei 
 ^vithin Iiis proi 
 'edged to bear 
 that tlie party J 
 ifitbein the d 
 Killing an o 
 DO warrant, am 
 committed, and 
 thouo-h such ch 
 ticuJare necessar 
 R-^R.329; ,,, 
 «• V, Carey, 14 ^ 
 
 ^J'^ing an offi 
 
 '""i''l^'i'. though tJ 
 
 '"a" has done not} 
 
 '^t'i<^ officer has a 
 
 "'an knows the . 
 
 officer dues not not 
 
 ^' v^ Woolmev, 1 3f 
 
 So.whereamai 
 fresh pui-suit kilJs 
 
 '■"'^r Law— 12 
 
 ] 
 
GENERAt REJURKS. 
 
 Where a constable interferJ"""" "'' 
 
 peace, and is killed, auch of tlf' '° ^" "^^y ^ keep the 
 «.m as knew hi„ to be a <lttS'""''™'™^'' '- k-'l £ 
 and such as did not know i^f 1 ^ «"'"^ »' "-urdeT 
 4«. But it hath been L- j ""^'oughter only • i „,?' 
 peace, eonstabie oJ:Z:^':^^J ''"' « " >»'■■- ofS 
 tilled in endeavouring tn!^* .' fu ™" * P"™** Person T 
 the pe«o„ by whom het M ?"* "''°» h« -es^Snt 
 it hath been resolved, tilt .f tb .1 ^"'^ "' »"dS ye^' 
 a audden affray do i t givl'^lf "^ "^"O" ^'ain i^',^^ 
 comes, by commanding the^^ °" '" "'<"" Purpose he 
 
 keep the peace, or othrtisem^tf ?, ""^ '""'"^ »'»« to 
 t-on to be not to take parlTn^K "^ ^^^"'"S bis inten 
 he -h" kills him is Zll '," '^"""'^ «">' to app,l"f "" 
 might suspect that he c^^t »»«la«ghter on^^ he 
 b"t if the pe,.o„ intl;:::., rf "■■"^ ''« "dv" 
 «>th,„ his proper distriefarfk' °'' "^ ^ «■> officer 
 
 S '" 'r '"^ °«- he alumelh ■.rr"''"^--'-- - 
 thatthepartykiiji h^ ™'neth, the law will presume 
 
 "" he m the day time : 1 flawt jof '■°'™'' ^'P^^-'ly 
 
 Killmg an officer will »„ , 
 "» "arrant, and wis 'i,"""° """der, though he 1, ^ 
 -mittod, and takes the Sr' '^"^ -^ i^eCwI. 
 "•»'«h such charge doe, „ ^^ ^ ^"" " ''""•ffe only I^ 
 
 -', see Kaffertv v Tk^ n ^' ^- ^ Ford 
 " '•Carey, 14 Cox, 214 ^'"' ^^°P'«. '2 Cox, 6iV ' 
 
 Killing an officer who »t* . 
 "«■*'■ though the officer Wi^P*^ '° '"™»' " »«„ will h, 
 "■' ''''■• '!»e nothing C'J'r '™'™nt,a„d though ,, 
 
 '■«". U„.-,2 ""• " '» "^ >m,ch „,u,.der al°? 
 
 I" 
 
 w 
 
178 
 
 HOMICIDE. 
 
 the party weif killed while attempting to take the defend- 
 ant in the act, for any person, whether a peace officer or 
 not, has power to arrest a person attempting to commit or 
 actually committing a felony : R. v. Howarth, 1 Moo. 207. 
 If a person is playing music in a public thoroughfare, 
 and thereby collects together a crowd of people, a police- 
 man is jusoititd in desiring him to go on, and in laying his 
 hand on him and sliglitly pushing him, if it is only done 
 to give effect to his i-emonstrance ; and if the person, on so 
 small a provocation, strikes the policeman with a dangerous 
 weapon and kills him, it will be murder, but otherwise if 
 the policeman gives him a blow and knocks him down : R. 
 V. Hagan, 8 C. & P. 167. 
 
 MURDER. -KILLING BY OFFIOERS OF JUSTICE. 
 Where an officer of justice, in endeavouring to execute 
 his duty, kills a man, this is justifiable homicide, or man- 
 slaughter, or murder, according to circumstances. Where 
 an officer of justice is resisted in the legal execution of his 
 duty lie may repel force by force ; and if, in doing so, he 
 kills the par'y resisting him, it is justifiable homicide ; and 
 this in civil as well as iti criminal cases : 1 Hale, 494 ; 2 
 Hale, 118. And the same as to persons acting in aid of 
 such officer. Thus if a peace officer have a legal warrant 
 against B.for felony, or if B. stand indicted for felony, in these 
 cases if B. resist.and in the struggle be killed by the officer.or 
 any person acting in aid of him, the killing is justifi- 
 able : Fost. 318 ; s. 33, et seq., ante. So, if a private 
 person attempt to arrest ' ne who commits a felony 
 in his presence or interferes to suppress an atfray, 
 and he resists, and kill the jjerson resisting, this 
 is also justifiable homicide : 1 Hale, 481, 484. Still 
 there must be an apparent necessity for the killing: 
 for if the officer were to kill after the resisting had ceased, 
 or if there were no reasonable necessity for the violent' 
 ysed upon the part of the officer, the killing would be man- 
 slaughter at th6 least. Also, in order to justify an officer 
 
 e Words 
 
 '' }^^ to bio 
 le inipoi-tJ 
 
OKNERAL REMARKS. . „. 
 
 «■ pmato person in those cases it i, „ 
 should, at the time, be in thTll 1 f <=e»™ry that they 
 Juty imp^d upon them by L '„^ 'T"^ ''^«''«'« a 
 ^tenees that, if the officer o"^ ^^2 J "' ™"" -="■««»■ 
 would have been murder- for [f ,1 ^ " "^'^ ''"'"J. it 
 case were such that it would h»LT ""='"»''ta>"=e3 of the 
 to kill the oiflcer or private p'Z 'r^-rr'""^""-' ""'^ 
 at east, in the officer or pH^Z' ' '"' »«"»'>'«gl.t.-- 
 
 -»ti„g: Fost. 318; 1 if^to'ltT "" ""^ P''-^ 
 Raol, or fcroing to a gaol assault *1 , " P"«>ner,s iu ^ 
 
 in his defence, kilfa„yTttrf°'--. officer, and ' 
 
 '%t P-venting an elape^'j-^i: ,'^^"^^35'%? " "'« 
 Where an officer or nriv»t„ ""''*• 35. 36. ,<«fc. 
 authority to apprehend a man L^ ^T"' ''"""8 iegal 
 man, instead of Resisting, fleslr^"?"" *" <■" «>. «"<' the 
 ■» killed by the officer or ptl "'"' ^^'^ "fe"- »d 
 
 the oHonce with which tte " anT ". "'' P"'™"' 'f 
 treason or a felon,- or » T ^""^ charged were a 
 
 coui.1 not otherwi^^b: ap;^^:rrr r-"" ^i^--. »d >,: 
 
 «ab.e; but if charged ,S f Si 'ft^'"* '» J^"" 
 niLsdemeanour merely or if n,„ *''" P^'^e <>'• other 
 
 "•"1 »uit, or if a preL™ „'' " , ^T "'" '"'*»''»'^ » " 
 fl-V-R from then, theM„ '";: 7'"''° - °ther pe,.on 
 '"'"*'■. unless, indeed, the hllid '' """'' '™»''' t*^ 
 ;.;-.» "ot likely or intended tokn ''"'i! '^"^'""'^^ ^y 
 1..3 1.eels,giving him a blow of a" o^r'^ "', '"PP"'S >>P 
 "■eapon not likely to kill or the 1^ '^ ""'^«"''' ""^ o""- ' 
 l>™"ei.le, at most, would 4 matJ: ^ '" "■'"* "^ «- 
 a not or rebellious assen.bly "h '^'^^ °" ^^ I" ^Hse of 
 
 »---^"PP.-e33ed:ZctS:Ltt:'3^^^^^^^^ 
 
 '-■-^ntvf:r:iT^---"p~ions 
 
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 I 
 

 
 IMAGE EVALUATION 
 TEST TARGET (MT-S) 
 
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 Hiotographic 
 
 Sciences 
 Corporation 
 
 33 WeST MAIN STREET 
 
 WEBSTER, N.Y. M5S0 
 
 (716) 872-4503 
 
 
 '^ 
 
A^ 
 
 
 .V^^ 
 
 d 
 
180 
 
 HOMICIDE. 
 
 was altogether sudden and not the result of preconceived 
 anger or malice ; for in no case will the killing, though in 
 mutual combat, admit of alleviation if the fighting were 
 upon malice. Thus a party killing another in a deliberate 
 duel is guilty of murder : 1 Russ. 727. 
 
 Where, upon a previous agreement, and after there has 
 been time for the blood to cool, two persona meet with 
 deadly weapons, and one of them is killed, the party who 
 occasions the death is guilty of murder, and the seconds 
 also are equally guilty ; and with respect to others shewn 
 to be present the question is : Did they give their aid and 
 assistance by their countenance and encouragement of the 
 principals in the contest ? mere presence will not be suffi- 
 cient ; but if they sustain the principals either by advice 
 or assistance, or go to the ground for the purpose of 
 encouraging and forwarding the unlawful conflict, although 
 they do not say or do anything, yet, if they are present 
 assisting and encouraging by their presence at the moment 
 when the fatal shot is fired, they are, in Taw, guilty of the 
 crime of murder : R. v. Young, 8 C. & P. 644. 
 
 Where two persons go out to fight a deliberate duel and 
 death ensues, all persons who are present, encouraging and 
 promoting that death, will be guilty of murder. And the 
 person who acted as the second of the deceased person in 
 such a duel may be convicted of murder, on an indictment 
 charging him with being present, aiding and abetting the 
 person b}"- whose act the death of his principal was 
 occasioned: R. v. Cuddy, 1 C. & K. 210 ; s. 61, anf(^. 
 
 on 
 
 kill and s 
 It nee 
 
 Chatburn 
 slaughter 
 omission s 
 11 Cox, 21 
 
 Mansla 
 der in this, 
 is unlawfuj 
 yet the ma 
 essence of 
 slaugliter, t 
 human nati 
 
 In this 
 ingredient i 
 wanting; an 
 yet it is in 
 infirmity; t 
 criminal, is 
 human cons 
 slaughter a 
 aiding and t 
 considered 
 the fact in 
 sumed to be 
 And it was 
 against A. ai 
 as accessorie 
 abetting, for 
 
MANSLAUGHTER. 
 
 181 
 
 MANSLAUGHTER. 
 
 (Section S30, post.) 
 
 The jurors 
 in the county 
 
 that A. B. 
 did unlawfully 
 
 Indictment. — 
 on at 
 
 kill and slay one 
 
 It need not conclude contra formam statuti: R. v. 
 Chatburn, 1 Moo. 403, Nor is it necessary where the man- 
 slaughter arises from an act of omission, that such act of 
 omission should be stated in the indictment : R. v. Smith, 
 11 Cox, 210. 
 
 Manslaughter is principally distinguishable from mur- 
 der in this, that though the act which occasions the death 
 is unlawful, or likely to be attended with bodily mischief, 
 yet the malice, either express or implied, which is the very 
 essence of murder is presumed to be wanting in man- 
 slaughter, the act being rather imputed to the infirmity of 
 human nature : Roscoe, 638 ; Fost. 290. 
 
 In this species of homicide malice, which is the main 
 ingredient and characteristic of murder, is considered to be 
 wanting; and though manslaughter is in its degree felonious, 
 yet it is imputed by the benignity of the law to human 
 infirmity ; to infirmity which, though in the eye of the law 
 criminal, is considered as incident to the frailty of the 
 human constitution. In order to make an abettor to a man- 
 slaughter a principal in the felony, he must be present 
 aiding and abetting the fact committed. It was formerly 
 considered that there could not be any accessories before 
 the fact in any case of manslaughter, because it was pre- 
 sumed to be altogether sudden, and without premeditation. 
 And it was laid down that if the indictment be for murder 
 against A. and that B. and C. were counselling and abetting 
 as accessories before only (and not as 'present aiding and 
 abetting, for such are principals), if A. be found guilty only 
 
 'i: 
 
 ■.i:. 
 
182 
 
 MANSLAUGHTER. 
 
 of manslaughter, and acquitted of murder, the accessories 
 before will be thereby discharged. But the position ought 
 to be limited to these cases where the killing is sudden and 
 unpremeditated, for there are cases of manslaughter where 
 there may be accessories. Thus a man may be such an 
 accessory by purchasing poison for a pregnant woman to 
 take in order to procure abortion, and which she takes and 
 thereby causes her death: R. v. Gaylor, Dears. & B. 288. If, 
 therefore, upon an indictment against the principal and an 
 accessory after the fact for murder the offence of the 
 principal be reduced to manslaughter, the accessory may 
 be convicted as accessory to the manslaughter: 1 Russ. 783. 
 ' 'an^laughter is homicide not under the influence of 
 malice: R. v. Taylor, 2 Lewin, 215. 
 
 The several instances of manslaughter may be considered 
 in the following order : 1. Cases of provocation. 2. Cases 
 of mutual combat. 3. Cases of resistance to officers of 
 justice, to persons acting in their aid, and to private persons 
 lawfully interfering to apprehend felons, or to prevent a 
 breach of the peace. 4. Cases where the killing takes place 
 in the prosecution of some criminal, unlawful or wanton 
 act. 5. Cases where the killing takes place in consequence 
 of some lawful act being criminally or improperly per- 
 formed, or of some act performed without lawful authority: 
 1 Russ. loc. cit 
 
 CASES OF PROVOCATION. 
 
 Whenever death ensues from the sudden transport of 
 passion, or heat of blood upon a reasonable provocation, and 
 without malice, it is considered as solely imputable to 
 human infirmity and the offence will be manslaughter. It 
 should be remembered that the person sheltering himself 
 under this plea of provocation must make out the circum- 
 stances of alleviation to the satisfaction of the court and 
 jury unless they arise out of the evidence produced against 
 him, as the presumption of law deems all homicide to be 
 malicious until the contrary is proved. The most grievous 
 
 words of. 
 gestures, 
 free the pi 
 provocatic 
 tion to kil 
 
 manifested 
 manifested 
 on the ear 
 to kill, and 
 will be onli 
 violence or 
 as by pullin 
 kills the age 
 in case it apj 
 and the age 
 brevis occasi 
 along the si 
 venient dists 
 him and jost 
 such jostling 
 make the kil 
 
 And agaii 
 A. riding on t 
 track, and th< 
 slaugliter. B 
 the lii'st aggn 
 cumstances of 
 trivial provoc 
 ^sault, that . 
 killing to man 
 dered as sufl^ci 
 the revenge is 
 'ind barbarous 
 the provocatior 
 caused a sudde: 
 killina^ which e 
 
I ! 
 
 GENtJRAL REMARKS. 
 
 183 
 
 words of reproach, contempt'iiotis and inEniltihg actions of 
 gestures, or' trespasses against lands or goods, will not 
 free the party killing from the guilt of murder, if upon such, 
 provocation a deadly weapon was made use of, or an inten- 
 tion to kill, or to do some great bodily harm, was otherwise 
 manifested. But if no such weapon be used, or intention 
 manifested, and the party so provoked give the other a box 
 on the ear or strike with a stick or other weapon not likely 
 to kill, and kill him unluckily and against his intention, it 
 will be only manslaughter. Where an assault is m^de with 
 violence or circumstances of indignity upon a man'f; person, 
 as by pulling him by the nose, and the party so assaulted 
 kills the aggressor, the crime will be reduced to manslaughter 
 in case it appears that the assault was resented immediately, 
 and the aggressor killed in the heat of blood, the furor 
 hrevis occasioned by the provocation. So if A. be passing 
 along the street, and B. meeting him (there being con- 
 venient distance between A. and the wall) take the wall of 
 him and jostle him, and thereupon A. kill B., it is said that 
 such jostling would amount to provocation which would 
 make the killing only manslaughter. 
 
 And again it appears to have been considered that where 
 A. riding on the road B. whipped the horse of A. out of the 
 track, and then A. alighted and killed B. it was only man- 
 slaughter. But in the two last cases it should seem that 
 the first aggression must have been accompanied with cir; 
 cumstances of great violence or insolence; for it is not every 
 trivial provocation which, in point of law, amounts to an 
 issauli, that will of course reduce the crime of the party 
 killing to manslaughter. Even a blow will not be consi- 
 dered aa sufficient provocation to extenuate in cases where 
 the revenge is disproportioned to the injury, and outrageous 
 and barbarous in its nature; but where the blow which gave 
 the provocation has been so violent as reasonably to have 
 caused a sudden transport of passion and heat of blood, the 
 killinsf which ensued has b^n regarded as the consequence 
 
 :m 
 
 
 # 
 
184 
 
 MANSLAUGHTER. 
 
 of human infirmity, and entitled to lenient consideration : 
 
 1 Buss. 784. For cases on this defence of provocation : see 
 ante, pp. 159, et seq. 
 
 In R. V. Fisher, 8 C. & P. 182, 1 Russ. 725, it was ruled 
 that whether the blood has had time to cool or not is a 
 question for the court and not for the jury, but it is for the 
 jury to find what length of time elapsed between the pro- 
 vocation received, and the act done. But in R. v. Lynch, 
 5 C. & P. 324 ; R. v. Hay ward, 6 C. & P. 157 ; R. v. Eagle, 
 
 2 F. &. F 827 ; the question, whether or not the blow was 
 struck before the blood had time to cool and in the heat of 
 passion, was left to the jury ; and this seems now settled to 
 be the law on the question. The English commissionei-s, 
 4th Report, p. XXV, are also of opinion that " the law may 
 pronounce whether any extenuating occasion of provoca- 
 tion existed, but it is for the jury to decide whether the 
 
 ^ offender acted solely on that provocation, or was guilty of 
 a malicious excess in respect of the instrument used or the 
 manner of using it :" see s. 229, post. 
 
 Vases of mutual comhat — Where, upon words of re- 
 proach, or any other sudden provocation, the parties come 
 to blows, and a combat ensues, no undue advantage bein? 
 sought or taken on either side, if death happen under such 
 circumstances the offence of the party killing will amount 
 only to manslaughter. If A. has formed a deliberate design 
 to kill B. and after this they meet and have a quarrel and 
 many blows pass, and A. kills B., this will be murder if the 
 jury is of opinion that the death was in consequence of 
 previous malice, and not of the sudden provocation: R. v. 
 Kirkham, 8 C. & P. 115. If, after an exchange of blows on 
 equal terms, one of the parties on a sudden and without 
 any such intention at the commencement of the affray 
 snatches up a deadly weapon and kills the other party 
 with it, such killing will only amount to manslaughter; 
 but it will amount to murder if he placed the weapon, 
 before they began to fight, so Ihat he might use it during 
 
 the affray : 
 Whiteley, 1 
 
 Where t 
 of the partie 
 stamped upc 
 thereby kill 
 slaughter: I 
 
 If two p( 
 intent to pai 
 he be killed 
 slaughter. 
 
 A sparring 
 vate room is ] 
 an injury rece 
 manslaughter ; 
 
 Oases of ■; 
 acting in the 
 inferfering to 
 of the peace. 
 arrest a man 
 making the at 
 was not actuall 
 himself with a 
 the prisoner w. 
 have escaped fr< 
 he should have < 
 arrest him befoj 
 ^^foo. 80 ; 8. 229, 
 
 W a constab 
 charge which gi, 
 soner runs away 
 constaI)le at the 
 the man kills J. i 
 be murder but m 
 arrest was illegal 
 ^'«e:R. v. Curv, 
 
GENERAL REMARKS. 
 
 185 
 
 the affray : 1 Russ. 731; R. v. Kessal, 1 C. & P. 437; R. v. 
 Whiteley, 1 Lewin, 173. , 
 
 Where there had been mutual blows, and then, upon one 
 of the parties being pushed down on the ground, the other 
 stamped upon his stomach and belly with great force, and 
 thereby killed him, it was considered only to be man- 
 slaughter : R. V. Ayes, R. &; R. 166 ; aed qucere. 
 
 If two persons be fighting, and another interfere with 
 intent to part them but do not signify such intent, and 
 he be killed by one of the combatants, this is but man- 
 slaughter. 
 
 A sparring match with gloves fairly conducted in a pri- 
 vate room is not unlawful, and therefore death caused by 
 an injury received during such a match does not amount to 
 manslaughter: R. v. Young, 10 Cox, 371. 
 
 Cases of resistance to ojfficers of justice, to persons 
 acting in their aid, UTid to private persons lawfully 
 interfering to apprehend felons or to prevent a breach 
 of the peace. See s. 229, s-s. 4. Attempting illegally to 
 arrest a man is sufficient to reduce killing the pei-son 
 making the attempt to manslaughter, though the arrest 
 was not actually made, and though the prisoner had armed 
 himself with a deadly weapon to resist such attempt, if 
 the prisoner was in such a situation that he could not 
 have escaped from the arrest ; and it is not necessary that 
 he should have given warning to the person attempting to 
 arrest him before he struck the blow : R. v. Thompson, 1 
 Moo. 80 ; s. 229, post. 
 
 If a constable takes a man without warrant upon a 
 charge which gives him no authority to do so, and the pri- 
 soner runs away and is pursued by J. S., who was with the 
 constable at the time, and charged by him to assist, and 
 the man kills J. S. to prevent his retaking him, it will not 
 be murder but manslaughter only ; because if the original 
 arrest was illegal the recaption would have been so like- 
 wise : R. V. Curvan, 1 Moo. 132. 
 
\ 
 
 186 
 
 MANSLAUGHTER. 
 
 Where a common soldier stabbed a sergeant in the same 
 regiment who had arrested him for some alleged misde- 
 meanour, held, that as the articles of war were not produced, 
 by which the arrest might have been justified, it was only 
 manslaughter as no authority appeared for the arrest : R. v. 
 Withers, 1 East, P. C. 295. 
 
 A warrant leaving a blank for the christian name of the 
 person to be apprehended, and giving no reason for omit- 
 ting it but describing him only as the son of J. S. (it 
 appearing that J. S. had four sons, all living in his house), 
 and stating the charge to be for assaulting A. without par- 
 ticularizing the time, place or any other circumstances of 
 the assault, is too general and unspecific. A resistance to 
 an arrest thereon, and killing the person attempting to ex- 
 ecute it, will not be murder : R. v. Hood, 1 Moo. 281. This 
 is not now law ; s. 229, jyost 
 
 A constable having a warrant to apprehend A. gave it 
 to his son, who in attempting to arrest A. was stabbed by 
 him with a knife which A. happened to have in his hand 
 at the time, the constable then being in sight, but a quar- 
 ter of a mile off: held, that this arrest was illegal, and 
 that if death had ensued this would have been manslaugh- 
 ter only unless it was shown that A. had prepared the 
 knife beforehand to resist the illegal violence : R. v. 
 Patience, 7 C. & P. 795. 
 
 In order to justify an arrest even by an officer, under a 
 warrant, for a mere misdemeanour, it is necessary that he 
 should have the warrant with him at the time. Therefore, 
 in a case where the officer, although he had seen the war- 
 rant, had it not with him at the time, and it did not appear 
 that the party knew of it ; held, that the aiTest was not 
 lawful ; and the person against whom the warrant was 
 issued resisting apprehension and killing the officer ; held, 
 that it was manslaughter only : R. v. Cliapman, 12 Cox, 4; 
 s. 32 ante. 
 
 "If a pr 
 police constal 
 constable, or i 
 causes death, j 
 harm, he is g- 
 intent to esoap 
 dentally causes 
 a constable, ha 
 the bad warrftni 
 it is void and rt 
 the death of th( 
 officer had the ( 
 the man guilty o 
 he knew nothing 
 for saying that h 
 on which the kij 
 wilfully setting t] 
 execution of Jjis 
 officer whilst ejieo 
 that every man hi 
 such an arrest is j 
 manslaughter. L 
 setting the law a 
 appeared to him to 
 cation would be juj 
 It is of the essenc 
 it is executed shouJ 
 arrest.' {Per Colt 
 1B.&C.288.) An 
 it is of the essence ( 
 arrested should hav, 
 of the arrest. Nov 
 arrests on the void 
 notice of tl,e good ; 
 Botice of it for ever' 
 tiie void warrant; aj 
 calculated to mislead 
 ««nt, and knows not 
 warrant. Lastly, it c 
 
GENERAL REMARKS. 
 
 187 
 
 "If a priioner, having been lawfully apprehended by a 
 police constable on a oriminal charge, tises violence to the 
 constable, or to any one lawfully aiding or assisting him, which 
 causes death, and does so with intent to inflict grievous bodily 
 harm, lie is guilty of murder ; and so if he does so only with 
 intent to escape. But if, in the course of the struggle, he acci- 
 dentally causes an injury it would be manslaughter. Suppose 
 a constable, having a good and a bad warrant, arrest a man on 
 the bad warrtot only which he allows the man to read who sees 
 it is void and resists his arrest on that ground, and the result is 
 the death of the officer ; if this had been the only authority the 
 officer had the offence would have been only manslaughter ; is 
 the man guilty of murder by reason of the good warrant of which 
 he knew nothing ? It would seem that there are strong reasons 
 for saying that he would not be guilty of murder. The ground 
 on which the killing an officer is murder is that the killer is 
 wilfully setting the law at defiance, and killing an officer in the 
 execution of his duty. The ground on which the killing of an 
 officer whilst execnting an unlawful warrant is manslaughter ia 
 that every man has a right to resist an unlawful arrest, and that 
 such an arrest is a sufficient provocation to reduce the killing to 
 manslaughter. In the supposed case the killer would not be 
 setting the law at defiance, but would be resisting to what 
 appeared to him to be an unlawful arrest ; and the actual provo- 
 cation would be just as great as if the bad warrant alone existed. 
 It is of the essence of a warrant that ' the party upon whom 
 it is executed should know whether he is bound to submit to the 
 arrest.' {Pi'i- Coltman, J., in Hoye v. Bush, citing R. v. Weir, 
 1 B. & C. 288.) And where an arrest is made without a warrant 
 it is of the essence of the lawfulness of the arrest that thei.party 
 arrested should have either express or implied notice of the cause 
 of the arrest. Now, where a constable in the supposed case 
 arrests on the void warrant, the party arrested has no express 
 notice of the good warrant for it is not shown, and no implied 
 notice of it for everything done by the constable is referable to 
 tiie void warrant ; and, besides, the conduct of the constable is 
 I' calculated to mislead, and it may well be that the party is inno- 
 eent, and knows nothing of the offence specified in the valid 
 warrant. Lastly, it must be remembered that in such a case the 
 
 r 
 
 
188 
 
 MANSLAUGHTER. 
 
 criminality of the act depends upon the intention of the party 
 arrested, and that intention cannot in any way be affected by 
 facts of which he is ignorant." 
 
 *' On the other hand, it would seem to be clear that, where an 
 officer has two or more warrants one of which is bad, and he 
 shows all to the party to be arrested who kills the officer in 
 resisting the arrest, it would be murder, for he was bound to 
 yield obedience to the lawful authority." By Greaves, in notes 
 on "arrest without warrant." — Cox & Saunder's Crim. Law 
 Consol. Acts, p. Ixxvii. 
 
 Cases where the killing takes place in the prosecution of 
 name criminal, unlawful or wanton act. — Where from an 
 action unlawful in itself, done deliberately and with mis- 
 chievous intention, death ensues, though against or beside 
 the original intention of the party, it will be murder ; and 
 if such deliberation and mischievous intention do not 
 appear, which is matter of fact and to be attested from 
 circumstances, and the act was done heedlessly and incau- 
 tiously, it will be manslaughter : R. v. Fentou, I Lewin, 
 179; R. V. Franklin, 15 Cox, 163; s. 227, post. 
 
 And if a person breaking an unruly horse ride him 
 amongst a crowd of people, and death ensue from the 
 viciousness of the animal, and it appear clearly to have 
 been done heedlessly and incautiously only, and not with 
 the intent to do mischief, the crime will be manslaughter: 
 1 Euss. 849. 
 
 Where one, having had his pocket picked, seized the 
 offender, and being encouraged by a concourse of people 
 threw him into an adjoining pond by way of avenging the 
 theft by ducking him but without any intention of taking 
 nway his life, this was held to be manslaughter only : E.t. 
 Fray, 1 East, P. C. 236. 
 
 Causing the death of a child by giving it spirituous 
 liquors in a quantity quite unfit for its tender age amounts 
 to manslaughter : B. v. Martin, 3 C. & P. 211. 
 
 If a man take a gun not knowing whether it is loaded 
 or unloaded and, using no means to ascertain, fires it in the 
 
GENERAL REMARKS. 
 
 180 
 
 direction of any other person and death ensues, thia is 
 manslaughter : B. v. Campbell, 11 Cox, 823. 
 
 The prisoner was charged with manslaughter. The 
 
 evidence showed that the prisoner had struck the deceased 
 
 twice with a heavy stick, that he had afterwards left him 
 
 asloep by the side of a small fire in a country by-lane 
 
 during the whole of a frosty night in January, and the next 
 
 morning, finding him just alive, put him under some straw 
 
 in a barn where his body was found some months after. 
 
 The jury were directed that if the death of the deceased had 
 
 resulted from the beating or from the exposure during the 
 
 night in question, such exposure being the result of the 
 
 prisoner's criminal negligente, or from the prisoner leaving 
 
 the body under the straw ill but not dead, the prisoner was 
 
 guilty of manslaughter: verdict, manslaughter: B. v. 
 
 Martin, 11 Cox, 136 ; see R. v. Towers, 12 Cox, 530, as to 
 
 causing death through frightening the deceased ; and B. v. 
 
 Dugal, 4 Q. L. B. 350 ; s. 220, post. 
 
 Cases tchere the killing takes plcice in consequence of some 
 lawful act being criminally or improperly performed, or of 
 iome net performed without lauful authority. — Where a felony 
 has been committed, or a dangerous wound given, and the 
 party flies from justice, he may be killed in the pursuit if 
 be cannot otherwise be taken. And the same rule holds if 
 a felon, after arrest, break away as he is carried to gaol, 
 and his pursuers cannot retake without killing him. But 
 if he may be taken in any case without such severity, it is 
 at least manslaughter in him who kills him, and the jury 
 ought to inquire whether it were done of necessity or not : 
 BS. 38, 58, ante. 
 
 Id making arrests in cases of misdemeanour and breach 
 of the peace (with the exception, however, of some cases 
 of flagrant misdemeanours), it is not lawful to kill the party 
 accused if he fly from the arrest, though he cannot other- 
 vise be overtaken, and though there be a warrant to appre- 
 hend him, and generally speaking it will be murder ; but 
 
 I 
 
190 
 
 MANSLAUGHTER. 
 
 under some oircumstaQcea it may amount only to man- 
 slaughter, if it appear that death was not intended : 1 
 EuBS. 858. 
 
 If an ofiQcer, whose duty it is to execute a sentence of 
 whipping upon a criminal, should be so barbarous as to 
 oause the party's death by excessive execution of the 
 sentence, he will at least be guilty of manslaughter: 
 Hawk. c. 29, s. 5. 
 
 Killing by correction. — Moderate and reasonable cor- 
 rection may properly be given by parents, masters and 
 other persons, having authority in foro domeatico, to those 
 who are under their care ; but if the correction be immo- 
 derate or unreasonable, either in the measure of it or in 
 the instrument made use of for that purpose, it will be 
 either murder or manslaughter, according to the circum- 
 stances of the case: ss. 55, 58, ante. If it be done 
 with a dangerous weapon, likely to kill or maim, due regard 
 being always had to the age and strength of the party, it 
 will be murder; but if with a cudgel or other thing not 
 likely to kill, though improper for the purpose of correction, 
 it will be manslaughter : 1 Buss. 861. 
 
 A schoolmaster who, on the second day of a boy's 
 return to school, wrote to his parent, proposing to beat 
 him severely in order to subdue his alleged obstinacy, and 
 and on receiving the father's reply assenting thereto beat 
 the boy for two hours and a half secretly in the night, and 
 with a thick stick, until he died, is guilty of mansldugbter: 
 E. V. Hopley, 2 F. «& F. 202. 
 
 Where a person in loco parentis inflicts corporal punish- 
 ment on a child, and compels it to work for an unreasonable 
 number of hours and beyond its strength, and the child 
 dies, the death being of consumption but hastened by the 
 ill-treatment, it will not be murder but only manslaughter 
 in the persoa inflicting the punishment, although it was 
 cruel and excessive, and accompanied by violent and 
 threatening language, if such person believed that the child 
 
GENERAL REMARKS. 
 
 in 
 
 wa& shamming illn«88,anGi was reall; able to do the quantity 
 of work required : B. v. Cheeseman, 7 C. & P. 454. 
 
 An infant, two years and a half old, is not capable of 
 appreciating correction ; a father therefore is not justified 
 in correcting it, and if the infant dies owing to such 
 correction the father is guilty of manslaughter: K. y. 
 Griffin, 11 Cox, 402. 
 
 Di'nth canted by negligence. — Where persons employed 
 about such of their lawful occupation, from whence danger 
 may probably arise to others, neglect the ordinary pre- 
 cautions, it will be manslaughter at least, if death is caused 
 by such negligence : 1 Buss. 864 ; s. 218, ante. 
 
 That which constitutes murder when by design and of 
 malice prepense, constitutes manslaughter when arising 
 from culpable negligence. The deceased was with others 
 employed in walling the inside of a shaft. It was the duty 
 of the prisoner to place a stage over the mouth of the shaft, 
 and the death of deceased was occabioned by the negligent 
 omission on his part to perform such duty. He was con- 
 victed of manslaughter, and upon a case reserved the 
 conviction was affirmed : B. v. Hughes, 7 Cox, 301 ; ss. 212, 
 218, 214, ante. 
 
 The prisoner, as the private servant of B., the owner of 
 a tramway crossing a public road, was entrusted to watch 
 it. While he was absent from hia duty an accident 
 happened and G. was killed. The private Act of Parlia- 
 ment, authorizing the road, did not require B. to watch the 
 tramway : Heldy that there was no duty between B. and the 
 public, and therefore that the prisoner was not guilty of 
 negligence : B. v. Smith, 11 Cox, 210. 
 
 Although it is manslaughter, where death was the result 
 of t^e joint negligence of the prisoner and others, yet it 
 must ^ve been th^ direct result wholly or in part of the 
 prisov^r's negligence, and his neglect must have heei^ 
 vholly or in part the proximate and efficient cause ol the 
 death, and it is not so where the negligence of some other 
 
V 
 
 192 
 
 MANSLAUGHTER. 
 
 person has intervened between his act or omission and the 
 fatal result : E. v. Ledger, 2 F. & F. 867 ; R. v. Pocock, 
 17 Q. B. 34. 
 
 If a person is driving a cart at an unusually rapid rate,, 
 and drives over another and kills him, he is guilty of man- 
 slaughter though he called to the deceased to get out of the 
 way, and he might have done so if he had not been in a state 
 of intoxication : R. v. Walker, 1 C. & P. 320; s. 220, post. 
 And it is no defence to an indictment for manslaughter 
 where the death of the deceased is shown to have been 
 caused in part by the negligence of the prisoner, that the 
 deceased was also guilty of negligence, and so contributed 
 to his own death. Contributory negligence is not an 
 answer to a crir^inal charge : R. v. Swindall, 2 Cox, 141. 
 In summing up in that ^ase, Pollock, C.B., said : 
 '* The prisoners are charged with contributing to the 
 death of the deceased by their negligence and improper 
 conduct ; and, if they did so, it matters not whether the 
 deceased was deaf, or drunk, or negligent, or in part con- 
 tributed to his own death ; for in this consists a great 
 distinction between civil and criminal proceedings. If 
 two coaches run against each other, and the drivers of both 
 are to blame, neither of them has any remedy for damages 
 against the other. But in the case of loss of life, the law 
 takes a totally different view ; for there each party is 
 responsible for any blame that may ensue, however large 
 the share may be ; and so highly does the law value human 
 life, that it admits of no justification wherever life has been 
 lost, and the carelessness and negligence of any one person 
 has contributed to the death of another person." 
 
 In R. V. Dant, 10 Cox, 102, L. & C. 670, Blackburn, J., 
 said : "I have never heard that upon an indictment for 
 manslaughter, the accused is entitled to be acquitted 
 because the person who lost his life was in some way to 
 blame." And Erie, Channell, Mellor and Montague Smith, 
 JJ., concurred. 
 
GENERAL REMARKS. 
 
 193 
 
 And in B. v. Hutchinson, 9 Cox, 666, Byles, J., in his 
 charge to the Grand Jury, said : " If the man had not heen 
 killed, and had brought an action for damages, or if his 
 wife and family had brought an action, if he had in any 
 degree contributed to the result an action could not be 
 maintained. But in a criminal case it was different. The 
 Qaeen was the prosecutor and could be guilty of no negli- 
 gence ; and if both the parties were negligent the survivor 
 was guilty." 
 
 And the same learned Judge, in B. v. Eew, 12 Cox, 866^ 
 said: "It has been contended if there was contributory 
 negligence on the part of the deceased, then the defendants 
 are not liable. No doubt contributory negligence would 
 be an answer to an action. But who is the plaintiff^ 
 here ? The Queen, as representing the nation ; and if they 
 were all negligent together I think their negligence would 
 be DO defence." 
 
 And Lush, J., in B. v. Jones, 11 Cox, 644, distinctly 
 said that contributory negligence on the part; of the deceased 
 was DO excuse in a criminal case. 
 
 In E. V. Birchall, 4 F. & F. 1087, Willes, J., however^ 
 held that where the deceased has contributed to his deaths 
 by his own negligence, although there may have been* 
 negligenie on the part of the prisoner, the latter cannot' 
 be convicted of manslaughter, observing that, until he saw 
 a decision to the contrary, he should hold that a man was' 
 pot criminally responsible for negligence for which he would 
 not be responsible in an ac'iion. But that case hq-s not 
 bjen fo llowed. 
 
 If a man undertakes to drive another in a vehicle he is 
 bound to take proper care in regard to the safety of the 
 man under his charge ; and if by culpably negligent driving 
 ^e causes the death of the other he will be guilty of man- 
 slaughter : B. V. Jones, 11 Cox, 644. 
 
 In order to convict the captain of a steamer of man- 
 slaughter in causing a death by running down another 
 
 Crim. Law— 13 
 
 Jill! 
 
 'I ' 
 
 f !. 
 
 ■■-'jf." 
 
 t 
 
 
 ■ mI- 
 
M' 
 
 r 
 
 
 
 «fv^-»\ .♦;• . ■• ■;■. 
 
 ! ■ 
 
 ■ "•>,: 
 
 
 * ■■ p 
 
 194 
 
 MANSLAUGHTER. 
 
 yessel, there must be some act of personal . misconduct or 
 personal negligence shown on his part: B. v. Allen, 
 7 C. & P. 153 ; B. v. Green, 7 C. & P. 166 ; B. v. Taylor, 
 9 C. & P. 672. 
 
 On an indictment against an engine driver and a fire- 
 man of a railway train for the manslaughter of persons 
 killed while travelling in a preceding train, by the prisoner's 
 train runni: ; into it, it appeared that on the day in question 
 special instr ctions had been issued to them, which in 
 some respects differed from the general rules and regula- 
 lations, and altered the signal for danger so as to make it 
 mean not "stop" but "proceed with caation;" that the 
 trains were started by the superior officers of the company 
 irregularly, at intervals of about five minutes; that the 
 preceding train had stopped for three minutes, without any 
 notice to the prisoners except the signal for caution ; and 
 that their train was being driven at an excessive rate of 
 speed, and that then they did not slacken immediately on 
 perceiving the signal, but almost immediately, and that as 
 soon as they saw the preceding train they did their best 
 to stop but without effect : Held, first, that the special 
 rules, so far as they were not consistent with the general 
 rules, superseded them; secondly, that if the prisoners 
 honestly believed they were observing them, and they were 
 not obviously illegal, they were not criminally responsible ; 
 thirdly, that the fireman being bound to obey the directions 
 of the engine driver, and, so far as appeared, having done 
 80, there was no case against him : B. v. Trainer, 4 F. & 
 F. 105. 
 
 Where a fatal railway accident had been caused bj tbe 
 train running off the line, at a spot where rails had been 
 taken up without allowing sufficient time to replace them, 
 and also without giving sufficient, or at all events effective, 
 warning to the engine-driver ; and it was the duty of tbe 
 foreman of plate layers to direct when the work shoaldbe 
 done : Held, that though he was under the general control 
 
 I 
 
 f 
 
 of an inspi 
 ^^t that tl 
 been a maj 
 «ven althou 
 the engine- 
 Benge, 4 F. 
 By medl 
 Me and hon 
 performs an 
 is not guiliy 
 whether such 
 he has had a 
 ButcbelJ, 3 C 
 as a man n 
 uterus of one i 
 placenta, by n 
 able for man 
 misconduct ar 
 from the most 
 &V. 635. A 
 licensed or unl 
 <leath of a pati 
 conduct is cha 
 art, or by gross 
 St. John Long, 
 ing the cure of j 
 education or no 
 his patient aft( 
 rashness in th( 
 consequence of , 
 8'aughter; B. ^ 
 8- 212, ante. 
 
 Whereapera 
 a dangerous rem( 
 medical assistan 
 fangerous remed 
 '°« 't is guilty of 
 
I 
 
 i \'^: €m 
 
 GENERAL REMARKS. 
 
 im- 
 
 of an inspector of the district, the inspector was not liable 
 but that the foreman was, assuming his negligence to have 
 been a material and a substantial cause of the accident, 
 even although there had also been negligence on the part of 
 the engine-driver in not keeping a sufficient lookout : B. v. . 
 Benge, 4 F. «& F. 604. 
 
 By medical practitioners and quacks. — If a person, bona 
 fide and honestly exercising his best skill to cure a patient, 
 performs an operation which causes the patient's death, he 
 is not guilly of manslaughter, and it makes no difference 
 whether such person is a regular surgeon or not, nor whether 
 he has had a regular medical education or not : B. v. Van 
 Butchell, 3 G. & P. 629. A person in the habit of acting 
 as a man midwife tearing away part of the prolapsed 
 uterus of one of his patients, supposing it to be part of the 
 placenta, by means of which the patient dies, is not indict- 
 able for manslaughter unless he is guilty of criminal 
 misconduct arising either from the grossest ignorance or 
 from the most criminal inattention : B. v. Williamson, 8 G. 
 &, F. 685. A person acting as a medical man, whether 
 licensed or unlicensed, is not criminally responsible for the 
 death of a patient occasioned by his treatment unless his 
 conduct is characterized either by gross ignorance of his 
 art, or by gross inattention to his patient's safety : B. v. 
 St. John Long, 4 G. & P. 898. Where a person undertak- 
 ing the cure of a disease (whether he has received a medical 
 education or not), is guilty of gross negligence in attending 
 his patient after he had applied a remedy, or of gross 
 rashness in the application of it, and death ensues in 
 consequence of either, he is liable to be convicted of man- 
 slaughter : B. V. St. John Long (2nd case), 4 G. & P. 423 ; 
 s. 212, ante. 
 
 Where a person grossly ignorant of medicine administers 
 a dangerous remedy to one labouring under a disease, proper 
 medical assistance being at the time procurable, and that 
 dangerous remedy causes death, the person so administer- 
 ing it is guilty of manslaughter : B. v. Webb, 2 Lewin, 196. 
 
 r I 
 
 •'1 
 
196 
 
 MANSLAUGHTER. 
 
 In this case . Lord Lyndhurst laid down the following 
 rule : " In these cases there is no difference between a 
 licensed physician or surgeon, and a person acting as 
 physician or surgeon without license. In either case, if 
 a party having a competent degree of skill and knowledge 
 makes an accidental mistake in his treatment of a patient, 
 through which mistake death ensues, he is not thereby 
 guilty of manslaughter ; but if, where proper medical as- 
 sistance can be had, a person totally ignorant of the science 
 of medicine takes on himself to administer a violent and 
 dangerous remedy to one labouring under disease, and death 
 ensues in consequence of that dangerous remedy having 
 been so administered, then he is guilty of manslaughter." 
 
 If a medical man, thoug'h lawfully qualified to practice 
 as such, causes the death of a person by the grossly un- 
 skilful, or grossly incautious, use of a dangerous instrument, 
 he is guilty of manslaughter : E. v. Spilling, 2 M. & Bob. 
 107. Any person, whether a licensed medical practitioner 
 or not, who deals with the life or health of any of Her 
 Majesty's subjects is bound to have competent skill, and is 
 bound to treat his or her patients with care, attention and 
 assiduity ; and if a patient dies for want of either the per- 
 son is guilty of manslaughter : B. v. Spiller, 5 C. & P. 833 ; 
 B. V. Simpson, 1 Lewin, 172 ; B. v. Ferguson, 1 Lewin, 
 181. In cases of this nature the question for the jury is 
 always, whether the prisoner caused the death by his crim- 
 inal inattention and carelessness : B. v. Crick, and B. v. 
 Crook, 1 F. & F. 519, 621 ; B. v. Macleod, 12 Cox, 684. On 
 an indictment for manslaughter by reason of gross ignor- 
 ance and negligence in surgical treatment, neither on one 
 side nor on the other can evidence be gone into of former 
 cases treated by the prisoner : B. v. Whitehead, 3 C. & K. 
 202. 
 
 A mistake on the part of a chemist in putting a poison- 
 ous liniment into a medicine bottle, instead of a liniment 
 bottle, in consequence of which the liniment was taken by 
 
GENERAL REMARKS. 
 
 m 
 
 his ousiomer internally with fatal results, the mistake being 
 made under circumstances which rather threw the prisoner 
 off his guard, does not amount to such criminal negligence 
 as will warrant a conviction for manslaughter : I{! v. Noakes, 
 4 F. &. F. 920. On an indictment for manslaughter 
 against a medical man by administering poison by mistake 
 for some other drug it is not sufficient for the prosecution 
 merely to show that the prisoner who dispensed his own 
 drugs supplied a mixture which contained a large quantity 
 of poison ; they are bound also to show that this happened 
 through the gross negligence of the prisoner : B v. Spen- 
 cer, 10 Cox, 525. A medical man who administered to his 
 mother for some disease, prussic acid, of which she almost 
 immediately died, is not guilty of manslaughter, it not ap- 
 pearing distinctly what the quantity was which he admin- 
 istered, or what quantity would be too great to be admin- 
 istered with safety to life : R. v. Bull, 2 F. & F. 201. If 
 an unskilled practitioner ventures to prescribe dangerous 
 medicines of the use of which he is ignorant, that is culp- 
 able rashness for which he will be held responsible : R- v. 
 Markuss, 4 F. & F. 356; R. v. Macleod, 12 Cox, 534. 
 
 The prisoner was indicted for the manslaughter of an 
 infant child ; the prisoner, who practiced midwifery, was 
 called in to attend a woman who was taken in labour, and 
 when the head of the child became visible the prisoner, 
 being grossly ignorant of the art which he professed, and 
 unable to deliver the woman with safety to herself and the 
 child, as might have been done by a person of ordinary 
 skill, broke and compressed the skull of the infant, and 
 thereby occasioned its death immediately after it was born; 
 the prisoner was found guilty ; it was submitted that the 
 child being en ventre de sa mhe when the wound was given 
 the prisoner could not be guilty of manslaughter ; but, 
 upon a case reserved, the judges were unanimously of 
 opinion that the conviction was right : R. v. Senior, 1 Moo. 
 846 ; 8. 219, potL 
 
. « 
 
 'iii 
 
 198 
 
 "#7 
 
 \ 
 
 BlANSLAUGHTER. 
 
 NEGLECT OF NATURAL DUTIES. ^^'^ ;^'''- 
 
 iSee Section il5, ante. 
 
 Lastly, there are certain natural and moral duties 
 towards others which, if a person neglect without malicious 
 intention, and death ensue, he will be guilty of manslaughter. 
 Of this nature is the duty of a parent to supply a child with 
 proper food. When a child is very young and not weaned 
 the mother is criminally responsible if the death arose 
 from her not suckling it when she was capable of doing so: 
 B. V. Edwards, 8 G. & P. 611. But if the child be older 
 the omission to provide food is the omission of the husband, 
 and the crime of the wife can only be the omitting to 
 deliver the food to the child after the husband has provided 
 it : E. V. Saunders, 7 C. & P. 277. 
 
 A master is not bound by the common law to find 
 medical advice for his servant ; but the case is different 
 with respect to an apprentice, for a master is bound during 
 the illness of his apprentice to find him with proper 
 medicines, and if he die for want of them it is manslaughter 
 in the master : B. v. Smith, 8 G. & P. 153. Where a 
 person undertakes to provide necessaries for a person who 
 is 80' aged and infirm that he is incapable of doing it for 
 himself, and through his neglect to perform his under- 
 taking death ensues, be is criminally responsible. On an 
 indictment for the murder of an aged and infirm woman 
 by confining her against her will, and not providing her 
 with meat, drink, clothing, firing, medicines and other 
 necessaries, and not allowing her the enjoyment of the open 
 air, in breach of an alleged duty, if the jury think that the 
 prisoner was guilty of wilful neglect, so gross and wilful 
 that they are satisfied he must have contemplated her 
 death, he will be guilty of murder ; but if they only think 
 that he was so careless that her death was occasioned by 
 his negligence, though he did not contemplate it, he will be 
 guilty of manslaughter : E. v. Marriott, 8 G. & P. 426. 
 
 To rend 
 through n< 
 culpability : 
 B. V. Finne 
 V. Handley, 
 Lead. Caa. ; 
 
OBNERAL REMARKS. 
 
 199 
 
 To render a person liable to conTiofcion for manslaughter 
 through neglect of duty there must be sneb a degree of 
 culpability in his conduct as to amount to gross negligence : 
 B. V. Finney, 12 Cox, 626 ; B. v. NichoUs, 18 Cox, 75 ; B. 
 V. Handley, 18 Cox, 79 ; B. v. Morby, 15 Cox, 86, Warb. 
 Lead. Cas. 116 ; B. v. Elliott, 16 Cox, 710. 
 
 OTHER OASES OF MANSLAUGHTER. ^ " 
 
 Death resulting from fear, caused by menaces of per- 
 sonal violence and assault, though without battery, is 
 Bufficient in law to support an indictment for manslaughter : 
 B. V. Dugal, 4 Q. L. B. 850; ss. 220, 228, post. 
 
 One who points a gun at another person, without pre- 
 viously examining whether it be loaded or not, will, if the 
 weapon should accidentally go off and kill him towards 
 whom it is pointed, be guilty of manslaughter : B. v. Jones, 
 12 Cox, 628 ; 8ee B. v. Weston, 14 Cox, 846 ; s. 218, ante. 
 
 Three persons went out together for rifle practice. They 
 selected a field near to a house, and put up a target in a 
 tree at a distance of about a hundred yards. Four or five 
 shots were fired, and by one of them a boy who was in a 
 tree in a garden, at a distance of three hundred and ninety- 
 three yards, was killed. It was not clear which of the three 
 persons fired the shot that killed the boy. Held, that all 
 three were guilty of manslaughter: B. v. Salmon, 14 Cox, 
 494, Warb. Lead. Cas. 118. 
 
 If an injury is inflicted by one man upon another, which 
 compelled the injured man, under medical advice, to sub- 
 mit to an operation during which he dies, for that death the 
 assailant is guilty of manslaughter : B. v. Davis, 15 Cox, 
 174 ; 8. 226, po8t. 
 
 An indictment for manslaughter will not lie against the 
 mauaging director of a railway company by reason of the 
 omission to do something which the company, by its char- 
 ter, was not bound to do, although he had personally pro- 
 mised to do it : Ex parte Brydges, 18 L. C. J. 141. 
 
200 
 
 MANSLAUGHTER. 
 
 An indiotment contained two counts, one charging the 
 prisoner with mardering M. J. T. on the 10th of November, 
 1881, the other with manslaughter of the said M. J. T. on 
 the same day. The grand jury found a "true bill." 
 A motion to quash the indictment for misjoinder was 
 refused, the counsel for the prosecution electing to proceed 
 on the first count only. Held, affirming the judgment of 
 the Supreme Court of New Brunswick, that the motion 
 could not be granted ; Theal v. E., 7 S. C. E. 397. 
 
 The prisoner was convicted of manslaughter in killing 
 his wife, who died on the 10th Nov., 1881. The immediate 
 cause of her death was acute inflammation of the liver 
 which the medical testimony proved might be occasioned 
 by a blow or fall against a hard substance. About three 
 weeks before her death (17th October preceding), the pri- 
 soner had knocked his wife down with a bottle ; she fell 
 against a door and remained on the floor insensible for 
 some time ; she was confined to her bed soon afterwards 
 and never recovered. Evidence was given of frequent acts 
 of violence committed by the prisoner upon his -wif?, 
 within a year of her death, by knocking her down and 
 iiicking her in the side. The following questions were 
 reserved, viz., whether the evidence of assaults and violence 
 committed by the prisoner upon the deceased, prior to the 
 10th Nov. or the 17th Oct., 1881, was properly received, 
 and whether there was any evidence to leave to the jury to 
 sustain the charge in the first count of the indictment. Held, 
 affirming the judgment of the Supreme Court of New 
 Brunswick, that the evidence was properly received and 
 that there was evidence to submit to the jury that the 
 <lisease which caused her death was produced by the inju- 
 ries inflicted by the prisoner : Id. 
 
 A corporal was tried for murder and convicted of man- 
 slaughter. The evidence showed that W. (the deceased), 
 having been confined for intoxication, defendant with two 
 men was ordered by a sergeant to tie him so that he could 
 
GENERAL REMARKS. 
 
 201 
 
 not make a noise. The order was not executed so as to stop 
 the noise, and a second order was given to tie W. so that 
 be could not shout. To effect this defendant caused W. to 
 be tied in a certain manner, and he died in that position, 
 Held, that whether the illegality consisted in the order of 
 the sergeant, or in the manner in which it was carried out, 
 the defendant might he properly convicted: held, also, that 
 the jury were justified in finding that the death of W. was 
 caused or accelerated by the way in which he was tied by 
 defendant, or by his directions: B v. Stowe, 2 G. & 0. 
 (N. S.) 121. 
 
 In the North West Territories it is not necessary that a 
 trial for murder should be based upon an indictment by a 
 grand jury or a coroner's inquest : E. v. Connor, 2 Man. 
 L. R. 236. 
 
 As to insanity as a defence in criminal cases: see B. v. 
 Biel, 2 Man. L. B. 321. 
 
 Evidence of one crime may be given to show a motive for 
 committing another; and where several felonies are part of 
 tbe same transaction evidence of all is admissible upon the 
 trial of an indictment for any of them; but where a prisoner 
 indicted for murder, committed while resisting constables 
 about to arrest him, had, with others, been guilty of riotous 
 acts several days before, it is doubtful if evidence of such 
 riotous conduct is admissible, even for the purpose of 
 showing the prisoner's knowledge that he was liable to be 
 arrested, and, therefore, had a motive to resist the officers: 
 E. V. Chasson, 3 Pugs. (N. B.) 546. 
 
 As to the admissibility of dying declarations the most 
 recent cases are: B. v. Morgan, 14 Cox, 337; B. v. Beding- 
 field, 14 Cox, 341; see same case in Warb. Lead. Cas. 254; 
 K. V. Hubbard, 14 Cox, 565 ; B. v. Osman, 15 Cox, 1 ; B. 
 V. Goddard, 15 Cox, 7; E. v. Smith, 16 Cox, 170; B. v. 
 Oloster, 16 Cox, 471; B. v. Mitchell, 17 Cox, 503; see also 
 E.V.Jenkins, 11 Cox, 250, Warb. Lead. Cas. 252, and cases 
 there collected; B. v. MoMahon, 18 O.B. 502. 
 
 W 
 
V 
 
 
 
 202 
 
 MANSLAUGHTBR. 
 
 Homioide in self-defence, i.e., committed «« tt tua de- 
 fendendo in defence of a man's person or property, upon 
 some sadden affray, has been nsnally classed with homicide 
 per infortunium, under the title of excusable, as distinct 
 from juttifiable, because it was formerly considered by the 
 law as in some measure blameable, and the person convicted 
 either of that or of homicide by misadventure forfeited his 
 goods: Fo8t.278. 
 
 Homicide se defendendo seems to be where one, who 
 has no other possible means of preserving his life from one 
 who combats with him on a sudden quarrel, or of defending 
 his person from one who attempts to beat him (especially 
 if such attempt be made upon him in his own house), kills 
 the person by whom he is veduced to such inevitable 
 necessity. And not only he who on assault retreats to a 
 wall or some such straight, beyond which he can go no 
 farther, before he kills the other is judged by the law to 
 act upon unavoidable necessity ; but also he who, being 
 assaulted in such a manner and such a place that he can- 
 not go back without manifestly endangering his life, kills 
 the other without retreating at all : Hawk. c. 11, ss. 18-14; 
 ss. 51, 52, ante. 
 
 In the case of justifiable self-defence the injured party 
 may repel force by force in defence of his person, habitation 
 or property against one who manifestly intendeth and 
 endeavoureth by violence or surprise to commit a known 
 felony upon either. In these cases he is not obliged to 
 retreat, but may pursue his adversary till he findeth him- 
 self out of danger, and if in a conflict between them he hap- 
 peneth to kill, such killing is justifiable : Fost. 273. 
 
 Before a person can avail himself of the defence that 
 he used a weapon in defence of his life he must satisfy 
 the jury that the defence was necessary, that he did all be 
 could to avoid it, and that it was necessary to protect him- 
 self from such bodily harm as would give him a reasonable 
 apprehension that his life was in immediate danger. If be 
 
 Qsed the wea 
 no means of 
 hs could, he 
 R. V. BuiJ, 9 
 
 Under the 
 oaturai relati( 
 servant, pare 
 assailant in tl 
 ly, are justifici 
 the act of the 
 ante. 
 
 Chance med 
 medley, has be 
 manner of hom 
 tation seems 
 encounter; it w 
 ing to whether 
 bating at the ti 
 hnafide endear 
 afterwards, beir 
 to avoid his own 
 jnstifiabJe or ox 
 slaughter : 1 Bu« 
 A man is not 
 if, in attempting 
 assaulted by the 
 »« defendendo, sup 
 means to avoid th 
 and in such a ca8( 
 in other cases of t 
 I protection of his ov 
 But it would se 
 intentionally takiE 
 I his own life not b 
 Ifrom the conseque 
 to turn \ 
 
GENERAL REMARKS. 
 
 203 
 
 need the weapon having no other means of resistance and 
 no means of escape, in such oases, if he retreated as far as 
 he could, he would be justified : R v. Smith. 8 C. & P. 160; 
 R. V. Bull, 9 C. & P. 22. 
 
 Under the excuse of self-defence the principal civil and 
 natural relations are comprehended ; therefore master and 
 servant, parent and child, husband and wife, killing an 
 assailant in the necessary defence of each other respective- 
 ly, are justified, the act of the relation being construed as 
 the net of the party himself: 1 Hale, 484; ss. 47, 51, 52„ 
 ante. 
 
 Chance medley, or as it was sometimes written, chaud 
 medley, has been often indiscriminately applied to any 
 manner of homicide by misadventure ; its correct interpre- 
 tation seems to be a killing happening in a sudden 
 encounter; it will be manslaughter or self-defence accord- 
 ing to whether the slayer was actually striving and com- 
 bating at the time the mortal stroke was given, or had 
 hona fide endeavoured to withdraw from the contest, and 
 afterwards, being closely pressed, killed his antagonist 
 to avoid his own destruction ; in the latter case it will be 
 jnstifiable or excusable homicide, in the former, man- 
 slaughter : 1 Buss. 888. 
 
 A man is not justified in killing a mere trespasser ; but 
 if, in attempting to turn him out of his house, he is 
 assaulted by the trespasser he may kill him, and it will be 
 u defendendo, supposing that he was not able by any other 
 means to avoid the assault or retain his lawful possession, 
 and in such a case a man need not fiy as far as he can as 
 in other cases of se defendendo, for he has a right to the 
 protection of his own house : 1 Hale, 485 ; ss. 51 et seq., ante. 
 
 But it would seem that in no case is a man justified in 
 
 I intentionally taking away the life of a mere trespasser^ 
 
 bis own life not being in jeopardy ; he is only protected 
 
 I from the consequences of such force as is reasonably 
 
 I necessary to turn the wrong-doer out. A kick has been 
 
 IF 
 
V 
 
 204 
 
 MANSLAUGHTER. 
 
 held an unjustifiable mode of doing so : Wild's Case, 2 
 Lewin, 214. Throwing a stone has been held a proper 
 mode: Hinchclifife's Case, 1 Lewin, 161; see B. v. Moir, 
 ante, p. 25 under s. 53. 
 
 homicide committed in prevention of a forcible and 
 atrocious crime, amounting to felony, is justifiable. As if a 
 man come to burn my house, and I shoot out of my house, 
 or issue out of my house and kill him. So, if A. makes an 
 assault upon B. a woman or maid, with intent to ravish her, 
 and she kills him in the attempt, it is justifiable, because 
 he intended to commit a felony. And not only the person 
 upon whom a felony is attempted may repel force by force, 
 but also his servant or any other person present may 
 interpose to prevent the mischief; and if death ensue 
 the party so interposing will be justified ; but the attempt 
 to commit a felony should be apparent and not left in 
 doubt, otherwise the homicide will be manslaughter at 
 least; and the rule does not extend to felonies without 
 force, such as picking pockets, nor to misdemeanours of any 
 kind: 2 Burn, 1314; ss. 51, 52, ante. 
 
 It should be observed that, as the killing in these cases 
 is only justifiable on the ground of necessity, it cannot be 
 justified unless all other convenient means of preventing 
 the violence are absent or exhausted ; thus a person set 
 to watch a yard or garden is not justified in shooting one 
 ^ho comes into it in the night, even if he should see him 
 go into his master's hen roost, For he ought first to see if | 
 be could not take measures for his apprehension ; but if, i 
 from the conduct of the party, he has fair ground forj 
 believing his own life in actual and immediate danger, 
 is justified in shooting him : B. v. Scully, 1 J. & P. 319. j 
 Nor is a person justified in firing a pistol on every forcible 
 intrusion into his house at night ; he ought, if he have j 
 reasonable opportunity, to endeavour to remove him with- 
 out having recourse to the last extremity : Meade's 
 1 Lewin, 184. 
 
Secf . 218, 210] 
 
 HOMICIDE-STATUTE. 
 
 205 
 
 
 As to justifiable homicide by officers of justice or other 
 persons in arresting felons : $ee antef p. 178. As to homi- 
 cide by misadventure. 2 Burn, 816. 
 
 Petit treaaon was a breach of the lower allegiance of 
 private and domestic faith, and considered as proceeding 
 from the same principle of treachery in private life as 
 would have led the person harbouring it to have conspired 
 in public against his liege lord and sovereign. At common 
 law the instances of this kind of crime were somewhat 
 numerous and involved in some uncertainty ; but by the 
 25 Edw. III. 0. 2, they were reduced to the following cases r 
 1. Where a servant killed his master. 2. Where a wife 
 killed her husband. 8. Where an ecclesiastical person^ 
 secular or regular, killed his superior, to whom he owed 
 faith and obedience. 
 
 f 
 
 PART XVII. 
 
 HOMICIDE. 
 
 DByiNITION. 
 
 31§. Homicide is the killing of a human being by anoth<3r, directly or 
 indirectly; by any means whatsoever. 
 
 When a Child Becomes a Human Being. 
 
 210. A child becomes a human being within the meaning of this Act 
 when it has completely proceeded, in a living stat«, from the body of its 
 mother, whether it has breathed or not, whether it has an independent circula- 
 tion or not, and whether the navel string is severed or not. The killing of 
 8uch child is homicide when it dies in consequence of injuries received before, 
 during or after birth. 
 
 See 88. 239, 240, 271 post ; R. v. Poulton, 5 C. & P. 329 ; 
 R. V. Brain, 6 C. & P. 349 ; R. v. Handley, 13 Cox, 79. If 
 a mortal wound be given to a child whilst in the act of 
 ; born, for instance upon the head as soon as the head 
 
N 
 
 206 
 
 HOMICIDE. 
 
 [Sec. 220 
 
 appears and before the child has breathed, it may be mur* 
 der if the child is afterwards born alive and dies thereof: 
 B. y. Senior, 1 Moo. 846. But the entire child must 
 actually have been born into the world in a living state, 
 and the fact of its having breathed is not a conclusive proof 
 thereof : B. v. Sellis, 7 C. & P. 860 ; B. v. Crutchley, 7 C. & 
 P. 814. A child is born alive when it exists as a live child, 
 breathing and living by reason of breathing through its 
 own lungs alone, without deriving any of its living or power 
 of living by or through any connection with its mother, but 
 the fact of the child being still connected with the mother 
 by the umbilical cord will not prevent the killing from 
 being murder: E. v. Crutchley, 7 C. & P. 814 ; E. v. Tril- 
 loe, 2 Moo. 260 ; E. v. West, 2 C. & K. 784. See post, s. 697 
 as to evidence on a charge of murder of a bastard child by 
 his mother. 
 
 Culpable Homicide. 
 220. Homicide may be either culpable or not culpable. Homicide is 
 culpable when it consists in the killing of any person, either by an unlawful 
 act or by an omission, without lawful excuse, to perform or observe any legal 
 duty, or by both combined, or by causintr a person, by threats or fear of vio- 
 lence, or by deception, to do an act which causes that person's death, or by 
 wilfully frightening a child or sick person. 
 
 2. Culpable homicide is either murder or manslaughter. 
 
 3. Homioide which is not culpable is not an offence. 
 
 This is the common law. 
 
 Sections 209, 210, 211, ante, when death results from 
 the offences provided for thereby are instances of Qulpable 
 homicide by omission without lawful excuse to perform a 
 legal duty. Ss. 213 & 214 are nothing but additions to 
 the definition of culpable homicide. S. 255, s-s. 2, post, as 
 to any one meeting death by falling through a hole in the 
 ice, unlawfully left unguarded, is also nothing but a 
 corollary of the definition given in the above s. 220. Other 
 illustrations appear ante under the headings of murder and 
 manslaughter. It is proper to note here that the Imperial 
 Commissioners, from whose report all these sections on 
 homicide are taken verbatim, state positively that no altera* 
 
..-r-- 
 
 Sec. 220]. 
 
 HOMICIDE. 
 
 207 
 
 tion is made thereby in the law on the Bobject as generally 
 understood in modern times. {See their report ante p. 168.) 
 An exception, however, as to the distinction between mur- 
 der and manslaughter, and they doubt if it is one, is 
 contained in what is reproduced, posf, in s-s. 4 of s. 229, as 
 to the killing of an officer of justice making an arrest. 
 
 Another exception is contained in what is s-s. 2 of that 
 same s. 229, post, which the commissioners give as altering 
 the rule that words can never amount to a provocation 
 sufficient to reduce a killing from murder to manslaughter. 
 {There are cases to the contrary,) See ante, pp. 159, et seq. 
 
 Section 237 post, is also an alteration of the law as to 
 aiders and abettors to suicide. It is also not now law, though 
 the Imperial Commissioners do not notice it specially as an 
 alteration, that the killing of any one in the attempt to 
 commit any felony is murder. This part of the law is 
 modified by s. 228, post, and restricted to the killing of any 
 one, whether the o£fender means or not death to ensue, or 
 knows or not that death is likely to ensue, for the purpose 
 of facilitating the commission of the offence (whether this 
 offence has actually been committed or not) either of 
 treason and the other offences provided for in ss. 65 to 78, 
 or of piracy as provided for in ss. 127, 128, 129, or of es- 
 cape or rescue from prison or lawful custody, or of resisting 
 lawful apprehension, or of murder, or of rape, or of forcible 
 abduction, or of robbery, or of burglary, or of arson, or for 
 the purpose of facilitating the flight of an offender upon 
 the commission or attempted commission of any of the 
 aforesaid offences ; to constitute murder in such cases, how- 
 ever, the killing, though not intentional, must result from 
 an act done with intention to inflict grievous bodily harm 
 for the purposes aforesaid: (see under s. 241, post, and 
 R. V.Martin, 8 Q. B. D. 54; II. v. Clarence, 22 Q. B. D. 23, 
 Warb. Lead. Cas. 130, as to what constitutes to inflict griev- 
 oui bodily hami). To oause death by administering any 
 stupefying or overpowering thing, or wilfully stopping the 
 
 ^4 
 
1 1 
 
 III 
 
 208 
 
 HOMICIDE. 
 
 [Sees. 221-22* 
 
 breath of any one for the purpose of facilitating the com- 
 mission of any of the above specified offences, or of facilita- 
 ting the flight of an offender upon the commission or 
 attempted commission of any of the said offences, is also 
 murder under the provisions of s. 228. The other cases 
 where homicide constitutes murder are specified in s. 227. 
 All other criminal homicides constitute manslaughter : 
 ss. 220, 223, 224, 225, 226, 229, 230 ; see annotation, pages 
 166, et aeq., ante. 
 
 Procuring Death by False Evidsnok. 
 
 331. Procuring by false evidence th« conviotion and death of any person 
 by the sentence of the law shall not be deemed to be homicide. 
 
 This settles a point upon which some doubt has at times 
 been thrown by some who, according to Foster, viewed the 
 question "ratl^er as divines and casuists than as lawyers "r 
 Fost. 132. Lord Coke said, "It is not holden for 
 murder at this day": 3 Inst. 48. A special punishment 
 for perjury in such a case is now provided for by section 
 146, ante. 
 
 Death Within a Year and a Day. 
 
 223. No one is criminally responsible for the killing of another unless 
 the death take place within a year and a day of the cause of death. The 
 period of a year and a day shall be reckoned inclusive of the day on which the 
 last unlawful act contributing to the cause of death took place. Where the 
 cause of death is an omission to fulfil a legal duty the period shall be reckoned 
 inclusive of the day on which such omission ceased. Where death is in part 
 caused by an unlawful act and in part by an omission, the period shall be 
 reckoned inclusive of the day on which the last unlawful act took place or the 
 omission ceased, whichever happened last. 
 
 " This is the existing law ": Imp. Comm. Eep.; 4 Blacks. 
 
 197. 
 
 Killing by Influence on the Mind. 
 
 223. No one is criminally responsible for the killing of another by any 
 influence on the mind alone, nor for the killing of another by any disorder or 
 disease arising from sucli influence, gave t». cither case by wilfully frightening a 
 child or iick person, 
 
 "This (the words in italics) obviates a possible doubt": 
 Imp. Comm. Eep.; see 1 Hale, 428. The only difficulty is 
 to prove the connection of the act with the result. It is 
 not; quite clear upon what principle this section limits to 
 
 TtacA' 
 
 9*6 Every one w\ 
 
 01.8 nature to any, person 
 
 Jeumnediateoauaeofd, 
 
 CwM. Law— 14 
 
Seo8. 224-226] 
 
 ACCELERATION OF DEATH. 
 
 209 
 
 the killing of a child, or a sick person the culpability of 
 killing by fright. 
 
 In B. v. Towers, 12 Cox, 580, a man -was convicted of 
 manslaughter for frightening a child to death. In B. v. 
 Dugal, 4 Q. L. B. 850, a man in Quebec was convicted of 
 manslaughter upon evidence of death from syncope caused 
 by threats of personal violence and assault without battery 
 on the deceased. If magnetism and hypnotism become 
 more commonly practiced, the law of this section may have 
 to be altered. 
 
 ACCKLEHATION OP DkATH. 
 
 SS4> Every one who, by any act or omission, causes the death of an- 
 other kills that person, although the effect of the bodily injury caused to such 
 other person be merely to accelerate his death while labouring under some dis- 
 order or disease arising from some other cause. 
 
 This is a well recognized rule, and a common sense one. 
 No one has the right to shorten the life of another. A 
 contrary rule, it is obvious, would lead to singular conse- 
 quences. See 1 Hale, 428 ; B. v. Martin, 5 C. & P. 128. 
 
 That Death Might Have Been Prevented No Excuse. 
 
 23>'(. Every one who, by any act or omission, causes the death of an- 
 other kills that person, although death from that cause might have been pre- 
 vented by resorting to proper means. 
 
 That is common law. 
 
 A. injures B.'s finger. B. is advised by a surgeon to 
 allcw it to be amputated, biit he refuses to do so, and dies 
 of lockjaw. A. has killed B. When a wound, not in itself 
 mortal, turns to a gangrene or fever, from neglect or want 
 of proper applications, the party by whom the wound was 
 given is guilty of a culpable homicide, murder or man- 
 alau^bter, according to circumstances. The wound being 
 the cause of the gangrene or fever is the immediate cause 
 of death, causa causati. 
 
 Tbeatmbnt or Injuby Caubino Death. 
 
 <tS6. Every one who causes a Ixnlily injury, which is of itself of a danger- 
 ous nature to any ])erson, from which death results kills that person, although 
 the immediate oause of death be treatment proper or improper applied in good 
 
 ftith. 
 
 Crim. Law— 14 
 
 ^% 
 
V 
 
 
 210 
 
 MURDER, MANSLAUGHTER, ETC. Seoa. 227, 22a 
 
 That is common law. If one wounds another, and oom- 
 petent surgeons perform with ordinary skill an operation 
 to cure the wound, which operation they in good faith think 
 necessary but which results in death, this is a killing by 
 the party who inflicted the wound, though the surgeons 
 were mistaken as to the necessity of the operation, but if 
 the surgeons had acted from bad faith, or had been guilty 
 of negligence in the operation, the party who inflicted the 
 wound is not guilty: see E. v. Pym, 1 Cox, 339, Warb. 
 Lead. Gas. 105, and cases there cited. 
 
 PART XVIII. 
 MURDER, MANSLAUGHTER, ETC. 
 
 Murder— Dbfinition. 
 
 327- Culpable homicide is murder in each of the following cases : 
 
 (rt) If the offender means to cause the death of the person killed ; 
 
 (6) If the offender means to cause to the person killed any bodily injury 
 which is known to the offender to be likely to cause death, and is reckless 
 whether death ensues or not ; 
 
 (c) If the offender means to cause death or, being so reckless as aforesaid, 
 means to cause such bodily injury as aforesaid to one person, and by accident 
 or mistake kills another person, though he does not mean to hurt the person 
 killed ; 
 
 (rf) If the offender, for any unlawful object, does an act which he knows 
 Drought to have known to be likely to cause death, and thereby kills any per- 
 son, though he may have desired that his object should be effected without 
 hurting any one. 
 
 Mcrder Further Defined. 
 
 3SS- Culpable homicide is also murder in each of the following cases 
 whether the offender means or not death to ensue, or knows or not that death 
 is likely to ensue : 
 
 (a) If he means to inflict grievous bcdily injury for the purpose of facilitat- 
 ing the commission of any of the offences in this section mentioned, or the 
 
k^i' 
 
 Sees. 229, 230] 
 
 PROVOCATION. 
 
 211 
 
 flight of the offender upon the commission or attempted commission thereof, 
 and death ensues from such injury ; or 
 
 (b) If he administers any stupefying or overpowering thing for either of the 
 purposes aforesaid, and death ensues from the effects thereof ; or 
 
 (e) If he by any means wilfully stops the breath of any person for either of 
 the purposes aforesaid, and death ensues from such stopping of the breath. 
 
 2. The following are the offences in this section referred to : — Treason and 
 the other offences mentioned in Part IV. of this Act, piracy and offences 
 deemed to be piracy, escape or rescue from prison or lawful custody, resisting^ 
 lawful apprehension, murder, rape, forcible abduction, robbery, burglary, 
 arson. 
 
 See B. V. Sernd, 16 Cox, 311, Warb. Lead. Cas. 108, 
 and remarks under s. 220, ante; alsoB. v. Handley, 13 Cox, 
 79. The shooting by A. at a fowl to steal it, by which 
 B. is accidentally killed is clearly not now murder. A. crim- 
 inally sets a house on fire not knowing that there is any 
 one in it, there was, 'however, some one in it who perishes 
 in the fire, A. will not now be guilty of murder. 
 
 Provocation. 
 
 2189. Culpable homicide, which would otherwise be murder, may be 
 reduced to manslaughter if the person who causes death does so in the heat of 
 passion caused by sudden provocation. 
 
 2. Any wrongful act or insult, of such a nature as to be sufficient to deprive* 
 an ordinary person of the power of self-control, may be provocation if the 
 offender acts upon it on the sudden, and before there has been time for his 
 passion to cool. 
 
 3. Whether or not any particular wrongpful act or insult amounts to provo- 
 cation, and whether or not the person provoked was actually deprived of the 
 power of self-control by the provocation which he received, shall be questions 
 of fact. No one shall be held to give provocation to another by doing that 
 which he had a legal right to do, or by doing anything which the offender 
 incited him to do in order to provide the offender with an excuse for killing or 
 doing bodily hann to any person. 
 
 4. An arrest shall not necessarily reduce the offence from murder to man- 
 slaughter because the arrest was illegal, but if the illegality was known to the 
 offender it may be evidence of provocation. 
 
 See E. V. Fisher, Warb Lead. Cas. 112, and cases there 
 cited, and ss. 45, 46, 220 ante ; also a note to E. v. Allen, 
 in appendix, Stephen's Cr. L. Art. 225. 
 
 Manslaughtkr. 
 830. Culpable homicide, not amounting to murder, is manslaughter. 
 
tllf^'f 
 
 
 212 
 
 MURDER, MANSLAUGHTER, ETC. [Sees. 231, 282 
 
 MCRDKR— PCNISHMTOT. 
 
 f831- Every one who commits murder is guilty of an indictable offence 
 and shall, on conviction thereof, be sentenced to death. R. S. C. c. 162, s. 2 ; 
 24-25 V. c. 100, s. 1 (Imp.). 
 
 Not triable at Quarter Sessions, s. 540. 
 
 Indictment. — that on A. 
 
 murdered B. (schedule one form F. F., post ; ) under 
 s. 611. 
 
 In murder, no count charging any other offence allowed, 
 s. 626, and if evidence proves manslaughter the jury may 
 return a verdict of not guilty of murder but guilty of man- 
 slaughter, s. 713 ; and, on an indictment for child murder, 
 of concealment of birth, if the evidence warrants it, s. 714. 
 As to a previous conviction or acquittal of murder being a 
 bar to an indictment for manslaughter for the same 
 homicide, and vice versa : see s. 633 post. 
 Attkmpts to Commit Murder. 
 
 S3S- Every one is guilty of an indictable offence and liable to imprison- 
 ment for life, who does any of the following things with intent to commit 
 murder ; that is to say — 
 
 (a) Administers any poison or other destructive thing to any person, or 
 ^»u8e8 any such poison or destructive thing to be so administered or taken, or 
 attempts to administer it, or attempts to cause it to be so administered or 
 taken ; or 
 
 (6) By any means whatever wounds or causes any grievous bodily harm to 
 any person ; or 
 
 (c) Snoots at any person, or by drawing a trigger or in any other manner, 
 attempts to discharge at any person any kind of loaded arms ; or 
 
 (d) Attempts to drown, suffocate, or strangle any person ; or 
 
 («) Destroys or damages any building by the explosion of ?.ny explosive 
 flubsteanee; or 
 
 (/) Sets fire to any ship or vessel or any part thereof, or any part of the 
 tackle, apparel or furniture thereof, or to any goods or chattels being therein ; 
 or 
 
 {g) Casts away or destroys any vessel ; or 
 
 {h) By any other means attempts to commit murder. R. S. C. o. 162, 
 88. 8, 9, 10, 11, 12 ; 24-25 V. c. 100, ss. 11 to 15 (Imp.). 
 
 Not triable at quaiter sessiotis, s. 540. " Explosive 
 subfltftnoe " defined, «. B; " loaded armfi " defined, b. 8. 
 
Sec. 232] 
 
 ATTEMPTS TO COMMIT MURDER. 
 
 213 
 
 The words "whether any bodily injury is effected or not" 
 have been stricken out from the repealed clause^ s. 11» 
 B. S. C. c. 162. 
 
 It is not necessary on an indictment for wounding with 
 intent to murder that the prosecutor should be in fact 
 wounded in a vital part, for the question is not what the 
 wound is, but what wound was intended: B. v. Hunt, 1 
 Moo. 93. There is no objection to insert counts on ss. 241, 
 242, 262 & 265: 3 Burn, 753; R. v. Strange, 8 C. & P. 
 172; E. V. Murphy, 1 Cox, 108. But it is not necessary, 
 as by s. 713, on the trial of any indictment for wounding 
 with intent to murder, if the intent be not proved the 
 jury may convict of any of the offences falling under 
 these sections. The defendant may also be found guilty 
 of an attempt to commit the offence charged: s. 711; 
 K. V. Cruse, 2 Moo. 63; R. v. Archer, 2 Moo. 283. An 
 attempt to commit suicide is not an attempt to commit 
 murder: R. v. Burgess, L. & C. 258. 
 
 Indictment under (a) for administering poison with intent 
 to murder. — that J. S. on unlawfully did 
 
 administer to one A. B. {administer or cause to be admin- 
 istered to or to be taken by any person), a large quantity, to 
 wit, two drachms of a certain deadly poison called white 
 arsenic, {any poison or other destructive thing), with intent 
 thereby then unlawfully the said A. B. to kill and murder. 
 (Add counts stating that the defendant unlawfully, "did cause 
 to be administered to'* and unlawfully, " did cause to be taken 
 hy" a large quantity, etc., and if the description of poison be 
 douUful, add counts describing it in different ways and one 
 count stating it to be ** a certain destructive thing to the jurors 
 aforesaid unknown.") Add a count with intent to commit 
 murder. 
 
 The indictment must allege the thing administered to 
 be poisonous or destructive ; an'l therefore an indictment 
 for administering sponge mixed with milk, not alleging tho 
 
214 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 [Sec. 232 
 
 sponge to be destructive, was holden bad: B. v. Powles, 4 
 C. & P. 571. 
 
 If there be any doubt whether the poison was intended 
 for A. B. add a count, stating the intent to be to " commit 
 murder" generally: B. v. Byan, 2 M. & Bob. 218; B. v. 
 Duffin, B. & B. S65. 
 
 If a person mix poison with coffee, and tell another that 
 the coffee is for her, and she takes it in consequence, it 
 seems that this is an administering ; and, at all events, it 
 is causing the poison to be taken. In B. v. Harley, 4 C. 
 & P. 869, it appeared that a coffee pot, which was proved to 
 contain arsenic, mixed with coffee, had been placed by the 
 prisoner by the side of the grate; the prosecutrix was going 
 to put out some tea, but on the prisoner telling her that the 
 coffee was for her, she poured out some for herself, and 
 drank it, and in about five minutes became very ill. It was 
 objected that the mere mixing of poison, and leaving it in 
 some place for the person to take it was not sufficient to 
 constitute an administering. Park, J., said : " There has 
 been much argument whether, in this case, there has been 
 an administering of this poison. It has been contended 
 that there must be a manual delivery of the poison, and the 
 law, as stated in Byan & Moody's Beport, goes that way: 
 B. V. Cadman, 1 Moo. 114; but as my note differs from 
 that report, and also from my own feelings, I am inclined 
 to think that some mistake has crept into that report. It 
 is there stated that the judges thought the swallowing of 
 the poison not essential, buv my recollection is that the 
 judges held just the contrary. I am inclined to hold that 
 there was an administering here; and I am of opinion that, 
 to constitute an administering it is not necessary that there 
 should be a delivery by the hand." 1 Buss. 988, and 
 Greaves, note (n). 
 
 An indictment stating that the prisoner gave and 
 administered poison is supported by proof that the prisoner 
 gave the poison to A. to administer as a medicine to B. 
 
Sec. 232] 
 
 ATTEMPTS TO COMMIT MURDER. 
 
 215 
 
 mih intent to murder B., and that A. neglecting to do so, 
 it was accidentally given to B. by a child, the prisoner's 
 intention to murder continuing: B. v. Michael, 2 Moo. 
 120. 
 
 Where the prisoner, having mixed corrosive sublimate 
 with sugar, put it into a parcel, directing it to " Mrs. Daivs^ 
 Toivnhope" and left it on the counter of a tradesman, who 
 sent it to Mrs. Daws who used some of the sugar, Gurney, J., 
 held it to be an administering : B. v. Lewis, 6 0. & P. 161. 
 
 And if the indictment contains a count " with intent to 
 commit murder," generally the preceding case, B. v. Lewis, 
 is clear law : Archbold, 653. 
 
 Evidence of administering at different times may be 
 given to show the intent : Archbold, 650 ; 1 Buss. 1004, et 
 seq. The intent to murder must be proved by circum- 
 stances from which that intent may be implied. 
 
 No verdict for assault can be given upon an indictment 
 under s. 232 (a) ; B. v. Dilworth, 2 M. & Bob. 531; B. v. 
 Draper, 1 C. &. K. 176; but a verdict for the offence, 
 covered by section 245 or 246, or for the attempt to poison, 
 may be given : ss. 711, 713. 
 
 Indictment under (a) for attempting to poison tvitk 
 intent. — unlawfully did attempt to administer {attempt 
 
 to administer to, or attempt to cav^e to be administered or 
 to he taken by) to one J. N. a large quantity, to wit', two 
 drachms of a certain deadly poison called white arsenic 
 {any poison or other destructive thing), with intent thereby 
 then unlawfully the said J. N. to kill and murder, 
 
 {Add a count stating the intent " to commit murder," gener- 
 ally. Add counts charging that thti defendant " attempted to 
 cause to be administered to" and that he "attempted to cause 
 to he taken by J. N. the poison.") 
 
 In B. V. Gadman, 1 Moo. 114, the dafendant gave the 
 prosecutrix a cake containing poison, which the prosecutrix 
 merely put into her mouth, and spit out again, and did not 
 
 f 
 
216 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 [Sec. 232 
 
 swallow any part of it. These cireumstancea would now 
 lopport an indictment under the above elanae. 
 
 Where the prisoner put salts of sorrel in a sugar basin, 
 in order that the prosecutor might take it with his tea, it 
 was held an attempt to administer : B. v. Dale, 6 Cox, 14. 
 
 Greaves on this clause remarks : " Where the prisoner 
 delivered poison to a guilty agent, with directions to him to 
 cause it to be administered to another in the absence of 
 the prisoner, it was heid that the prisoner was not guilty of 
 an attempt to administer poison, within the repealed acts. 
 B. V. Williams, 1 Den. 89; and the words 'attempt to 
 cause to be administered to, or to be taken by' were intro- 
 duced in this section to meet such cases." 
 
 Indictment under {b)for wounding with intent to murder.-^ 
 one J. N. unlawfully did wound (wound or cause 
 any grievous bodily harm) with intent, etc., (aa in the last pre- 
 cedent). Add a count " with the intent to commit murder " 
 generally. 
 
 The instrument or means by which the wound was 
 inflicted need not be stated, and, if stated, would not con- 
 fine the prosecutor to prove a wound by such means : R. v. 
 Briggs, 1 Moo. 318. 
 
 As the general term " wound " includes every " stab " 
 and " cut " as well as other wound, that general term has 
 alone been used in these Acts. All, therefore, that it is now 
 necessary to allege in the indictment is, that the prisoner 
 did wound the prosecutor ; and that allegation will be 
 proved by any wound, whether it be a stab, cut, or other 
 wound. Greaves, Cons. Acts. 45. The word " wound " in- 
 cludes incised wounds, punctured wounds, lacerated 
 wounds, contused wounds, and gunshot wounds : Archbold, 
 664. 
 
 But to constitute a wound, within the meaning of this 
 statute, the continuity of the skin must be broken : B. v. 
 Wood, 1 Moo. 278. 
 
Sec. 232] 
 
 ATTEvIPTS TO COMMIT MURDER. 
 
 217 
 
 The whole Bkin» not the mere cuticle or upper akin» 
 nmst be divided : Archbold, 665. 
 
 But a division of the internal skin, within the cheek or 
 lip, is sufBcient to constitute a wound within the statute : 
 Archbold, 665. 
 
 « Tlie statute says ' by any means whatsoever/ so that 
 it is immaterial by what means the wound is inflicted, pro> 
 vidcd it be inflicted with the intent alleged : B. v. Harris, 
 B. V. Steyens, B. v. Murrow and Jenning's case, and other 
 gimilar cases cannot therefore be considered as authorities 
 ander the present law": Greaves, Cons. Acts, 45. 
 
 Indictment under (c) for shooting with intent to murder. 
 a certain gun, then loaded with gunpawder and 
 divers leaden shot, at and against one J. N. unlawfully did 
 shoot, with intent thereby then unlawfully (aa in 
 
 the last precedent.) (Add also counts stating " with intent to 
 commit murder" generally. Also a count for shooting with 
 intent to maim, etc.,) under s. 241 post. 
 
 Iq order to bring the case within the above section it 
 must be pro'ud that the prisoner intended by the act 
 charged to cause the death of the suffering party. This 
 will appear either from the nature of the act itself, or from 
 the conduct and expressions used by the prisoner: Roscoe, 
 720. 
 
 Upon an indictment for wounding Taylor with intent 
 to murder him, it appeared that the prisoner intended to 
 murder one Maloney, and, supposing Taylor to be Maloney, 
 shot at and wounded Taylor ; and the jury found that the 
 prisoner intended to murder Maloney, not knowing that 
 the party he shot at was Taylor, but supposing him to be 
 JIaloney, and that he intended to murder the individual 
 he 8hot at, supposing him to be Maloney, and convicted 
 the prisoner ; and upon a case reserved, it was held that 
 the conviction was right, for though he did not intend to 
 kill the particular person, he meant to murder the man at 
 whom be shot : B. v. Smith, Dears. 559 ; 1 Buss. 1001. 
 
 If 
 
 \ 
 
218 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 [Sfo. 232 
 
 It seems doubtful whether it must not appear, in order 
 to make out the intent to murder, that that intent existed 
 in the mind of the defendant at the time of the offence, or 
 whether it would be sufiScient if it would have been murder 
 had death ensued : Archbold, 652. 
 
 On this question, Greaves, note (g) 1 Buss. 1003, remarks: 
 ^' It seems probable that the intention of the Legislature, in 
 providing for attempts to commit murder, was to punish 
 every attempt where, in case death had ensued, the crime 
 would have amounted to murder. . . The tendency of 
 the cases, however, seems to be that an actual intent to 
 murder the particular individual injured must have been 
 shown. . . Where a mistake of one person for another 
 occurs, the cases of shooting, etc., may, perhaps, admit of 
 a different consideration from the cases of poisoning. In 
 the case of shooting at one person under the supposition 
 that he is another, although there be a mistake, the pri- 
 soner must intend to murder that individual at whom he 
 fihoots ; it is true he may be mistaken in fact as to the per- 
 son, and that it may be owing to such mistake that be 
 shoots at such person, but still he shoots with intent to kill 
 that person. So in the case of cutting ; a man may cut 
 one person under a mistake that he is another person, but 
 still he must intend to murder the man whose throat be 
 cuts. In E. V. Mister, the only count charging an intent 
 to murder was the first, and that alleged the intent to be 
 to murder Mackreth ; and although on the evidence it was 
 perfectly clear that Mister mistook Mackreth for Ludlow, 
 whom he had followed for several days before, yet he was 
 convicted and executed, and I believe the point never 
 noticed at all. The case of poisoning one person by mis- 
 take for another seems different, if the poison be taken in 
 the absence of the prisoner ; for in such case, he can have 
 no actual intent to injure that person. These difficulties, 
 however, seem to be obviated by the present statute, which, 
 instead of using the words " with intent to murder such 
 
 Sec. 232] 
 
 person," has 
 • In aJ 
 be prudent tc 
 tent to murde: 
 der; "and a t 
 the person re 
 intended to be 
 A. with intent 1 
 
 A verdict i 
 also for attemp 
 marks under pr 
 
 The definiti( 
 
 produced with a 
 
 24&25V.(Imp.j 
 
 is new and is ini 
 
 attempts to disci 
 
 which misses fin 
 
 from any like (ol 
 
 R. V. Harris, 5 C 
 
 as authorities un< 
 
 Indictment un 
 etc.- did, 
 
 or in any other a 
 the barrel with g\ 
 a ball cartridge) i 
 pistol at and agair 
 last precedent.) 
 Mrder,a"1. count 
 mini, under s. 2 
 guilty under that 
 Baker, 1 C. & K. 2 
 also in certain cat 
 loga quarrel, a pisl 
 
 "«»g it by another 
 section: B. v. St. 
 
Sec. 232] 
 
 ATTEMPTS TO COMMIT MURDER. 
 
 219 
 
 person," has the words " with intent to commit murder " 
 . In all cases of doubt, as to the intention, it would 
 be prudent to insert one count for shooting at A. with in- 
 tent to murder him ; another " with intent to commit mur- 
 der ; " and a third for shooting at A. with intent to murder 
 the person really intended to be killed, and if the party 
 intended to be killed were unknown, a count for shooting at 
 A. with intent to murder a person to the jurors unknown. 
 
 A verdict under ss. 241 & 265 may be given, s. 713 ; 
 also for attempt, if the evidence warrants it, s. 711 ; see re- 
 marks under preceding section. 
 
 The definition of the words "loaded arms" in s. 3, is re- 
 produced with a slight alteration in words from c. 100, s. 19, 
 24&25 V.(Imp.), uponwhich Greaves remarks: "This clause 
 is new and is intended to meet every case where a prisoner 
 attempts to discharge a gun, etc., loaded in the barrel, but 
 which misses fire for want of priming or of a copper cap, or 
 from any like (other) cause. K. v. Carr, K. & R. 377; and 
 R. V. Harris, 6 C. & P. 159, cannot therefore be considered 
 as authorities under this Act": seeB,. v. Jackson, posf, p. 220. 
 
 Indictment under (c) for attempting to shoot with intent, 
 etc.— did, by drawing the trigger (drawing a trigger 
 
 or in any other manner) of a certain pistol then loaded in 
 the barrel with gun-powder and one leaden bullet (or with 
 a ball cartridge) unlawfully attempt to discharge the said 
 pistol at and against one J. N. with intent (as in the 
 
 last precedent.) {Add a count charging an intent to commit 
 mirder, a'd counts for attempting to shoot with intent to 
 mini, under s. 241, though the prisoner may be found 
 guilty under that section without such a count: E. v. 
 Baker, 1 C. & K. 254). A verdict of common assault may 
 also in certain cases be given, s. 713. If one draws, dur- 
 ing a quarrel, a pistol from his pocket, but is prevented from 
 using it by another person, there is no offence against this 
 section: R. v. St. George, 9 C. & P. 483 ; R. v. Brown, 15 
 
220 
 
 MURPER, MAXSLAUGHTER, ETC. 
 
 [Sec. 232 
 
 I* 
 
 Cox, 199. E. V. St. George is now overruled by E. v. Duck- 
 worth, 17 Cox, 495, [18921 , 2 Q. B. 83. 
 
 See remarks under preceding form. 
 
 Upon an indictment for attempting to discharge a 
 loaded arm with intent to murder, the prisoner may be 
 found guilty of the charge upon evidence that he bad 
 pointed at the prosecutor a revolver loaded in some of its 
 chambers with ball cartridges, but not in others, sayiuT 
 that he would shoot him, and that he had pulled the trigger 
 of the revolver, but that the hammer had fallen upon a 
 chamber which contained an empty cartridge: per Charles, 
 J., E. v. Jackson, 17 Cox, 104. 
 
 Indictment under (d) for attempting to drown tvith intent 
 to murder. — unlawfully did take one J. N. into both 
 
 the hands of him the said J. S., and unlawfully did cast, 
 throw, and push the said J. N. into a certain pond, whereiu 
 there was a great quantity cf waiter, and did thereby then 
 unlawfully attempt the said J. N. to drown and suffocate, 
 with intent thereby then unlawfully the said J. N. to kill 
 and murder, (Add a count charging generally that the 
 
 defendant did attempt to drown J. N. and counts charging the 
 intent to be to commit murder.) 
 
 It has been held that upon an indictment for attempting 
 to drown it must be shown clearly that the acts were doue 
 with intent to drown. An indictment alleged that the 
 prisoner assaulted two boys, and with a boat-hook made 
 holes in a boat in which they were, with intent to drown 
 them. The boys were attempting to land out of a boat 
 they had punted across a river, across which there was a 
 disputed right of ferry ; the prisoner attacked the boat with 
 his boat-hook in order to prevent them, and by means of 
 the holes which he made in it caused it to fill with water, 
 and then pushed it away from the shore, whereby the boys 
 were put in peril of being drowned. He might have got 
 into the boat and thrown them into the water ; but he con- 
 fined bis attack to the boat itself; as if to prevent tli 
 
Sec. 232] 
 
 ATTEMPTS TO COMMIT MURDER. 
 
 221 
 
 landing, but apparently regardless of the consequences. 
 Coltman, J., stopped the case, being of opinion that the 
 (>viclence against the prisoner showed his intention to have 
 been rather to prevent the landing of the boys than to do 
 them any injury : Sinclair's Case, 2 Lewin 49 ; R. v. Dart, 
 14 Cox, 143. 
 
 A verdict of common assault may be given, s. 713. 
 
 Indictment ur>ier{e). that on J. S. unlawfully 
 
 did, by the explosion of a certain explosive substance, that 
 is to say, gunpowder, destroy {destroy or damage) a certain 
 building situate with intent thereby then unlawfully 
 
 one J. N. to kill and murder. {Add a count, stating the 
 
 mtmt to be generally " to commit murder.") 
 
 In R. V. Ryan, 2 M. & Rob. 213, Parke and Alderson 
 held that a count alleging with intent to commit murder, 
 generally, is sufficient. 
 
 The jury may return a verdict of guilty of an attempt 
 to commit the offence, s. 711. 
 
 Indictment under (f) and {g). unlawfully did set fire to 
 {cast away or destroy) a certain ship called with intent 
 
 thereby then to kill and murder one. {Add a count 
 
 ttating the intent to " commit murder " generally). 
 
 Indictment under (h). — did, by then {state 
 
 the act) attempt unlawfully one J. N. to kill and murder. 
 {Add a count charging the intent to be to commit 
 murder.) 
 
 Greaves says : " This section is entirely new, and con- 
 tains one of the most important amendments in these Acts. 
 It includes every attempt to murder not specified in any 
 preceding section. It will therefore embrace all those 
 atrocious cases where the ropes, chains or machinery used 
 in loTrering miners into mines have been injured with intent 
 that tfaey may break, and precipitate the miners to the 
 bottom of the pit. Bo, also, all cases "where steatn engines 
 are injured, set on work, stopped, or anything pnt into 
 
222 
 
 MURDER, MANSLAUGHTER, i^TO. 
 
 [Sec, 233 
 
 them, in order to kill any person who may fall into it. So 
 also, cases of sending or placing infernal machines with 
 intent to murder : see R. v. Mountford, 1 Moo. 441. In. 
 deed, the malicious may now rest satisfied that every 
 attempt to murder, which their perverted ingenuity may 
 devise, or their fiendish malignity suggest, will fall within 
 some clause of this Act, and may be visited with penal 
 servitude for life. In any case where there may be a doubt 
 whether the attempt falls within the terms of any of the 
 preceding sections, a count framed on this clause should 
 be added." 
 
 A verdict under ss. 241, 242 & 265 may be given, 
 s. 713, if the evidence warrants it. 
 
 Threats bt Letter to Murder. 
 
 933. Every one is f^ilty of an indictable offence and liable to ten years' 
 imprisonment who sends, delivers or utters, or directly or indirectly causes to 
 be received, knowing the contents thereof, any letter or \\ riting threatening to 
 kill or murder any person. R. S. C. c. 173, s. 7. 2t-25 V. o. 100, s. 16 (Imp.). 
 
 Not triable at quarter sessions, s. 540. 
 
 A verdict of attempt allowed, s. 711, if the evidence 
 warrants it. " Writing " defined, s. 3. 
 
 Indictment. that J. S. on at 
 
 unlawfully did send to one J. N. a certain letter (or writing) 
 directed to the said J. N., by the name and description of 
 Mr. J. N. threatening to kill and murder the said J. N. he 
 the said (defendant) then well knowing the 
 
 contents of the said letter, which said letter is as followa, 
 that is to say And the jurors aforesaid that 
 
 the said on at unlawfully 
 
 did utter a certain writing (as in the first count). 
 
 In R. V. Hunter, 2 Leach, 631, the court said : "In an 
 indictment for sending a threatening letter, the letter must 
 be set out in order that the court may judge from the face j 
 of the indictment whether it is or is not a threatening 
 letter within the meaning of the statute on which the in- 
 dictment is founded." 
 
 Sec. 233] 
 
 The same r 
 P. C. 1122. 
 
 Under s. 613 
 for the omissio 
 correct to set it 
 
 Greaves saj 
 indirectly causes 
 c. 55, s. 8, and 
 difficulty which 
 the words send, 
 person in the 10 ( 
 in order that oi 
 causing to be re 
 person were to se 
 by a person with 
 house in which s( 
 drop such a lette 
 be within this cl 
 offence to consis 
 which contains a 
 soever, and it is m 
 to the person th 
 eases, therefore, o 
 ridge, 2 M. & Rob 
 218; and R. v. G 
 sidered as authorii 
 that the letter muj 
 In every indictme] 
 other acts, a coun 
 defendant uttered 
 to whom it was utt 
 
 Where the thre; 
 tjiejurytosay wh( 
 till or murder; R. 
 1 Moo. 428. 
 
* ; 
 
 Sec. 233] 
 
 THREATS BY LETTER. 
 
 223^ 
 
 The same ruling had been held in B. v. Lloyd, 2 East, 
 P. C. 1122. 
 
 Under s. 618 po8t an indictment would not be quashed 
 for the omission of the letter, but it is undoubtedly more 
 correct to set it out. 
 
 Greaves says on this clause : " The words directly or 
 indirectly causes to he received, are taken from the 9 Geo. IV. 
 c, 56, s. 8, and introduced here in order to prevent any 
 difficulty which might arise as to a case not falling within 
 the words send, deliver or utter. The words to any other 
 person in the 10 & 11 V. c. 66, s. 1, were advisedly omitted,, 
 in order that ordering, sending, delivering, uttering, or 
 causing to be received may be included. If, therefore, a 
 person were to send a letter or writing without any address 
 by a person with direction to drop it in the garden of a 
 house in which several persons lived, or if a person were to 
 drop such a letter or writing anywhere, these cases would 
 be within this clause. In truth, this clause makes the 
 offence to consist in sending, etc., any letter or writing 
 which contains a threat to kill or murder any person what- 
 Boever, and it is wholly immaterial whether it be sent, etc.,^ 
 to the person threatened or to any other person. The 
 cases, therefore, of R. v. Paddle, R. & R. 484 ; R. v. Bur- 
 ridge, 2 M. & Rob. 296 ; R. v. Jones, 2 C. & K. 398, 1 Den. 
 218 ; and R. v. Grimwade, 1 Den. 30, are not to be con- 
 sidered as authorities on this clause, so far as they decide 
 that the letter must be sent, etc., to the party threatened. 
 In every indictment on this and the similar clauses in the 
 other acts, a count should be inserted alleging that the 
 defendant uttered the writing without stating any person 
 to whom it was uttered." 
 
 Where the threat charged ia to kill or murder, it is for 
 the jury to say whether the letter amounts to a threat to- 
 killer murder: R. v. Giru.vood, 1 Leach, 142; R. v. Tyler, 
 
 1 Moo. 428. 
 
224 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 [Sec. 234 
 
 The bare delivery of the letter, though sealed, is evidence 
 of a knowledge of its contents by the prisoner in certain 
 cases: B. v. Girdwood, 1 Leach, 142. 
 
 And in the same case, it was held that the offender may 
 be tried in the county where the prosecutor received the 
 letter, thovgh he may also be tried in the county where the 
 sending took place. 
 
 In B. V. Boucher, 4 C. & P. 562, the following letter was 
 held to contain a threat to murder: — "You are a rogue, 
 thief and vagabond, and if you had your deserts, you should 
 not live the week out; I shall be with you shortly, and then 
 you shall nap it, my banker. Have a care, old chap, or 
 you shall disgorge some of your illgotten gains, watches and 
 cash, that you have robbed the widows and fatherless of. 
 Don't make light of this, or I'll make light of you and 
 yours. Signed, Cut-throat." 
 
 .Where an indictment contained three counts, each 
 charging the sending of a different threatening letter, 
 Byles, J., held the t the prosecutor must elect on which count 
 he would proceed, though any letter leading up to or 
 explaining the letter on which the trial proceeded would be 
 admissible: E. v. Ward, 10 Cox, 42; see s. 69,6, post. 
 
 OoN8PiRAcr TO Murder. 
 
 334. Every one is guilty of an indictable offence and liable to fourteen 
 pears' imprisonment, who — 
 
 (a) Conspires or agrees with any person to murder or to cause to be mur- 
 dered any other person, whether the person intended to be murdered is a subject 
 of Her Majesty or not ; or is within Her Majesty's dominions or not ; or 
 
 (6) Counsels or attempts to procure any person to murder such other person 
 anywhere, althouijh such person is not murdered in consequence of suchcoumel- 
 ling or attempted procurement. R. S. C. c. 162, s. 3. (Amended). 24-25 V. 
 c. 100, 8. 4 (Imp.). 
 
 Not triable at quarter sepsions, a. 640. The words in 
 italics are new, and unnecessary. As to conspiracies 
 generally : see remarks under s. 527, post. 
 
 Indictment. that J. S., J. T., and E. T., ou 
 
 unlawfully and wickedly did conspire, confederate 
 
 and agree together one J. N. unlawfully to kill and murder. 
 
I» 
 
 Sees. 235, 236] ACCESSORY AFTER THE FACT. 
 
 225 
 
 See 1 EuBS. 967; 3 Rusa. 664; R. v. Bernard, 1 F. & F. 
 240 ; 2 Stephen's Hist. 12. 
 
 In E. V. Banks, 12 Cox, 898, upon an indictment under 
 this clause, the defendants were convicted of an attempt to 
 commit the misdemeanour charged. In B. v. Most, 14 Oox» 
 583, the defendant having written a newspaper article 
 eDCOuraging the murder of foreign potentates, was found 
 gailty of an offence under the corresponding clause of the 
 Imperial Act. 
 
 Would any one conspiring in Canada with another 
 person in the United States to himself murder any one in 
 the United States be subject to indictment under s. 234? 
 
 AcoBsssoRY After thb Fact to Mcrder. 
 
 335. Every one is guilty of an indictable offence, and liable to imprison' 
 ment for life, who is an accessory after the fact to murder. R. S. C. c. 162^ 
 8. 4. 24-25 V. 0. 100, s. 67 (Imp.). 
 
 Not triable at quarter sessions, s. 540. See remarks 
 ander s. 63, ante, and s. 532, post. 
 
 Punishment of Mansladohter. 
 
 936. Every one who commits manslaughte r is guilty of an indictable 
 offence, and liable to imprisonmeni for life. R^^. C. c. 162, s. 5. (Amended). 
 24-25 V. c. 100, s. 5 (Imp.). 
 
 Indictment. — that A. B. on at 
 
 unlawfully did kill and slay one and thereby 
 
 committed manslaughter. 
 
 The evidence is the same as in murder, with this ex- 
 ception, that in murder the prosecutor need only prove the 
 homicide without going into evidence of the circumstances 
 under which it was committed in manslaughter ; he must 
 give evidence of all the facts in the case, so as to prove the 
 homicide to be manslaughter. As to the cases in which a 
 homicide amounts to manslaughter only, and not to mur- 
 der, see ante, ss. 229, 230, and remarks pages 181 et seq. A 
 summary conviction for assault under s. 42 of 24 & 25 Y. 
 c. 1(X), is not a bar to a subsequent indictment for man- 
 slaughter, upon the death of the man assaulted consequent 
 
 Criu. Law— 15 
 
 f 
 
2S6 
 
 MUEDEE, MANSLAUGHTBE, ETC. 
 
 [Sec. 237 
 
 '('■ I ill 
 
 upon the eame aflsault : R. v. Morris, 10 Cox, 480 ; B. v. 
 Friel, 17 Cox, 3'26; see ss. 866 & 969, post. 
 
 AiDiNO AND Abettino Suioide. (New). 
 
 937- Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who counsels or procures any person to commit suioide, actually 
 committed in consequence of such counselling or procurement, or who aids or 
 abets any person in the commission of suioide. 
 
 This is new. By the common law suicide is murder, 
 and if one encourage another to commit suicide, and is 
 present abetting him while be does so, such person is guilty 
 of murder as a principal, and if two persons encourage each 
 other to self murder and one kills himself, and the other 
 one fails, the latter is a principal in the murder of the 
 other: B. v. Dyson, B. & B. 623; B. v. Bussell, 1 Moo. 
 356 ; B. V. Alison, 8 C. & P. 418; B. v. Jessop, 16 Cox, 
 5204. Now, under analogous facts, he would be indictable 
 (under this s. 237 for counselling the other to commit 
 Buieide, and also under the next section for attempting 
 himself to commit suicid'^- 
 
 A felo de se, or felon of himself, is a person who, being 
 of sound mind and of the age of discretion, voluntariij 
 killetb himself : 3 Inst. 54. 
 
 If a man give himself a wound, intending to be felo de 
 ae, and dieth not within a year and a day after the wound, 
 he is not felo de se : Id. 
 
 The following passages from Hale and Hawkins may 
 be usefully inserted here : — 
 
 " It is not every laelancholy or hypochondriacal dig- 
 lemper that denominaf;e8 a man noa compos, for there are 
 few who commit this offence but are under such infirmi- 
 ties, bnt it mufit be such an alienation of mind that 
 renders them to be madmen, or frantic, or destitute of the 
 use of reason ; a lunatic killing himself in a fit of lunacy 
 is not felo de §e: otherwise it is, if it be at another time:" 
 I Hale, 412. 
 
 ** But here, I cannot but take notice of a strange notion 
 which faai unaccountably prevailed of Ute, that every one 
 
Sec. 237] 
 
 AIDING AND ABETTING SUICIDE. 
 
 227 
 
 who kills bim.self must be non compos of course ; for it is 
 said to be impossible that a maa in bis senses sbould dQ a 
 thing so contrary to nature and all sense and reason. If 
 this argument be good self-murder can be no crime, for a 
 madman can be guilty of none ; but it is wonderful tbat 
 the repugnancy to nature and reason, wbich is the highest 
 aggravation of this offence, should be thought to make it 
 impossible to be any crime at all, which cannot but be the 
 necessary consequence of this position that none but a 
 madman can be guilty of it. May it not, with as much 
 leason, be argued that the murder of a child or of a parent 
 is against nature and reason, and consequently that no 
 man in his senses can commit it": 1 Hawk. c. 9, s. 2. 
 
 In England the attempt to commit suicide is not an 
 attempt to commit murder, within 32 & 33 Y. o. 20, but still 
 remains a common law misdemeanour : B. v. Burgess, 
 L. & C. 258 ; B. v. Doody, 6 Cox, 463. 
 
 An aider and abettor, called a principal in the second 
 degree, is one who is actually or constructively present 
 when an offence is committed ; one who counsels or 
 procures the commission of an offence, but is absent when 
 it is committed, is called at common law an accessory 
 before the fact. Both are now treated as principals : s. 61, 
 a)xte', but that section does not apply as to punishment 
 where the offence of counselling or of aiding and abetting 
 is made a distinct offence. As to what is a counselling or 
 procurement 8ee remarks under tb# said section. 
 
 Indictment. — that on at one A. B. 
 
 committed suicide, and that on divers days before the said 
 oiience was conmitted by the said A. B., as aforesaid, G. D. 
 did unlawfully move, procure, aid, counsel, hire and com- 
 mand the said A. B. the said offence and suicide to do and 
 commit {or, that C. D. wa-j present and aiding and 
 
 abetting the said A. B. in the commission of the said 
 offence and suicide.) 
 
228 
 
 MURDER, MANSLAUGHTER, ETC. [Sees. 23J, 23i> 
 
 If the suicide was not committed yet the inciting to it is 
 an offence : R. v. Gregory, L. R. 1 C. C. E. 77 ; so is the 
 conspiracy by two persons to commit suicide together, 
 s. 627. 
 
 See R. V. Dyson, R. & R. 623 ; R. v. Russell, 1 Moo. 
 866. This last case applies only to an accessory, not to a» 
 aider and abettor : R. v. Towh. R. & R. 814. , 
 
 A. and B. go out together with a gun to kill D. A. 
 
 fires the shot, but his gun bursts and kills himself (A). A. 
 
 has committed suicide, and B. was aider and abettor to 
 
 that suicide. 
 
 Attempt to Commit Sdicidb. (New). 
 
 S3S- Every one who attempts to commit suicide is guilty of an indictable 
 offence and liable to two years' imprisonment. 
 
 See remarks under preceding section ; fine, s. 968. 
 
 Indictment. — that A. B. on unlawfully and 
 
 wilfully did attempt and endeavour to unlawfully kill him- 
 self and thereby to commit suicide. 
 
 Neglect by a Mother in Child-birth to Obtain Assistance. (New). 
 
 230. Every woman is guilty of an indictable offence who, with either of 
 the intents hereinafter mentioned, being with child and being about to be 
 delivered, neglects to provide reasonable assistance in her delivery, if the child 
 is permanently injured thereby, or dies, either just before, or during, or shortly 
 after birth, unless she proves that such death or permanent injury was not 
 caused by such neglect, or by any wrongful act to which she was a party, and 
 is liable to the following punishment : 
 
 (a) If the intent of such neglect be that the child shall not live, to imprison- 
 ment for life ; 
 
 (6) If the intent of such neglect be to conceal the fact of her having had o 
 child, to imprisonraert for seven years. 
 
 See ante, remarks under s. 219. 
 
 This is new. It is taken from the English bill of 1880. 
 
 The Imperial Commissioners reported thereon as follows: 
 
 " The subject of child-murder is one as to which the existing 
 
 . law seems to require alteration. At present no distinction is 
 
 made between the murder of a new-born infant by its mother, 
 
 and the murder of an adult. Practically this severity defeats 
 
 itself, and offences which are really cases of child murder are 
 
 840. Every on 
 imprisonment, wlio d 
 intent to conceal the 
 died before, or dun 
 2<-25V.c.lOO,8.60 
 
Sec. 240] 
 
 CONCEALING DEAD BODY. 
 
 229 
 
 often treated as cases of concealment of birth simply. . . . 
 This section will afford a means of punishment for child murder 
 where there would be a practical difficulty in obtaining a convic- 
 tion for that offence." 
 
 Under a charge of child murder the accused cannot 
 be found guilty of this new offence created by s. 239. A 
 verdict of concealment of birth may be given if the evidence 
 warrants it, s. 713. The punishment would then be under 
 next section. 
 
 If R. v. Handley, 13 Cox, 79, is good law, the offence 
 covered by this s. 239 would at common law, when the 
 child dies after birth, be murder or manslaughter. 
 
 It is not easy to imagine a case where it would be pos- 
 sible to obtain a conviction under this section, where a child 
 dies before, even if it is only just before, his birth. The 
 expression itself " dies before his birth " is not a happy 
 one; see s. 219, ante. 
 
 The words " unless she proves," etc., are utterly useless. 
 Either the prosecutor's case must be proved or not. If it 
 is, the jury must convict ; if not, they must acquit ; and it 
 is not if it is not proven that the death or injury was 
 caused by the neglect. 
 
 Indictment under (a). — that A. B. on at 
 
 a then and there being with child and about to 
 
 be delivered, did unlawfully, with intent that her said child 
 should not live, neglect to provide reasonable assistance in 
 her delivery, whereby her said child was permanently in- 
 jured, {or died during or shortly after birth.) A verdict of 
 guilty under s-s. (6) may be given upon this indictment if 
 the evidence warrants it. 
 
 Concealing Dead Body ok a Child. 
 
 240. Every one is guilty of an indictable oflfence, and liable to tioo years' 
 imprisonment, who disposes of the dead body of any child in any manner, with 
 intent to conceal the fact that its mother was delivered of it, whether the child 
 died before, or during, or after birth. R. S. C. c. 162, s. 49. (Amended). 
 24-25V. clOO, 8.60(Imp.). 
 
290 
 
 MURDER, MANSLAtfQHTER, ETC. 
 
 [See. 240 
 
 Fine, s. 958. A conviction for this offence may be given 
 Upon an indictment for child murder, s. 714. 
 
 The enactment applies not only to a mother, bat to 
 every one who disposes of the dead body of a child with 
 intent to conceal its birth. The repealed clause had the 
 words " by any secret diapoaition" 
 
 Indictment. — thatA. B., on was delivered* 
 
 of a child ; and that subsequently, on , the said 
 
 child having died, the said A. B. did unlawfully dispose of 
 the dead body of the said child by secretly burying it with 
 intent to conceal the fact that she had been delivered of it. 
 {State the means of concealment specially.) 
 
 In B. V. Berriman, 6 Cox, 388, Erie, J., told the jury 
 that this offence cannot be committed unless the child had 
 arrived at that stage of maturity at the time of birth that 
 it mip;ht have been a living child. But in a later case, B. 
 V. Colmer, 9 Cox, 506, Martin, J., ruled that the offence is 
 complete on a foetus delivered in the fourth or fifth month 
 of pregnancy, not longer than a man's finger, but having 
 the shape of a child. 
 
 Final disposition of the body is not material, and hiding 
 it in a place from which a further removal was contem- 
 plated would support the indictment : K. v. Goldthorpe, 2 
 Moo. 244 ; E. v. Perry, Dears. 471. 
 
 Leaving the dead body of a child in two boxes, closed 
 but not locked or fastened, one being placed inside the other 
 in a bedroom but in such a position as to attract the 
 attention of those who daily resorted to the room, is not a 
 secret disposition of the body within the meaning of the 
 statute : E. v. George, 11 Cox, 41. 
 
 What is a secret disposition of the dead body of a child 
 within the statute is a question for the jury, depending on 
 the circumstances of the particular case. Where the dead 
 body of a child was thrown into a field, over a wall 4| feet 
 high separating the yard of a public house from the field, 
 
Sec. 240] 
 
 COIfCEAtINO DEAD BODY. 
 
 2afi 
 
 And a person looking over the wall from the yard might 
 have seen the body, but persons going through the yard 01 
 asing it in the ordinary way would not, it was held, on a 
 case reserved, that this was an offence within the statute : 
 B. V. Brown, 11 Cox, 617, Warb. Lead. Cas. 94. 
 
 Although the fact of tho prisoner having placed the 
 ,dea<l body of her newly-born child in an unlocked box is not 
 of itself sufficient evidence of a criminal concealment of 
 birth, yet all the attendant circumstances of the case must 
 be taken into consideration in order to determine whether 
 or not an offence has been committed : B. v. Cook, 11 Coxt 
 542. 
 
 In order to convict a woman of attempting to conceal 
 the birth of her child, under s. 711, post, a dead body 
 must be found and identified as that of the child of which 
 she is alleged to have been delivered. A woman, ap- 
 parently pregnant, while staying at an inn, at S.-ifford^ 
 received by post, on the 28th of August, 1870, a Rughyi 
 newspaper loith the Rugby post mark upon it. On the sam& 
 day, her appearance ana the state of bev room seemed to- 
 indicate that she had been delivered of a child. She left 
 for Shrewsbury next morning, carryinij a parcel. That 
 afternoon a parcel was found in a waiting room at Stafford 
 station. It contained the dead body of a newly-born child, 
 wrapped in a Rugby Gazette, of August 27th, bearing the 
 Rufiby postmark. There is a railway from Stafford to 
 Shrewsbury, but no proof was given of the woman having 
 been at Stafford Station : Held, that thi^ evidence was not 
 sufficient to identify the body found as the child of which 
 the woman was said to have been delivered, and would 
 not therefore justify her conviction for concealment 
 birth: R. v. Williams, 11 Cox, 684. 
 
 Where death not proved conviction is illegal : R. v. Bell, 
 8 Ir. R. C. L. 642. 
 
 A, being questioned by a police-constable about the 
 concealment of a birth, gave an answer which caused the 
 
 ^ 
 
232 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 [Sec, 240 
 
 oflScer to say to her, " It might be better for you to tell the 
 ^ruth and not a lie." Held, that a further statement made 
 by A. to the policeman after the above inducement was in- 
 admissible in evidence against her, as not being free and 
 voluntary. A. was taken into custody the same day, 
 placed with two accomplices, B. and C. and charged with 
 concealment of birth. All three then made statements. 
 Held, that those made by B. and C. could not be deemed 
 to be affected by the previous inducement to A. and were, 
 therefore, admissible against B. and C. respectively, al- 
 though that made by A. was not so. The prisoners were 
 sent for trial, but before their committal they received the 
 formal caution from the magistrate as to anything they 
 might wish to say. Whereupon A. made a statement 
 which was taken down in writing, as usual, and attached 
 to the deposition : Held, that this latter statement of A. 
 might be read at the trial as evidence against herself. 
 Mere proof that a woman was delivered of a child and 
 allowed two others to take away its body is insufficient to 
 sustain an indictment against her for concealment of birth : 
 B. V. Bate, 11 Cox, 686. 
 
 A woman delivered of a child born alive endeavoured 
 to conceal the birth thereof by depositing the child while 
 alive in a corner of a field, when it died from exposure. 
 Held, that she could not be indicted under the above 
 section : R. v. May, 16 L. T. 362. 
 
 The prisoner who lived alone had placed the dead 
 body of her new born child behind a trunk in the room she 
 occupied, between the trunk and the wall. On being charged 
 with having had a child she at first denied it. Held, 
 sufficient to support a conviction for concealment of birth : 
 E. V. Pich^, 30 U. C. C. P. 409. 
 
 See other cases under s. 714 post, and R. v. Handley 
 13 Cox, 79. 
 
 BODILY INJ1 
 
Sec. 241] 
 
 WOUNDING WITH INTENT. 
 
 233 
 
 PART XIX. 
 
 BODILY INJURIES, AND ACTS AND OMISSIONS CAUSING 
 DANGER TO THE PERSON. 
 
 WouNDiNrt WITH Intent. 
 
 S4I- Every one ia guilty of an indictable oflfence and liable to imprison- 
 ment for life who, with intent to maim, disfigure or disable any person, or to 
 do some other grievous bodily harm to any person, or with intent to resist or 
 ,,:i'vent the lawful apprehension or detainer of any person, unlawfully by any 
 means wounds or causes any grievous bodily harm to any jierson, or shoots at 
 any person, or, by drawing a trigger, or in any other manner, attempts to 
 discharge any kind of loaded anns at any person. R. S. C. c. 1G2, 8. 13 
 [Amended); 24-25 V. c. 100, s. 18 (Imp.). 
 
 The repealed clause contained the words " unlawfully 
 mdmaliciously by any means ivhatsoever.'^ 
 
 " Loaded arms " defined, s. 3 : see R. v. Latiirer, 16 
 Cox, 70, Warb. Lead. Cas. 117 ; and R. v. Clarence, Warb. 
 Lead. Cas. 130, 22 Q. B. D. 23. 
 
 An indictment under the English clause charging that 
 the prisoner did " inflict " grievous bodily harm instead of 
 "cause" is sufficient : R. v. Bray, 15 Cox, 197. 
 
 Indictment for wounding ivith intent to maim. — 
 that J. S. on one J. N. unlawfully did wound, with 
 
 intent in so doing him the said J. N. thereby there to maim 
 {add count stating " ivith intent to disfigure " and one 
 "with intent to disable." Also one stating " ivith intent to do 
 some grevious bodily harm." And if necessary, one " with 
 intent to prevent {or resist) the lawful apprehension of.) See 
 form F. F. scheuule one under s. 611 post, in which the 
 words " did actual bodily harm " are quite wrong. 
 
 An indictment under the repealed act, charging the act 
 to have been done " feloniously, wilfully and maliciously" 
 was held bad, the words of the statute, then being " unlaw- 
 fully and maliciously : " R. v. Ryp.u, 2 Moo. 15. In 
 practice the first count of the indictment is generally for 
 wounding with intent to murder. These counts are allowed 
 to be joined in the same indictment. 
 
 f 
 
 y ■• 
 
234 
 
 BODILY INJURIES, ETC. 
 
 [Sec. 241 
 
 This clause includes every wounding done without law- 
 ful excuse with any of the intents mentioned in it ; from 
 the act itself malice will be inferred : R. t. Latimer, 
 17 Q. B. D. 359, Warb. Lead. Cas. 117, and cases there 
 cited. 
 
 The instrument or means by which the injury was 
 inflicted need not be stated in the indictment, and if stated 
 need not be proved as laid : R. V. Briggs, 1 Moo. 318. And 
 in the same case it was held that upon an indictment 
 which charged a wound to have been inflicted by striking 
 with a stick and kicking with the feet, proof that the wound 
 was caused either by striking with a stick or kicking was 
 sufficient, though it was uncertain by which of the two the 
 injury was inflicted. 
 
 In order to convict of the offence the intent must be 
 proved as laid; hence the necessity of several counts charg- 
 ing the offence to have been committed with different 
 intents. If an indictment alleged that the defendant ciil; 
 the prosecutor with intent to disable, and to do some 
 grievous bodily harm, it will not be supported by proof of 
 an intention to prevent a lawful apprehension : R. v. Duffin, 
 R. &. R. 3G5 ; R. v. Boyce, 1 Moo. 29 ; unless for the pur- 
 pose of affecting his escape the defendant also harboured 
 one of the intents stated in the indictment : R. v. Gillow, 
 1 Moo. 85 ; for where both intents exist it is immaterial 
 which is the principal and which the subordinate. There- 
 fore where, in order to commit a rape, the defendant cut 
 the private parts of an infant, and thereby did her grievous 
 bodily harm, it was holden that he was guilty of cutting 
 with intent to do her grievous bodily harm, notwitl stand- 
 ing his principal object was to commit the rape : R. v. Cox, 
 R. & R. 362. So also, if a person wound another in order 
 to rob him, and thereby inflict grievous bodily harm, he 
 may be convicted on a count charging him with an intent 
 to do grievous bodily harm. 
 
I*., 
 
 Seo. 241] 
 
 WOtTNDING WITH INTENT. 
 
 235 
 
 An indictment charging the prisoner with wounding A. 
 with intent to do him grievous bodily harm, is good 
 although it is proved that he mistook A. for somebody else, 
 and that he intended to wound another person : B. v. 
 Stopford, 11 Cox, 643 : nee E. v. Hunt 1 Moo. 93. 
 
 The prisoner was indicted for shooting at A. with in- 
 tent to do him grievous bodily harm. He fired a pistol 
 into a group of persons who had assaulted and annoyed 
 him, among whom was A., without aiming at A. or any one 
 in particular, but intending generally to do grievous bodily 
 harm, and wounded A. Held, on a case reserved, that he 
 MS rightly convicted : R. v. Fretwell, L. & C. 443. 
 
 With respect to the intents mentioned in the statute it 
 may be useful to observe that to maim is to injure any part 
 of a man's boiy which may render him in fighting less 
 able to defend himself, or annoy his enemy ; to disfigure 
 is to do some external injury which may detract from his 
 personal appearance ; and to disable is to do something 
 which creates a permanent disability, and not merely tem- 
 porary injury : Archbold, 666. It is not necessary that a 
 grievous bodily harm should be either permanent or dan- 
 gerous ; if it be such as seriously to interfere with health or 
 comfort that is sufficient ; and, therefore, where the 
 defendant cut the private parts of an infant, and the wound 
 was not dangerous, and was small, but bled a good deal, 
 and the jury found that it was a grievous bodily harm, it 
 was holdeo that the conviction was right : R. v. Cox, R. & 
 R. 362. 
 
 Where the intent laid is to prevent a lawful apprehen- 
 sion it must be shown that the arrest would have been 
 lawful ; and where the circumstances are not such that the 
 party must know why he is about to be apprehended it 
 must be proved that he was apprised of the intention to 
 apprehend him : Archbold, 667. 
 
 While the dofendant was using threatening language to 
 a third person a constable in plain clothes came up and 
 
 
 'te; 
 

 \ 
 
 236 
 
 BODILY INJURIES, ETC. 
 
 [Sec. 241 
 
 interfered. The defendant struck the constable with his 
 £st, and there was a struggle between them. The con- 
 stable went away for assistance, and was absent for an 
 hour ; he changed his plain clothes for his uniform and 
 returned to defendant's house with three other constables. 
 They forced the door and entered the house. The dftfend- 
 ant refused to come down, and threatened to kill the first 
 man who came up to take him. The constables ran up- 
 stairs to take him, and he wounded one of them in the 
 atruggle that took place. Held, upon a case reserved, that 
 the apprehension of the prisoner at the time was unlawful, 
 and that he could not be convicted of wounding the con- 
 stable with intent to prevent his lawful apprehension : B. 
 V. Marsden, 11 Cox, 90. 
 
 Upon an indictment for an assault with intent to do 
 grievous bodily harm a plea of guilty to a common assault 
 may be received if the prosecution consents : R. v. Box- 
 burgh, 12 Cox, 8. 
 
 Upon an indictment for any offence under this clause 
 the jury may find a verdict of guilty of an attempt to com- 
 mit it, s. 711. 
 
 A verdict of common assault may also be found, s. 713, 
 
 And, if the prosecutor fail in proving the intent, the 
 defendant may be convicted of unlawfully wounding, and 
 sentenced under the next section. 
 
 And where three are indicted for malicious wounding 
 ^ith intent to do grievous bodily harm the jury may con- 
 vict two of the offence under s. 241, and the third of un- 
 lawfully wounding under s. 242: B. v. Cunningham, Bell, 72, 
 
 Where a prisoner was indicted for feloniously wounding 
 with intent to do grievous bodily harm : Held, that the 
 intention might be inferred from the act : B. v. LeDante; 
 2 G. & 0. (N. S.) 401. 
 
 L. was tried on an indictment under 32 & 33 V. c. 20, 
 containing four counts. The first charged that he di( 
 
 The repealed 
 ciouely." Fine, 
 
 Indictment fo 
 unlawfully did ^ 
 ham upon), 
 "didinjlict grievo 
 
 The act mus 
 would in most c 
 Martin, 14 Cox, 6 
 
 See remarks u 
 8 Q. B. D. 64. 
 
 But general 
 ifalice against th( 
 
Sec. 242] 
 
 UNLAWFUL WOUNDING. 
 
 237 
 
 unlawfully, etc., kick, strike, wound and do grievous bodily 
 barm to W., with intent, etc., to maim ; the second charged 
 ac assault, as in ilrst, with intent to disfigure ; the third 
 charged intent to disable ; the fourth charged the intent 
 to do some grievous bodily harm. The prisoner was found 
 guilty of a common assault. Held, that L. was rightly 
 convicted, s. 51 of the Act, 32 & 83 Y. c. 20, authorizing 
 fluch conviction : E. v. Lackey, 1 P. & B. (N. B.) 194. 
 
 An indictment for doing grievous bodily harm, which 
 alleged that the prisoner did " feloniously " stab, cut and 
 vroand, etc., instead of alleging, in the terms of the 17th 
 section of 32 & 33 V. c. 20, that he did " unlawfully " and 
 "maliciously" stab, etc., is good: a defective indictment 
 is amendable under 32 & 33 Y. c. 29, s. 32, and any ,.^>iectioD 
 to it for any defect apparent on the face thereof ^ : be 
 taken by demurrer or motion to quash the h .i' v;;ent 
 before the defendant has pleaded and not afterwards: 
 R. Y. Flynn, 2 P & B. (N. B.) 321. 
 
 Unlawful Wounding. 
 
 24S- Every one is guilty of an indictable offence and liable to three years* 
 imprisoninent who unlawfully wounds or iniUctn any grievous bodily harm 
 upon any other person, either with or without any weapon or instrument. 
 R. S. C. c. 162, 8. 14 (Amended^ 24-25 V. c. 100, s. 20 (Imp.). 
 
 The repealed clause contained the words " and mali- 
 ciously." Fine, s. 958. 
 
 Indictment for unlawfully loounding. — one J. N 
 
 unlawfully did wound {wound or inflict any grievous bodily 
 harm upon). {Add a count charging that the defendant 
 
 "did inflict grievous bodily harm upon J. N.**) — 
 
 The act must have been done maliciously. Malice 
 would in most cases be presumed : ,8 Burn, 754 ; B. v. 
 Martin, 14 Cox, 633, 8 Q. B. D. 54. 
 
 See remarks under preceding section and B. v. Martin^ 
 
 8 Q. B. D. 54. 
 
 But general malice alone constitutes the offence. 
 Malice against the person wounded ib not a necessary in- 
 
236 
 
 BODILY INJURIES, JETO. 
 
 [Sec. 242 
 
 gredi«nt of tb9 offeooe. So if any one, intending to wound 
 A., accidentally wounds B., be is guilty of an offence under 
 this clause : B. t. Latimer, 16 Cox, 70, 17 Q. B. D. 359. 
 
 ' Upon an indictment for assaulting, beating, wounding 
 and inflicting grievous bodily barm, the prisoner may be 
 convicted of a common assault : B. v. Oliver, Bell, 287. 
 
 Upon an indictment charging that the prisoner '* unlaw- 
 fully and maliciously did assault one H. B., and did then 
 and there unlawfully and maliciously kick and wound him, 
 the said H. B., and thereby then and there did unlawfully 
 and maliciously inflict upon the said H. B. grievous bodily 
 barm, against" the jury may return a verdict of 
 
 guilty of a common assault merely : B. v. Yeadon, L. & G. 
 61. 
 
 In B. V. Taylor, 11 Cox, 261, the indictment was as 
 
 follows i — "That Taylor on unlawfully and 
 
 maliciously did wound one Thomas and the jurors 
 
 that the said Taylor did unlawfully and maliciously 
 
 inflict grievous bodily harm upon the said Thomas." 
 
 Upon this indictment the jury returned a verdict of 
 common assault, and upon a case reserved the convictiou 
 was affirmed. 
 
 In B. V. Ganwell, 11 Cox, 263, a verdict of eommoQ 
 assault was also given upon an indictment containing only 
 one count for maliciously and unlawfully inflicting grievous 
 bodily barm, and the conviction was affirmed upon a case 
 reserved. 
 
 The defendant may be found guilty of the attempt to 
 commit the ofSenee charged, e. 711. 
 
 To cause any one by threats of violence to do an act, 
 under the impulsion of fright, by which he is grievously in- 
 jured is a eriminai offence under this section: B. v. Haili- 
 day, 6 Times, L.B. 109. 
 
 ▲ man doea not inflict grievous bodily harm on his wife 
 vithio th« me%img of tbif eeo^o by oommumeitiflg to 
 
Sees. 243. 24i] 
 
 SHOOTING AT VESSELS, ETC. 
 
 299 
 
 ber a venereal disease : B. v, Clarence, 16 Cox, 511, 22 
 Q. B. D. 28, Warb. Lead. Cas. 180 ; see Hegarty v. Shine, 
 14 Cox, 124. A previous conviction for an assault bars an 
 indictment for unlawful wounding based on the same 
 facts : B. v. Miles, 17 Cox, 9. 
 
 Shooting at Hkb Majesty's Vessels— Wounding an Offiobu cn duty. 
 ^43* Every one is guilty of an indictable offence and liable to fourteen 
 ycari' imprisonment who wilfully — 
 
 (a) Shoots at any vessel belonging to Her Majesty or in the service of 
 Canada ; or 
 
 (b) Maims or wounds any public officer engaged in the execution of his 
 duty or any person acting in aid of such officer. R. S. C. c. 32, s. 213 ; c. 34, 
 8. 99 (Amended). 
 
 "Pablio officer" defined, s.8. The punishment is altered. 
 The repealed enactments applied only to customs or inland 
 
 revenue officers. 
 
 Choking ob Dbuoouto with Intent. 
 
 Ii44« Every one is guilty of an indictable offence and liable to impriion- 
 nmt for life and to be whipped, who with intent thereby to enable himself or 
 tny other person to commit, or with intent thereby to assist any other person 
 in committing any indictable offence — 
 
 (a) By any means whatsoever, attempts to choke, suffocate or strangle any 
 other person, or by any means calculated to choke, suffocate or strangle, 
 attempts to render any other person insensible, unconscious or incapable of 
 neiatance ; or 
 
 (h) Unlawfully applies or administers to, or causes to be taken by, or 
 attempts to apply or administer to, or attempts or causes to be administered 
 to or taken by, any person, any chloroform, laudanum or other stupefying or 
 OTCfpoweriag drug, matter or thing. R. S. C. c. 162, sa. 15 ft 16 (Amended). 
 21-25 V. c. 100, 88. 21, 22. 26-27 V. o. 44 (Imp.). 
 
 Indictment for attempting to choke.-^ unlawfully 
 
 did attempt by then {state the meane)^ to choke, suffocate 
 and etrangle one J. N. {suffbeate or strangle any person, or 
 ), with intent thereby then to enable him, the said 
 A. 6., the monies, goods, and chattels of the said J. N., 
 from the person of the said J. N., unlawfully to steal. {Add 
 mnts varying the statement of the overt acts, and of the 
 intent.) 
 
 This clause is new, and is directed against those 
 Attempte at robbery which have been accompanied by 
 Tiolenee to the throat : Greaves, Cons. Acts, 64. 
 
240 
 
 BODILY INJURIES, ETC. 
 
 [Sees. 246, 24« 
 
 In certain cases a verdict of common assault may be 
 given upon an indictment for this offence, s. 713. 
 
 Indictment for attempting to drug. — unlawfully 
 
 did apply and administer to one J. N. (or came ) 
 
 certain chloroform with intent thereby {intent as in the Uut 
 precedent). 
 
 If it be not certain that it was chloroform, or laudanum, 
 that was administered, add a count or counts stating; it to 
 be "a certain stupefying and overpowering drug and 
 matter to the jurors aforesaid unknown." Add also counts 
 varying the intent if necessary. 
 
 As to what constitutes an " administering, or attempt- 
 ing to administer ": see remarks under s. 232, ante. 
 
 AdHINISTERINO PoiSok so A3 TO ENDANGER LiFE. 
 
 %45- Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who unlawfully administers to, or causes to be admiD- 
 istered to or taken by any other person, any poison or other destructive or 
 noxious thing so as thereby to endanger the life of such person^ or so as there- 
 by to inflict upon such person any grievous bodily harm, B. S. C. o. 162, a. 17- 
 24-25 V. c. 100, s. 23 (Imp.). 
 
 The words "and maliciously" were in the repealed 
 section after " unlawfully ": see remarks under next section, 
 and under ss. 241 and 242, ante. 
 
 Adhinisterino Poison with Intent to Injure. 
 
 fS4tt. Every one is guilty of an indictable offence and liable to three years' 
 imprisonment who unlawfully administers to, or causes to be administered to 
 or taken by, any other person any poison or other destructive or noxious thing, 
 with intent to injure, aggrieve or annoy such person. R. S. C. c. 162, s. 18. 
 24-25 V. c. 100, 8. 24 (Imp.). 
 
 The words "and maliciously" were in the repealed 
 section after " unlawfully." 
 
 Fine, s. 958. 
 
 Under an indictment under s. 245 the jury may find 
 the prisoner guilty of the offence provided for in s. 246. 
 
 Indictment under s. 245 for administering poison so as to 
 endanger life. — unlawfully did administer to one 
 
 J. N. (or cause ), a large quantity, to wit, tvo 
 
Sees. 247, 248] 
 
 INJURIES BY EXPLOSIVES. 
 
 241 
 
 drachms of a certain deadly poison called white arsenic* 
 and thereby then did endanger the life of the said J. N. 
 
 Add a count stating that the defendant " did cause to be 
 taken by J. If. a large quantity of ** and if the kind 
 
 of poison be doubtful, add counts describing it in different 
 ways, and also stating it to be "a certain destructive thing, 
 {(yr a certain noxious thing) to the jurors aforesaid unknown.'* 
 There should be also a set of counts stating that the defendant 
 thereby " inflicted upon J. N. grievous bodily harm." 
 
 Administering cantharides to a woman with intent to 
 excite her sexual passion, in order to obtain connexion with 
 ber, is an administering with intent to injure, aggrieve or 
 annoy, within the meaning of s. 246: B. v. Wilkins, L. 
 &C. 89. 
 
 If the poison is administered merely with intent to 
 injure, aggrieve or annoy, which in itself would merely 
 amount to an offence under s. 246, yet if it does, in fact, 
 inflict grievous bodily hari;n, this amounts to an offence 
 under s. 245 : TuUey v. Corrie, 10 Cox, 640. 
 
 But to constitute this offence the thing administered 
 muBt be noxious in itself, and not only when taken in 
 excess : K. v. Hennah, 13 Cox, 547. 
 
 " An intent to injure, in strictness, means more than an 
 intent to do harm. It connotes an intent to do wrongful 
 harm " : per Bowen, L.J., Mogul Co. v. McGregor, 2a. 
 Q.B.D.598. 
 
 Causing Bodily Injuries bt Explosives. 
 
 24T. Every one is guilty of an indictable offence and liable to imprison' 
 mat for life who unlawfully and by the explosion of any explosive substance 
 bums, maims, disfigures, disables or does any grievous bodily harm to any 
 person. R. S. C. c. 162, s. 21. 24-25 V. c. 100, s. 28 (Imp.). 
 
 The words " and maliciously " were in the repealed sec- 
 tion after " unlawfully." 
 
 See remarks under next section. 
 
 248. Every one is guilty of an indictable offence and liable, in case (a) to 
 intprisonment for life and in case (6) to fourteen years' imprisonment, who 
 unlawfully— 
 
 CRia. LAW--16 
 
 I < 
 
'A'- 
 
 242 
 
 BODILY INJURIES, ETO. 
 
 [Sec. 248 
 
 (a) With intent to burn, maim, disfigure or disable any person, or to do 
 some fpievous bodily harm to any person, whether any bodily harm is effected 
 or not — / 
 
 (i) OauMB any explosive substance to explode ; 
 
 (ii) Sends or delivers to, or causes to be taken or received by, any 
 person any explosive substance, or any other dangerous or noxious thing ■ 
 
 (iii) Puts or lays at any place, or oasts or throws at or upon, or other- 
 wise applies to, any person any corrosive fluid, or any destructive or 
 explosive substance ; or 
 
 (b) Places or throws in, into, upon, against or near any building, ship or 
 vessel any explosive substance, with intent to do any bodily injury to any 
 person, whether or not any expiation takes place and whether or not any bodily 
 injury is effected. R. S- C. c. 162, ss. 22 and 23. 24-25 V. o. 100, ss. 29 & 30 
 (Imp.). 
 
 The words in italics are not in the Imperial Act. 
 
 " Explosive substance " defined, s. 3. 
 
 Hhe words "and maliciously" were in the repealed 
 section after " unlawfully." 
 
 Indictment under 8, 248 for sending an explosive svh- 
 Mtance with intent, etc, unlawfully did send {or 
 
 deliver to or cause to be taken or received by) to one J. N., a 
 certain explosive substance and dangerous and noxious 
 thing, to wit, two drachms of fulminating silver, and two 
 pounds weight of gunpowder, with intent in so doing him 
 the said J. N. thereby then to burn (maim, disfigure or 
 disable, or do some grievous bodily harm). (Add counts 
 
 varying the injury and intent). 
 
 Indictment under s. 848 for throwing corrosive fluid, with 
 intent, etc. unlawfully did cast and throw upon one 
 
 J. N. a certain corrosive fluid, to wit, one pint of oil of 
 vitriol, with intent in so doing him the said J. N., thereby 
 ^en to born. {Add counts varying the injury and h 
 
 intent.) 
 
 In B. V. Crawford, 1 Den. 100, the prisoner was indicted 
 for maliciously throwing upon P. C, certain destractive 
 matter, to wit, one quart of boiling water, with intent, etc. 
 The prisoner was the wife of P.* C, and when he was asleep 
 she, under the influence of jealousy, boiled a quart of water, 
 and poured it over his face and into one of his mh *>)<' 
 
Seo.349] 
 
 SETTING SPRING GUNS, ETC. 
 
 243 
 
 ran off boasting she bad boiled him in his sleep. The 
 injury was very grievous. The man was for a time deprived 
 of sight, and bad frequently lost for a time the bearing of 
 one ear. The jury having convicted, the judges held that 
 the conviction was right. 
 
 In B. V. Murrow, 1 Moo. 456, it was held, where the 
 defendant threw vitriol in the prosecutor's face, and so 
 wounded him, that this wounding was not the " wounding " 
 meant by the 9 Geo. IV. c. 81, s. 12 ; but it would now 
 fall under this statute. The question of intent is for the 
 jury : R* v. Saunders, 14 Cox, 180. 
 
 Indictment under a. 24-7 for turning by gunpowder. — 
 unlawfully, by the explosion of a certain explosive 
 substance, that is to say, gunpowder, one J. N. did burn 
 [Add counts varying the atatement of the injury, according 
 to circumatancea.) 
 
 Indictment charged defendants with having unlawfully, 
 knowingly and wilfully deposited in a room in a lodging 
 or boarding house (described) in the city of Halifax, near 
 to certain streets or thoroughfares and in close proximity 
 to divers dwelling houses, excessive quantities of a danger- 
 ous and explosive substance called dynamite, in excessive 
 and dangerous quantities, by reason whereof the inhabi- 
 tants, etc., were in great danger: Held, good, without 
 alleging carelessness, or that the quantities deposited were 
 80 great that care would not produce safety : B. v. Holmes, 
 5R.&G. (N. S.)498. 
 
 Settino Spring Guns, Traps, Etc., Etc. 
 
 349. Every one is guilty of an indictable ofiFence and liable to Jive years' 
 imprisonment who sets or places, or causes to be set or placed, any spring-gun, 
 mantrap, or other engine calculated to destroy human life or inflict grievous 
 bodily harm, with the intent that the same or whereby the same may destroy, 
 or inflict grievoue bodily harm upon any trespaaser or other person coming in 
 contact therewith. 
 
 2. Every one who knowingly and wilfully permits any such spring-gun, 
 man-trap or other engine which has been set or placed by some other person, 
 in any place which is in, or afterwards comes into, his possession or occupa- 
 tion, to continue so set or placed shall be deemed to have set or placed such 
 gun, trap or engine with such intent as aforesaid. 
 
'in 
 
 244 
 
 BODILY INJURIES, ETC. 
 
 [Sec. 24» 
 
 3. This section does not extend to any gun or trap usually set or placed 
 with the intent of destroying vermin or noxiout animaU. R. S. C. c. 162, g. 24. 
 24-26 V. 0. 100, 8. 31 (Imp.). 
 
 The last three words are new : see Wootton v. Dawkins^ 
 2 C. B. N. 8. 412 ; Bird v. Holbrcok, 4 Bing. 628 ; Ilott 
 V. Wilkes, 3 B. & Aid. 304 ; Jordin v. Crump 8 M. & W. 
 782. 
 
 Fine, s. 968. 
 
 The English Act has the following additional proviso : 
 " Provided also that nothing in this section shall be deemed 
 to make it unlawful to set or place or cause to be set or 
 placed, or to be continued set or placed, from sunset to 
 sunrise, any spring-gun, man-trap, or other engine which 
 shall be set or placed, or caused or continued to be set or 
 placed, in a dwelling-house for the protection thereof." 
 
 Indictment. — unlawfully did set and place, and 
 
 caused to be set and placed, in a certain garden situate 
 a certain spring-gun which was then loaded and 
 charged with gunpowder and divers leaden shot, with intent 
 thaj; the said spring-gun, so loaded and charged as afore- 
 said, should inflict grievous bodily harm upon any trespasser 
 who might come in contact therewith. 
 
 Prove that the defendant placed or continued the spring- 
 gun loaded in a place where persons might come in contact 
 with it; and if any injury was in reality occasioned state 
 it in the indictment, and prove it as laid. The intent can 
 only be inferred from circumstances, as the position of the 
 gun, the declarations of the defendant, and so forth; any 
 injury actually done will, of course, be some evidence of the 
 intent: Archbold. 
 
 A dog- spear set for the purpose of preserving the game 
 is not within the statute, if not set with the intention to do 
 grievous bodily harm to human beings: 1 Russ. 1052. 
 
 The instrument must be calculated to destroy life or 
 cause grievous bodily harm, and proved to be such; and, if 
 the prosecutor, while searching for a fowl among some bushes 
 
 bj 
 
 Endan 
 
 *5t. Every one 
 
 mprigonment who, b 
 
 of duty, endangers or 
 
 eywd or being in or u 
 
 S.27. 24-25 V.clOO 
 
 ^ine, 8. 958. 
 evidence warran 
 
Sees. 260, 261] INJURIES TO RAILWAYS, ETC. 
 
 245 
 
 in the defendant's garden, came in contact with a wire 
 which caused a loud explosion, whereby he was knocked . 
 down, and sliKfatly injured about the face, it was held that 
 the case was not within the statute, as it was not proved 
 what was the nature of the engine or substance which caused 
 the explosion, and it was not enough that the instrument 
 was oae calculated to create alarm: 1 Buss. 1053. 
 
 INJURIR8 TO Railways, Etc. 
 
 390. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who unlawfully — . 
 
 (a) With intent to injure or to endanger the safety of any person travel- 
 ling or being upon any railway, 
 
 (i) Puts or throws upon or across such railway any wood, stone, or 
 other matter or thing ; 
 
 (ii) Takes up, removes or displaces any rail, railway switch, sleeper or ' 
 other matter or thing belonging to such railway, or injures or destroys 
 any tra«k, bridge or fence of such railway, or any portion thereof ; 
 
 (iii) Turns, moves or diverts any point or other machinery belonging 
 to such railway ; 
 
 (iv) Makes or shows, hides or removes any signal or light upon or 
 near to such railway ; 
 
 (v) Does or causes to be done any other matter or thing with such in- 
 tent; or • ' 
 (h) Throws, or causes to fall or strike at, against, into or upon any engine^ 
 tender, carriage or truck used and in motion upon any railway any wood, stone 
 or other matter or thing, with intent to injure or endanger the tafety of any 
 person being in or upon such engfitie, tender, carriage or truck, or in or upon 
 any other engine, tender, carriage or truck of any train of which such first 
 mentioned engine, tender, carriage or truck forms part. R. C. S. c. 162, ss. 25 
 &26. 24-25 V. c. 100, s. 32-33 (Imp.). 
 
 The words "and maliciously*' were in the repealed 
 sectiou after " unlawfully." 
 
 See remarks under next section. . ' . 
 
 Ekdanoerino Safety of Person on Railway. 
 
 351. Every one is guilty of en indictable offence and liable to two years' 
 iiiprigonment who, by any unlawful act, or by any wilful omission or neglect 
 ofrfMt^v, endangers or causes to be endangered the safety of any person con- 
 eyed or being in or upon a railway, or aids or assists therein. R. S. C. c. 162, 
 s, 27. 24-25 V. c. 100, s. 34 (Imp.). 
 
 Fine, s. 958. A verdict of attempt may be given, if the 
 evideDce warrants it, s. 711. 
 
 w 
 
246 
 
 BODILY INJURIES, ETC. 
 
 [S«o. 261 
 
 The words "of duty" in this last section are not in 
 the English Act. 
 
 Indictment under ». 251 for endangering by wilful neglect 
 the safety of railway passengers. that J. S. on 
 
 unlawfully did, by a certain wilful omission and neglect of 
 bis duty, that is to say, by then wilfully omitting and 
 neglecting to turn certain points in and upon a certain 
 railway called in the parish which points it 
 
 was then the duty of him, the said J. S., to turn, endanger 
 the safety of certain persons then conveyed and being in 
 and upon the said railway . (Add counts varying 
 
 the statement of defendant's duty, etc.) 
 
 An acquittal of the offence under s. 250 was no bar to 
 an indictment for the offence under s. 251 : B. v.Gilmore, 15 
 Cox, 85 ; but now it would be as a verdict for the offence 
 provided for in s. 251 can be given on an indictment under 
 6. 260 : 8. 713, post. 
 
 See post, remarks under s. 489. The forms of indict- 
 ments there given may form a guide for indictments under 
 the present section. 
 
 Prove that it was the duty of the defendant to turn the 
 points; that he wilfully omitted and neglected to do so; 
 and that, by reason of such omission and neglect, the 
 safety of the passengers or other persons conveyed or being 
 on the railway was endangered (which words will include, 
 not only passengers, but officers and servants of the rail- 
 way company) : Archbold. 
 
 In R. V. Holroyd, 2 M. & Rob. 339, it appeared that 
 large quantities of earth and rubbish were found placed 
 across the railway, and the prosecutor's case was that this 
 had been done by the defendant wilfully and in order to 
 obstruct the use of the railway ; and the defendant's case 
 was that the earth and rubbish had been accidentally 
 dropped on the railway : Maule, J., told the jury, that if 
 the rubbish had been dropped on the rails by mere 
 accident the defendant was not guilty ; but " it was by no 
 
See. 251] 
 
 INJURIES TO RAILWAYS, ETC. 
 
 247 
 
 meand neoeasary, in order to bring the case within this 
 Act, that the defendant should L Ave thrown the rnbbiah on 
 the rails expressly with the view to upset the train of 
 carriages. If the defendant debignedly placed these sub- 
 stances, having a tendency to produce an obstruction, not 
 caring whether they actually impeded the carriages or not, 
 that was a case within the Act." And on one of the jury 
 asking what was the meaning of the term " wilfully," then 
 UBed in the statute, the learned judge added " he should 
 consider the act to have been wilfully done, if the 
 defendant intentionally placed the rubbish on the line, 
 knowing that it was a substance likely to produce an 
 obstruction ; if, for instance, he had done so in order to 
 throw upon the company's officers the necessary trouble of 
 removing the rubbish." This decision may afiford a safe 
 guide to the meaning of the term wilful in this clause, 
 251 : Greaves, Cons. Acts, 62. In the other clauses the 
 word wilfully is now replaced by unlawfully. 
 
 On 8. 250 (6) Greaves says : — *' The introduction of the 
 word at extends this clause to cases where the missile fails 
 to strike any engine or carriage. Other words were intro- 
 duced to meet cases where a person throws into or upon 
 one carriage of a train, when he intended to injure a 
 person being in another carriage of the same train, and 
 similar cases. In B. v. Court, 6 Cox, 202, the prisoner 
 was indicted for throwing a stone against a tender with 
 intent to endanger the safety of persons on the tender, 
 and it appeared that the stone fell on the tender but 
 there was no person on it at the time, and it was held 
 that the section was limited to something thrown upon an 
 engine or carriage having some person therein, and conse- 
 quently that no offence within the statute was proved ; 
 but now this case would clearly come within this clause." 
 
 In B. V. Bradford, Bell, 268, it was held that a rail- 
 way not yet opened for passengers, but used only for the 
 carriage of materials and workmen, is a railway within the 
 Btatate. 
 
 
248 
 
 BODILY INJURIES, ETC. 
 
 [Sec. 251 
 
 In B. V. Bowray, 10 Jur. 211, 1 Buss. 1058, on an 
 indictment for throwing a stone on a railway so as to 
 endanger the safety of passengers, it was held that the 
 intention to injure is not necessary, if the act was done 
 wilfully, and its effect be to endanger the safety of the 
 persons on the railway. 
 
 It is not necessary that the defendant should have en- 
 tertained any feeling of malice against the railway com- 
 pany, or against any person on the train; it is quite 
 enough to support an indictment under the statute if the 
 act was done mischievously, and with a \iew to cause an 
 obstruction of a train : B. v. Upton, 5 Cox, 298. 
 
 Twc boys went upon premises of a railway company, 
 and began playing with a heavy cart which was near the 
 line. Having started the cart it ran down an embankment 
 by its own impetus. One boy tried to divert its course ; 
 the other cried to him " let it go." The cart ran on with- 
 out pushing until it passed through a hedge, and a fence 
 of posts and rails, and over a ditch on to the railway ; it 
 tested so close to the railway lines as to obstruct any car- 
 triages passing upon them. The boys did not attempt to 
 dremove it : Held, that as the first act of moving the cart 
 ivas a trespass, and therefore an unlawful act, and as the 
 jury found that the natural consequence of it was that the 
 cart ran through the hedge and so on to the railway, the 
 boys might be properly convicted : E. v. Monaghan, 11 
 Gox, 608. 
 
 Indictment under «. 260 (h). that on at 
 
 A. B. unlawfully did throw {or cause to fall or strike 
 against, into or upon) upon a certain carriage {engine, ten- 
 der, carriage, or truck), then and there used upon a certain 
 railway there, called a certain large piece of wood 
 
 (any tcood, stone, or other matter or thing) with intent 
 thereby then and there to Aidanger the safety of one C. D., 
 then and there being in {in or upon) the said carriage 
 (engine, tender, carriage or truck) : see a form in schedule 
 one, post, form F. F., under s. 611, 
 
Sees. 252, 233] 
 
 INJURY BY NEGLIGENCE. 
 
 249: 
 
 Causing Injury bt Nbolioenoe. 
 
 S5f3> Every one is guilty of an indictable ofiFence and liable to two years' ■ 
 imprisonment who, by any unlawful act, or by doing negligently or omitting 
 to do any acf which it is his duty to do, causes grievous bodily injury to any 
 other person. R. S. 0. o. 162, s. 33. 
 
 Fine, s. 958. 
 
 This clause is not in the English Act. It is nearly in 
 the same terms as s. 251, except that this last one applies 
 only to passengers by railway endangered by the unlawful 
 act or neglect, or omission of duty. 
 
 An injury resulting from an omission does not subject 
 the person causing it to punishment unless such omission 
 be unlawful. An omission is deemed unlawful whensoever 
 it is a breach of some duty imposed by law, or gives cause 
 to a civil action : 2nd Report Cr. L. Com. 14 May, 1846 ; 
 see R. V. Instan, [1893] , 1 Q. B. 450. 
 
 Mr. Starkie, one of the English Commissioners, in a 
 separate report, objected strongly to such an enactment, 
 and the framers of the Imperial Statutes have thought 
 proper to leave it out. 
 
 This section uses the term " bodily injury " instead of 
 " bodily harm " used in the next section and in s. 241, 
 et seq. Did the drafter intend to make a distinction 
 between the two ? Probably not. 
 
 Injury by Furious Driving. 
 
 3S3. Every one is guilty of an indictable offence and liable to Uvo years' 
 imprisonment who, having the charge of any carriage or vehicle, by wanton or 
 furious driving, or racing or other wilful misconduct, or by wilful neglect, does 
 or causes to be done a-.iy bodily harm to any person. R. S. C. c. 162, s. 28. 
 24-25 V.c. 100,8. 35 limp.). 
 
 Indictment. — being then a coachman, and then 
 
 having charge of a certain carriage and vehicle called an 
 omnibus, unlawfully did, by the wanton and furious driv- 
 ing of the said carriage and vehicle by him the said 
 (defendant) cause certain bodily barm to be done to one 
 J. N. ■ 
 
 This section includes all carriages and vehicles of every 
 description, both public and private. Wilful means volun- 
 tary : Greaves, Cons. Acts, 63. 
 
260 
 
 BODILY INJURIES, ETC. 
 
 [Sees. 254, 255 
 
 See remarks under 8. 251 as to the word "wilful," and 
 under s. 262 as to the words " bodily harm." 
 
 Pbkventino any Shipwbeoked PERSCpT PROM Savino HIS LiFE. {At amewki 
 
 in 1893.) 
 
 294> Every one is Kui^^y o^ ^ia indictable offence and liable to seven 
 years' imprisonment — 
 
 (a) Wlio prevents or impedes, or endeavours to prevent or impede any 
 shipwrecked person in his endeavour to save his life ; or 
 
 (b) Who without reasonable cause prevents or impedes, or endeavours to 
 prevent or impede, any person in his endeavour to save the life of any ship, 
 wrecked person. R. S. C. c. 81, s. 36. 24-25 V. c. 100, s. 17 (Imp.). 
 
 ** Shipwrecked person " defined, s. 3. 
 
 Indictment. — that before and at the time of the 
 
 committing of the offence hereinafter mentioned, to wit, 
 on a certain ship was wrecked, stranded and cast on 
 
 shore, and that A.B., on the day and year aforesaid, did 
 unlawfully prevent and impede {or endeavour to prevent and 
 impede) one CD., a shipwrecked person then endeavouring 
 to save his life from the said ship so wrecked, stranded, and 
 cast on shore, in his endeavours to save his life. 
 
 Leavino Holes in the Ice, Etc., Etc., IJNauABDED. 
 
 S55- Everyone is gailtyof an offence and liable, on summary convic- 
 tion, to a fine or imprisonment with or without hard labour (or both) who— 
 
 (a) Cuts or makes, or causes to be cut or made, any hole, opening, aperture 
 or place, of sufficient size or area to endanger human life, through the ice on 
 any navigable or other water open to or frequented by the public, and leaves 
 such hole, opening, aperture or place, while it is in a state dangerous to human 
 life, whether the same is frozen over or not, uninclosod by bushes or trees 
 or unguarded by a guard or fence of sufficient height and strength to prevent any 
 person from accidentally riding, driving, walking, skating or falling therein ; 
 or 
 
 (b) Being the owner, manager or superintendent of any abandoned or un- 
 used mine or quarry or property u]K)n or in which any excavation has been or 
 is hereafter made, of a sufficient area and depth to endanger human life, leaves 
 the same unguarded and uninclosed by a guard or fence of sufficient height and 
 strength to prevent any person from accidentally riding, driving, walking or 
 falling thereinto ; or 
 
 (c) Omits within five days after conviction of any such oflfence to make the 
 inclosure aforesaid or to construct around or over such exposed opening or j 
 excavation a guard or fence of such height and strength. 
 
 2. Every one whose duty it is to guard svjch hole, opening, aperture or 
 place is guilty of manslaughter if any person loses his life by accidentally falling 
 therein while the same is unguarded. R. S. C. o. 102, ss. 2i), 30, 31 k 32. 
 
 Sees. 266, 267J 
 
 This sul 
 slaughter un 
 enactment h 
 
 Send] 
 
 fiSH. Every 
 
 imprisomnent whi 
 
 Sends, or atte; 
 
 Canada to sea, or c 
 
 voyage from any p, 
 
 place on the inland 
 
 or place on the inia 
 inland waters of Caj 
 underloading or imp 
 
 orfrom any other ca 
 thereby, unless he pi 
 
 sent to sea or on sue] 
 on such voyage in 
 
 reasonable and justifi 
 
 257. Everyone 
 
 impnsoninent who, be 
 
 takes such ship to sea, 
 or on a voyage from' 
 to any port or pJacel 
 » voyage trota any , 
 place on the inland w 
 of overloading or und 
 insufficiently manned , 
 My to be endangered 
 '"ch voyage in such un, 
 awe and justifiable. 52 
 
 ^'*ne, 8. 958. 
 
 for the offences un. 
 0^ tie Minister o 
 Diust precede the 
 magistrate, when 
 ' complaint. 
 
S^miKT] TO8BAW0BTHYSHIP. 
 
 This sub-fleotion lb) nrovi,l.= , .. 
 slaagh.er„„a« s. m.^Z^^^^l^^'^ "»»M be „.,„- 
 .nactaent ,„ England is containedTn 60 & sfv" .T"' 
 
 tol^-omnent who- *° '"" "° «*«««. offe,«» .„d ,i.u, ,_^^ ^^_^^. 
 
 Sends, or attempts to SAnH «- • 
 Canada to sea, or on a vZT ' " * P'""*^ *« sendin? a Bh.r. 
 
 voyage f.mV^r^rErtre^V''^^"'*"^ -teVo S^^r " 
 place on the inland waters oUheu'^^'^ °^ Canada to"^;; ^^rT,; 
 
 or place on the inland waters of the Sed sf ; '?" '^ ^°^*^« ^ «>m anTl^ 
 inland waters of Canada in «„„», ^"'ted States to any nort or r^i„ . 
 
 (./i»m .„y oth«r cau.s, thai the iif. „? °' "*"* 'iMuffioientlr malj 
 
 857. Every one is jfuiltv of 
 imprisonment who, beinir th« «. f " '"<^'«table offence and liabJ« t^ a 
 
 takeasueh «hip to La.:? o'n'rvrySel^t^ Tl^*^^^^^ 
 or on a voyagre from any port o^^i ^ ""^ ^^^ ^"'^"^ waters of crn"?^ 
 to any port or place on the inL^ """ ''" '^' '"'^"d wate " of cl JT' 
 a voyage from any port T ^ '^***''^ "^ the United Sf.f ^* 
 place on the inland' w^t 3 of crJ" -^'^ ^"'*«^ Sta^to^ny V/, °" 
 of overloading or underioL ^^ '" ''"^^ ""seaworthv sLn ^ ""* 
 
 sufficiently LnnHo'ttlroh"'"'"^ ^"^""*^' 07'/ fa I'^^f "J^" 
 Wy to be endange.;d tkZZ:^:^^' '''{ '"^^ "^^ of TnTp^L^/^f 
 such voyage in such unseawn^f 1 . ^^^^^^ *hat her <roin«? tr^ T 
 
 *-'"«* ^?^ :^''.:r3::s V* '?: °'~«'-:„™ 
 
 f^ine, 8. 968. •*" ^- c- so (imp.). 
 
 Bys. 546, as amended in iaqq 
 for the offences under a 2^^ ! f '"!? P'*°«^«"tion is allowed 
 0^ t^e Minister oiulZ Tn, F f "''°"' *^^ — ^^ 
 ^«st precede the inforration n ^ '''^1' ^^^' ^«"«««t 
 magistrate, when prosecution h 'T^'"'"' ^^^^^'^ ^he 
 complaint. ^ o^ecution begins by information or 
 
252 . ASSAULTS. [Seo8. 258, 269 
 
 PART XX. / ; 
 
 ' ' ASSAULTS. 
 
 Definition. 
 
 358. An assault is the act of intentionally applying force to the person 
 of another, directly or indirectly, or attempting or threatening, by any act or 
 ^sture, to apply force to the person of another, if the person making the 
 threat has, or causes the other to believe, upon reasonable grounds, that he has 
 present ability to effect his purpose, and in either case, without the consent of 
 the other or with such consent if it is obtained by fraud. 
 
 As to the words in italics: see R. v. Clarence, 16 Cox, 511 
 22 Q. B. D. 23, Warb. Lead. Cas. 130. This definition 
 covers an assault and battery, as well as a simple assault: 
 see post remarks under ss. 262 and 26 J 
 
 Indecent Assaults on Females. 
 
 S50. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment, and to be whipped, who — 
 
 (a) Indecently assaults any female ; or 
 
 (b) Does anything to any female by her consent which but for such consent 
 would be an indecent assault, such consent being obtained by false and fraudu- 
 lent representations as to the nature and quality of [the act. 53 V. c. 37, s. 12. 
 24-25 V. c. 100, 8. 52 (Imp.). 
 
 Fine, s. 958 
 
 See s. 685, post, as to evidence of young children upon 
 a charge of an indecent assault ; also s. 25 of I'he Canada 
 Evidence Act 1893, and s. 261. 
 
 Indictment. — one A. D. a female, unlawfully and 
 
 indecently did assault, and her, the said A. D. did then 
 beat, wound and ill treat, and other wrongs to the said 
 A. D. did, to the great damage of the said A. D. 
 
 Upon the trial of the prisoner, a school teacher, for an 
 indecent assault upon one of his schoLirs, it appeared that 
 he forbade the prosecutrix telling her parents what had 
 happened, and they did not hear of it for two months. 
 After the prosecutrix had given evidence of the assault 
 evidence was tendered of the conduct of the prisoner 
 towards her subsequent to the assault : Held, that the 
 evidence was admissible as tending to show the indecent 
 
Sees. 260-262] 
 
 INDECENT ASSAULTS, ETC. 
 
 253 
 
 quality of the assault, and as being, in effect, a part or 
 continuation of the same transaction as that with which 
 the prisoner was charged : B. v. Chute, 46 U. C. Q. B. 555 ; 
 see R. V. Drain, under s. 262, post. 
 
 As to sub-section (6) of s. 259, see B. v. Bennett, 4 
 F. & F. 1105 ; B. v. Case, 1 Den. 580 ; R. v. Clarence, 
 16 Cox, 511, 22 Q. B. D. 23, Warb. Lead. Cas. 130. 
 
 Indecent Assaults on Males. 
 !260* Every one is guily of an indictable offence and liable to ten years' 
 imprisonment and to be whipped who assaults any iierson with intent to com- 
 mit sotlomy, or who, being a male, indecently assaults any other male person. 
 R. S. C. c. 157, s. 2. {Amended). 
 
 Attempt to commit sodomy is provided for by s. 175. 
 
 See ante, notes under ss. 174, 175, 178, and post, under 
 s. 261. 
 
 An indictment under this clause is defective even after 
 verdict if it does not aver in express terms that the accused 
 and the assaulted party are males : B. v. Montminy on a 
 case reserved, Q. B. Quebec, May, 1893. 
 
 See form, ante, under s. 178. 
 
 Consent op Children Under 14 No Defence. 
 361« It is no defence to a charge or indictment for any indecent assault 
 on a young person under the age of fourteen years to prove that he or she con- 
 sented to the act of indecency. 53 V. c. 37, s. 7. 43-44 V. c. 45, s. 2 (Imp.). 
 
 This enactment applies to assaults on males as well as 
 on females ; B. v. Mehegan, 7 Cox, 145 ; B. v. Johnson, 
 L. & C. 632, and that class of cases are not now law ; see 
 B. V. Brice, 7 Man. L. B. 627. 
 
 This enactment applies to all offences which include an 
 indecent assault. 
 
 Actual Bodily Harm. 
 
 363. Every one who commits any assault which occasions actual bodily 
 harm is miilty of an indictable offence and liable to three years' imprisonment. 
 R, S. C. c. 162, 8. 35. 
 
 Fine, s. 958. 
 
 In B. V. Clarence, 16 Cox, 511, 22 Q. B. D. 23, Warb. 
 Lead. Cas. 130, it was held that a husband who communi- 
 cates a venereal disease to bis wife cannot be indicted for 
 causing her actual bodily harm. 
 
 i 
 
■•ti^jv 
 
 254 
 
 ASSAULTS. 
 
 [Sec. 263 
 
 Indictment for an assault occasioning actual bodily harm. 
 ^-^ thai J. S., on in and upon one J. N. did 
 
 make an assault, and him the said J. N. did then beat, 
 wound and ill-treat, thereby then occasioning to the said 
 J. N. actual bodily harm, and other wrongs to the said 
 J. N. then did, to the great damage of the said J. N. 
 
 The defendant may be convicted of a common assault 
 upon an indictment for occasioning actual bodily harm: 
 R. V. Oliver, Bell, 287 ; R. v. Yeadon, L. & C. 81 ; s. 713, 
 post. 
 
 The intent to do bodily harm, or premeditation, is not 
 necessary to convict upon an indictment under this section; 
 thus a man who commits an assault the result of which is 
 to produce bodily harm is liable to be convicted under this 
 section, though the jury find that the bodily harm formed 
 no part of the prisoner's intention, and was done without • 
 premeditation, under the influence of passion : E. v. Spar- 
 row, Bell, 298. 
 
 The actual bodily harm mentioned in this section would 
 include any hurt or injury calculated to interfere with the 
 health or comfort of the prosecutors ; it need not be an 
 injury of a permanent character, nor need it amount to 
 what would be considered to be grievous bodily harm. 
 
 On an indictment for assault and battery occasioning 
 actual bodily harm the evidence proved only a common 
 assault or an assault and battery : Held, on a case re- 
 served, that the accused was not a competent witness on 
 his own behalf under c. 174, s. 216. 
 
 A statement by the man assaulted, made immediately 
 after the assault and in presence of the accused, was held 
 admissible : B. v. Drain, 8 Man. L. B. 535. 
 
 AOGRAVATEO ASSAULTS, EtO. 
 
 363. Every one is guilty of an indictable offence and liable to two years' 
 impriHonment who — 
 
 (a) Assaults any person with intent to comuiit any indictable offence ; or 
 (6) Assaults any pubi. or j)eaoe officer engaged in the execution of his 
 duty, or any person acting in aid of such officer ; or 
 
 (c) Assaults any person with intent to resist or prevent the lawful appre- 
 hension or detainer of himself, or of any other iierson, for any offence ; or 
 
\* 
 
 Sec. 263] 
 
 AGGRAVATED ASSAULTS, ETC. 
 
 255 
 
 (d) Asaaulta any person in the lawful execution of any process against any 
 lands or goods, or in making any lawful distress or seizure, or with intent to 
 fescue any goods taken under such process, distress or seizure. R. S. C. c. 162 
 8.34. 
 
 (e) On any day whereon any poll for any election, parliamentary or 
 municipal, is being proceeded with, within the distance of two miles from the 
 place whore such poll is taken or held, assaults or beats any person. R. S. U. 
 c. 8,8.- 77. 
 
 Section 77 of c.8, B. S.G. (unrepealed), of which the above 
 g.g. («) is a partial re-enactment, applies only to battery, 
 and the prosecution if taken under that Act is limited by 
 oue year, and punishable by five years, s. 951, post. 
 
 Fine, s. 958. "Public officer" and "peace officer" 
 defined, s. 3. 
 
 Indictment under (a). in and upon one J. N. unlaw- 
 
 fully did make an assault, and him the said J. N. did beat, 
 wound and ill-treat with intent him the said J. N. unlaw- 
 fully to kill and murder. {Add a count for a common 
 assault). 
 
 Every attempt to commit an offence against the person 
 of an individual without his consent involves an assault. 
 Prove an attempt to commit such an offence, and prove it 
 to have been done under such circumstances that, had the 
 attempt succeeded, the defendant might have been con- 
 victed of the offence. If you fail proving the intent, but 
 prove the assault, the defendant may be convicted of the 
 common assault. 
 
 Indictment under (b). in and upon one J. N. then 
 
 being a peace officer, to wit, a constable {any peace officer 
 in the execution of Mb duty, or any person acting in aid of) 
 and then being in the due execution of his duty as such 
 constable, did make an assault, and him, the said J. N., so 
 being in the execution of his duty as aforesaid, did then 
 beat, wound and ill-treat, and other wrongs to the said J.N., 
 tben did, to the great damage of the said J. N. {Add a 
 comt for a common assault.) 
 
 Prove that J. N. was a peace officer, as stated in the 
 indictment, by showing that he had acted as such. 
 
256 
 
 ASSAULTS. 
 
 [Sec 263. 
 
 It is a maxim of law that " omnia proeaumuntur riU 
 et aolenniter esse acta donee probetur in contrarium" 
 upoD which ground it will be presumed, even in a case of 
 murder, that a man who has acted in a public capacity or 
 situation was duly appointed: B. v. Yerelst, 8 Gamp. 432 > 
 R. V. Gordon, 1 Leach, 515; R. v. Murphy, 8 0. & P. 297« 
 R. V. Newton, 1 C. & K. 469 ; Taylor, on !^vidence, par. I39 
 431. Prove that J. N. was in the due execution of his duty 
 and the assault : MacFarlane v. R., 16 S. C. R. 393, and B. 
 V. King, 18 0. R. 666; R. v. Lantz, 19 N. S. Rep. 1. If yoa 
 < fail in proving that J. N. was a peace officer, or that he was 
 acting lawfully as such, the defendant may be convicted of 
 a common assault. 
 
 The fact that the de'fendan^ did not know that the per- 
 son assaulted was a peace officer, or that he was acting in 
 the execution of his duty, is no defence: R. v. Forbes, 10 
 Cox, 362. 
 
 Sections 144 & 263 (6) ought to form only one: 144 s-s. 1 
 is for resisting or obstructing & public officer in theexecu- 
 tion of his duty: punishment, ten yeass; 263 is for 
 assaulting a public or peace officer in the execution of his 
 duty: punishment, two years; then s-s.' 2, s. 144, again 
 provides for the oflfence of resisting or w'ilftflly obstructing 
 any peace officer in the execution of his duty : punishment, 
 two years. Ten years for resisting a public officer, and, 
 by the same clause, two years for resisting a peace officer. 
 By the interpretation clause, s. 3, the expression " peace 
 officer " includes a "Mayor, Warden, Reeve, Sheriff, Deputy 
 Sheriff, Sheriff's officer and Justice of the peace, and also 
 the Warden, Keeper or guard of a penitentiary, or of any 
 prison, and any police officer, police constable, bailiff, con- 
 stable or other person employed for the preservation and 
 maintenance of the public peace, or for the service or 
 execution of civil process." 
 
 ; So that, by 263, an assault on a Mayor, Reeve or 
 Warden^ in the execution of his duty, is punishable by tm 
 
 Sec. 263] 
 
 years, and by 
 duty is punisJ 
 
 In an ind 
 
 executing a wi 
 ment as to the 
 
 Held, on a 
 its face the she 
 a mere irregula 
 the prisoner wa 
 L, R. 609. 
 
 Indictment 
 malte an assaul 
 wound and iil-ti 
 prevent {reaiat 01 
 [himself or of ai 
 is to say {state ti 
 mm assault). 
 
 It must be s 
 was lawful: see 
 the intent be not 
 be given. But it 
 an illegal arrest 
 warrant is necessa 
 the warrant with 
 resists and assau 
 on an off 
 I Co<ld V. Cabe, 13 ( 
 
 Indictment un( 
 lawfully make an 
 
 making in his qua 
 pawful seizure unc 
 1 J. N. was mal 
 
 [quality. ♦ 
 
 Indictment und< 
 ' did make t 
 
 Cbim. Law— 17 
 
Sec. 263] 
 
 AGGRAVATED ASSAULTS, ETC. 
 
 25T 
 
 years, and by 144, obstructing bim in the execution of his 
 daty is punishable by ten years. 
 
 In an indictment for obstructing a sheriff's officer in ' 
 executing a writ of Ji. fa. the writ contained a mis-state- 
 ment as to the date of the judgment on which it was issued. 
 
 Held, on a case reserved, that the writ being regular on 
 its face the sheriff was hound to execute it The error was 
 a mere irregularity ^hich might have been amended and 
 the prisoner was rightly convicted: B. v. Monkman, 8 Man.^ 
 L. B. 509. 
 
 Indictment under (c). — in and upon one J. N., did 
 make an assault, and him, the said J. N., did then beat, 
 \(ound and ill-treat with intent in so doing to resist and 
 prevent {resist or prevent) the lawful apprehension of 
 [himself or of any other person) for a certain offence, that 
 is to say {state the offence generally). {Count for com- 
 
 mon assault). - 
 
 It must be stated and proved that the apprehensiooi 
 was lawful : see R. v. Davis, L. & C. 64. If this and 
 the intent be not proved a verdict of common assault may 
 be given. But it must be remembered that resistance to 
 an illegal arrest is justifiable, and if, in a case where a 
 warrant is necessary and the officer making an arrest has not 
 the warrant with him, tbe party whom he tries to arrest,' 
 resists and assaults him, he cannot be convicted of an 
 assault on an officer in the due execution of his officer 
 Codd V. Cabe, 13 Cox, 202. 
 
 Indictment under {d). — in and upon J. N. did un- 
 
 i lawfully make an assault, the said J. N. then and there 
 
 making in his quality of a duly appointed bailiff of a 
 
 lawful seizure under authority of justice, and whilst the 
 
 i J. N. was making the said lawful seizure in his said 
 
 [quality. * 
 
 Indictment under (c). — in and upon one J. N., un- 
 llawfully did make an assault, on a day whereon a poll fov 
 
 CwM. Law— 17 
 
258 
 
 ASSAULTS. 
 
 [Sec. 861 
 
 an election for was being prooeeded with at fo 
 
 to wit, on and within the distance of two miles 
 
 from the place where such poll was held. 
 
 KiDKAPPmo. 
 
 804< Every one is eruilty of an indictable offence and liable to seven 
 years' imprisonment who, without lawful authority, forcibly seizes and oon- 
 fines or imprisons any other person within Canada, or kidnaps any other 
 person with intent — 
 
 (a) to cause such other person to be secretly confined or imprisoned in 
 Canada against his will ; or 
 
 (b) to cause such other person to be unlawfully sent or transported out of 
 Canada against his will ; or 
 
 (c) to cause such other person to be sold or captured as a slave, or in anv 
 'way held to service against his will. 
 
 2. Upon the trial of any offence under this section the non-resistance of 
 the person so kidnapped or unlawfully confined thereto shall not be a defence 
 unless it appears that it was not caused by threats, duress or force or e: .ition 
 of foroe. R. S. C. c. 162, s. 46. 
 
 At common law kidnapping ia a misdemeanour, pun- 
 ishable by fine and imprisonment : 1 Buss. 962. 
 
 The forcible stealing away of a man, woman or child 
 from their own country, and sending them into another, 
 was capital by the Jewish and also by the civil law. This 
 is unquestionably a very heinous crime, as it robs the 
 sovereign of his subjects, banishes a man from his country, 
 and may, in its consequences, be productive of the most 
 cruel and disagreeable hardships : 4 Blacks. 219. 
 
 By the above section transportation to a foreign country 
 is not necessarily an ingredient in this offence. 
 
 The defendant may be found guilty of an attempt to 
 kidnap upon an indictment for kidnapping, s. 711. 
 
 A verdict of assault may also be given if the evidence 
 warrants it, s. 713. 
 
 Indictment. — with force and arms unlawfully an 
 
 assault did make on one A. B., and did thep and there, , 
 without lawful <\uthority, unlawfully and forcibly seize and 
 imprison the suid A. \, within the Dominion of Canada 1 
 {or confine or kidnap) with intent the said A. B. unlawfully 
 
 Sec.a6SJ 
 
 and forcibly 
 Canada, aga 
 ffeld, on 
 under 32 (fesj 
 to the 8eizur( 
 ping, and the 
 waliv. B., 33 
 
 969. Every 
 offence and liable 
 ment, or to a fine 
 viction to a fine 1 
 imprisonment with 
 
 *^^« a. 109, 
 and s. 258 as t 
 
 Indictment 
 on the at 
 
 did maJie, and J 
 wound and ili-i 
 wrongs and inju 
 
 A common a 
 ment or under tl 
 
 post. 
 
 Costs on coni 
 
 An assault is 
 
 ience, to do a con 
 
 or wantonness ; , 
 
 weapon, though j 
 
 drawing a swordj 
 
 wound or strike, 
 
 person within th( 
 
 «a"y, or pointing 
 
 reach, holding m 
 
 insulting manner 
 
 (Jeiote at the tii 
 
 *y, of using 
 
 ^n^ount to an ass J 
 
Sec.26S] 
 
 COMMON ASSAULT. 
 
 269 
 
 and forcibly to cause to be unlawfully transported out of 
 Canada, against bis will. 
 
 Held, on tbe trial of an indictment for kidnapping 
 under 32 & 88 V. c. 20, s. 69, that the intent required applies 
 to the seizure and confinement as well as to the kidnap- 
 ping, and the indictment should state such intent : Corn- 
 wall V. B., 88 U. C. Q. B. 106. 
 
 CouHON Assault. 
 96(1. Every one who commits a common assault ia guilty of an indictable 
 offence and liable, if convicted upon an indictment, to one year's imprison" 
 ment, or to a fine not exceeding one hundred dollars, and on summary oou" 
 viotion to a fine not exceeding twenty dollars and costs, or to two months' 
 impriBonment with or without hard labour. R. S. C. c. 162, a. 36. 
 
 Hee 8. 109, ante, as to pointing firearms at any person, 
 and 8. 258 as to definition of an assault. 
 
 Indictment for a common assault. — that C. D., 
 
 on tbe at in and upon one A. B., an assault 
 
 did make, and him the said A. B. then and there did beat, 
 wound and ill-treat, and then and there to him other 
 wrongs and injuries did. 
 
 A common assault may be prosecuted either by indict- 
 ment or under the Summary Convictions clauses, 839, «^ seq. 
 
 If 
 
 \ 
 
 Costs on conviction for assault, s. 834, pod. 
 
 An assault is an attempt or offer, with force and vio- 
 lence, to do a corporal hurt to another, whether from malice 
 or wantonness ; as by striking at him with or without a 
 weapon, though the party striking misses his aim; so 
 drawing a sword, throwing a bottle or glass with intent to 
 wound or strike, presenting a loaded gun or pistol at a 
 person within the distance to which the gun or pistol will 
 carry, or pointing a pitchfork at a person standing within 
 reach, holding up one's fist at him in a threatening or 
 insulting manner, or with such other circumstances as 
 denote at the time an intention, coupled with a present 
 ability, of using actual violence against his person, will 
 amount to an assault : 1 Burn, 308. 
 
260 
 
 ASSAULTS. 
 
 [Seo. 26J 
 
 It had been said that the presenting a gun or pistol at 
 a person within the distance to which it will carry, though 
 in fact not loaded, was an assault, but later authorities 
 have held that, if it be not loaded, it would be no assault 
 to present it and pull the trigger : 1 Burn, loc. cit : see b, 
 109, ante. . i 
 
 One charged with an assault and battery may be found 
 guilty of the assault, and yet acquitted of the battery ; but 
 every battery includes an assault ; therefore on an indict- 
 ment for assault and battery, in which the assault is ill- 
 laid, if the defendant be found guilty of the battery it is 
 sufficient : 1 Hawk. 110 ; see note to B. v. Bead, 1 Deu. 
 377. 
 
 Mere words will not amount to an assault, though per- 
 haps they may in some cases serve to explain a doubtful 
 action : 1 Burn 309. 
 
 If a man strike at another, but at such a distance that 
 he cannot by possibility touch him, it is no assault. But 
 if A. advances in a threatening attitude with bis fists 
 clenched towards B., with an intention of striking him, so 
 that his blow would have almost immediately reached B., 
 if he had not been stopped by a third person, this would 
 be an assault in point of law, though at the particular 
 moment when A. was stopped he was not near enough for 
 his blow to take effect : Stephens v. Myers, 4 C. & P. 349. 
 
 To collect a number of workmen round a person who 
 tuck up their sleeves and aprons and threaten to break bis 
 neck if he did not go out of the place, through fear of 
 whom he did go out, amounts to an assault. There is the 
 intention and present ability and a threat of violence caus- 
 ing fear : Bead v. Coker, 13 C. B. 850. 
 
 So riding after a person and obliging him to run away 
 into a garden to avoid being beaten is an assault : Mortia 
 V. Shoppee, 3 C. & P. 373. 
 
 Any man wantonly doing an act of which the direct 
 consequence is that another person is injured commits an 
 
 See. 265] 
 
 assault at coi 
 between the j 
 Thus to drive 
 a person is sil 
 person is sitti 
 the chair, as t 
 encouraging i 
 person with a 
 1021. . 
 
 In E. V. T 
 
 "If anything 
 
 another, to ma] 
 
 out the oonser 
 
 whom it is do 
 
 there may be s 
 
 feelings are repi 
 
 mission is tota 
 
 present case thei 
 
 in the act dom 
 
 defendant was ac 
 
 upon whom he w 
 
 practices, had bei 
 
 was uoue. But 
 
 t 
 
 IB Butifresistai] 
 If a man, there 
 n woman, under pn 
 of an assault : 
 Saunders, 8 C. & 
 In R. V. Lock, 
 held that the defit 
 against the will of 
 active will on bia p 
 
 I'yachildoftendei 
 assault, without an 
 ignorant of the na 
 consent so as to 
 criminal law. 
 
Sec. 265] 
 
 C'^Mi-ION ASSAULT. 
 
 261 
 
 assault at common law» though a third body is interposed 
 between the person doing the act and the person injured. 
 Thus to drive a carriage against another carriage in which 
 a person is sitting, or to throw over a chair on which a 
 person is sitting, whereby the person in the carriage or on 
 the chair, as the case may be, is injured, in an assault. So 
 encouraging a dog to bite, or wantonly riding over a 
 person with a horse, is an assault : 1 Burn, 809 ; 1 Buss. 
 1021. 
 
 In K. V. Wollaston, 12 Cox, 182, Kelly, C.B., said : 
 ''If anything is done by one being upon the person of 
 another, to make the act an assault it must be done with- 
 out the consent and against the will of the person upon 
 whom it is done. Mere submission is not consent, for 
 there may be submission without consent, and while the 
 feelings are repugnant to the act being done. Mere sub- 
 mission is totally different from consent. But in the 
 present case there was actual participation by both parties 
 in the act done, and complete mutuality : " and the 
 defendant was acquitted as the boys, aged above fourteen, 
 upon whom he was accused of having indulged in indecent 
 practices, had been willing and assenting parties to what 
 ^aB uone. But nes now s. 178, ante. 
 
 But if resistance be prevented by fraud it is an assault. 
 If a man, therefore, have connection with a married 
 woman, under pretense of being her husband, he is guilty 
 of an assault : R. v. Williams, 8 C. & P. 286 ; R. v. 
 Saunders, 8 C. & P. 265 ; now, of rape ; s. 266 post. 
 
 In B. V. Lock, 12 Cox, 244, upon a case reserved, it was 
 held that the definition of an assault that the act must be 
 di^mtt the ivill of the patient implies the possession of an 
 active will on bis part, and, therefore, the mere submission 
 by a child of tender years (eight years old) to an indecent 
 assault, without any active sign of dissent, the child being 
 ignorant of the nature of the assault, does not amount to 
 consent so as to take the offence out of the operation of 
 criminal law. 
 
 i':, 
 
 
"\\r inn I" - iiwiwiiiii 
 
 262 
 
 ASSAULTS. 
 
 w^ 
 
 [Seo. 266 
 
 In B. V. Woodhurst, 12 Cox, 443, on an indictment for 
 carnal knowledge of a girl above ten years of age and 
 under twelve, and also for an assault, it was held on the 
 latter count that, although consent would be a defence, 
 consent extorted by terror or induced by the influence of a 
 person in whose power the girl feels herself, is not really 
 such consent as will have that effect ; following B. v. Day, 
 9 0. & P. 722 ; B. v. Nichol, B. & B. 130 ; B. v. Bosinski,* 
 1 Moo. 19 ; B. V. Case, 1 Den. 580 ; 1 Buss. 933. 
 
 An unlawful imprisonment is also an assault for it is 
 a wrong done to the person of a man, for which, besides 
 the private satisfaction given to the individual by action, 
 the law also demands public vengeance, as it is a breach 
 of the King's peace, a loss which the State sustains by the 
 confinement of one of its membern, and an infringement of 
 the good order of society : 4 Blacks. 518. It has been 
 supposed that every imprisonment includes a battery, but 
 ibis doctrine was denied in a recent case, where it was 
 said by the Court that it was absurd to contend that every 
 imprisonment included a battery : 1 Buss. 1025. 
 
 A battery in the legal acceptation of the word includes 
 beating and wounding : Archbold, 659. Battery seemeth 
 to be, when any injury whatsoever, be it ever so small, is 
 actually done to the person of a man in an angry or 
 revengeful, or rude, or insolent manner, as by spitting in 
 his face, or throwing water on him, or violently jostling 
 him out of the way : 1 Hawk. c. 15, s. 2. For the law 
 cannot draw the line between different degrees of violence, 
 and therefore totally prohibits the first and lowest stages 
 of it, every man's person being sacred, and no other having 
 a right to meddle with it in any, the slightest, manner: 
 1 Bass. 1021. 
 
 The touch or hurt must be with a hostile intention, and, 
 therefore, a touch given by a constable's staff, for the 
 purpose of engaging a person's attention only, is not a 
 battery : 1 Burn, 812. 
 
Sec. 266] 
 
 COMMON ASSAULT, 
 
 263 
 
 Whether the act shall amount to an assault must in 
 every case be collected from the intention; and if the 
 injury committed were accidental and undesigned it will 
 not amount to a battery: 1 Buss. 1025. 
 
 Striking a horse, whereon a person is riding and whereby 
 he is thrown, is a battery on him, and the rider is justified 
 in striking a person who wrongfully seizes the reins of his 
 horse, and in using all the violence necessary to make him 
 loose his hold. A wounding is where the violence is such 
 that the flesh is opened ; a mere scratch may constitute a 
 wounding : 1 Burn, 812. 
 
 Even a mayhem is justifiable if committed in a party's 
 own defence. But a person struck has merely a right to 
 defend himself, and strike a blow in his defence, but he has 
 DO right to revenge himself; and if, when all the danger is 
 past, he strikes a blow not necessary he commits an 
 assault and battery. And in no case should the battery be 
 more than necessary for self defence : 1 Burn, 312 ; ss. 45» 
 46, 58, ante. 
 
 The mere offer of a person to strike another is sufficient 
 to justify the latter's striking him ; he need not stay till the 
 other has actually struck him. 
 
 A husband may justify a battery in defence of his wife, 
 a wife in defence of her husband, a parent in defence of his 
 child, a child in defence of his parent, a master in defence 
 of bis servant and a servant in defencti; of his master ; but 
 in all these cases the battery must be bi^ch only as was 
 necessary to the defence of the party or his relation, for if it 
 were excessive, if it were greater than was necessary for 
 mere defence, the prior offence will be no justification : 
 8. 47, ante. So a person may lay hands upon another to 
 prevent him from fighting, or committing a breach of the 
 peace, using no unnecessary violence. If a man without 
 authority attempt to arrest another illegally it is a breach 
 of the peace, and any other person may lawfully interfere to 
 prevent it, doing no more than is necessary for that purpose. 
 
 : r 
 
264 
 
 ASSAULTS. 
 
 [Sec, 265 
 
 Churchwardens and private persons are justified in 
 gently laying their * hands on those who disturb the per- 
 formance of any part of divine service, and turning them 
 out of church : 1 Burn, 314. 
 
 A parent may in a reasonable manner chastise his child 
 jt a master his servant, or a schoolmaster his scholar, or a 
 gaoler his prisoner, and a captain of a ship any of the crew 
 \7ho have mutinously or violently misconducted themselves : 
 1 Burn ; ss. 55, 56, 58, ante. 
 
 So might a military officer order a moderate correction 
 for disobedience of orders : 1 Burn, 314. 
 
 A party ma y justify a battery by showing that he com- 
 mitted it in defence of his possession, as, for instance, to 
 remove the prosecutor out of his close or house, — or to 
 remove a servant, who, at ' night, is so misconducting 
 himself as to disturb the peace of the household, — or to 
 remove a person out of a public house, if the party be 
 misconducting himself, or to prevent him from entering 
 the defendant's close or house, — to restrain him from 
 •taking or destroying his goods, — from taking or rescuing 
 cattle, etc., in his custody upon a distress, — or to retake 
 personal property improperly, detained or taken away,— or 
 the like : ss. 48 et aeq. ante. 
 
 In the case of a trespass in law merely without actual 
 force, the owner of the close, or house, etc., must first 
 request the trespasser to depart, before he can justify 
 laying his hands on him for the purpose of removing him ; 
 and even if he refuse he can only justify so much force as is 
 necessary to remove him. But if the trespasser use force 
 then the owner may oppose torce to force ; and in such a 
 case, if he be assaulted or beaten he may justify even a 
 wounding or mayhem in self-defence, as above mentioned. 
 In answer to a justification in defence of his possession it 
 may be shown that the battery was excessive, or that the 
 party assaulted, or some one by whose authority he acted, 
 had a right of way or other easement over the close, or tlie 
 like : 1 Burn, 313. 
 
•I, 41 
 
 Sec. 266] 
 
 COMMON ASSAULT 
 
 265 
 
 " It should be observed with respect to an assault by a 
 man on a party endeavouring to dispossess him of his land, 
 that where the injury is a mere breach of a close, in con- 
 templation of law the defendant cannot justify a battery 
 without a request to depart ; but it is otherwise where any 
 actual violence is committed, as it is lawful in such a case 
 to oppose force by force ; therefore, if a person break down 
 the gate, or come into a close vi et armia, the owner need 
 not request him to be gone, but may lay hands on him 
 immediately ; .for it is but returning violence with violence. 
 If a person enters another's house with force and violence 
 the owner of the house may justify turning him out, using 
 no more force than is necessary, without a previous request 
 to depart ; but if the person enters quietly the other party 
 cannot justify turning him out without previous request" : 
 1 Russ. 1028 ; see ss. 63, et seq. ante. 
 
 It appears to have been formerly holden that a person 
 could not be prosecuted upon one indictment for assaulting 
 two persons, each ' sault being a distinct offence ; but a 
 subsequent decision has established the contrary : B. v. 
 Benfield, 2 Burr. 984. 
 
 There is a manifest distinction between endeavouring to 
 turn a person out of a house into which he has previously 
 entered quietly, and resisting a forcible attempt to enter ; 
 in the first ct.se a request to depart is necessary but not 
 in the latter. In a criminal prosecution by the wife of 0., 
 for assault made upon her in entering her husband's house, 
 the defence was that she had no right to enter, and that 
 her intention was to take away property which she had no 
 legal right to take, but held, on a case reserved, that this 
 wuuld not justify the assault, there being no previous 
 request made of her to leave the house, nor any statement 
 of her intention, or an attempt to take anything : R. v. 
 O'Neill, 3 P. & B. {N.B.) 49. 
 
 An indictment declaring that the prisoner did " beat, 
 wound and ill-treat" A. was held to be substantially an 
 
 I ! 
 
266 
 
 ASSAULTS 
 
 [Sec. 265 
 
 indictment for a common assault : B. v. Shannon, 28 N. 
 B. Bep. 1. 
 
 If the charge is, as under s. 864, post, before the magis- 
 trate on a legal complaint, and the evidence goes to prove 
 an offence committed which he has no jurisdiction to hear 
 and determine, as if, on a complaint of an assault, the 
 evidence go to show that a rape or assault with intent to 
 commit a felony has been committed, he may, if he dis- 
 believes the evidence as to the rape or intent, convict as to 
 the residue of it of an assault : Wilkinson v. Dutton, 3 B. 
 & S. 821 ; Anon, 1 B. & Ad. 382. 
 
 In this last case Lord Tenterden held that the magis- 
 trate had found that the assault was not accompanied by 
 any attempt to commit felony, and that, quoad hoc, bis 
 decision was final. ' 
 
 In B. V. Walker, 2 M. & Bob. 446, Coltman, J., gave 
 the same interpretation to the clause, 
 
 In B. V. Elrington, 1 B & S. 688, it was held that the 
 magistrate's certificate of dismissal, as under s. 865, 866 
 postt is a bar to an indictment for an unlawful assault 
 occasioning actual bodily harm, arising out of the bame 
 circumstances : see Wemyss v. Hopkins, L. B. 10 Q. B. 
 378. 
 
 In B. V. Stanton, 6 Cox, 324, Erie, J., said that, in his 
 opinion, a summary conviction before justices of the peace 
 {in England, the law requires two) is a bar to an indict- 
 ment for a felonious assault arising out of the same facts. 
 
 In B. V. Miles, 17 Cox, 9, Warb. Lead. Caa. 320, a con- 
 viction of assault was held to be, at common law, a bar to 
 a subsequent indictment for unlawful wounding : see ss. 
 866 & 969, post. See Beed v. Nutt, 17 Cox, 86, 24 
 Q. B. D. 669, as to a magistrate granting a certificate 
 illegally. 
 
 But a summary conviction for assault is no bar to a 
 subsequent indictment for manslaaghter, upon the death of 
 the man assaulted consequent upon the same assault ; 
 
Sec. 266] 
 
 COMMON ASSAULT. 
 
 267 
 
 B. V. Morris, 10 Cox, 480; B. v. Basset, Greaves, Cons. 
 Acts, 72 ; R. v. Friel, 17 Cox, 825. 
 
 Where an assault charged in an indictment and that 
 referred to in a certificate of dismissal by a magistrate 
 appear to have been on i\ie same day it is prima facie 
 evidence that they are one and the same assault, and it is 
 incumbent on the prosecutor to show that there was a 
 second assault on the same day if he alleges that such is 
 the case. The defendant having appeared before the 
 magistrate the recital in the certificate of the fact of a 
 complaint having been made and of a summons having 
 been issued is sufficient evidence of those facts: B. v. 
 Westley, 11 Cox, 189. 
 
 Wlien a question of title to lands arises before him 
 the magistrate's jurisdiction is at an end, and he cannot 
 inquire into or adjudicate upon an excess of force or vio- 
 lence which may be used in the assertion of a title to lands: 
 R. V. Pearson, 11 Cox, 498 ; s. 842, post. 
 
 A person making t. boTia fide claim of right to be pre- 
 sent as one of the public in a law court at the hearing of a 
 suit is not justified in committing an assault upon a police 
 constable and an official who endeavours to remove him. 
 Such a claim of right does not oust the jurisdiction of the 
 magistrate who has to try the charge of assault, an<^ he 
 may refuse to allow cross-examination and to aumit 
 evidence in respect of such a claim : B. v. Eardly, 49 
 J. P. 551. 
 
 By 8. 864, post, a magistrate cannot now try summarily 
 b charge of assault if either the person aggrieved or the 
 accused objects thereto. 
 
 I.. 
 
268 
 
 RAPE AND PROCURING ABORTION. [Sees. 266.288 
 
 PART XXI. 
 RAPE AND PROCURING ABORTION. 
 
 • Dbfinition. 
 
 360. Rape ia the act of a man havinnr carnal knowledppe of a woman who 
 is not his wife without her consent, or with consent which haa been extorted 
 by threats or fear of bodily harm, or obtainld by personating the woman's hvs- 
 band, or by false and fraudulent repre^^Bitfttion as to the nature and quality of 
 the act. 
 
 2. No one under the age of foui ' 'en years can commit this offence. 
 
 "^. Carnal knowledge ia oo'...i, < upon penetration to any, even the 
 slightest degree, and even without i .> emission of seed. R. S. C. c. 174 
 fl. 22e." 
 
 Sub-section 3 no« ((umip a. 4a, in Part I. (amendment 
 of 1893). 
 
 The words in italics repi .uuce the Imperial Act 48 & 49 
 
 V. c. 69. s. 4. 
 
 Punishment. 
 
 207. Every one who commits rape is guilty of an indictable offence and 
 liable to suffer death, or to imprisonment for life. R. S. C. c. 162, s. 37, 
 24-25 V. c. 100, 8. 48 (Imp.). 
 
 The repealed section enacted a minimum punishment 
 of seven years. 
 
 Attempt. 
 
 868. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who attempts to commit rape. R. S. C. c. 162, s. 38. 
 
 The repealed section enacted a minimum punishmeut 
 of two years. 
 
 Bape and attempt to commit rape are not triable pt 
 quarter sessions, s. 640. See appendix to 2nd ed:!, of tLic 
 book for a note on rape by Greaves. 
 
 Indictment. — that A. B. on in and upon 
 
 one 0. D., a woman, unlawfully and violently did make an 
 assault and her the said G. D. violently and without her 
 consent unlawfully did ravish and carnally know. 
 
 Averment of woman's age unnecessary: 2 Bishop, Ci. 
 Proc. 954. 
 
Sec 268] 
 
 ATTEMPT. 
 
 269 
 
 Rape has been defined to be the having unlawful and 
 carnal knowledge of a woman, by force, and against her 
 will: 1 Russ. 904. 
 
 To constitute the offence there must be penetration, or 
 res in re, in order to constitute the " carnal knowledge " 
 which is a necessary part of the offence But a very slight 
 penetration is sufiScient, though not attended with the 
 deprivation of the marks of virginity: 1 Buss. 912. 
 
 A boy under fourteen years of age is presumed by law 
 
 incapable to commit a rape, and therefore he cannot be 
 
 guilty of it, noi* of an assault with intent to commit it; and 
 
 no evidence is admissible to show that, in point of fact, he 
 
 could commit the offence of rape: aee R. v. Bead, 1 Den. 
 
 377. But on an indictment for rape he may be found 
 
 guilty of a comraon assault or of an indecent assault: s. 713; 
 
 B. V. Brimilow, 2 Moo. 122. A husband cannot be guilty of 
 
 ar&pe upon his wife, but he may be guilty as an accessory 
 
 before the fact or an aider and abettor to it: see B. v. 
 
 Audley (Lord), 3 St. Tr. 402. The offence of rape may be 
 
 committed though the woman at last yielded to the 
 
 violence, if such her consent was forced by fear of death or 
 
 by duress. 
 
 It will not be any excuse that the woman was first taken 
 with her own consent if she were afterwards forced against 
 bar will; nor will it be an excuse that she consented after 
 the fact, or that she was a common strumpet, or the con- 
 cubine of the ravisher. Circumstances of this kind, however, 
 though they do not necessarily prevent the offence from 
 amounting to a rape, yet are material to be left to the jury 
 inf^T ur of the party accused, especially in doubtful cases. 
 The notion that if the woman conceived it could not be a 
 rape, because she must, in such case, have consented, 
 appears to be quite exploded: 1 Buss. 905. 
 
 Upon the trial of an indictment for rape upon an idiot 
 girl the proper direcuon to the jury is that if they are 
 satisfied that the girl was in such a state of idiocy as to 
 
 iii;>^x 
 
270 
 
 RAPE AND PROCURING ABORTION. 
 
 [Sec. 268 
 
 be incapable of expressing either consent or dissent, and 
 that the prisoner had connection with her without her 
 consent, it is their duty to find him guilty : B. v. Barratt, 
 12 Cox, 498. In B. v. Fletcher, 10 Cox, 248, the law was 
 80 given, but the evidence of non-consent was declared 
 insufficient. The accused upon such an indictment may 
 now be found guilty of the offence provided for in s. 189, 
 ante, if the evidence warrants it, s. 713. 
 
 If a woman is incapable of resisting it is no defence 
 that she did not resist : B. v. Fletcher, 8 Cox, 131, Bell, 
 63 ; B. V. Camplin, I Den. 89 ; B. v. Flattery, 18 Cox 
 888 ; B. V. Cardo, 17 0. B. 11. If a man has or attempts 
 to have connection with a woman while she is asleep it is 
 no defence that she did not resist, as she is then incapable 
 of resisting. The man can' therefore be found guilty of a 
 rape, or of an attempt to commit a rape: B. v. Mayers, 
 12 Cox, 311 ; B. V. Young, 14 Cox, 114. 
 
 It is clear that the party ravished is a competent wit- 
 ness. But the credibility of her testimony must be left to 
 the jury, upon the circum8t£.nces of fact which concur with 
 that testimony. Thus if she be of good fame ; if she 
 presently discovered the offence and made search for the 
 offender; if she showed circumstances and signs of the 
 injury, whereof many are of that nature that women only 
 are proper examiners ; if the place where the act was done 
 were remote from inhabitants or passengers ; if the party 
 accused fled for it ; these, and the like, are concurriDg 
 circumstances which give greater probability to her evi. 
 dence. But if, on the other hand, the witness be of evil 
 fame, and stand unsupported by others ; if, without being 
 under the control or the influence of fear, she concealed 
 the injury for any considerable time after she bad the 
 opportunity of complaining ; if the place where the fact ia 
 alleged to have been committed was near to persons by 
 whom she might probably have been heard, and yet she 
 made no outcry ; if she has given wrong description s of the 
 
 Sec. 268] 
 
 place; these, 
 though not c 
 feigned : 1 Bi 
 
 The ohan 
 may be impen 
 general light 
 with other pei 
 
 In B. V. H 
 ness box was 
 connection wil 
 before had ooi 
 The court rule 
 qaestion. In 
 a witness to pr 
 aboat a year b 
 court ruled tl 
 These rulings 
 
 y 
 
 Although 
 particular acts 
 not answer the 
 she deny it, cal 
 croft, 11 Cox, 4 
 
 But she ma 
 connection wit! 
 nesees may be ( 
 &P. 562; B.v 
 Lead. Cas. 128. 
 
 On the tria 
 the defence beii 
 she denied on 
 with a third per 
 ined to contradi 
 to cases of rape, 
 assaults in the i 
 Holmes, 12 Cox 
 
Sec 268] 
 
 ATTEMPT. 
 
 271 
 
 place ; these, and the like circumstanoes, afford a strong 
 though not conclusive presumption that her testimony is 
 feigned: 1 Buss. 692. 
 
 The character of the prosecutrix as to general chastity 
 may be impeached by general evidence, as by showing her 
 general light character, etc., but evidence of connection 
 with other persons than the prisoner cannot be received. 
 
 In B. V. Hodgson, B. & B. 211, the woman in the wit- 
 ness box was asked : Whether she had not before had 
 connection with other persons, and whether she had not 
 before had connection with a particular person (named). 
 The court ruled that she was not obliged to answer the 
 question. In the b. me case the prisoner's counsel offered 
 a witness to prove that the woman had been caught in bed 
 aboat a year before this charge with a young man. Tbe 
 court ruled that this evidence could not be received. 
 These rulings were subsequently maintained by all the 
 
 Although you may cross-examine the prosecutrix as to 
 particular acts of connection with other men (and she need 
 not answer tbe question unless she likes), you cannot, if 
 fibe deny it, call witnesses to contradict her : B. v. Cock- 
 croft, 11 Cox, 410 ; B. V. Lalibert^, 1 S. C. B. 117. 
 
 But she may be cross-examined as to particular acts of 
 connection with the prisoner, and if she denies them wit- 
 nesees may be called to contradict her : B. v. Martin, 6 C. 
 « P. 562 ; B. V. Biley, 16 Cox, 191, 18 Q. B. D. 481, Warb. 
 Lead. Cas. 128. 
 
 On tbe trial of an indictment for an indecent assault, 
 the defence being consent on the part of the prosecutrix, 
 she denied on cross-examination having had intercourse 
 with a third person, S. Held, that S. could not be exam- 
 ined to contradict her upon this answer. This rule applies 
 to cases of rape, attempts to commit a rape, and indecent 
 assaults in the nature of attem pts to commit a rape : B. v. 
 Holmes, 12 Cox, 137. 
 
 I I 
 
272 
 
 RAPE AND PROCURING ABORTION. 
 
 [Sec. 26g 
 
 It is true rape is a most detestable crime, and there- 
 fore ought severely and impartially to be punished with 
 death, but it must be remembered that it is an accusation 
 easily to be made and hard to be proved, and harder to be 
 defended by the party accused though never so innocent : 
 1 Hale, 634. 
 
 Upon an indictment under section 267, the jury may 
 f find the prisoner guilty of an attempt to commit rape under 
 j s. 268; R. v. Hapgood, 11 CoX, 471 ; or may Und a verdict 
 ■ of common assault, or indecent assault. 
 
 Under s. 268, for an assaui ^ with intent to commit rape 
 the indictment may be as follows : in and upon one 
 
 A. B., a woman (or girl), unlawfully did make au assault, 
 with intent her, the said A. B., violently and unlawfully with- 
 out her consent, to ravish and carnally know. ' (Add a 
 count for a common assault), though it is not necessary. 
 
 If, upon trial for this offence, the offence under s. 867 be 
 proved the defendant is not therefore entitled to an acquit- 
 tal, 8. 712, post. 
 
 On an indictment for an assault with intfat to commit 
 a rape Patteson, J., held that eviciance of ihe prisoner 
 having, on a prior occasion, taken liberties with the prose- 
 cutrix >:* *^ot receivable to show the prisoner's intent; 
 a' V "er to convict of assault with intent to com- 
 
 mit n. ' ^ ^ T must be satisfied, not only that the 
 prisoner iL " i io gratify his passion on the person of 
 the prosecutri :. but that he intended to do so at all events, 
 and notwithstanding any resistance on her part: R. v. 
 Lloyd, 7 C. & P. 318. 
 
 When a man is charged with rape all that the woman 
 I said to other persons in his absence shortly after the 
 ^ alleged offence is admissible in evidence : B. v. Wood, 14 
 Cox, 46 ; see E. v. Little, 15 Cox, 319. 
 
 In R. V. Gisson, 2 C. & K. 781, it was held that aa 
 acquittal on an indictment for a rape could not be su^^cesB- 
 fully pleaded to a subsequent indictment for an assault 
 
Sec 268] 
 
 ATTEMPT. 
 
 273 
 
 vfith intent to commit a rape,, becaut^e a verdict fox th«i 
 attempt to commit the ofifence could not be received on an 
 indictment charging the offence itself. But that case is 
 not now to be followed. The case of R. v. Dungey, 4 F. & 
 F. 99, is a clear authority that upon a trial for rape the 
 defendant may be found guilty of an attempt to commit it. 
 In fact there can now be no doubt upon this ; s. 711, post, is 
 clear. See cases cited under that section. 
 
 An assault with intent to commit rape is very different 
 from an assault with intent to have an improper connec- 
 tion. The former is with intent to have connection by 
 force and against the will of the woman : B. v. Stanton ^ 
 1 G. & K. 416 ; R. v. Wright, 4 F. & F. 967 ; R. v. Rudr 
 land, 4 F. & F. 495 ; R. v. Dungey, 4 F. & F. 99. 
 
 An indictment for an attempt to commit rape is always 
 in the form of an assault with intent to commit rape, as in 
 R.V. Riley, 16 Cox, 191, for instance. And in R. v. Dungey, 
 ui)t supra, the judge charged the jury that they could, on 
 an indictment for rape, find the prisoner guilty of an assault 
 with intent to commit rape. 
 
 In this Code, however, a difference is made between an 
 attempt to commit an offence and an assault with intent to. 
 commit it ; ss. 175-260. 
 
 In a case of John v. R., in British Columbia, upon ar 
 writ of error, the court held that, upon an indictment for 
 rape, the prisoner had been lawfully convicted of an assault' 
 with intent to commit rape. That decision was upheld b j 
 the Supreme Court : John v. R., 16 S. C. R. 884. 
 
 In R. V. Wright, 4 F. & F. 967, the prisoner was in- 
 dicted for rape and for assault with intent to commit rape. 
 Under ss. 626 and 713, post, there is not the least room to 
 doubt that this can now be done, whatever doubts may have 
 existed in that case. 
 
 In a case of rape the counsel for the prosecution should 
 uot tell the jury that to acquit the prisoner is to find the 
 
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 274 RAPE AND PROCURING ABORTION. [Sees. 269, 270 
 
 Woman guilty of perjury : R. v. Rudland, and R. v. Puddiok 
 4 P. & F. 496, 497. 
 
 On trial for rape evidence was that of a woman alone 
 which, in view of previous admissions and the circum- 
 stances, was unsatisfactory : Held, evidence was properly 
 submitted to jury, but court directed that attention of 
 Executive should be called to the case : R. v. Lloyd, 19 
 0. R. 352. ' 
 
 What is sufficient evidence ? R. v. Bedere, 21 0. R. 189. 
 
 Cabnallt Knowing a Gibi. Undxb Foubtekk 
 
 S00> Every one is guilty of an indictable offence and liable to imprison- 
 'ment for life, and to be whipped, who carnally knows any girl under the age of 
 fourteen years, not being his wife, whether he believes her to be of or above that 
 'age or not. 63 V. c. 37, s. 12 (Amended). 48-49 V. c. 69, s. 4 (Imp.). 
 
 The repealed section enaicted a minimum punishment of 
 five years ; see remarks and form of indictment under next 
 section. 
 
 The words in italics are not in the English Act. They 
 are unnecessary. The girl thore must be under thirteen. 
 Proof of penetration is sufficient : R. v. Marsden, 17 Cox, 
 297. 
 
 Attekft. 
 
 870. Every one who attempts to have unlawful carnal knowledge of 
 any girl under the age of fourteen years is guilty of an indictable offence and 
 liable to two years' imprisonment, and to be whipped. 63 V. c. 37, a. 12. 
 48-49y.o.69, 8. 4(Imp.). 
 
 See 8. 685 as to evidence of young children in trials 
 under these two sections. This section 270 has no other 
 effect but to reduce the punishment, which, without it, 
 would be seven yeacs' imprisonment, s. 628. 
 
 Indictment under «. 269. — in and upon one A. N., 
 
 a girl under the age of fourteen years, to wit, of the age of 
 twelve years, unlawfully did make an assault, and her, the 
 said A. N., then and there did unlawfully and carnally know. 
 
 The evidence is the same as in rape, with the exception 
 that the consent or non-consent of the girl is immaterial 
 independently of the enactment contained in s. 261. Set 
 B. V. Brice, 7 Man. L. R. 627. 
 
 Sees. 271, 2 
 
 Upon 
 the jury 
 common 
 Den. 377 
 14 Cox, 4i 
 
 Under 
 indicted ui 
 charged, il 
 101;R. V. 
 cannot be < 
 551 
 
 An indi 
 under four! 
 Cox, 127. 
 
 Indictm 
 under fourt 
 the said J., 
 carnally kr 
 general verc 
 Case, 7 Man 
 
 Ki 
 
 »71« Ever} 
 
 ment for life wh 
 
 being, in such a 
 
 child had been h 
 
 2. No one it 
 
 considers necessa 
 
 causes the death 
 
 See 88. 2 
 R- V. Haudli 
 verdict for 
 indictment ul 
 enactment tc 
 
 878. Every! 
 
 ment for life wj 
 
 whether she is oJ 
 *» taken by hetT 
 
Seoa. 271, 272] 
 
 KILLING CHILD IN WOMB. 
 
 275 
 
 Upon the trial of an indictment under these olanses 
 tbe jury may, under s. 713, find the defendant guilty of a 
 common assault, or an indecent assault : B. v. Bead, 1 
 Den. 377 ; B. v. Connolly, 26 U. C. Q. B. 317 ; B. v. Boadley, 
 U Cox, 463; even if the girl assented: s. 261, ante. 
 
 Under s. 711, post, the defendant may be convicted, if 
 indicted under s. 269, of an attempt to commit the offence 
 charged, if the evidence warrants it : E. v. Byland, 11 Cox, 
 101; B. v. Gatherall, 13 Cox, 109; but a boy under fourteen 
 cannot be convicted of such attempt : B. v. Waite, 17 Cox, 
 554. 
 
 An indictment for rape still lies for ravishing a girl 
 under fourteen : B. v. Dicken, 14 Cox, 8 ; B. v. Batcliffe, 15 
 Cox, 127. 
 
 Indictment that prisoner in and upon one J., a girl 
 under fourteen, feloniously did make an assault, and her, 
 the said J., then and there feloniously did unlawfully and 
 carnally know and abuse, etc; evidence of consent; 
 general verdict of guilty affirmed : B. v. Chisholm, Jacobs' 
 Case, 7 Man. L. B. 613. 
 
 Killing Child in his Mothbr's Womb. {New), 
 
 S71t Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who causes the death of any child which has not become a human 
 being, in such a manner that he would have been guilty of murder if such 
 child had been bom. 
 
 2. No one is guilty of . . offence who, by means which he in good faith 
 considers necessary for the preservation of the life of the mother of the child, 
 causes the death of any such child before or during its birth. 
 
 See ss. 219 & 239 ante : B. v. West, 2 C. & K. 784 ; 
 B. V. Handley, 13 Cox, 79. This is a new offence. No 
 verdict for concealment of birth can be given upon an 
 indictment under this section, in the absence of an express 
 enactment to allow it. 
 
 Pboodbino Abortion. 
 
 SY%« Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who, with intent to procure the miscarriage of any woman, 
 whether she is or is not with child, unlawfully administers to her or causes to 
 be taken by her any drug or other noxious thing, or unlawfully usas any 
 
876 
 
 RAPE AND PROCURING ABORTION. [Sees. 273, 27t 
 
 instrument or other means whatsoever with the like intent. I^ S, C. o. 162 
 8.47. 24-26 V. 0. 100, 8. 68 (Imp.). 
 
 Woman Pboocbino hkr own Misoabriaok. 
 9T3 Every woman is guilty of an indictable offence and liable to sevea 
 years' imprisonment who, whether with child or not, unlawfully administers to 
 herself or permits to be administered to her any drug or other noxious thing, 
 or unlawfully uses on herself or permits to be used on her any instrument or 
 other means whatsoever with intent to procure miscarriage. R. S. C. o. 162 
 8. 47 {Amended). 24-26 V. a 100, s. 68 (Imp.). 
 
 The words in italics are new. 
 
 SUPFLTINO MXANS OF PbOOCBINO ABOBTION. 
 
 2T4* Every one is guilty of an indictable offence and liable to two years'' 
 imprisonment who unlawfully supplies or procures any drvig or ether noxious 
 thing, or any instrument or thing whatsoever, knowing that the same is 
 intended to be unlawfully used or employed with intent to procure the mis- 
 carriage of any woman, whether she is or is not with child. R. S. C. c. 162 
 8. 48. 24-26 v. c. 100, s. 69 (Imp.). 
 
 Section 273, as it reads, is an absurdity. It ought to 
 read as in the English Act, and s. 47, c. 162, B. S. C., 
 " Every woman being with child." 
 
 Indictment for woman administering poison to her- 
 self, with intent or, etc. that C. D., late of 
 on at and being then with child, with intent 
 to procure her own miscarriage, did unlawfully administer 
 to herself one drachm of a certain poison {or noxious thing) 
 called (or did unlawfully use a certain instrument 
 or means) to wit. 
 
 Indictment for administering poison to a woman, 
 
 with intent to procure abortion.-^ that C. D. on 
 
 unlawfully did administer to {or cause to he taken 
 
 by) one S. P. one ounce weight of a certain poison, called 
 
 {or noxious thing called ) with intent then 
 
 and thereby to cause the miscarriage of the said S. P. 
 
 Indictment for using instrument with the like intent, 
 — unlawfully did use a certain instrument called a 
 
 upon the person of one S. P., with intent then and 
 thereby to cause the miscarriage of the said S. P. 
 
 In order to constitute an offence under s. 273, as it vas 
 in the repealed clausa, the woman must be with child, 
 
Sec. 274] 
 
 ABORTION. 
 
 m 
 
 though Dot necessarily quick with child. The t)oison 6i 
 other noxioas thing must have been administered, or the 
 instrument used, with the intent to procure the mis- 
 carriage. It must be proved, according to the fact stated 
 in the indictment, that the woman administered to herself, 
 etc., or that the defendant administered, etc., or caused to 
 be taken, etc., the drug, as therein stated, and thajb the 
 drug was noxious, or that the defendant used the instru- 
 ment, or other means, mentioned in the manner described 
 in the indictment : 1 Burn, 14. 
 
 Where the prisoner gave the prosecutrix the drug for 
 the purpose of procuring abortion, and the prosecutrix 
 took it for that purpose in the prisoner's absence, this 
 ^vas held to be a causing of it to be taken within s. 272 : 
 B. V. Wilson, Dears. & B. 127 ; R. v. Farrow, Dears. & B. 
 164. » • 
 
 A man and woman were jointly indicted for feloniously 
 
 administering to C. a noxious thing to the jurors unknown 
 
 with intent to procure miscarriage. C, being in the 
 
 family way, went to the male prisoner, who said he wonld 
 
 give her some stuff to put her right, and gave her a light 
 
 coloured medicine, and told her to take two spoonfuls till 
 
 she became in pain. She did so and it made her ill. She 
 
 then went to him again, and he said the safest course 
 
 \fould be to get her a place to go to. He told her that he 
 
 had found a place for her at L., and gave her some more 
 
 of the stuff, which he said would take effect when she got 
 
 there. They went together to L. and met the female 
 
 prisoner, who said she had been down to the station 
 
 several times the day before to meet them. G. then began 
 
 to feel pain and told the female prisoner. Then the male 
 
 prisoner told what he had given C. They all went home 
 
 to the female prisoner's, and the male prisoner then gave 
 
 C. another bottle of similar stuff in the female prisoner's 
 
 presence, and told her to take it like the other. She did 
 
 so and became very ill, and the next day hftd a miseatriage, 
 
 W 
 
 t:» 
 
 liiii 
 
 
V 
 
 278 
 
 RAPE AND PROCURING ABORTION. 
 
 [Sec. 274 
 
 the female prisoner attending her and providing all things. 
 Held, that there was evidence that the staff administered 
 was a noxious thing within the 24 & 26 V. c. 100, s. 58 
 (Imp.)* Also that there was evidence of the female being 
 an accessory before the fact, and a party, therefore, to the 
 administering of the noxious thing : B. v. HoUis, 12 Cox, 
 468. 
 
 Under s. 272, the fact of the woman being pregnant is 
 immaterial : B. v. Goodhall, 1 Den. 187. But the prisoner 
 must have believed her to be pregnant, otherwise there 
 could be no intent under the section. Under an indictment 
 for this offence the prisoner may be convicted of an attempt 
 to commit it : s. 711 ; see B. v. Cramp, 14 Cox, 890 & 401, 
 and Warb. Lead Cas. 120. 
 
 Indictment under 8. 274--^ unlawfully did procure 
 {suppli^ or procure) a large quantity, to wit, two ounces of 
 a certain noxious thing called savin, he the said (defendant) 
 then well knowing that the same was then intended to be 
 unlawfully used and employed with intent to procure the 
 miscarriage of one A. N. 
 
 The drug supplied must be a poison or noxious thing, 
 and the supplying an innoxious drug, whatever may be 
 the intent of the person supplying it, is not an offence 
 against the enactment : B. v. Isaacs, L. & C. 220. 
 
 In order to constitute the offence within the meaning of 
 this section it is not necessary that the intention of em- 
 ploying the noxious drug should exist in the mind of the 
 woman ; it is sufficient if the intention to procure abortion 
 exists in the mind of the defendant : B. v. Hillman, L. &; 
 C. 843. 
 
 The prisoner ma}/ be convicted of an attempt to commit 
 this offence, upon an indictment under this section, s. 711. 
 
 Supplying a noxious thing with the intent to procure 
 abortion is an offence under this section, whether the 
 woman is pregnant or not : B. v. Titley, 14 Cox, 502. 
 
Sec 276] 
 
 BIGAMY. ETC. 
 
 27^ 
 
 Giving oil of savin to procure abortion is indictable : 
 B. V. Stitt, 80 U. C. C. P. 80. 
 
 lu B. V. Dale, 16 Cox, 708, upon the trial cf an ofifence, 
 as provided for in s. 272, ante, evidence was admitted that 
 at various times, before and after the offence charged, the 
 prisoner had caused other miscarriages by similar means. 
 
 See R. V. Whitchurch, 16 Cox, 748, 24 Q. B. D. 420, on 
 a conspiracy to procure •abortion. 
 
 PART XXII. 
 
 OFFENCES AGAINST CONJUGAL AND PARENTAL 
 RIGHTS-BIGAMY-ABDUOTION. 
 
 Dbpinition. 
 8T5» Bigamy is— 
 
 (a) The act of a person who, being married, goes through a form of marriage* 
 with any other person in ony part of the world ; or 
 
 (b) The afit of a person who goes through a form of marriage in ajip parV 
 oftht world with any person whom he or she knows to be married ; or 
 
 (c) The act of a person who goes through a form of marriage with more thaor 
 one person simultaneously or on the same day. R. S. C. c 37, s. 10. {The Act 
 cited is on RaUxmyt). 
 
 2. A "form of marriage " is any form either recognized as a va!id form by 
 the law of the place where it is gone through, or though not so recognized, 
 is such that a marriage celebrated there in that form is recognized as binding 
 by the law of the place where the offender is tried. Every form shall for the 
 purpose of this section be valid, notwithstanding any act or default of the per- 
 son charged with bigamy, if it is otherwise a valid form. The fact that ther 
 parties would, if unmarried, have been incompetent to contract marriage shall 
 be no defence upon a prosecution for bigamy. 
 
 3. No one commits bigamy by going through a form of marriage — 
 
 (a) // he or she in good faith and on reasonable grounds believes his wife or 
 htr kuthand to be dead ; or 
 
 (b) If his wife or her husband has been continually absent for seven years 
 then last past and he or she is not proved to have known that his wife or her 
 busband was alive at any time during those seven years ; or 
 
 (c) If he or she haa been divorced from the bond of the first marriage ; or 
 
 m 
 
$80 
 
 BIGAMY-ABDUCTION, ETC. 
 
 [See. 276 
 
 to I 
 
 (d) If the former marrisge has been declared void by a court of competent 
 Jurisdiction. R. 8. C. c. 161, a. 4. 
 
 4. No person shall be liable to be convicted of bigamy in respect of having 
 gone through a form of marriage in a place not in Canada, unless such person, 
 being a British subject resident in Canada, leaves Canada with intent to (^o 
 through such form of marriage. R. S. C. c. 161, s. 4. 
 
 The words in italics settle the law as it was held to be 
 heretofore by the decision in B. v. Tolson, 16 Cox, C29, 
 23 Q. B. D. 168, Warb. Lead. Cas.. 72. 
 
 * 
 
 As to the competency of a colonial legislature to punish 
 
 bigamy committed outside of the colony, see MacLeod v. 
 
 The Attorney-General of New South Wales, 17 Cox, 341, 
 
 [1891] , A. C. 456 ; and K. v. Brierly, 14 0. R. 625 ; R. v. 
 
 Topping, 7 Cox, 103. 
 
 Punishment. 
 
 ST6* Every one who commits bigamy is guilty of an indictable (>J:ence 
 and liable to seven years' imprisonment. 
 
 2. Every one who commits this offence after a previous conviction for a 
 like offence shall be liable to fourteen years' imprisonment. R. S. C. c. 161, 
 8. 4. 53 V. 0. 37, ss. 10, 11. 24-26 V. o. 100, s. 57 (Imp.). 
 
 .Sub-section 2 is new. 
 
 Indictment. — that J. S. on at the parish of in 
 the did marry one A. C, spinster, and her the said 
 
 A. C. then and there had for his wife ; and that the said 
 J. S. afterwards, and whilst he was so married to the said 
 A. C, as aforesaid, to wit, on the day at 
 
 unlawfully did marry and take to wife one M. Y., and to 
 her the said M. Y. was then and there married, the said 
 A. C, his former wife, being then alive. 
 
 Bigamy is the offence of a husband or wif« marrying 
 again during the life of the first wife or husband. It is 
 not strictly correct to call this ofifence bigamy ; it is more 
 properly denominated polygamy, i. e., having a plurality of 
 -wives or husbands at once, while bigamy according to the 
 canonists consists in marrying two virgins successively, 
 one after the death of the other, or in once marrying a 
 widow. 
 
Sec. 276] 
 
 BIGAMY. 
 
 281 
 
 Upon an indictment for bigamy, the proseeutor must 
 prove: let, the two marriages; 2nd, the identity of the 
 parties : Bosooe, 294. 
 
 The law will not, in cases of bigamy, presume a mar- 
 riage valid to the same extent as in civil cases: B. v. 
 Jacobs, 1 Moo. 140. 
 
 The first wife or husband is not a competent witness 
 to prove any part of the case, but the second wife or hus- 
 band is after the first marriage is established, for she or he 
 is not legally a wife or husband : R. v. Ayley, 15 Cox, 328. 
 
 The first marriage must be a valid one. The time at 
 which it was celebrated is immaterial, and whether cele- 
 brated in this country or in a foreign country is also imma- 
 terial : Archbold, 883. 
 
 If celebrated abroad it may be proved by any person 
 vtho was present at it ; and circumstances should also be 
 proved from which the jury may presume that it was a 
 valid marriage according to the laws of the country in 
 which it was celebrated. Proof that a ceremony was per- 
 formed by a person appearing and officiating as a priest, 
 and that it was understood by the parties to be the mar- 
 riage ceremony, according to the rites and customs of the 
 foreign country, would be sufficient presumptive evidence 
 of it so as to throw upon tbe defendant the onus of impugn- 
 ing its validity: B. v. C^u^^swell, 13 Cox, 126; see B. v. 
 Savage 13 Cox 178 ; and R. v. Griffin, 14 Cox, 308 ; B. 
 V. Brierly 14 0. B. 625. 
 
 In the case of B. v. McQuiggan, 2 L. C. B. note, 346, 
 tbe proof of the first marriage was attempted to be made 
 by the voluntary examination of the accused, taken before 
 Thomas Clancy the committing magistrate, but this being 
 irregular and defective its reception was successfully ob- 
 jected to by the counsel for the prisoner. The Crown then 
 tendered the evidence of Mr. Clancy as to the story the 
 prlBooer told him when taken before him after his arrest. 
 This the Court held to be good evidence, and allowed it to 
 
 >■:» 
 

 282 
 
 BIGAMY-ABDUCTION, ETC. 
 
 [Sec. 27ft 
 
 go to the jury ; this was the only evidence of the first mar- 
 riaf^e, the prisoner having on that occasion, as Mr. Clancy 
 deposed, confessed to him that he was guilty of the offence 
 as charged, and at the same time expressed his readiness 
 to return and live with his first wife. The second marriage 
 was proved by the evidence of the olerg}'man who solem- 
 nized it. 
 
 In B. V. Creamer, 10 L. C. B. 404, upon a case reserved, 
 the Court of Queen's Bench ruled, that upon the trial of an 
 indictment for bigamy the admission of the first marriage 
 by the prisoner, unsupported by other testimony, is suffi- 
 cient to support a conviction. 
 
 In B. V. Newton, 2 M. & Bob. 503 : and B. v. Sim- 
 monsto, 1 C. & K. lo4, it was held that the prisoner's 
 admissions, deliberately made, of a prior marriage in a 
 foreign country are sufficient evidence of such marriage, 
 without proving it to have been celebrated according to the 
 law of the country where it is stated to have taken place : 
 contra, B. v. Savage, 13 Cox, 178 ; B. v. Bay, 20 0. E. 212. 
 
 A first marriage, though voidable, if not absolately 
 void will support an indictment for bigamy : Archbold, 886 : 
 see E. V. Kay, 16 Cox, 292. 
 
 As to the second marriage it is immaterial whether it 
 took place in Canada, or elsewhere, provided, if it took 
 place out of Canada, the defendant be a subject of Her 
 Majesty resident in Canada, whence he had left to commit 
 the offence. 
 
 The offence will be complete, though the defendant 
 assume a fictitious name at the second marriage : B. v. 
 Allison, E. & B. 109 ; E. v. Bea, 12 Cox, 190. 
 
 Though the second marriage would have been void, in 
 any case, as for consanguinity or the like, the defendant is 
 guilty of bigamy : B. v. Brawn, 1 C. & K. 144. 
 
 In E. V. Fanning, 10 Cox, 411, a majority of the judges 
 'qji the Irish Court of Criminal Appeal held, contrary to B. 
 
Sec. 276] 
 
 BIGAMY. 
 
 288 
 
 V,. Brawn, that to oonstitate the offence of bigamy the 
 second marriage must have been one which, but for the 
 existence of the previous marriage, would have been a valid 
 marriage, but the Court of Criminal Appeal, by sixteen 
 judges, in R v. Allen, 12 Cox, 193, Warb. Lead. Cas. 76, 
 since decided, as in B. v. Brawn, that the invalidity of the 
 second marriage, on account of relationship, does not pre- 
 vent its constituting the criue of bigamy. That is clearly 
 BO in Canada now by s. 275, ante. 
 
 It must be proved that the firs^ wife was living at the 
 time the second marriage was solemnized, which may be 
 done by some person acquainted with her and who saw her 
 at the time or afterwards : Archbold, 887. On a prosecu- 
 tion for bigamy it is incumbent on the prosecutor to 
 prove that the husband or wife, as the case may be, 
 was alive at the date of the second marriage. There is no 
 presumption of law of the continuance of the life of the 
 party for seven years after the date at which he or she was 
 proved to have been alive. The existence of the party at 
 an antecedent period may or may not afford a reasonable 
 inference that he or she was alive at the date of the second 
 marriage ; but it is purely a question of fact for the jury : 
 R. V. Lumley, 11 Cox, 274. 
 
 On the trial of a woman for bigamy, whose first husband 
 had been absent from her for more than seven years, the 
 jary found that they had no evidence that at the time of her 
 second marriage she knew that he was alive, but that she 
 had the means of acquiring knowledge of that fact, had she 
 chosen to make use of them. It was held that upon this 
 finding the conviction could not be supported : B. v. Briggs, 
 Dears. & B. 98. 
 
 On this last case. Greaves, 1 Buss., 270, note 1, 
 remarks: " The case was argued only on the part of the 
 prisoner, and the court studiously avoided determining on 
 which side the onus of proof as to the knowledge of the first 
 being alive lay, and yet the point seems very clear. 
 
 If 
 
284 
 
 BIGAMY^ABDUCTION, ETC. 
 
 [Sec. 27« 
 
 It is plain that the latter part of the section in the 9 Geo. 
 IV,o.81,8. 22, and in the new Act is in the nature of a proviBo. 
 Now no rule is better settled than that if an exception 
 comes by way of proviso, whether it occurs in a subsequent 
 part of the Act, or in a subsequent part of the same section 
 containing the enactment of the offence, it must be proved 
 in evidence by the party relying upon it. Hence it is that 
 no indictment for bigamy ever negatives the exceptions as 
 contained in the proviso, and hence it follows that the proof 
 of those exceptions lies on the prisoner; if it was otherwise, 
 the prosecutor would have to prove more than he has 
 alleged. Then the proviso in terms requires proof both of 
 the absence of the party for seven years, aoid that the pariy 
 shall not have been known by the prisoner to have been 
 living within that time, and consequently it lies on the 
 prisoner to give evidence of both; and as the Legislature 
 has required proof of both, it never could have been in- 
 tended that proof of the one should be sufficient evidence 
 of the other. When, however, the prisoner has given 
 evidence to negative his knowledge that the party is alive, 
 the onus may be thrown on the prosecutor to shew that be 
 had that knowledge ; and in accordance with this view it 
 the dictum of Willes, J., in B. v. Ellis, 1 F. and F. 809, 
 that 'if the husband has been living apart from his wife for 
 seven years, under such circumstances as to raise a proba- 
 bility that he supposed that she was dead when he was re- 
 married, evidence may be necessary that he knew bis first 
 wife was alive.' As to the manner in which the case should 
 be left to the jury, it should seem that the proper course is 
 to ask them whether they are satisfied that the prisoner 
 was married twice, and that the person whom he first married 
 was alive at the time of the second marriage ; and, if tbey 
 are satisfied of these facts, to tell them that it then lies 
 upon the prisoner to satisfy them that there was an absence 
 for seven years, and also that during the whole of those 
 seven years he was ignorant that his first wife was alive, 
 and that unless he has proved both those facts to their 
 
960.376] 
 
 BIGAMY. 
 
 285 
 
 gatisfaotion th«y ought to oonvict him. It is perfectly clear 
 that the question is not whether he knew that hia first wife 
 was alive at the time of the second marriage, for he may 
 hsTe known that she was alive within the seven years, and 
 yet not know that she was alive at the time of the second 
 marriage, and, if he knew that she was alive at any time 
 within the seven years, he ought to be convicted." 
 
 If it appears that the prisoner and his first wife had 
 lived apart for seven years before he married again mere 
 proof that the first wife was alive at the time of the second 
 marriage will not warrant a conviction, but some affirma- 
 tive evidence must be given to show that the accused was 
 aware of this fact : B. v. Curgenwen, 10 Cox, 152 ; B. v. 
 Fontaine, 15 L. C. J. 141 ; see B. v. Jones, 15 Cox, 284. 
 
 In 1863 the prisoner married Mary Anne Bichards, 
 lived with her about a week and then left her. It was not 
 proved that he had since seen her. In 1867 he married 
 Elizabeth Evans, his first wife being then alive. The 
 court left it to the jury to declare if they were satisfied 
 that the prisoner knew his first wife was alive at the time 
 of the second marriage, and ruled that positive proof on 
 that point was not absolutely necessary. The prisoner 
 was found guilty, and on a case reserved the conviction 
 was affirmed: B. v. Jones, 11 Cox, 358. 
 
 In R. V. Horton, 11 Cox, 670, Cleasby, B., summed up 
 as follows : " It is submitted that, although seven years had 
 not passed since the first marriage, yet if the prisoner 
 reasonably believed (which pre-supposes proper grounds of 
 belief) that his first wife was dead he is entitled to an 
 acquittal. It would press very hard upon a prisoner if 
 ander such circumstances he could be convicted, when it 
 appeared to him as a positive fact that his first wife was 
 dead. The case of B. v. Turner, 9 Cox, 145, shows that 
 this was the view of Baron Martin, a judge of as great ex- 
 perience as any on the bench now, and I am not disposed 
 to act contrary to his opinion. You must find the prisoner 
 
 «^ 
 
286 
 
 BIGAMY-ABDCUTION, ETC. 
 
 [Sec. 276 
 
 guilty, unless you think that he had fair and reasonable 
 grounds for believing, and did honestly believe, that his first 
 wife was dead." The jury returned a verdict of guilty, and 
 the judge sentenced the prisoner to imprisonment for three 
 days, remarking that he was quite satisfied with the verdict 
 and that he should inflict a light sentence, as he thought the 
 prisoner really believed his first wife was dead although he 
 was not warranted in holding that belief : see B. v. Moore 
 18 Cox, 544. 
 
 On an indictment for bigamy a witness proved the first 
 marriage to have taken place eleven years ago, and that 
 the parties lived together some years, but could not sav 
 how long, it might be four years. Wightman, J., said: 
 "How is it possible for any man to prove a negative? 
 How can I ask the prisoner io prove that he did not know 
 that his wife was living ? " There is no evidence that the 
 prisoner knew that his wife was alive, and there is no 
 offence proved : B. v. Heaton, 3 F. & F. 819. 
 
 In B. V. McQuiggan, 2 L. G. B. 840, the court ruled 
 that in an indictment for bigamy, under the Canadian 
 Statute, it is absolutely necessary, when the second mar- 
 riage has taken place in a foreign country, that the indict- 
 ment should contain the allegations that the accused is a 
 TBritish subject, that he is or was resident in this Province, 
 and that he left the same with intent to commit the offence: 
 sec also B. v. Pierce, 18 0. B. 226. 
 
 On a trial for bigamy the Crown having proved the 
 prisoner's two marriages it is for him then to prove the 
 absence of his first wife during seven years preceding the 
 second marriage ; and when such absence is not proved it 
 is not incumbent on the Crown to establish the prisoner's 
 knowledge that the first wife was living at the time of the 
 second marriage : B. v. Dwyer, 27 L. C. J. 201 : see R. v. 
 Willshire, 14 Cox, 541. 
 
 The prisoner was convicted of bigamy under 82 & 88 Y. 
 c. 20, 8. 58. The first marriage was contracted in Toronto 
 
Sees. 277, 278] 
 
 FEIGNED MARRIAGES. 
 
 287 
 
 and the second in Detroit. The judge at the trial directed 
 the jury that if prisoner was married to his first wife in 
 Toronto and to his second in Detroit they should find him 
 gaiity. Held, a misdirection, and that the jury should have 
 been told, in addition, that before they found him guilty 
 they ought to be satisfied of his being, at the time of his 
 eecond marriage, a subject of Her Majesty resident in 
 Canada, and that he had left Canada with intent to com- 
 mit the offence. Held, also, that it was incumbent on the 
 Crown to prove these facts. Quoere, per Wilson, C.J., 
 whether the trial should not have been declared a nullity : 
 R. V. Pierce, 13 0. R. 226. 
 
 Feiqnkd Mabbiaoes. 
 
 fSYT* Every one ia guilty of an indictable offence and liable to seven years' 
 imprisonment who procures a feigned or pretended marriage between himself 
 and any woman, or who knowingly aids and assists in procuring such feigned 
 or pretended marriage. R. S. G. c. 161, s. 2. 
 
 The punishment was two years by the repealed section. 
 The alteration gives twelve challenges instead of four. 
 
 See s. 684, post, as to evidence on a prosecution under 
 this enactment. 
 
 Under the repealed statute any offence under the 
 corresponding section had to be prosecuted within a year : 
 that limitation of time has not been re-enacted. 
 
 This offence was first created by 49 V. c. 52, s. 8. The 
 male offender only is punishable. 
 
 POLYOAMY. 
 
 fS78> Every one is guilty of an indictable offence and liable to imprison. 
 ment for five years, and to a fine of five hundred dollars, who — 
 
 (a) Practices, or, by the rights, ceremonies, forms, rules or customs of any 
 denomination, sect or society, religious or seoular, or by any form of contract, 
 or by mere mutual consent, or by any other method whatsoever, and whether 
 in a manner recognized by law as a binding form of marriage or not, agrees or 
 consents to practise or enter into 
 
 (i) any form of polygamy ; 
 
 (ii) any kind of conjugal union with more than one person at the same 
 time; 
 
 (iii) what among the persons commonly called Mormons is known as 
 spiritual or plural marriage ; 
 
Mt 
 
 il ! ' 
 
 28a 
 
 \ 
 
 BIGAMY-ABDUCTION, ETO. 
 
 [Seof 1179,280 
 
 (iv) who lives, cohabits, or agrees or consents to live or .^bit, in 
 any kind of conjugal union with a person who is married to a;>.<i'.ier, or 
 with a person who lives or cohabits with another or others in any land of 
 conjugal union ; or 
 
 (6) Celebrates, is a party to, or assists in any such rite or oeremony which 
 purports to make binding or. to sanction any of the sexual relationships men- 
 tioned in paragraph (a) of this section ; or 
 
 (c) Procures, enforoen, enables, is a party to, or assists in the compliance 
 
 with or carrying out of, any such form, rule or custom which so purports ; or 
 
 {d) Procures, enforces, enables, is a party to, or assists in the execution of, 
 
 any such form of contract which so purports, or the giving of any such consent 
 
 which so purports. 6S V. o. 87, s. 11. . 
 
 As to evidence in trials for offences against this section: 
 see 8. 706, post. 
 
 See E. V. Labrie, M. L. B. 7 Q. 6. 211, where it was held 
 that mere cohabitation is not an offence punishable under 
 this enactment. Also The People v. Mosher 2 Parker 195. 
 In B. V. Liston, Toronto, April, 1893 (unreported), Armour, 
 G.J., also held that adultery is not indictable under the 
 above enactment. 
 
 Solemnization of Marbiaob Withot;t Adthobitt. 
 
 279. Every one is guilty of an indictable offence and liable to a line, or 
 to two years' imprisonment, or to both, who — 
 
 (a) Without lawful authority, the proof of which shall lie on him, solemn- 
 izes or pretends to solemnize any marriage ; or 
 
 (b) Procures any person to solemnize any marriage knowing that such 
 person is not lawfully authorized to solemnize such marriage, or knowingly aids 
 or abets such person in performing such ceremony. R. S. C. c. 161, a. 1. 
 4 Geo. IV. c. 76, s. 21 (Imp.). 
 
 Limitation two years, s. 551. There was none under 
 the repealed statute. 
 
 Indictment. — that A. B., on at 
 
 without lawful authority, did unlawfully solemnize (or 
 pretend to solemnize) a marriage between one C. D. and one 
 M.N. 
 
 See E. V. Ellis, 16 Cox, 469. 
 
 SOLEHNIZINO A MaRRIAQB CONTRART TO LaW. 
 
 SSO. Every one is guilty of an indictable offence and liable to a fine, or 
 to one year's imprisonment, who, being lawfully authorized, knowingly and 
 
Sees. 281, 282] 
 
 ABDUCTION. 
 
 28» 
 
 wilfully Bolemnizes any marriage in violation of the laws of the province ia 
 which the marriage is solemnized. B. S. C. c. 161, s. 3. 
 
 A limitation of two years has not been re-enacted. 
 
 Indictment. — that A. B., at on ■ being: 
 
 a clergyman of and lawfully authorized to marry, did 
 
 unlawfully solemnize a marriage between one G. D., and 
 one £. F., before proclamation of banns in violation of the 
 laws of the Province of in which the said marriage 
 
 was solemnized. 
 
 Abduotion. 
 
 2S1> Every one is guilty of an indictable offence and liable to fourteen^ 
 years' imprisonment who, with intent to marry or carnally know any woman, 
 whether married or not, or with intent to cause any woman to be married to or 
 carnally known by any other person, takes away or detains any woman of any 
 age against her will. R. S. C. o. 162, s. 43 {Amended), 24-25 V. c. 100« 
 6. 54 (Imp.). 
 
 The words in italics are new. 
 
 The words " by force " were inserted before " takes. 
 away " in the repealed clause ; see notes under next section. 
 
 Indictment. — unlawfully did take away {or de^ 
 
 tain) one A. 6., against her will, with intent her, the said 
 A. B., to marry {or ) (If the intent is doubtr 
 
 fd, add a count stating it to be to " carnally know," or to 
 cause her to be married to one iV. *Si., or to some persons 
 to the jurors unknown, or to cause her to be carnally 
 hown by, etc.) : 1 Burn, 12. 
 
 A verdict for assault or for an attempt to commit the^ 
 
 offence charged, may be given, if the evidence warrants it ; 
 
 8S.111, lis, post. 
 
 Abduotion. 
 
 382. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who, ivith intent to nuirry or carnally know any woman, or 
 with intent to cause any woman to bo married or carnally known by any 
 
 jwrson— 
 
 [a] from motives of lucre takes away or detains against her will any such 
 woman of any age who has any interest, whether legal or equitable, present or 
 future, absolute, conditional or contingent, in any real or personal estate, or 
 who is a presumptive heiress or co-heiress or presumptive next of kin to any 
 one having such interest ; or 
 Crim. Law— 19 
 
890 
 
 BIGAMY— ABDUCTION, ETC. 
 
 [Seo. 382 
 
 {p) fraudolelitly rilurca, takas aWajt or detaiiM any nioh wolnsn, beinr 
 under the age of twentfjr-one J^ears, out of the possession and against the will of 
 her father or mother, or of any other person having the lawful care or charge 
 of her, with intent to marry or eamally know her. 
 
 2. Every one eonvicted of any offenoe defined in this section is incapable 
 of taking any estate or interest, legal or equitable, in any real or personal 
 propei^ty of such woman, or in which she has any interest, or which comes to 
 her as such heiress, co^heiress or next of kin ; and if any such marriage takes 
 place such -property shall, upon such conviction, be settled in such manner as 
 any court of competent jurisdiction, upon any information at the instance of 
 the Attorney -General appoints. R. S. 0. c. 162, s. 42. 24-25 V. c. 100, s. 53 
 (Imp.). 
 
 The words in italics in s-s. (b) are a repetition. 
 
 " Attomdy-General " defined, s. 8. 
 
 On the trial of an indictment for an ofT^^nre under s^s. 
 (b) of this Motion, it is not necessary to prove that the 
 accused knew that the girl he abducted had an interest in 
 jftny property : R. v. Kaylor,; 1 Dor. Q. B. E. 364. 
 
 It is not necessary that an actual marriage or defile- 
 ment should take place. Under the first part of this sec- 
 tion, the taking or detaining must he from motives of lucre 
 and against the will of the woman, coupled with an intent 
 to marry or carnally know her or cause her to be married 
 or carnally known by any other person. 
 
 Indictment under (a). — from motives of lucre, did 
 unlawfully take away and detain ('* take away or detain ") 
 one A. N. against her will, she, the said A. N., then having 
 a certain present and absolute interest in certain real 
 estate {any interest, whether legal or equitable, present or 
 future, absolute, conditional or contingent in any real 
 or personal estate) with intent her, the said A. N., to marry 
 (or carnally know her, or cau»e her to be married or carnalbj 
 known by ). f^dd a count stating generally the nature 
 
 of *OMW part oftkt property and, if the intent be doubtjul, add 
 Counts varying the intent J See another form, in 3 Cbit 
 C. L. 818. 
 
 Indictment under (6).— fi-audtllefltly ftlltited {took 
 
 away or detained) one A. B.» out of the possesBion at 
 against the will of G. D., her father, sb«i the said A. B., 
 
Seo. 882] 
 
 ABDroTIoN. 
 
 then Mug ander the ,ge of tw«„., **' 
 
 Under the eecond part Zt "' "' '»'«'•) 
 
 i" the fraadnlent aiLmento/rt" ''*'■*'''■''' «''''«i«s 
 one ont of the p„,se».i„„ of or J.™? u"^*' '"""J" 
 parent or guardian, copied w,U T"°. ""* ""' °' her 
 carnally know her, or cause he" t be ' a^V" """'^ »' 
 known by another person, but, for tWaT"'" "' ""-""y 
 of lucre are mentioned, nor shonM ;7^ f"*' '"' """''Vm 
 .ga.n8t the will of the woman thlr'K '"""""'»'' 
 heiress, or such a woman as d«L,-KT?^ '''* "«»' •>« an 
 this section. *' described m th« first liaes of 
 
 The taking under the first nart «f «•• 
 agamst the will of the womarL^I •, " '""'O" ""»' be 
 although it be with her wm ' t ", /^ T,"" ""^ *•>«'• 
 fraud practised upon her the i •■ *' ^ "^^^^ by 
 for she cannot whilst underthe;"' ^^'*^^ "-eAot 
 «*red to be a free agent """"" "' '»"<' be con- 
 
 If the woman be taken away in th. « . • 
 her own consent, but afterwardsrl? * "' ""'»"«« »"h 
 offeuder, the offence is ZpLta 11?°^"''"'''"'' ""« 
 *e may from that time ZTol^T^ " ""' ~ "f-^-- 
 against her will as if she had neve i" *" u *''' *» '«' '»k«n 
 for, till the force was put lorh « »h ^^ °°"'''''' »' »"' 
 power: 1 Burn, 8. '^ "' '''« "M in her own 
 
 offe:~''"°*'*-^«^-''berwi,,,shy itself an 
 
 rt^'a?";tr:ra:\r:f''^''''-~s„ 
 
 for .f she were in force a th «1 ??'"? "'"^'^ « m. 
 f 'to time of the taking Td th. '''^''*''°«• ''« complete 
 *o™ the prowsion. of Z 'tatte bf h"'" " •"" '» •»»«- 
 '" ''•^"-^ <" «"« woman ?^^, cfta" s* "'"""'' »'« 
 
292 
 
 BIGAMY— ABDUCTION, ETC. 
 
 [Sec. 28» 
 
 m: 
 
 The second part of this section expressly contemplates 
 the case of a girl, under twenty-one, whose co-operation has 
 been obtained by influence over her mind, and who has been 
 taken out of the possession of her parent or guardian by 
 means of a fraud practised upon them and against their 
 will, or by force, against their will, but with her consent. 
 If a girl, under twenty-one, is taken away or detained 
 against her own will, or her consent is obtained through 
 fear, that case would be within the first part of this section. 
 The woman, though married, may be a witness against the 
 offender: Archbold, 700. 
 
 " If, therefore," says Taylor, on Evidence, par. 1236, 
 " a man be indicted for the forcible abduction of a woman 
 with intent to marry her, she is clearly a competent witness 
 against him if the force were continuing against her till the 
 marriage. Of this last fact also she is a competent witness, 
 and the better opinion seems to be that she is still com- 
 petent, notwithstanding her subsequent assent to the 
 marriage and her voluntary co-habitation; for otherwise,, 
 the offender would take advantage of bis own wrong." 
 
 Under s. 711 the prisoner may be found guilty of an 
 attempt to commit the offence charged and punished under 
 8. 528. 
 
 Under s. 713 the prisoner may be found guilty of an 
 assault, if the evidence warrants such finding. 
 
 Abduction— Girl under Sixteen. 
 
 S83* Every one is guilty of an indictable ofFence and liable to fire years' 
 imprisonment who unlawfully takes or causes to be taken any unmarried girl, 
 being under the age of sixteen years, out of the possession and against the will 
 of her father or mother, or of any other person having the lawful car« or 
 charge of her. 
 
 2. It it immaterial whether the girl is taken with her own eoruent or at her 
 ovm suggettion or not. 
 
 3. It it immaterial whether or not the offender believed the girl to be of or 
 above the age of sixteen. R. S. C. c. 162, s. 44 {Am,ended). 24-25 V. c. 100, 
 8. 65, and 48-49 Y. o. 69, s. 7 (Imp.). 
 
 Sub-sections. 2 and 3 are new enactments though not 
 new law. Fine, s. 958. 
 
 To pick up 
 not to take he 
 Priwner met a ^ 
 and induced her 
 '^^ere he seduc. 
 ^e then took J 
 returned home t 
 
 
Sec. 283] 
 
 ABDUCTION. 
 
 293 
 
 The intent to marry or carnally know is not an in|?re- 
 dient of this offence. The only intent which is material is 
 the intent to deprive the parent or legal guardian of the 
 possession of the child. No motives of lucre are neces- 
 sary. A woman may be guilty of this offence. 
 
 It is immaterial whether the girl consents or not, and 
 the taking need not be by force, actual or constructive : 
 R. V. Mankletow, 1 Russ. 954, Dears. 159. Where a 
 parent countenances the loose conduct of the girl the jury 
 may infer that the taking is not against the parent's will, 
 loiiorance of the girl's age is no defence : 1 Buss. 952 ; R. 
 V. Robins, 1 C. & K. 456. It is not necessary that the 
 taking away should be for a permanency ; it is sufficient 
 if for the temporary keeping of the girl : R. v. Timmins, 
 Bell, 276. 
 
 On an indictment for abducting a girl under sixteen 
 years of age it appeared that the girl, when abducted, had 
 left her guardian's house for a particular purpose with his 
 sanction : Held, that she had not ceased to be in his pos- 
 session under the statute : R. v, Mondelet, 21 L. C. J. 154 ; 
 see R. v. Henkers, 16 Cox, 257. 
 
 On a trial for taking an unmarried girl under the age of 
 sixteen out of the possession of her guardian : 
 
 Held, 1st. That evidence of her being badly treated by 
 her guardian is inadmissible. 2nd. That secondary evi- 
 dence of the age of the child is admissible. 3rd. That in 
 this case the defendant was not guilty of taking the child 
 out of the possession of the guardian : R. v. Hollis, 8 L. N. 
 
 
 To pick up a girl in the streets and take her away is 
 not to take her out of the possession of any one. The 
 prisoner met a girl under sixteen years of age in a street, 
 and induced her to go with him to a place at some distance, 
 where he seduced her and detained her for some houi-s. 
 He then took her back to where he met her, and she 
 returned home to her father. In the absence of any evi- 
 
294 
 
 BIGAMY^ABDUCTION, ETC. 
 
 [8eo.283 
 
 denea that the prisoner knew, or had reason for knowing, 
 or that he believed that the girl was under the care of her 
 father at the time, held by the court of Criminal Appeal 
 that a conviction under this section could not be sustained : 
 R. V. Green, 3 F. & F. 274 ; R v, Hibbert, 11 Cox, 246. 
 
 One who takes an unmarried giri under the age of six- 
 t jen years out of the possession and against the will of her 
 father or mother is guilty of this offence, although he may 
 not have had any bad motive in taking her away, nor 
 means of ascertaining her age, and although she was will, 
 ing to go : R. v. Booth, 12 Cox, ?31 ; R, v. Kipps, 4 Cox, 
 167. 
 
 The defence in Booth's case was that the prisoner 
 actuated by religious and philanthropic motives, had taken 
 the girl from her parents in order to save her from seclu- 
 sion in a convent. He was found guilty and sentenced. 
 
 A girl who is away from her home is still in the custody 
 or possession of her father, if she intends to return ; it is 
 not necessary to prove that the prisoner knew the girl to 
 be under sixteen ; the fact of the girl being a consenting 
 party cannot absolve the prisoner from the charge of 
 abduction; this section is for the protection of parents: 
 R. V. Mycock, 12 Cox, 28 ; R. v. Olifier, 10 Cox, 402 ; E. v. 
 Miller, 13 Cox, 179. 
 
 Indictment-^ unlawfully did take (or cause to 
 
 be taken) one A. B. out of the possession and against the 
 will of E. F., her father, she, the said A. B., being then an 
 unmarried girl, and under the age of sixteen years, to wit, 
 of the age of , etc. (// necessary add a count stat- 
 
 ing E. F. to he a 'person having the lawful care and charge 
 of the said A. B., or that the defendant unlawfully did 
 cause to he taken one ): see R. v. Johnson, 15 
 
 Cox, 481. 
 
 It is no defence to an indictment under this section 
 that the prisoner believed the girl to be eighteen; R. v. 
 Prince, 13 Cox, 188, Warb. Lead. Cas. 89. 
 
Sec 284] 
 
 STEALING CHILDREN. 
 
 296 
 
 It waa held in R v. Bishop, 6 Q. B. D. 269, that under 
 a statute which prohibits the receiving of lunatics for 
 treatment in a house not duly lieensed, the owner of a house 
 who had received lunatics was guilty of the offenea created 
 by the statute, though the jury found that he believed 
 honestly and on reasonable grounds that the perscma 
 received were not lunatics. 
 
 " I do not think that the maxim as to the mena rea has 
 go wide an application as it is sometimes considered to have. 
 In old time, and as applicable to the common law or to 
 earlier statutes, the maxim may have been of general 
 application ; but a difference has arisen owing to the greater 
 preciBion of modem statutes. It is impossible now to 
 apply the maxim generally to all statutes, and it is neces- 
 sary to look at the object of each act to see whether and 
 how far knowledge is of the essence of the offence created ". 
 Per Stephen, J., in Cundy v. LeCocq, 13 Q. B. D. 207. 
 
 See R. V. Tolson, 16 Cox, 629, 23 Q. B. D. 168, as to mens 
 rea; also Betts v. Armstead, 16 Cox, 418, 20 Q. B. D. 771 i 
 Ford V. Wiley, 16 Cox, 683, 23 Q. B. D. 203; Wood v. 
 Burgess, 16 Cox, 729 ; Pain v. Boughtwood, 16 Cox, 747 ; 
 and cases under s. 14, ante. 
 
 Stealing Chii.dbkk Undrr iTouRTKKN. 
 
 fi84* Every one is guilty of an indictable ol fence and liable to seven yean 
 impnsonment who, with intent to deprive any parent or guardian, or other 
 person having the lawful charge, of any child under the age of fourteen years, 
 of the posse«!iion of such child, or with intent *x> steal any article about or on 
 the person of such child, unlawfully — 
 
 ((() takes or entices away or detains any such child ; or 
 
 (b) receives or harbours any such child kqowing i^ to have been dealt With 
 
 as aforesaid. 
 
 2. Nothing in this section shall extend to any one who gets possession of 
 any child, olaimiog in good faith a right to the possession of the obild. B. S. C. 
 c. 162, B. 45 (Amended). 24^25 Y. o. 100, s. 56 (Imp. ). 
 
 The words " by force or fraud " were in the repealed 
 
 clause. 
 
 See R. v. Johnson, 15 Cox, 481, Warb. Lead. Cas. 91 ; 
 and R. v, Barrett, 15 Cox, 658. 
 
 
 
 *• 
 
V 
 
 296 
 
 DEFAMATORY LIBEL. 
 
 [S«c. 285 
 
 • Indictment. — unlawfully did take away (take 
 
 away, or entice away, or detain) one A. N., a child then 
 under the age of fourteen years, to wit, of the age of seven 
 years, with intent thereby then to deprive one A. S., the 
 father of the said A. N., of the possession of the said A. N. 
 his said child, against . And the jurors that 
 
 the said afterwards, to wit, on the day and year 
 
 ^.foresaid, unlawfully did take away (or etc.,) the said A. N, 
 a child then under the age of fourteen years, to wit, of the 
 9,ge of seven years, with intent thereby then to steal, take 
 and carry away divers articles, that is to say then 
 
 being upon and about the person of the said child. (Add 
 counts stating that the defendant did entice away, or did 
 detain, if necessary). 
 
 Upon the trial of any offence contained in this section 
 the defendant may, under s. 711, be convicted of an attempt 
 to commit th*» same. 
 
 All those claiming a right to the possession of the child 
 ^re specially exempted from the operation of this section, 
 by s-s. 2. . . 
 
 PART XXIII. 
 > DEFAMATORY LIBEL. 
 
 Definition. 
 
 {S85< Adefamatory libel is matter published, without legal justification or 
 excuse, likely to injure the reputation of any person by exposing him to hatred, 
 cjontempt or ndicule, or designed to insult the person to whom it is published. 
 
 2. Such matter may be expressed either in words legibly marked upon any 
 substance whatever, or by any object signifying such matter otherwise than by 
 ^ords, and may be expressed either directly or by insinuation or irony. 
 
 See remarks under s. 302. 
 
SecH. 286-291] 
 
 DEFAMATORY LIBEL. 
 
 PCBLHHIMO DiriNID. 
 
 297 
 
 Ii86* Publishing a libel is exhibiting it in public, or causing it to berp Jl 
 or Keen, or showing or delivering it, or causing it to be shown or delivered, with 
 } view to its being read or seen by the person defamed or by any other 
 person. 
 
 PuBUHHmo Upok Invitation. 
 
 8S7' No one commits an o£Fence by publishing defamatory matter on 
 the invitation or challenge of the person defamed thereby, nor if it is necessary 
 to publish such defamatory matter in order to refute some other defamatory 
 statement published by that person concerning the alleged offender, if such 
 Klefamatory matter is believed to be true, and is relevant to the invitation, 
 challenge or the required refutation, and the publishing does not in 
 manner or extent exceed what is reasonably sufficient for the occasion. 
 
 PuBLiauiNo IN Courts, Etc., Etc., Etc. 
 
 S88. Xo one commits an offence by publishing any defamatory matter, 
 in any proceedings held before or under the authority of any court exercising 
 judicial authority, or in any inquiry made under the authority of any statute 
 or by order of her Majesty, or of any of the departments of Government, 
 Dominion or provincial. 
 
 PuBLiSHiNo Farliahkntary Pafers, Eto., Etc. 
 
 289. No one commits an offence by publishing to either the Senate or 
 House of Commons, or to any Legislative Council, Legislative Assembly or 
 House of Assembly, defamatory matter ccmtained in a petition to the Senate, 
 or House of Commons, or to any such Council or Assembly, or by publishing 
 )]y order or under the authority of the Senate or House of Commons, or of 
 any such Council or Assembly, any paper containing defamatory matter or by 
 publishing, in good faith and without ill-will to the person defamed, any 
 extract from or abstract of any such paper. 
 
 See a. 705, post, and ss. 6 & 7, c. 163, R. S. C. p. 306, post 
 
 Prockkdinos OF Parliament and Courts, Etc., 51-62 V. c. 64 (Imp.). 
 
 S90. No one commits an offence by publishing in good faith, for the 
 information of the public, a fair report of the proceedings of the Senate or 
 House of Commons, or any committee thereof, or of any such Council or 
 Assembly, or any committee thereof, or of the public proceedings preliminary 
 or final heard before any court exercising judicial authority, nor by publishing, 
 in good faith, any fair comment upon any such proceedings. 
 
 Procbkdinos or Public Meetings (New). 
 
 291. No one commits an offence by publishing in good faith, in a news- 
 paper, a fair report of the proceedings of any public meeting if the meeting is 
 lawfully convened for a lawful purpose and opjn to tKe public, ana if such 
 report is fair and accurate, and if the publicatioit of t'.ie matter complained of 
 is for the public benefit, and if the defendant does not refuse to insert in a 
 conspicuous place in the newspaper in which the report apf/cared a reasonable 
 letter or document of explanation or contradiction by or on behalf of the 
 prosecutor. 
 
298 
 
 DEFAMATORY LIBEL. 
 
 [S«oi. 392.297 
 
 Pais DiioufwioN. 
 
 909>|No 'one commita an offence by publishing »ny defamatoiy matter 
 which he, on 'reasonable frrounds, believes to be true, and which is relevant 
 to any lubjeot of public interest, the public discussion of which is for the 
 public benefit. 
 
 FaIB COMMIVT, 
 
 999* No one commits an offence by publishing fair comments upoa the 
 public ooaduot of a person who takes part in public aifairs. 
 
 9. No one commits an offence by publishing fair comments on any pub- 
 lished book oi{othflr literary production, or any composition or work of art or 
 performance publicly exhibited, or any other communication made to the 
 public on anyr*ubjeot, if such comments are confined to oriticinn on luch 
 book or literary production, composition, work of art, performance or com* 
 munication. 
 
 Sebkinq Rkmedt roR Oriivanoi. 
 
 A04> No one commits an offence by publishing defamatory matter for 
 the purpose, in good faith, of seeking remedy or redress for any private or 
 public wrong or grievance from a person who has, or is reasonably believed by 
 the person publishing to have, the right or be under obligation to remedy or 
 redress such wrong or grievance, if the defamatory matter is believed by him 
 to be true, and is relevant to the remedy or redress sought, and such pub> 
 lishing does not in manner or extent exceed what is reasonably sufficient 
 for the occasion. 
 
 Answbr to Inquiries. 
 
 81I9< No one commits an offence by publishing, in answer to inquiries 
 made of him, defamatory matter relating to some subject as to which the 
 person by whom, or on whose behalf, the inquiry is made has, or on reasonable 
 grounds is believed by the person publiuhing to have, an interest in knowing 
 the truth, if such^matter is published for the purpose, in good faith, of giving 
 information in respect thereof to that ])er8on, and if such defamatory matter is 
 believed to be true, and is relevant to the inquiries made, and uIho if such 
 publishing does not in manner or extent exceed what is reasonably sufficient fur 
 the occasion. 
 
 Giving Information. 
 
 309- No one commits an offence by publishing to another person 
 defamatory matter for the purpose of griving information to that person with 
 respect to some subject as to which he has, or is, on reasonable grounds, 
 believed to have, such an interest in knowing the truth as to make the con- 
 duct of the person giving the information reasonable under the circumstances : 
 Provided that such defamatory matter is relevant to such subject, and that it 
 is either true, or is made without ill-will to the person defamed, and in the 
 belief, on reasonable grounds, that it is true. 
 
 Se^ Coxhead v. Richards, 2 C. B. 569 ; Robshaw v. 
 Smith, 38JL. T. N. S. 424 ; R. v. Perry, 15 Cox, 169. 
 
 Besponsibilitv of Proprietor of Newhpapbr or of Seller of a Libil 
 
 I8©7. Every proprietor of any newspajwr is presumed to be criminally 
 responsible for defamatory matter inserted and published therein, but such 
 
 Ex 
 
 I '**• Every one it 
 
 ■mprisonment, or to a fii 
 
 publishes or threatens 
 
 offers to prevent the pub 
 
 pwy or to induce any 
 
 hppomtment or office of r 
 
 Uimdtd). 6-7V. c. 96 
 
••^■' 
 
 9r(w. 996-aOO] 
 
 SELLING LIBELS, ETC. 
 
 299 
 
 presumptiun miky be rebutted by proof that the particular defamatory matter 
 «u in»«rted in lucli newspaper without lueh proprietor'! oognizaoM, and 
 without notfl'Vnnoe on hit part. 
 
 2 General authority given to the person actually inserting such defama- 
 tory matter to manage or conduct, as editor or otherwise, such newspaper, 
 ind to insert therein what he in his discretion thinks fit, shall not be negli- 
 renoe within this section unless it be proved that the proprietor, when 
 originally giving such general authority, meant that it should extend to 
 in^rting and publishing dofamatury matter, or continued such general 
 tuthority knowing that it had been exercised by inserting defamatory matter 
 in any number or part of such newspaper. 
 
 3, No one is guilty of an offence by selling any number or part of such 
 newspaper, unless he knew either that such number or part contained 
 defamatory matter, or that defamatory matter waa habitually contained in 
 such newspaper. R. S. C. c. 163, s. 6 {Amended). 
 
 « Newspaper " defined, s. 3, ante. 
 
 Selling Libels, Etc. 
 
 Ji98« No one commits an offence by sellimg^ any book, magazine, pamph- 
 let or other thing, whether forming part of any periodical or not, although the 
 same contains defamatory matter, if, at the time of such sale, he did not know 
 that such defamatory matter was contained in such book, magazine, pamphlet 
 ur other thing. 
 
 2. The sale by a servant of any book, magazine, pamphlet or other thing, 
 whether periodical or not, shall not make his employer criminally responsible 
 in respect of defamatory matter contained therein unless it be proved that such 
 employer authorized such sale knowing that such book, magazine, pamphlet or 
 utber thing contained defamatory matter, or, in case of a number or part 
 of a periodical, that defamatory matter was habitually contained in such 
 periodical. 
 
 When Trcth is a Defence. 
 
 999» It shall be a defence to an indictment or information for a defa Jia- 
 tory libel that the publishing of the defamatory matter in the manner in wtiich 
 it waa published was for the public benefit at the time when it was published, 
 and that the matter itself was true. R. S. C. c. 163, s. 4. 
 
 See 8. 634, p. 305, post. 
 
 Extortion by Defamatory Libel. 
 300. Every one is guilty of an indictable offence and liable to two yean' 
 imprisonment, or to a fine not exceeding six hundred dollars, or to both, who 
 publishes or threatens to publish, or offers to abstain from publishing, or 
 offers to prevent the publishing of, a defamatory libel with intent to extort any 
 money or to induce any person to confer upon or procure for any person any 
 jppointment or office of profit or trust, or in consequence of any person having 
 Ittn rtfused " any auch inoney," appointment or office. R. S. C. c. 163, s. 1 
 I {immM). 6-7 V. c. 96, s. 3 (Imp.). 
 
 If 
 
300 
 
 DEFAMATORY LIBEL. 
 
 [Sec8. 301, 302 
 
 Punishment of Defamatory Libel with Soienteb. 
 
 30 1 • Every one is guilty of an indictable offence and liable to ttoo yeart' 
 imprisonment or to a fine not exceeding four hundred dollars, or to both who 
 publishes any defamatory libel knowing the same to be false. R. S. C. 163 b. 2. 
 
 FCNISHMBNT OF DEFAMATORY LiBEL. 
 
 302. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment, or to a fine not exceeding two hundred dollars, or to both, who 
 publishes any defamatory libel. R. S. O. c. 163, s. 3. 
 
 All of these sections from s. 285 are taken, with the 
 exception of s. 291, from the Imperial Draft Code of 1879 
 which the commissioners reported to be a re-enactment of 
 the existing law. On ss. 297 & 298 they remark, how- 
 ever, that they have made some alteration so as to meet 
 a difference of judicial opinion on the construction of the 
 corresponding enactments in 6 «& 7 V. c. 96, citing E. v. 
 Holbrook, 4Q. B. D. 42. ' 
 
 The Imperial statutes on libel by newspapers are 44 & 
 45 V. c. 60, and 51 & 62 V. c. 64. 
 
 The costs of showing cause against a rule for the filiug 
 of an information are covered by s. 833, p. 306, post : B. 
 V. Steel, 13 Cox, 169. 
 
 Indictment for a falsedefamiatory libel. — .... that 
 J. S., unlawfully, and maliciously intending to injure, aud 
 prejudice one J. N., and to deprive him of his good name and 
 reputation, and to bring him into public contempt or ridicule 
 and disgrace, on ... , unlawfully and maliciously did write 
 and publish, and cause and procure to be written and pub- 
 lished, a false and defamatory libel, in the form of a letter 
 directed to the said J. N. (or, if the publication were in 
 any other manner, omit the words, " in the form," etc.), 
 containing divers false and defamatory matters and things 
 of and concerning the said J. N., and of and concerning etc., I 
 {here insert such of the subjects of the libel as it may hel 
 necessary to refer to by the innuendoes, in setting out thel 
 libel), according to the tenor and effect following, that istof 
 say (here set out the libel, together with such innuendml 
 as may be necessary to render it intelligible), he, the saidj 
 
 Sec. 302] 
 
 J. S., then w< 
 false : see fori 
 
 Imprisonn 
 If the prosecu 
 may neverfchel 
 libel, and puni 
 iDg one year, c 
 Q.B.D. 284. 
 plea o{ not guiJ 
 that it was for 
 lished, setting i 
 the publication 
 
 The offence 
 s. 540. 
 
 The defendar 
 libel, in the mar 
 tioned in s. 299. 
 
 The following 
 And for a furth! 
 that Our Lady tl 
 the said indictme 
 is true that (ste., , 
 
 of the publication 
 before and at the 
 
 ment mentioned (s 
 
 Imtion of benefit 
 
 for the pubh'c bene 
 
 the said indictme 
 
 This plea may be p 
 
 that the identical , 
 
 'he time of compoi 
 
 "le subject of the 
 
 lication which was 
 
 »°<i against the 
 
 is no 
 
 Dears. 85 
 

 Sec. 302] 
 
 PUNISHMENT. 
 
 301 
 
 J. Sm then well knowing the said defamatory libel to be 
 false : see form H, under s. 611 & s. 615, p. 804, post 
 
 Imprisonment not exceeding two years, and fine, s.SOl. 
 If the prosecutor fail to prove the scienter the defendant 
 may nevertheless be convicted of publishing a defamatory 
 libel, and punished by fine, or imprisonment not exceed- 
 ing one year, or both : s. 302 ; Boaler v. R. 16 Cox, 488, 21 
 Q. B. T>' 284. The defendant may plead, in addition to the 
 plea of not guilty, that the matters charged were true, and 
 that it was for the public benefit that they should be pub- 
 lished, setting forth the particular facts by reason of which 
 the publication was for the public benefit. 
 
 The offence of libel is not triable at quarter sessions : 
 B. 540. 
 
 The defendant may allege and prove the truth of the 
 libel, in the manner and subject to the conditions men- 
 tioned in 8. 299. 
 
 The following may be the form of the special plea : 
 And for a further plea in this behalf, the said J. S. saith 
 that Our Lady the Queen ought not further to prosecute 
 the said indictment against him, because he saith that it 
 is true that {stc, alleging the truth of every libelloiis part 
 of the publication) ; and the said J. S. further saith, that 
 before and at the time of the publication in the said indict- 
 ment mentioned (sto^e here the facts which retidered the puh- 
 Imtion of benefit to the public) ; by reason whereof it was 
 for the public benefit that the said matters so charged in 
 the said indictment should be published. And this, etc. 
 This plea may be pleaded with the general issue. Evidence 
 that the identical charges contained in a libel had, before 
 the time of composing and publishing the libel which is 
 the subject of the indictment, appeared in another pub- 
 lication which was brought to the prosecutor's knowledge, 
 and against the publisher of which he took no legal 
 proceedings, is not admissible under this section: B. v. 
 I Newman Dears. 85, 1 E. & B. 268. Where the plea con- 
 
 \mi 
 
 \ I 
 
802 
 
 \ 
 
 DEFAMATORY LIBEL. 
 
 [Sec. 302 
 
 tains several charges, and the defendant fails in proof of 
 any of the matters alleged in it, the jury must of necessity 
 find a verdict for the crown ; and the court, in giving judg. 
 ment, is bound to consider whether the guilt of the defend- 
 ant is aggravated or mitigated by the plea, and by the 
 evidence given to prove or disprove it, and form its own 
 conclusion on the whole case. 
 
 The replication may be as follows: — And ad to the plea 
 of the said J. S., by him secondly above pleaded, the said 
 A. B. (the clerk of assize or clerk of the peace) saith that 
 by reason of anything in the said second plea alleged. Our 
 said Lady the Queen ought not to be precluded from further 
 prosecuting the said indictment againat the said J. S., be- 
 cause he saith, that he denies the said several matters in 
 the said second plea alleged, and saith that the same are 
 not, nor are nor is any or either of them, true. And this 
 he, the said A. B., prays may be inquired of by the country, 
 etc. And the said J. S. doth the like. Therefore, etc. 
 
 Indictment for threatening to pvMiah a defamatory 
 libel, etc., with intent to extort money under a. 300.-^ 
 unlawfully did threaten one J. N. to publish a certain libel 
 of and concerning him the said J« N- (" if any person 
 pvhlishes, or threatens to publish, any libel upon any other 
 person, or offers to abstain from, publishing, or offers to 
 prevent the publishing of a defam/xtory libel), with intent 
 thereby then to extort money from the said J. N. (*• with 
 intent to extort any money, or with intent to induce awj 
 person to confer upon or procure for any person any ap- 
 pointment or office of profit or trust, or in consequence of 
 any person having been refused any such money, appoint- 
 ment or office"). If it be doubtful whether the matter 
 threatened to be published be libellous, add a count charg- 
 ing that the defendant " did propose to the said J. N. to 
 abstain from printing and publishing a certain matter and 
 thing touching the said J. N. {or one J. F.) with intent, 
 etc." 
 
Sec. 303] 
 
 PUNISHMENT. 
 
 303 
 
 What is a libol? Duties of gran^ jurors on kn indict- 
 ment fot libel : 10 L. N. 861. 
 
 Information for a libel : Ex parte Gugy, 8 L. C E. 353. 
 
 Under s. 299 the magistrate has no jurisdiction to re- 
 ceive evidence of the truth of the libel upon an informa- 
 tion : B. V. Garden, 6 Q. B. D. 1, 14 Cox, 359. 
 
 In a ease of libel it is no ground to change the venue that 
 many of the defendant's witnesses reside at a distance, aiul 
 the defendant has no funds to bring them to that venue : 
 R. V. Casey, 13 Cox, 614. 
 
 On s. 299 see B. v. Laurier, 11 B. L. 184 ; on s. 297 
 see R. V. Holbrook, 3 Q. B. D. 60, 4 Q. B. D. 42, 13 Cox, 
 650, 14 Cox, 185. As to right of the Crown to set aside 
 jurors in cases of libel : see B. v. Patteson, 36 U. C. Q. B. 
 129, and B. v. Maguire, 13 Q. L. B. 99 ; and s, 669, post. 
 
 It must be proved upon an indictment against the pro- 
 prietor of a newspaper thai the defendant was proprietor or 
 pttblisber of the journal at the time of the publication of the 
 libel. That he is such at the time of the trial is not suffi- 
 cient: B. V. Sellars, 6 L. N. 197. 
 
 Under s. 634, p. Q05, post, see B. v. Dougall, 18 L. C. J. 
 
 85. 
 
 The defendant was indicted for a malicious libel, and 
 specially pleaded the truth of the libel as well as the plea of 
 not guilty. Under this plea he endeavoured to prove justi- 
 fication. Held, that evidence was not admissible, as, under 
 the statute, to be allowed to justify, the defendant baa to 
 plead not only that the publication was true, but also that 
 it was made for the public good: B. v. Hickson, 3 L. N. 139 ; 
 3. 299, ante. 
 
 See R. V. Labouchere, 14 Cox, 419, as to the sufficiency 
 of a plea of justification, and B< v. Creighton, 19 0. B. 839. 
 
 As to what constitutes a guilty knowledge under s. 301, 
 and that it is for the jury to decide under A plea of justift- 
 
V 
 
 304 
 
 DEFAMATORY LIBEL. 
 
 [Sec. 302^ 
 
 cation if the statemeht complained of is true, and if it was 
 published for the public benefit: see B. v. Tass^, 8 L. N. 98. 
 
 No action for libel by a wife against her husband: B.v^ 
 Lord Mayor, 16 Q. B. D. 772, 16 Cox, 81. 
 
 On an accusation for libel it is no defence that the libel 
 was published with " no personal malice ": B. v. " The 
 World," 13 Cox, 806. 
 
 The truth of a seditious or blasphemous libel cannot be 
 pleaded to an indictment for such libel. S. 299, ante, of 
 the Act does not apply to such libels, but s. 297 applies : 
 B. V. Bradlaugh, 15 Cox, 217; B. v. Bamsay, 15 Cox, 231; 
 Ex parte O'Brien, 15 Cox, 180. 
 
 Held, 1. A criminal information (for libel) will not be 
 granted except in case of a libel on a person in authority, 
 and in respect of duties pertaining to his office. 
 
 2. Where a libel was directed against M., who was at 
 the time attorney general, but alleged improper conduct 
 upon his part when he was a judge, an information was 
 refused. 
 
 3. The applicant for a criminal information must rely 
 wholly upon the court for redress, and must come there 
 entirely free from blame. 
 
 4. Where there is foundation for a libel, though it falls 
 far short of justification, an information will not be granted: 
 B. V. Biggs, 2 Man. L. B. 18. 
 
 See ss. 634 & 719, p. 305, post, as to plea of justification 
 and trial, and B. v. Adams, 16 Cox, 544, 22 Q. B. D. 66, where 
 an obscene letter sent to a young woman was held to consti- 
 tute a defamatory libel. 
 
 PROCEDURE SECTIONS ON LIBEL. 
 
 Form of Indictment. 
 615. No count for publishing a blasphemous, Heditious, obscene or defa- 
 matory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper 
 or other printed or written matter, shall be deemed insufficient on the ground 
 that it does not set out the words thereof : Provided that the court may order 
 that a particular shall be furnished by the prosecutor stating what passages iti 
 
Sec. 302] 
 
 PLEA OF JUSTIFICATION. 
 
 305 
 
 such book, pamphlet, newspaper, printing or writing are relied on in support 
 of the charge. 
 
 2. A count for libel may charge that the matter published was written in a 
 sense which would make the publishing criminal, specifying that sense with- 
 out any prefatory averment showing how that matter was written in that sense. 
 And on the trial it shall be suiBoient to prove that the matter published was 
 criminal either with or without such innuendo. 
 
 Plea of Justification. 
 
 634. Every one accused of publishing a defamatory libel may plead that 
 the defamatory matter published by him was true, and that it was for the 
 public benefit that the matters charged should be published in the manner and 
 at the time when they were published. Such plea may justify the defamatory 
 matter in the sense specified, if any, in the count, or in the sense which the 
 defamatory matter bears without any such specification ; or separate pleas 
 justifying the defamatory matter in each sense may be pleaded separately to 
 each as if two libels had been charged in separate counts. 
 
 2. Every such plea must be in writing, and must set forth the particular 
 fact or facta by reason of which it was for the public good that such matters 
 should be so published. The prosecutor may reply generally denying the truth 
 thereof. 
 
 3. The truth of the matters charged in an aUeged libel shall in no case be 
 inquired into without such plea of justification unless the accused is put upon 
 his trial upon any indictment or information charging him with publishing the 
 libel knowing the same to. be false, in which case evidence of the truth may be 
 given in order to negative the allegation that the accused knew the libel to be 
 false. 
 
 4. The accused may, in addition to such plea, plead not guilty and such 
 pleas shall be inquired of together. 
 
 5. If when such plea of justification is pleaded the accused is convicted, 
 the court may, in pronouncing sentence, consider whether his guilt is aggravatod 
 or mitigated by the plea. R. S. C. c. 174, ss. 148, 149, 150 & 151. 
 
 Trial in Province Whebe Newspaper Published. 
 
 640. (2) Every proprietor, publisher, editor or other person charged with the 
 publication in a newspaper of any defamatory libel shall be dealt with, indicted, 
 tried and p\mished in the province in which he resides, or in which such news- 
 paper is printed. 51 V. c. 44, s. 2. 
 
 JunoR Cannot be Ordered to Stand Aside, 
 660. The right of the Crown to cause any juror to stand aside until the' 
 panel iuvs been gone through shall not be exercised on the trial of any 
 indictment or information by a private prosecutor for the publication of a 
 defamatory libel. R. S. C. o. 174, s. 166. 
 
 Trial and Verdict. 
 
 71!). On the trial of any indictment or information for the making or 
 publisiiing of any defamatory libel, on the plea of not guilty pleaded, the jury 
 Bwom to try the issue may give a general verdict of guilty or not guilty upon 
 CiiiM. Law— 20 
 
V 
 
 306 
 
 DEFAMATORY LIBEL. 
 
 [Sec, 302 
 
 the whole matter put in issue upon such indictment or information, and shall 
 not be required or directed, by the court or judge before whom such indictment 
 or information is tried, to find the defendant guilty merely on the proof of 
 publication by such defendant of the paper charged to be a defamatory libel 
 and of the sense asoril)ed to the same in such indictment or information ; but 
 the court or judge before whom such trial is had shall, according to the discre- 
 tion of such court or judge, give the opinion and direction of such court or 
 judge to the jury on the matter in issue as in other criminal cases ; and the 
 jury may, on such issue, find a special verdict if they think fit so to do ; and the 
 defendant, if found guilty, may move in arrest of judgment on such ground 
 and in such manner as he might have done before the passing of this Act 
 JR. S, 0. 0. 174, 8. 152. 32 Geo. III. o. 60. ss. 1, 2, 3, 4 (Imp.). 
 
 Costs. 
 833. In the case of an indictment or information by a private prosecutor 
 lor the publication of a defamatory libel if judgment is given for the defendant 
 he shall be entitled to recover from the prosecutor the costs incurred by him 
 by reason of such indictment or information either by warrant of distress 
 issued out of the said court, or by action or suit as for an ordinary debt. 
 B. S. C. c. 174, ss. 153 & 154. 
 
 Costs against a defendant fall under s. 832. 
 
 The following sections of c. 163, E. S. C. are unrepealed. 
 
 6. Every person against whom any criminal proceedings are' commenced 
 or prosecuted in any manner for or on account of or in respect of the publica- 
 tion of any report, paper, votes or proceedings, by such iierson or by his ser- 
 vant, by or under the authority of any Legislative Council, Legislative 
 Assembly or House of Assembly, may bring before the court in which such 
 proceedings are so commenced or prosecuted, or before any judge of the same, 
 first giving twenty-four hours' notice of his intention so to do, to the prosecutor 
 in such proceedings, or to his attorney or solicitor, a certificate under the hand 
 of the speaker or clerk of any Legislative Council, Legislative Assembly or 
 House of Assembly, as the case may be, stating that the report, paper, 
 votes or proceedings as the case may be, in resi^ect whereof such criminal pro- 
 ceedings have been commenced or prosecuted, was or were published by sucii 
 person, or by his servant, by order or under the authority of any Legislative 
 Council, Legislative Assembly or House of Assembly, as the case may be, 
 together with an affidavit verifying such certificate ; and such court or judge 
 shall thereupon immediately stay such criminal proceedings, and the same 
 shall be and shall be deemed and taken to be finally put an end to, detennined 
 and superseded by virtue hereof. 24 V. (P. E. I.), c. 31, s. 1. 3-4 V. c. 9, 
 e. 1 (Imp.). 
 
 7. In case c' any criminal proceedings hereafter commenced or prnseciited 
 for or on account or in respect of the publication of any copy of sucli report, 
 paper, votes or proceedings, the defendant, at any stage of the proceedings, 
 may lay before the court oi" judge such re|X)rt, paper, votes or proceedings, and 
 •uch copy, with an affidavit verifying such report, paper, votes or proceedings, 
 and the correctness of such copy ; and the court or judge shall immediately 
 stay such criminal proceedings, and the same shall be and shall be deemed to 
 be finally put an end to, determined and 8Uperse<led by virtue hereof. 24 V. 
 (P.E.L), c. 31, 8. 2. 3-t V. c. 9. s. 2 (Imp.). 
 
GENERAL REMARKS. 
 
 307 
 
 ■1 W t 
 
 LARCENY. 
 
 GENERAL REMARKS. 
 
 (From 2nd Edition.) 
 
 Larceny, at common law, is the wrongful taking and 
 carrying away of the personal goods of any one from his 
 possession, with a felonious intent to convert them to the 
 use of the offender, without the consent of the owner : 2 
 East, P. C. 553 ; the word " felonious " showing that there 
 is no colour of right to excuse the act, and the " intent " 
 being to deprive the owner permanently of his property : 
 E. V. Thurborn, 1 Den. 387 ; R. v. Guernsey, IF. & F. 
 394 ; R. V. Holloway, 1 Den. 370 ; 2 Russ. 146, note by 
 Greaves; R. v. Middleton, 12 Cox, 417. 
 
 It is not, however, an essential ingredient of the offence 
 that the taking should be for a cause of gain, lucri causa ; 
 a fraudulent taking, with intent wholly to deprive the 
 owner of his property, or with intent to destroy it, is 
 sufficient. 
 
 Larceny is either simple, that is, unaccompanied by any 
 other aggravating circumstance, or compound, that is, 
 when it is accompanied by the aggravating circumstances 
 of taking from the house or person, or both. 
 
 Larceny was formerly divided into grand larceny and 
 petit larceny ; but this distinction is now abolished. 
 
 By B. 857, ^)os^, a more severe punishment may be 
 inflicted when the value of the article stolen is over two 
 hundred dollars, but then this value must be alleged in the 
 indictment and duly proved on the trial, otherwise the 
 larceny is punishable under s. 856, when no special pun- 
 ishment is provided for. 
 
308 LARCENY. 
 
 The requisites of the offence are : 
 
 The taking. 
 
 The carrying away. 
 
 The goods taken. 
 
 The owner of the goods 
 
 The owner's dissent from the taking. 
 
 The felonious intent in taking. 
 
 THE TAKING. 
 
 To constitute the crime of larceny at common law there 
 must be a taking or severance of the thing from the actual or 
 constructive possession of the owner ; for all felony includes 
 trespass, and every indictment must have the words feloni- 
 ously took as well as carried away ; from whence it follows 
 that, if the party be guilty of no trespass in taking the 
 goods, he cannot be guilty of felony in carrying them 
 away : 1 Hawk. p. 142. As in the case of a wife carry- 
 ing away and converting to her own use the goods of her 
 husband, for husband and wife are one person in law, and, 
 consequently, there can be no taking so as to constitute 
 larceny : 1 Hale, 514 ; and the same if the husband be 
 jointly interested with others in the property so taken: 
 R. v. Willis, 1 Moo. 375 ; see now s. 805, post. 
 
 The taking, however, may be by the hand of another : 
 2 East, P. C. 555 ; as if the thief procure a child within 
 the age of discretion to steal goods for him, it will be the 
 same as if he had taken them himself, and the taking in 
 such case should be charged to him : 1 Hale, 507. 
 
 Where the offender unlawfully acquired the possession 
 of goods, as by fraud or force, with an intent to steal them, 
 the owner still retaining his property in them, such offend- 
 er will be guilty of larceny in embezzling them. There- 
 fore, hiring a horse on pretense of taking a journey, and 
 immediately selling it, is larceny; because the jury found the 
 defendant auted anitno furandi in making the contract, and 
 the parting with the possession merely bad not changed the 
 nature of the property: R. v. Pear, 1 Leach, 212. And so, 
 
;.*,il 
 
 GENERAL REMARKF 
 
 309 
 
 where a person hires a post-cdaise for an indefinite period, 
 and converts it to his own use, he may be convicted of lar- 
 ceny if his original intent was felonious : R. v. Semple, 1 
 Leach, 420. 
 
 So, where the prisoner, intending to steal the mail bags 
 from the post office, procured them to be let down to him by 
 a string from the window of the post office, under pretense 
 that he was the mail guard, he was held guilty of larceny : 
 E. V. Pearce, 2 East, P. C. 603. 
 
 Where the prisoner was hired for the special purpose of 
 driving sheep from one fair to another, and, instead of doing 
 80, drove them, the following morning after he received 
 them, a different road, and sold them ; the jury having found 
 that, at the time he received the sheep, he intended to con- 
 vert them to his own use, and not drive them to the specified 
 fair, the judges were unanimously of opinion that he was 
 rightly convicted of larceny : R. v. Stock, 1 Moo. 87. 
 
 Where the prisoner covered some coals in a cart with 
 elack, and was allowed to take the coals away, the owner be- 
 lieving the load to be slack, and not intending to part with 
 his property in the coals, it was held a larceny of the 
 coals : R. v. Bramley, L. & C. 21. 
 
 Prevailing upon a tradesman to bring goods proposed to 
 be bought to a given place, under pretense that the price 
 shall then be paid for them, and further prevailing upon him 
 to leave them there in the care of a third person, and then 
 getting them from that person without paying the price, is a 
 felonious taking, i(, ab hiitio, the intention was to get the 
 goods from the tradesman and not pay for them : R. v. Camp- 
 bell, 1 Moo. 179. 
 
 In another case a person by false pretenses induced a 
 tradesman to send by his servant to a particular house 
 goods of the value of two shillings and ten pence, with 
 change for a crown piece. On the way he met the ser- 
 vant, and induced him to part with the goods and the 
 change for a crown piece, which afterwards was found to 
 
 If 
 
 .'■> 
 
310 
 
 LARCENY. 
 
 be bad. Both the tradesman and the servant swore that 
 the latter had no authority to part with the goods or change 
 without receiving the crown piece in payment, though the 
 former admitted that he intended to sell the goods, and 
 never expected them back again: it was held that the 
 offence amounted to larceny : B. v. Small, 8 C. & P. 46. 
 
 The prosecutor met a man and walked with him 
 During the walk, the man picked up a purse, which he said, 
 he had found, and that it was dropped by the prisoner. 
 He then gave it to the prisoner who opened it, and there 
 appeared to be about forty pounds in gold in it. The pris- 
 oner appeared grat'i'ul, and said he would reward the man 
 and the prosecutor hr restoring it. The three then went 
 to a public house and had some drink. Prisoner then 
 showed some money, and said if the man would let him 
 have ten pounds, and let him go out of his sight, he would 
 not say what he would give him. The man handed what 
 seemed to be ten pounds in money, and the prisoner and 
 prosec':;tor then went out together. They returned, and 
 prisoner appeared to give the ten pounds back and five 
 pounds more. Prisoner then said he would do the same 
 for the prosecutor, and by that means obtained three 
 pounds in gold, and the prosecutor's watch and chain from 
 him. The prisoner and the man then left the public house, 
 and made off with the three pounds and the watch and 
 chain At the trial the prosecutor said he handed the 
 three pounds and the watch and chain to the men in terror, 
 being afraid they would do something to him, and not ex- 
 pecting they would give him five pounds. Held, that the 
 prisoner was properly convicted of larceny : R. v. Hazeli, 
 11 Cox, 697. 
 
 Prosecutor sold onions to the prisoners who agreed to 
 pay ready money for them. The onions were unloaded at 
 a place indicated by the prisoners, and the prosecutor was 
 then induced to make out and sign a receipt which the 
 prisoners got from him, and then refused to restore 
 
GENERAL REMARKS. 
 
 the onions or pay the price. The jury 
 prisoners of larceny, and said that they never Intended to 
 pay for the onions, and that the fraud was meditated by 
 them from the beginning. Held, that the conviction was 
 right : K. v. Slowly, et al, 12 Cox, 269. 
 
 So, taking goods the prisoner has bargained to buy is 
 felonious if, by the usage, the price ought to be paid before 
 tbey are taken, and the owner did not consent to their 
 being taken, and the prisoner, when he bargained for them, 
 did not intend to pay for them, but meant to get them into 
 bis possession and dispose of them for his own benefit 
 without paying for them : R. v. Gilbert, 1 Moo. 185. 
 
 So, getting goods delivered into a hired cart, on the ex- 
 press condition that the price shall be paid for them before 
 tbey are taken from the cart, and then, getting them from 
 tbe cart without paying the price, will be larceny if the 
 prisoner never had the intention to pay, but had, ab initio^ 
 the intention to defraud : R. v. Pratt, 1 Moo. 250. 
 
 So, where the prosecutor, intending to sell his horse, 
 sent his servant with it to the fair, but the servant had no 
 authority to sell or deal with it in any way, and the defend- 
 ants, by fraud, induced the servant to part with the pos- 
 session of the horse under colour of an exchange for an- 
 other, intending all the while to steal it ; this was holden 
 to be larceny: R. v. Sheppard, 9 C. & P. 121. 
 
 So, where the prisoner, pretending to be the servant of 
 a person who had bought a chest of tea deposited at the 
 East India Company's warehouse, got a request paper and 
 permit for the chest, and took it away with the assent of a 
 person in the company's service who had the charge of it, 
 it was held that this was larcenv : R. v. Hench, R. & R. 163. 
 
 Prisoner and a confederate went to prosecutor's shop to 
 buy something, and put down a florin in payment. Prose- 
 cutor put the florin into the till and placed the change on 
 the counter, which the prisoner took up. The confederate 
 
 1, "You need not have changed," and threw down a 
 
 # 
 
 
h0 
 
 312 
 
 LARCENY. 
 
 penny on the counter, which the prisoner took up, and put 
 a sixpence in silver and sixpence in copper down, and asked 
 prosecutor to give him a shilling for it. Prosecutor took a 
 shilling from the till, and put it on the counter win n pri- 
 soner said, " You may as well give me the florin back and 
 take it all." Prosecutor took the florin from the till and 
 put it on the counter, expecting to receive two shillings of 
 the prisoner's money in lieu of it. Prisoner took up the 
 florin, and prosecutor took up the silver sixpence and the 
 sixpence in copper, and the shilling put down by herself 
 and was putting them in the drawer when she saw that 
 she had only got one shilhng of the prisoner's money and 
 lier own shilling ; but, at that moment, her attention was 
 diverted by the confederate, and both confederate and pri- 
 soner quitted the shop. Held, upon a case reserved, that 
 this was a case of larceny, for the transaction of exchange 
 was not complete ; prosecutor had not parted with the 
 property in the florin : R. v. McKale, 11 Cox, 32 ; E. v. 
 Eussett, 17 Cox, 534. 
 
 On the other hand, if the owner give his property volun- 
 tarily, whatever false pretense be used to obtain it, no 
 felony can be committed : 1 Hale, 506 ; R. v. Adams, H. & 
 R. 225 ; R. v. Buckmaster, 20 Q. B. D. 182, W^rb. Lead. 
 Cns. 158. 
 
 Thus where, in a case of ring-dropping, the prisoners 
 prevailed on the prosecutor to buy the share of the other 
 party, and the prosecutor was prevailed on to part with his 
 money, intending to part with it for ever and not with the 
 possession of it only, it was held by Coleridge, J., that this 
 was not a larceny: R. v. Wilson, 8 C. & P. Ill; see R. v. 
 Solomons, 17 Cox, 93, Warb. Lead. Cas. 160; R. v. Russett, 
 17 Cox, 534. 
 
 It was the duty of the prisoner to ascertain the amount 
 of certain dock dues payable by the prosecutors, and hav- 
 ing received the money from their cash keeper to pay the 
 dues to those who were entitled to them. He falsely 
 
GENERAL REMARKS. 
 
 313 
 
 represented a larger sum to be due than was due, and, pay- 
 ing over the real amount, converted the difference to his 
 own use. This was held not to be a larceny : R. v. Thomp- 
 son, L. & C. 283. 
 
 So, where the prisoner was sent by his fellow workmen 
 to get their wages, and received the money from the 
 employer done up in separate pieces of paper, and converted 
 the money to his own use, it was held upon an indictment 
 laying the property in the employer that the prisoner could 
 not be convicted, he being the agent of the workmen : E. v. 
 Barnes, 12 Jur. N. S. 549; and see R. v. Jacobs, 12 Cox, 151. 
 A cashier of a bank has a general authority to part v*i'. ]• 
 his employer's money in payment of such cheques as •...• 
 may think genuine ; where, therefore, money has h. 
 obtained from a cashier at a bank on a forged clii^^ue 
 knowingly it does not amount to the crime of larceny : R. 
 T. Prince, 11 Cox, 193. In this case Bovill, C.J., said: 
 "The distinction between larceny and false pretenses is 
 very material. The one is a felony and the other is a mis- 
 demeanour; and although, by reason of modern legislation. 
 it has become not of so much importance as formerly, it is 
 still desirable to keep up the distinction. To constitute a 
 larceny there must be a taking of the property against 
 the will of the owner, which is the essence of the crime of 
 larceny. The authorities cited by the counsel for the 
 prisoner show that where the property has been obtained 
 voluntarily from the owner, or a servant acting within the 
 scope of his authority, the offence does not amount to 
 larceny. The cases cited for the prosecution were cases 
 where the servant who parted with the property had a 
 limited authority only. In the present case the cashier of 
 the bank was acting within his authority in parting with 
 the pcjf'session and property in the money. Under these 
 circumstances the conviction must be quashed." 
 
 And if credit be given for the property, for ever so short 
 a time, no felony can be committed in converting it: 2 East, 
 
 P.C.677. 
 
314 
 
 LARCENY. 
 
 Thus, obtaining the delivery of a horse sold, on promise 
 to return immediately and pay for it, and riding off, and not 
 returning, is no felony: R. v. Harvey, 1 Leach, 467; but 
 see now s. 305, post. 
 
 So, where the prisoner, with a fraudulent intent to 
 obtain goods, ordered a tradesman to send him a piece of 
 silk, to be paid for on delivery, and upon the silk being sent 
 accordingly gave the servant who brought it bills which 
 were mere fabrications, and of no value ; it was holden not 
 to be larceny on the ground that the servant parted with 
 the property by accepting such payment as was offered, 
 though his master did not intend to give the prisoner credit: 
 Parkes's Case, 2 Leach, 614. 
 
 The prisoner, having entered into a contract with the 
 prosecutors for the purchase of some tallow, obtained the 
 delivery orders from the prosecutors by paying over to 
 them a cheque for the price of the tallow, and, when the 
 che'.j[ue was presented, there were no assets. Held, not to 
 be a larceny of the delivery orders by a trick, but a lawful 
 possession of them by reason of the credit given to the 
 prisoner in respect of the cheque: R. v. North, 8 Cox, 433. 
 
 To constitute larceny at common law there must be an 
 original felonious design. Lord Coke draws a distinction 
 between such as gain possession aninio furandi and such 
 as do not. He says : " The intent to steal must be when it 
 comes to his hands or possession ; for if he hath the pos- 
 session of it once lawfully, though he hath the animm 
 furandi afterwards, and carrieth it away, it is no larceny." 
 Therefore, when a house was burning, and a neighbour took 
 some of the goods to save them but afterwards converted 
 them to his own use, it was held no felony : 1 Leach, 411. 
 
 But if the original intent be wrongful, though not a 
 felonious trespass, a subsequent felonious appropriation i3 
 larceny. So, where a man drove away a flock of lambs 
 from a field, and in doing so inadvertently drove away 
 along with them a lamb, the property of another person, 
 
GENERAL REMARKS. 
 
 315 
 
 and, as soon as he discovered that he had done 80,i|Bold 
 the lamb for his own use, and then denied all knowledge of 
 it. Held, that as the act of driving the lamb from the 
 geld in the first instance was a trespass, as soon as 
 he resolved to appropriate the lamb to his own use the 
 trespass became a felony: R. v. Riley, Dears. 149, 6 Cox, 88. 
 
 It is peculiarly the province of the jury to determine 
 with what intent any act is done ; and, therefore, though 
 in general he who has a possession of anything on delivery 
 by the owner cannot commit larceny thereof at common 
 law, yet, that must be understood, first, where the pos- 
 session is absolutely changed by the delivery, and next, 
 where such possession is not obtained by fraud, and with a 
 felonious intent. For if, under all the circumstances of 
 the case, it be found that a party has taken goods from the 
 owner, although by his delivery, with an intent to steal 
 them such taking amounts to felony : 2 East, P. C. 685. 
 
 Overtures were made by a person to the servant of a 
 publican to induce him to join in robbing his master's till. 
 The servant communicated the matter to the master, and, 
 some weeks after the servant, by the direction of the 
 master, opened a communication with the person who had 
 made the overtures, in consequence of which he came to 
 the master's premises. The master, having previously 
 marked some money, it was, by his direction, placed upon 
 the counter by the servant in order that it might be taken 
 up by the party who had come for the purpose. It was so 
 taken up by him. Held, larceny in such party : R. v. 
 Williams, 1 C. & K. 195. 
 
 If the party obtained possession of the goods lawfully, 
 as upon a trust for, or on account of, the owner, by which 
 he acquires a special property therein, he cannot at common 
 law be afterwards guilty of felony in converting them to 
 his own use, unless by some new and distinct act of taking, 
 as by severing part of the goods from the rest, with intent 
 to convert them to his own use, he thereby determines the 
 
316 
 
 LARCENY. 
 
 pri1»ity of the bailment and the special property thereby 
 conferred upon him : 1 Hale, 504 ; 2 East, P. C. 564. But 
 that is not now law ; see s. 305, post. 
 
 'Sec E. V. Wells, 1 F. & F. 109, where it was held that 
 a carrier who, receiving money to procure goods, obtained 
 and duly delivered the goods but fraudulently retained the 
 money, may be convicted of larceny as a bailee. 
 
 A man cannot, however, be convicted of larceny as a 
 bailee unless the bailment was to re-deliver the very same 
 chattel or money : E. v. Hoare, 1 F. & F. 647 ; E. v. 
 Garrett, 2 F. & F. 14 ; E. v. Hassall, L. & C. 68. 
 
 The prisoner was intrusted by the prosecutor with 
 money to buy a load of coals, which were to be brought to 
 the prosecutor's by the prisoner in his own cart, the 
 prisoner being paid for his services including the use of his 
 horse and cart. He bought a load of coals in his own 
 name, and on the way to the prosecutor's abstracted a 
 portion of the coal and converted it to his own use, 
 delivering the rest of the coal to the prosecutor as and 
 for the whole load. Held, that he was rightly convicted of 
 larceny as a bailee : E. v. Bunkall, L. & C. 371, 9 Cox, 
 419. 
 
 A carrier employed by the prosecutor to deliver in his, 
 the prisoner's, cart a boat's cargo of coals to persons 
 named in a list, to whom only he was authorized to deliver 
 them, and having fraudulently sold some of the coals and 
 appropriated the proceeds, was properly convicted of larceny 
 as a bailee : E. v. Davies, 10 Cox, 239. 
 
 If the goods of a husband be taken with the consent or 
 privity of the wife it is not larceny: E. v. Harrison, 1 
 Leach, 47 ; E. v. Avery, Bell, 150 ; see now s. 813, jmt. 
 
 Howover, it is said that if a woman steal the (^[oodsof 
 her husband, and give them to her avowterer, who, know- 
 ing it, carries them away, the avowterer is guilty of felony: 
 
GENERAL REMARKS. 
 
 317 
 
 Palt. c. 104. And where a stranger took the goods of the 
 husband jointly with the wife this was holden to be larceny 
 in him, he being her adulterer : R. v. Tolfree, 1 Moo. 243, 
 overruling R.V.Clarke, 1 Moo. 376, note (a) ; see s. 313, po«^ 
 
 Also, in R. V. Featherstone, Dears. 369, the prisoner 
 was charged with stealing twenty-two sovereigns and some 
 wearing apparel. The prosecutor's wife took from the pro- 
 secutor's bedroom thirty-five sovereigns and some articles 
 of clothing, and left the house, saying to the prisoner, who 
 was in a lower room : " It's all right, come on." The 
 prisoner and the prosecutor's wife were afterwards seen 
 together, and were traced to a public house where they 
 slept together. When taken into custody the prisoner had 
 twenty-two sovereigns on him. The jury found the prisoner 
 guilty on the ground that he received the sovereigns from 
 the wife knowing that she took them without the authority 
 of her husband. Upon a case reserved it was held that 
 the conviction was right. Lord Campbell, C.J., in deliver- 
 ing the judgment, said : " We are of opinion that this con- 
 viction is right. The general rule of law is that a wife 
 cannot be found guilty of larceny for stealing the goods of 
 her husband, and that is upon the principle that the hus- 
 band and the wife are, in the eye of the law, one person ; 
 but this rule is properly and reasonably qualified when she 
 becomes an adulteress. She thereby determines her quality 
 of wife, and her- property in her husband's goods ceases ": 
 m R. V. Berry, Bell, 95. 
 
 And 80 it is even though no adultery has been com- 
 mitted, but the goods are taken with the intent that the 
 wife shall elope and live in adultery with the stranger : 
 E. V. Tollett, C. & M. 112 ; R. v. Thompson, 1 Den. 649. 
 
 And if a servant, by direction of his master's wife, 
 carries off his master's property, and the servant and wife 
 go off together with the property with the intention of 
 committing adultery, the servant may be indicted for 
 stealing the property: R. v. Mutters, L. & C. 511. 
 
 TX 
 
318 
 
 LARCENY. 
 
 It seems, however, that if a wife elopes with an adul- 
 terer it is no larceny in the adulterer to assist in carrying 
 away her necessary wearing apparel : R. v. Fitch, Dears. 
 & B. 187, overruling on this point the direction of Cole- 
 ridge, J., in R. V. ToUett, cited supra ; see s. 313, post. 
 
 The prisoner who had lodged at the prosecutor's house 
 left it, and the next day the prosecutor's wife also left 
 taking a bundle with her, which, however, was not large 
 enough to contain the things which, the evening she left, it 
 was found had been taken from the house. Two days 
 after all the things were found in the prisoner's cabin, or 
 on his person, in a ship in which the prosecutor's wife 
 was, the prisoner and the prosecutor's wife having taken 
 their passage in the ship as man and wife. It was 
 held that from these facts the jury were justified in drawin" 
 the inference that the prisoner had received the property 
 knowing it to have been stolen : R. v. Deer, L. & C. 240. 
 But an adulterer cannot be convicted of stealing the goods 
 of the husband brought by the wife to his house, in which 
 the adultery is afterwards committed, merely upon evidence 
 of their being there, unless they be traced to his personal 
 possession : R. v. Rosenberg, 1 C. & K. 233. When a wife 
 absconds from the house of her husband with her avowterer 
 the latter cannot be convicted of stealing the husband's 
 money missing on their departure, unless he be proved to 
 have taken some active part, either in carrying away or in 
 spending the money stolen : R. v. Taylor, 12 Cox, 627. 
 
 Nor can an avowterer be found guilty of felonious 
 receiving of the husband's property taken by the wife, as 
 a wife cannot steal her husband's property : R. v. Kenny, 
 13 Cox, 397 ; see now s. 313, 2^'JSt. 
 
 The prisoner eloped with the prosecutor's wife, travel- 
 ling in a cart which the wife took from her husband's yard. 
 The prisoner sold the pony, cart and harness in the 
 presence of the wife, who did not object to the sale, and 
 received the proceeds, which she retained after paying the 
 
GENERAL REMARKS. 
 
 319 
 
 ,i-.r- 
 
 prisoner a sovereign he had expended in obtaining lodging 
 while they were living in a state of adultery. Held, that 
 the presence of the woman did not alter the offence ; that 
 the fact that he negotiated the sale and received part of the 
 proceeds was sufficient ; from the circumstances, the 
 prisoner must have known that the pony, cart and harness 
 \\ere not the property of the woman ; and that if the jury 
 were of opinion he had that knowledge they were bound 
 to convict him : K. v. Harrison, 12 Cox, 19 ; E. v. Flat- 
 man, 14 Cox, 396. ^ 
 
 Under certain circumstances, indeed, a man may com- 
 mit felony of his own goods ; as if A. bail goods to B. and 
 afterwards, animo furandi, steal the goods from B. with 
 design to charge him for the value of them, this is felony : 
 1 Hale, 513 ; 2 East, P. C. 558. 
 
 So where A., having delivered money to his servant to 
 carry to a certain place, disguised himself, and robbed the 
 servant on the road, with intent to charge the hundred, 
 ,hiB was held robbery in A. : 2 East, P. C. 55b. 
 
 If a man steal his own goods from his own bailee, 
 though he has no intent to charge the bailee but his 
 intent is to defraud the King, yet, if the bailee had an in- 
 terest in the possession and could have withheld it from 
 the owner, the taking is a larceny : R v. Wilkinson, R & 
 R. 470. But it is said in Eoscoe, Cr. Evid. 697 : " It may 
 be doubted whether the law has not been som "hat dis- 
 torted in this case in order to punish a flagrant iraud." 
 
 Bishop, 2 Cr. L. 790, says : ** If one, therefore, has 
 transferred to another a special property in goods, retaining 
 ill himself the general ownership, or, if the law has made 
 such transfer, he commits larceny by taking them with 
 felonious intent." 
 
 So if a man steal his goods in custodia legis. But " if 
 the goods stolen were the general property of the defend- 
 ant, who took them from the possession of one to whose 
 care they had been committed, as for instance, from an 
 
 f * 
 
320 
 
 LARCENY. 
 
 officer seizing them on an execution against the defendant, 
 it must he shown that the latter knew of the execution and 
 seizure ; otherwise the required intent does not appear. 
 The presumption, in the absence of such knowledge, would 
 be, that he took the goods supposing he had the right sa 
 to do": 2 Bishop, Cr. Proc. 749 ; see a. 306, post. 
 
 If a part owner of property steal it from the person in 
 whose custody it is, and who is responsible for its safety, he 
 is guilty of larceny : E. v. Bramley, K. & B. 478. 
 
 A wife may steal the goods of her husband which have 
 been bailed or delivered to another person, or are in the 
 possession of a person who has a temporary special pro- 
 perty in them: 1 Hale, 513. 
 
 The wife cannot commit larceny in the company of her 
 husband ; for it is deemed his coercion, and not her own 
 voluntary act. Yet, if she do in his absence, and by his 
 mere command, she is then punishable as if she were sole : 
 E. V. Morris, E. & E. 270; E. v. Eobson, L. & C. 93; see 
 now s. 13, ante. 
 
 THE CARRYING AWAY. 
 
 {Sec s. 305, s-s, 4, post) 
 
 To constitute larceny there must be a carrying} away, 
 asportation, as well as a taking. The least removing of 
 the thing taken from the jAace where it was before is suffi- 
 cient for this purpose, though it be not quite carried off. 
 And, upon this ground, the guest, who, having taken off the 
 sheets from his bed, with an intent to steal them, carried 
 them into the hall, and was apprehended before he could 
 get out of the house, was adjudged guilty ol larceny. So, 
 also, was he, who, having taken a horse in a close, with an 
 intent to steal him, was apprehended before he could get 
 him out of the close. And such was the case of him who, 
 intending to steal plate, took it out of the trunk wherein it 
 was, and laid it on the floor, but was surprised before lie 
 could remove it any further: 2 East, P. C. 555; 3 Burn, 
 214. Or if a servant, animofurandi, take his master's hay 
 
W: 
 
 GENERAL REMARKS. 
 
 321 
 
 U 
 
 from bis stable, and put it into his master's wagf^on : B. v. 
 Gruncell, 9 C i& P. 366. 
 
 H. was indicted for stealing a quantity of currants » 
 which were packed in the forepart of a waggon. The pri- 
 soner had laid hold of this parcel of currants, and had got 
 near the tail of the waggon with them, when be was appre- 
 hended ; the parcel was afterwards found near the middle 
 of the waggon. On tnis case being referred to the twelve 
 judges they were unanimously of opinion that, as the pri- 
 soner had removed the property from the spot where it was 
 originally placed, with intent to steal, it was a taking and 
 carrying away: Cozlett's Case, 2 East, P. C. 556. 
 
 Prisoner bad lifted up a bag from the bottom of a boot 
 of a coach, but was detected before he had got it out ; it did 
 not appear that it was entirely removed from the space it 
 at first occupied in the boot, but the raising it from the 
 bottom had completely removed each part of it from the 
 space that specified part occupied: Held, that this was a 
 complete asportation: R v. Walsh, 1 Moo. 14. 
 
 The offence of simple larceny is complete, if the defend- 
 ant drew a book from the inside pocket of the prosecutor's 
 coat about an inch above the top of the pocket, though the 
 prosecutor then suddenly putting up his hand the defendant 
 let the book drop, and it fell back into the prosecutor's 
 pocket: K. v. Thompson, 1 Moo. 78. 
 
 On the other hand, a mere change of position of the 
 goods will not suffice to make out a carrying away. So,. 
 where W. was indicted for stealing a wrapper and some 
 pieces of linen cloth, and it appeared that the linen was 
 packed up in the wrapper in the common form of a long 
 square, which was laid length-way in a waggon, and that- 
 the prisoner set up the wrapper on one end in the waggoa 
 for the greater convenience of taking the linen out, and cut 
 the wrapper all the way down for that purpose, but was 
 apprehended before he had taken anything ; all the judges 
 agreed that this was no larceny, although his intention to 
 
 CKiii. Law— 21 
 
 M 
 
 \1 
 
 T ! 
 
 1 !■ 
 
 :,-;; i 
 
322 
 
 LARCENY. 
 
 steal was manifest. For a carrying away, in order to con- 
 stitute felony, must be a removal of the goods from the 
 place where they were; and the felon must, for the instant 
 at least, have the entire and absolute possession of them: 
 E. V. Cherry, 2 East, P. C. 656. 
 
 So, where one had his keys tied to the strings of his 
 purse in his pocket, which W. attempted to take from him 
 and was detected with the purse in her hand, but the 
 strings of the purse still hung to the owner's pocket by 
 means of the keys, this was ruled to be no asportation: 
 Wilkinson's case, 1 Leach, 821 ; see s. 711, post, 
 
 8o in another case, where A. had his purse tied to his 
 "girdle, and B. attempted to rob him ; in the struggle the 
 girdle broke, and the purse fell to the ground ; B. not hav- 
 ing previously taken hold of it, or picked it up afterwards, 
 it was ruled to be no taking : 1 Hale, 633 ; see b. 711, post. 
 
 Upon an indictment for robbery the prisoner was found 
 to have stopped the prosecutor as he was carrying a feather 
 bed on his shoulders, and told him to lay it down, or be 
 would shoot him, on which the prosecutor laid the bed ou 
 the ground, but the prisoner was apprehended before be 
 could take it up so as to remove it from the spot where it 
 lay, the judges were of opinion that the offence was not 
 complete : Farrell's case, 2 East, P. C. 657. 
 
 Where the prisoner, by means of a pipe and stopcock, 
 turned off the gas belonging to a company before it came 
 into the meter, and so consumed the gas, it was held tbat 
 there was a sufficient severance of the gas in the entrance 
 pipe to constitute an asportavit : B. v. White, Dears. 203 ; 
 R. v. Firth, 11 Cox, 234. 
 
 If the thief once take possession of the thing the offence 
 is complete, though he afterwards return it : 3 Burn, 215. 
 
 Where it is one continuing transaction, though there be 
 several distinct asportations in law by several persons, yet 
 all may be indicted as principals who concur in ibe felony 
 
GENERAL REMARKS. 
 
 323 
 
 Kifore the final carrying away of the goods from the virtual 
 custody of the owner; 2 East, P. C. 567; and if several 
 persons act in concert to steal a man's goods, and he is 
 induced by fraud to trust one of them, in the presence of 
 the others, with the possession of the goods, and another 
 of them entice him away that the man who has his goods 
 may carry them off, all are guilty of felony ; the receipt by 
 one is a felonious taking by all : B. v. Standley, B. & B. 
 805. 
 
 And where property which the prosecutors had bought 
 was weighed out in the presence of their clerk, aud deli- 
 vered to their carter's servant to cart, who let other persons 
 take away the cart and dispose of the property for his 
 benefit jointly with that of the other persons, it was held, 
 that the carter's servant, as well as the other persons, 
 was guilty of larceny at commou law : B. v. Harding, B. 
 & K. 125. 
 
 THE GOODS TAKEN. 
 
 The property taken must, to constitute larceny at com- 
 mon law, be personal property, and of some intrinsic value, 
 though it need not be of the value of some coin known to 
 the law : B. v. Morris, 9 C. & P. 349 ; 3 Burn, 216 ; B. v. 
 Walker, 1 Moo. 155 ; see s. 303, post. 
 
 Things real, or which savour of the realty, choses in 
 action, as deeds, bonds, notes, etc., cannot be the subject 
 of larceny, at common law : see s. 303, post. 
 
 No larceny, at common law, can be committed of such 
 animals in which there is no property, either absolute or 
 qualified; as of beasts that are fene natarce and unre- 
 claimed. But if they are reclaimed or confined, or are 
 practically under the care and dominion of the prosecutor 
 and may serve for food, it is otherwise : see s. 304, post. 
 
 So young pheasants, hatched by a hen, and under the 
 care of the hen in a coop, although the coop is in a field at 
 a distance from the dwelling-house, and although the 
 pheasants are designed ultimately to be turned out and to 
 
 
 
 I . 
 
 t ':. ■-' 
 
 \ . 1 
 
 ' I 
 
824 
 
 LARCENY. 
 
 become wild, are the subject of larceny: B. v. Cory, lo 
 Cox, 23. 
 
 Partridges were reared from eggs by a common hen ; 
 they could fly a little, but still remained with the hen as 
 her brood, and slept under her wings at night, and from 
 their inability to escape were practically in the power and 
 dominion of the prosecutor: Held, that they were the 
 subject of larceny at common law : R v. Shickle, 11 Cox, 189. 
 
 The prisoner was indicted for stealing one dead par- 
 tridge, and the proof was that the partridge was wounded, 
 but was picked up or caught by the prisoner while it was 
 alive but in a dying state : Held, that the indictment was 
 not proved : R v. Eoe, 11 Cox, 554. What value necessary 
 in property to be subject to larceny : R. v. Edwards, Warb. 
 Lead. Cas. 132. 
 
 Rabbits were netted, killed, and put in a place of de- 
 posit, \iz : a ditch, on the land of the owner of the soil on 
 which the rabbits were caught, and some three houro after- 
 wards the poachers came to take them away, one of whom 
 was captured by gamekeeper a wbc bad previously found 
 the rabbits, and lay in wait for the poachers : Held, that 
 this did not amount to larceny : R v. Townley, 12 Cox, 5S), 
 Warb. Lead. Cas. 133. But a trespasser who, having cut 
 grass on another man's land, leaves it there, but returns 
 and carries it away afterwards, commits hrceny : K. v. 
 Foley, 17 Cox, 142. Water in the pipes of a company 
 may be the subject of larceny : Ferens v. O'Brien, 15 Cox, 
 332. 
 
 AGAINST OWNERS CONSENT. 
 
 The taking must be against the will of the owner. The 
 primary inquiry to be made is, whether the taking were 
 invito domino, that is to say, without the will or approba- 
 tion of the owner ; for this is of the very essence of larceny 
 and its kindred offence, robbery: 3 Burn, 218. 
 
 But where a servant, being solicited to become an 
 accomplice in robbing his master's house, informed bi& 
 
GENERAL REMARKS. 
 
 325 
 
 master of it, and the master thereupon told him to carry 
 on the affair, consented to his opening the door leading to 
 the premises, and to his being with the robbers during the 
 robbery, and also marked his property, and laid it in a 
 place where the robbers wore expected to come : it was 
 iiolden, that this conduct of the master was no defence to 
 an indictment against the robbers : see Bishop, 1 Cr. L. 
 262, and 2 Cr. L. 811. 
 
 An indictment charged the stealing of " nineteen shil- 
 lings in money " of the moneys of A. B. It appeared that 
 A. B. got into a merry-go-round at a fair, and handed the 
 prisoner a sovereign in payment for the ride, asking her 
 to give change. The prisoner gave A. B. eleven pence, and 
 gaid she would give the rest when the ride was finished. 
 After the ride was over the prisoner said A. B. only gave 
 her one shilling, and refused to give her the nineteen shil- 
 lings change : Held, that the prisoner could not be con- 
 victed upon this indictment of stealing nineteen shillings : 
 R. V. Bird, 12 Cox, 257. 
 
 B., making a purchase from the prisoner, gave him half 
 a sovereign in mistake for a sixpence. Prisoner looked 
 at it and said nothing but put it into his pocket. Soon 
 afterwards B. discovered the mistake, and returned and 
 demanded the restoration of the half sovereign. Prisoner 
 said "all right, my boy ; Pll give it to you," but he did not 
 return it, and was taken into custody : Held, not to be a 
 larceny: R. v. Jacobs, 12 Cox, 151. Obtaining money from 
 any one by frightening him, is larceny: R. v. Lovell, 8 
 Q. B. D. 185 ; R. v. McGrath, Warb. Lead. Cas. 140. 
 
 THE FELONIOUS INTENT. 
 
 The taking and carrying away must, to constitute lar- 
 ceny at common law, be with & felonious intent entertained 
 at the time of the taking : see now s-s. 3, s. 305, post. 
 
 Felony is always accompanied with an evil intention, 
 and, therefore, shall not be imputed to a mere mistake. 
 
 iJit 
 
 Mti 
 
 'I 
 ■1 . 1 
 
326 
 
 LARCENY. 
 
 As where persons break open a door in order to execute a 
 warrant which will not justify such a proceeding : for in 
 such case there is no feloniom intention : 1 Hawk. 142. 
 
 For it is the mind that makes the taking of another's 
 goods to be felony, or a bare trespass only ; but, because 
 the variety of circumstances is so great, and the complica- 
 tion thereof so mingled, that it is impossible to prescribe 
 all the circumstances evidencing a felonious intent or the 
 contrary, the same must be left to the due and attentive 
 consideration of the judge and jury : wherein, the best rule 
 is, in doubtful matters, rather to incline to acquittal than 
 conviction. Only, in general, it may be observed, that the 
 ordinary discovery of a felonious intent is, the party doing 
 it secretly, or, being charged with the goods, denying it: 
 1 Hale, 509. 
 
 And if goods be taken on claim of right or property in 
 them it will be no felony ; at the same time, it will be 
 matter of evidence whether they were, bona fide, so taken, 
 or whether they were not taken from the person actually 
 possessing them, with a thievish and felonious intent, and 
 therefore, obtaining possession of goods by a fraudulent 
 claim of right, or by a fraudulent pretense of law, and 
 then running away with them, would be a felony : 1 Hale, 
 607 ; Lemott's case and Farre's case, Kelyng, 64, 65. 
 
 The prisoner had set wires, in which game was caught. 
 The prosecutor, a game-keeper, took them away for the 
 use of the lord of the manor, while the prisoner was absent. 
 The prisoner demanded his wires and game, with menaces, 
 and under the influence of fear the prosecutor gave them 
 up. The jury found that the prisoner acted under a bona 
 fide impression that the game and wires were his property, 
 and that he merely, by some degree of violence, gained 
 possession of what he considered his own. It was held no 
 robbery, there being no animus furandi : R. v. Hall, 3 C. 
 & P. 409, 
 
GENERAL REMARKS. 
 
 327 
 
 And where a letter, directed to J. 0. at St. Martin's 
 Lane, Birmingham, inclosing a bill of exchange drawn in 
 fa/our of J. 0., was delivered to the defendant, whose name 
 was J. 0., and who resided near St. Martin's Lane, 
 Birmingham ; but, in truth, the letter was intended for a 
 person of the name of J. 0. who resided in Ntiw Hall 
 Street ; and the prisoner, who, from the contents of the 
 letter, must have known that it was not intended for him, 
 applied the bill of exchange to his own use ; the judges 
 held that it was no larceny, because at the time when the 
 letter was delivered to him the defendant had Uv.t the 
 animus furandi : B. v. Mucklow, 1 Moo. 160. 
 
 And to constitute larceny at common law the intent 
 must be to deprive the owner, not temporarily, but per- 
 manently, of his property : B. v. Philipps, 2 East, P. C. 
 66'2 ; B. V. Hemmings, 4 F. & F. 60 ; but see now s. 305, 
 post. 
 
 Money was given to the prisoner for the purpose of 
 paying turnpike tolls at two gates on his journey. Twelve 
 days afterwards, on being asked if he had paid the toll at 
 one of the gates, the prisoner said he had not, that he had 
 gone by a parish road which only crossed the road at that 
 gate, and so no toll was payable there, and that he had 
 spent the money on beer for himself and his mates. The 
 prisoner having been convicted of larceny of the money, 
 but it not appearing on a case reserved as to whether the 
 facts proved a larceny, and that the question of felonious 
 intention had been distinctly left to the jury, the court 
 quashed the conviction : B. v. Deering, 11 Cox, 298. 
 
 In all cases of larceny the questions whether the 
 defendant took the goods knowingly or by mistake ; 
 whether he took them bona fide under a claim of right or 
 otherwise; and whether he took them with an intent to 
 return them to the owner, or to deprive the owner of them 
 altogether, and to appropriate and convert them to his own 
 use, are questions entirely for the consideration of the 
 
 1 * ^ 
 
\ 
 
 328 
 
 LARCENY. 
 
 jury, 10 be determined by them upon a view of the 
 particular facts of the case : 1 Leach, 422. 
 
 Upon an indictment for larceny it appeared that the 
 prisoner had been instructed by the wife of the prosecutor 
 to repair an umbrella. After the repairs were finished, 
 and it had been returned to the prosecutor's wife, a dispute 
 arose as to the bargain made. The prisoner thereupon 
 carried away the umbrella as a security for the amount 
 alleged by him to be due for repairing it. Blackburn, J., 
 left it to the jury to say whether the taking by the 
 prisoner was an honest assertion of his right, or only a 
 colourable pretense to obtain possession of the umbrella ; 
 verdict, not guilty: R. v. Wade, 11 Cox, 549. 
 
 A depositor in a post office savings bank obtained a 
 warrant for the withdrawal of ten shillings, and presented 
 it with bis depositor's book to a clerk at the post office, 
 who, instead of referring to the proper letter of advice for 
 ten shillings, referred by mistake to another letter of 
 advice for eight pounds, sixteen shillings and ten pence, 
 and placed that sum upon the counter. The clerk entered 
 eight pounds, sixteen shillings and ten pence in the 
 depositor's book as paid, and stamped it. The depositor 
 took up that sum and went away. The jury found that he 
 had the animus furandi at the moment of taking the 
 money from the counter, and that he knew the money to 
 be the money of the postmaster general when he took it 
 up, and found him guilty of larceny. Held, by a majority 
 of the judges, that he was properly convicted of larceny. 
 Per Cockburn, C.J., Blackburn, Mellor, Lush, Grove, 
 Denman and Archibald, JJ., that the clerk and there- 
 fore, the postmaster general, having intended that the 
 property in the money should belong to the prisoner 
 through mistake, the prisoner knowing of the mistake, and 
 having the animus furandi at the time, was guilty of 
 larceny. Per Bovill, C.J., Kelly, C.B., and Keating, J., 
 that the clerk, having only a limited authority under the 
 
GENERAL REMARKS. 
 
 329 
 
 ii:' 
 
 letter of advice, had no power to part with the property 
 jQ the mouey to the prisoner, and that, therefore, the 
 conviction was right. Per Figott, B., that, before posses- 
 BJoD of the money was parted with, and while it was on the 
 counter, the prisoner had the animiu furandi, and took it 
 up, and was therefore guilty of larceny. Per Martin, B,, 
 Bramwell, B., Brett, J., and Cleasby, B., that the money 
 was not taken invito domino, and therefore that there was 
 DO larceny. Per Bramwell, B., and Brett, J., that the 
 authority of . the clerk authorized the parting with the 
 possession and property in the entire sum laid down on the 
 counter : B. v. Middleton, 12 Cox, 260, 417. 
 
 Larceny by finding. — As to concealing treasure trove, 
 m B. V. Thomas, Warb. Lead. Gas. 79. If a man lose 
 goods and another find them, and, not knowing the 
 owner, convert them to his own use, this has been said to 
 be no larceny, even although he deny the finding of thsm, 
 or secrete them. But the doctrine must be taken with 
 great limitation, and can only apply where the finder 
 Una fide supposes the goods to have been lost or abandoned 
 by the owner, and not to a case in which he colours a 
 {elonious taking under that pretense : see B. v. Thurborn, 
 1 Den. 887, Warb. Lead. Gas. 149, and cases there 
 collected. 
 
 The true rule of law resulting from the authorities on 
 the subject has been pronounced to be that "if a man find 
 goods that have been actually lost, or are reasonably sup- 
 posed by him to have been lost, and appropriates them with 
 intent to take the entire dominion over them, really believ- 
 ing, when he takes them, that the owner cannot be found, 
 it is not larceny; but, if he takes them with the like intent, 
 though lost, or reasonably supposed to be lost, but reason- 
 ably believing that the owcer can be found, it is larceny: " 
 B. V.Dixon, Dears. 580; B. v. Ghristopher, Bell, 27. 
 
 In R V. Moore, L. & G. 1, on an indictment for stealing 
 a bank note, the jury found that the prosecutor had dropped 
 
 lli'li:;;.. 
 
 h.f 
 
\ 
 
 ■■!.!•>:• I; I 
 
 330 
 
 LARCENY. 
 
 the note in the defendant's shop; that the defendant had 
 found it there, and that at the time he picked it up he did 
 not know, nor had he reasonable means of knowing, who 
 the owner was; that he afterwards acquired knowledge who 
 the owner was, and after that converted the note to his own 
 use ; that he intended, when he found the note, to take it 
 to his own use and deprive the owner of it, whoever he was; 
 and that he believed, when he found it, that the owner 
 could be found. It was held that upon these findings the 
 defendant was rightly convicted of larceny. It is to be 
 observed that in the last mentioned case, although the 
 prisoner at the time he found the bank note did not know, 
 nor had reasonable means of knowing, who the owner was, 
 yet that he did believe at tl^e time of the finding that the 
 owner could be found. 
 
 The case of B. v. Glyde, 11 Cox, 0. ihows that the 
 belief by the prisoner at the time of the finding of the chattel 
 that he could find the owner is a necessary ingredient in 
 the offence, and that it is not sufficient that he intended to 
 appropriate the chattel at the time of finding it, and that 
 he acquired the knowledge of who the owner was before be 
 converted it to his own use. In that case the prisoner 
 found a sovereign on the highway, believing it had been 
 accidentally lost; but, nevertheless, with a knowledge that 
 he was doing wrong, he at once determined to appropriate 
 it, notwithstanding it should become known to him who the 
 owner was. The owner was speedily made known to him, 
 and the prisoner refused to give up the sovereign. There 
 was, however, no evidence that he believed, at the time of 
 finding the sovereign, that he could ascertain who the 
 owner was, and the prisoner was, therefore, held not guilty 
 of larceny. 
 
 In R. V. Deaves, 11 Cox, 227, the facts were th&t the 
 prisoner's child, having found six sovereigns in the street, 
 brought them to the prisoner, who counted them and told 
 some bystanders that the child had found a sovereign. The 
 
GENERAL REMARKS. 
 
 331 
 
 prisoner and the child then \<rent down the street to the 
 place where the child had found the money, and found a 
 half' sovereign and a bag. On the same evening, about two 
 hours after the finding, the prisoner was told that a woman 
 had lost money, upon which the prisoner told her informant 
 to mind her own business, and gave her half a sovereign. 
 It was held by the majority of the Irish Court of Criminal 
 Appeal that this case would not be distinguished from B. 
 V. Glyde, supra ; that there was nothing to show that at the 
 time the child brought her the money the prisoner knew 
 the property had an owner, or, at all events, to show that 
 she was under the impression that the owner could be 
 found, and that, therefore, the conviction of the prisoner 
 for larceny must be quashed. 
 
 Prisoner received from his wife a ten pound Bank of 
 England note, which she had found, and passed it away. 
 The note was endorsed " E. May " only, and the prisoner, 
 when asked to put his name and address on it by the 
 person to whom he passed it, wrote on it a false name and 
 address. When charged at the police station the prisoner 
 said he knew nothing about the note. The jury were 
 directed that, if they were satisfied that the prisoner could, 
 within a reasonable time, have found the owner, and if 
 instead of waiting the prisoner immediately converted the 
 note to his own use, intending to deprive the owner of it, 
 it would be larceny. The prisoner was convicted but, 
 upon a case reserved, it was held that the conviction was 
 wrong, and that the jury ought to have been asked whether 
 the prisoner, at the time he received the note, believed the 
 owner could be found : E. v. Knight, 12 Cox, 102. 
 
 It is clearly larceny if the defendant, at the time ho 
 appropriates the property, knows the owner ; and, there- 
 fore, where a bureau was given to a carpenter to repair, 
 and he foand money secreted in it which he kept and 
 converted to his own use, it was held to be larceny : Cart- 
 wright v. Green, 2 Leach, 952. 
 
332 
 
 LARCENY. 
 
 So if a hackney coachman convert to his own use a 
 parcel left by a passenger in his coach by mistake, it ii 
 felony if be knows the owner, or if he took him up or set him 
 down at any particular place, where he might have inquired 
 for him : E. v. Wynne, 2 East, P. C. 664 ; B. v. Sears, 1 
 Leach, 415. 
 
 So, in every case where the property is not, properly 
 speaking, lost, but only mislaid, under circumstances which 
 would enable the owner to know where to look for and find 
 it, as where a purchaser at a stall of the defendant in a 
 market left his purse on the stall, the peison who fraudu- 
 lently appropriates property so mislaid is guilty of larceny: 
 
 B. V. West, Dears. 402. 
 
 And in every case in which there is any mark upon the 
 property by which the owner may be traced, and the finder, 
 instead of restoring the property, converts it to bis own 
 use, such conversion will amount to larceny : B. v. Pope, 6 
 
 C. & P. 346 ; B. v. Mole, 1 C. & K. 417 ; B. v. Preston, 2 
 Den. 353. 
 
 Doing an act openly doth not make it the less a felony, 
 in certain cases : 3 Burn, 223. So, where a person came 
 into a seamstress's shop, and cheapened goods, and rau 
 away with the goods out of the shop, openly, in her sight, this 
 was adjudged to be a felony : Cbiser's Case, T. Baym. 276. 
 
 Beturning the goods will not purge the offence if the 
 prisoner took them originally with the intent of depriving 
 the owner of them, and of appropriating them to his own 
 use. In B. v. Trebilcock, Dears. & B. 453, the jury found 
 the prisoner guilty, but recommended him to mercy, 
 " believing that he intended immediately to return the 
 property:" Held, that the conviction was right: the 
 recommendation of the jury is no part of the verdict. 
 
 The felonious quality consists in the intention of the 
 prisoner to defraud the owner, and to apply the thing stolen 
 to his own benefit or use. 
 
GENERAL REMARKS. 
 
 338 
 
 The intent need not be lucri caiisa : B. v. Morfit, B. & 
 E. 307; E. v. Gruncell, 9 C. & P. 866; E. v. Handley, 
 Car.& M. 547 ; E. v. Privett.l Den. 193; E. v. Jonea, 1 Pen» 
 188. 
 
 Possession of stolen property recently after its loss, if 
 nnexplained, is presumptive evidence that the party in pos- 
 session stole it. Such presumption will, however, vary 
 according to the nature of the property stolen, and whether 
 it be or not likely to pass readily from hand to hand : E. v. 
 Partridge, 7 C. «fe P. 651, Warb. Lead. Gas. 182. 
 
 Prisoner was found with dead fowls in his possession 
 of which he could give no account, and was tracked to a 
 fowl house where a number of fowls were kept, and on the 
 floor of which were some feathers corresponding with the 
 feathers of one found on the prisoner from the neck of 
 which feathers had been removed. The fowl-house, which 
 was closed over night, was found open in the morning. 
 The spot where the prisoner was found was twelve hundred 
 yards from the fowl-house, and the prosecutor, not knowing 
 the number of fowls kept, could not swear that he had lost 
 any : Held, that there was evidence to support a conviction 
 for larceny : E. v. Mockford, 11 Cox, 16 ; $ee E. v. Dredge, 
 Warb. Lead. Cas. 135. 
 
 On the first floor of a warehouse a large quantity of 
 pepper was kept in bulk. The prisoner was met coming 
 oat of the lower room of the warehouse, where he had no 
 business to be, having on him a quantity of pepper of the 
 same kind as that in the room above. On being stopped 
 he threw down the pepper and said, "I hope you will not 
 be hard with me." From the large quantity in the ware- 
 house it could not be proved that any pepper had been 
 taken from the bulk. It was objected that, as there was 
 no direct proof that any pepper had been stolen, the judge 
 was bound to direct an acquittal, but the court of Criminal 
 Appeal held that there was evidence to warrant a oonvio- 
 tion: B. v. Burton, 6 Cox, 293. 
 
1 
 
 334 
 
 LARCENY. 
 
 To obtain, money by the trick known as " ringing the 
 changes " is larceny : B. v. Hollis,, 16 Cox, 845. T^^.- j. ' 
 
 A. was indicted for larceny under the following circum« 
 stances : — B., intending to lend A. a shilling, handed him 
 a sovereign, believing it to be a shilling. A., when he 
 received the sovereign, believed it to be a shilling, and did 
 not know until subsequently that it was not a sL'Mir 
 Immediately A. became aware that it was a soverei^, ., and 
 although he knew that E. had not intended to part with 
 the possession of a sovereign, but only with the possession 
 of a shilling, and although he could easily have returned 
 the sovereign to B., fraudulently appropriated it to his own 
 use. Prisoner was convicted of larceny. Upon a case re- 
 served, seven judges held the conviction right, and seven 
 were of opinion that these facts did not constitute larceny : 
 E. V. Ashwell, 16 Cox, 1, 16 Q. B. D. 190. 
 
 In B. V. Flowers, 16 Cox, 33, 16 Q. B. D. 648, held, 
 that where money or goods have been innocently received 
 a subsequent fraudulent appropriation will not render the 
 receiver guilty of larceny, the above lastly cited case not 
 being an authority to the contrary. 
 
 A declaration made by a prisoner tried on an indictment 
 for larceny, before he was charged with the crime, in 
 answer to a question asked him where he got the property, 
 is evidence on his behalf. 
 
 On the trial of an indictment for larceny of a watch the 
 prisoner's counsel called a witness, W., who stated that the 
 prisoner was drinking at a public house on the evening 
 when the alleged offence was committed, and had the 
 watch with him ; that W. went home with the prisoner, 
 and they sat down in the bouse ; that while they were 
 sitting there the prisoner fell upon the floor and the watch 
 fell out of his pocket, and W. picked it up and asked him 
 where he got it. His answer to this question was rejected. 
 The prisoner being convicted, it was held by the court, ou 
 a case reserved, that the evidence should have 
 
GENERAL REMARKS. 
 
 335 
 
 i i; 
 
 received, and the conviction was quashed : B. v. Ferguson, 
 8 Pugs. (N. B.) 612. 
 
 H. and W. were jointly indicted for stealing. H. ^ras 
 found guilty, but the jury could not agree as to W., and 
 were discharged from giving a verdict as to him. Held, 
 tb&t the verdict warranted the conviction of H. : B. v. 
 Hamilton and Walsh, 23 N. B. Bep. 540. 
 
 Evidence oi . general deficiency in the books of a clerk 
 not sufficient to support a charge of larceny : B. v. Glass, 
 M. L. E. 7 Q. B. 405 ; see E. v. Wright, 7 Cox, 413. Now, 
 evidence of a general deficiency would, it seems, support an 
 indictment for theft, s. 305, post. 
 
I -^ 
 
 1' fff'ii I 
 
 336 
 
 OFFENCES AGAINST PROPERTY, ETC. [Sec. 303 
 
 TITLB VI. 
 
 OFFENCES AGAINST RIGHTS OF PROPERTY AND 
 
 RIGHTS ARISING OUT OF CONTRACTS, AND 
 
 OFFENCES CONNECTED WITH TRADE. 
 
 PART XXIV. 
 
 What Things Can bk Stolen. 
 
 308* Every inanimate thing whatever which is the property of sny 
 person, and which either is or may be made moveable, shall henceforth be 
 capable of being stolen as soon as it becomes moveable, although it is made 
 moveable in order to steal it : Provided, that nothing growing out of the earth 
 of a value not exceeding twenty-five cents shall (except in the cases hereinafter 
 provided) be deemed capable of being stolen. 
 
 Section 887, post, provides for the stealing of trees of a 
 value not exceeding twenty-five cents. 
 
 By the above section, whatever remained of the common 
 law rule as to fixtures, things growing, minerals, choses in 
 action, is superseded. The reason why things growing 
 under the value of twenty-five cents are excepted is the 
 harshness of exposing every person to be treated as a thief 
 who picked a flower in a garden or cut a stick from a 
 hedge : 8 Stephen's Hist. 162. 
 
 " The rules that documents evidencing certain rights, and 
 that land and things ' savouring of the realty ' are not capable of 
 being stolen, appear to us wholly indefensible. It is, no doubt, 
 physically impossible to steal a legal right, or to carry awaj a 
 field, but this afifords no ground at all for the rule that it shall 
 be legally impossible to commit theft upon documents ^vhicli 
 afford evidence of legal rights, or upon things which, though 
 fastened to, growing out of, or forming part of the soil, are 
 capable of being detached from it and carried away. 
 
 " These rules have been qualified by statutory exceptions so 
 wide and intricate that they are practically abolished, but they 
 still give form to a considerable part of the law of theft, and 
 
^ 304] ANIMALS CAPABLE OT BEING STOLEN. 
 
 3»T 
 
 occasionally produoe failure of justice in oases io whidi the 
 statutory exception is not quite oo*extennve with the oommon 
 law role. These rules we propose to abolish absolotely." — Imp* 
 Oomm. Bep. 
 
 Animals Capable of Bkino Stolin. 
 S04* All tame living creatares, whether tame by nature or wild hy 
 nature and tamed, shall be capable of being stolen ; but tame pigeons shall be 
 capable of being stolen so long only as they are in a dovecote or on their 
 owner's land. 
 
 2. All living creatures wild by nature, such as are not commonly found in 
 a condition of natural liberty in Canada, s^ ill, if kept in a state of confinement* 
 be capable of being stolen, not only while they are so confined but after they 
 have escaped from confinement. 
 
 3. All other living creatures wild by nature shall, if kept in a state of 
 confinement, be capable of being stolen so long as they remain in confinement 
 or are being actually pursued after escaping therefrom, but no longer. 
 
 4. A wild living creature shall be deemed to be in a state of confinement 
 go lonK as it is in a den, cage or small inolosure, stye or tank, or is otherwise so 
 situated that it cannot escape and that its owner can take possession of it at 
 pleasure. 
 
 5. Oysters and oyster brood shall be capable of being stolen when in oyster 
 beds, layings, and fisheries which are the property of any person, and 
 sufficiently marked out or known as such property. 
 
 6. Wild creatures in the enjoyment of their natural liberty shall not be 
 capable of being stoljn, nor shall the taking of their dead bodies by, or by the 
 orders of, the person who killed them before they are reduced into actual 
 possession by the owner of the land on which they died, be deemed to be theft 
 
 7. Every thing produced by or forming part of any living creature 
 capable of being stolen, shall be capable of being stolen. 
 
 As to the stealing of pigeons when away from their. 
 owner's land, see post^ s. 333. 
 
 As to stealing oysters, see post a. 334. 
 
 " As to animals, one rule of the existing law ia founded off 
 the principle that to steal animals used for food or labour is a 
 crime worthy of death, but that to steal animals kept for pleasure 
 or curiosity is only a civil wrong. The principle has long since 
 been practically abandoned. Sheep stealing is no longer a 
 capital crime, and dog stealing is a statutory offence ; but the 
 distinction still gives its form to the law, and occasionally pro- 
 duces results of a very undesirable kind. It has been lately held, 
 for instance, that as a dog is not the subject of larceny at 
 common law, it is not a crime to obtain by &ise pretenses two 
 Cbim. Law— 22 
 
S38 
 
 OFFENCES AGAINST PROPERTY, ETC. [Sec. 305 
 
 valuable pointers : B. v. Robinson, Bell, 84. It seems to us 
 that this rule is quite unreasonable, and that all animals which 
 are the subject of property should also be the subject of larceny. 
 This, however, suggests the question, what wild animals are the 
 subject of property, and how long do they continue to be so ? 
 This question must be considered in reference to living animals 
 fera natura in the enjoyment of their natural liberty ; living 
 animals fera naturo! escaped from captivity ; and pigeons which 
 singularly enough, form a class by themselves. The existing law 
 upon this subject, is that a wild living animal in the enjoyment of 
 its natural liberty is not the subject of property ; but that when 
 dead it becomes the property of the person on whose land it dies 
 in such a sense that he is entitled to take it from a trespasser 
 hut not in such a sense that the person who took it away, on 
 killing it, is guilty of theft. This is specially important in 
 reference to game. This state of the law we do not propose to 
 alter. As to living animals fei-a natura in captivity, we think 
 they ought to be capable of being stolen. 
 
 " When such an animal escapes from captivity, a distinction 
 appears to us to arise which deserves recognition. If the animal is 
 one which is commonly found in a wild state in this country 
 it seems reasonable that on its escape it should cease to be 
 property. 
 
 " A person seeing such an animal in a field may have no 
 reasonable grounds for supposing that it had just escaped from 
 captivity. 
 
 " If, however, a man were to fall in with an animal imported 
 as a curiosity, at great expense, from the interior of Africa, be 
 could hardly fail to know that it had escaped from some person 
 to whom it would probably have a considerable money value. 
 We think that a wild animal should, on escaping from confine- 
 ment, still be the subject of larceny, unless it be one commonly 
 found wild in this country." — Imp. Comm. Rep. 
 
 Definition op Thkpt. 
 305* Theft or stealing is the act of fraudulently and without colour of 
 right taikmg, or fraudtdentl!/ and without colour of right converting to the useofann 
 persvn, anything capable of being stolen, with intent — 
 
 (a) to deprive the owner, or any person having any special property 
 or interest therein, temporarily or absolutely of such thing or of such pro- 
 perty or interest ; or 
 
 BB 
 
■!ii 
 
 See. 303} 
 
 DEFINITION OF THEFT. 
 
 339 
 
 (b) to pledge the same or deposit it as security ; or 
 
 («) to part with it under a condition as to its return which the person 
 parting with it may be unable to perform ; or 
 
 {d) to deal with it in such a manner that it cannot be] restored in the 
 condition in which it was at the time of such taking and conversion. 
 
 2. The taking ur conversion may be fraudulent, although effected without 
 secrecy or attempt at concealment. 
 
 3. It is immaterial whether the thing converted was taken for the purpose 
 of conversion, or whether it was, at the time of the conversion, in the 'awful 
 posseBsion of the person converting. 
 
 4. Theft is committed when the offender moves the thing or causes it to 
 move or to be moved, or begins to cause it to become moveable, with intent to 
 steal it. 
 
 5. Provided, that no factor or ag^nt shall be guilty of theft by pledging or 
 giving; a lien on any goods or document of title to goods intrusted to him for 
 thp purix)8e of sale or otherwise, for any sum of money not greater than the 
 amount due to him from his principal at the time of pledi^ing or giving a lien 
 on the same, together with the amount of any bill of exchange accepted by him 
 for or on account of his principal. 
 
 6. Provided, thit if any servant, contrary to the\ordera of hia matter, takes 
 Jromhispoasefsion any food for the purpose of giving the same or having the 
 same given to any horse or other animal belonging to or in the possession of his 
 matter, the servant so offending shall not, by reason thereof, be guilty of theft. 
 R. S. C. c. 104, 8. 63. 
 
 The words in italics " fraudulently and without colour of 
 right, converting to the use of any person," have the effect 
 of abolishing the distinction between embezzlement and 
 larceny. By that definition the gist of the offence of theft is 
 now a fraudulent conversion, and not an unlawful taking : 
 3 Stephen's Hist. 166. The word " temporarily " is new, 
 and was not in the English draft. It may have been in- 
 serted 80 as to include the enactment of b. 85 B. S. G. c. 
 164, but is nevertheless wrong. S-s. 6 (new) is a partial 
 re-enactment of 26 & 27 V. c. 103, (Imp.), by wbJch the case 
 of B. V. Morlit, B. & B. 807, is not now law in England. 
 
 "Technicalities of more importance connected with the 
 taking are those which have led to the distinction between theft 
 and embezzlement. The immediate consequence of the doctrine 
 tliat a wrongful taking is of the essence of theft is, that if a 
 person obtains possession of a thing innocently, and afterwards 
 fraudulently misappropriates it, he is guilty of no offence. This 
 doctrine has been qualified by a number of statutory exceptions, 
 
 f^' 
 
 I I 
 
340 
 
 OFFENCES AGAINST PROPERTY, ETC. 
 
 [Sec. 30tt 
 
 each of which has been att<)nded witli difficulties of its own. 
 . . . . We have therefore defined theft in sach a manner as 
 to put wrongful taking and all other means of fraudulent mis- 
 appropriation on the same footing. The definition properly 
 expounded and qualified will, we think, be found to embrace 
 every act which in common language would be regarded as theft, 
 and it will avoid all the technicalities referred to as arising out 
 of the common law rules, as well as out of the intricate and 
 somewhat arbitrary legislation on the subject. 
 
 " The crime of embezzlement, wherever the subject matter 
 
 of it is a chattel or other thing which is to be handed over in 
 
 specie will, come within the definition of theft, but where the 
 
 subject matter is not to be handed over in specie, but may be 
 
 accounted for by handing over an equivalent, it requires separate 
 
 provisions which will be found in ss. 249, 250 & 251 (ss. 308, 309, 
 
 310, post). It is essential to all of these offences that there 
 
 should be the animus furandi, that guilty intention which makes 
 
 the difference between a trespass and a theft." — Imp. Comm. 
 
 Bep. 
 
 Thkpt of Things Undbr Seizure. 
 
 306* Every one commits theft and steals the thing taken or carried 
 away who, whether pretending to be the owner or not, secretly or openly, takes 
 or carries away, or causes to be taken or carried away, without lawful author- 
 ity, ary property under lawful seizure and detention. R. S. C. c. 164, a. 50. 
 
 Punishment, s. 356, post. 
 
 The words "and whether with or without force and vio- 
 lence " were in the repealed clause. 
 
 Bishop, 2 Cr. L. 790, says : " If one, therefore, has 
 transferred to another a special property in goods, retain- 
 ing in himself the general ownership, or, if the law has 
 made such transfer, he commits larceny by taking thorn 
 with felonious intent." 
 
 So if a man steal his goods in custodia legis. But " if 
 the goods stolen were the general property of the defendant, 
 who took them from the possession of one to whose care 
 they had been committed, as, for instance, from an officer 
 seizing them on an execution against the defendant, it must 
 be shown that the latter knew of the execution and seizure; 
 
Se««. 307, 306] 
 
 KILLING ANIMALS, ETC. 
 
 841 
 
 otherwise the required intent does not appear. The pre- 
 sumption, in the absence of such knowledge, would be, that 
 be took the goods, supposing he had the right so to do": 
 2 Bishop, Gr. Proc. 749. 
 
 Section 212, c. 82, B. S. C. contains an enactment in a 
 similar sense as to goods seized by the customs officers. 
 
 Killing Animals to Steal Caroasbs, Eto. 
 
 307* Every one oommits theft and atealB the oruature killed who kills 
 any living creature capable of beinf; i.^olen with interns to steal the carcase, 
 skin, plumage or auy part of such creature. B. S. C. o. 164, s. 8. (Amended). 
 2t-25 V. 0. 96, 8.11 (Imp.). 
 
 Punishment, s. 356, pott. 
 
 The repealed Beidon i,pplied to "animals" instead of 
 " living creaturea." 
 
 Indictment. — one theep of the goods 
 
 and chattels of I. N. unlawfully did stf 1. 
 
 Gutting ofif part o; a sheep, in this instance the leg, 
 while it is alive, with intent to steal it, will suppr ^rt an in- 
 dictment for killing with intent to steal, if the cutting off 
 must occasion the sheep's death : B. v. Clay, B. & B. 887. 
 
 So on the trial of an indictment for killing a ewe with 
 intent to steal the carcase, it appeared that the prisoner 
 wounded the ewe by cutting her throat, and was then 
 interrupted by the prosecutor, and the ewe died of the 
 wounds two days after. It was found by the jury who con- 
 victed the prisoner that he intended to steal the carcase of 
 the ewe. Tb3 court held the conviction right : B. 
 V. Sutton, B C. & P. 291. It is immaterial whether the 
 intent was to steal the whole or part only of the carcase : 
 E. V. Wi:iiams, 1 Moo. 107. 
 
 Kay one killing cattle with intent to steal the carcase, 
 should be indicted under s. 499, post. 
 
 Thkft by Aoent. 
 
 SOS. Every one commits theft who hiiving received any money or . 
 
 valuable security or other thing whatsoever, on terms requiring him to account | 
 
 for or pay the same, or the proceeds thereof, or any part of such proceeds, to i 
 any other person, though not requiring him to deliver over in sijecie the 
 
342 
 
 OFFENCES AGAINST PROPERTY, ETC. [Seen. 309, 310 
 
 identical money, valuable security or other thing received, fraudulently con- 
 verts the same to his own use, or fraudulently omits to account for or pay the 
 same or any part thereof, or to account for, or pay such proceeds or any part 
 thereof, which he was required to account for or pay as aforesaid. 
 
 2. Provided, that if it be part of the said terms that the money or other 
 thing received, or ihe proceeds thereof, shall form an item in a debtor and 
 creditor account between the person receiving the same and the person to 
 whom he is to account for or pay the same, and that such last mentioned per- 
 son shall rely only on the personal liability of the other as his debtor in respect 
 thereof, the proper entry of such money or proceeds, or any part thereof, in 
 such account, shall be a sufficient accounting for the money, or proceeds, or 
 part thereof so entered, and in such case no fraudulent conversion of the 
 amount accounted for shall be deemed to have taken place. R. S. C. c. 164 
 8. 61, et seq. {Amended). 24-25 V. c. 96, s. 75 rt aeq. (Imp.). 
 
 " Valuable security " defined, s. 3 ; see post, under s. 
 310, and R. v. Barnett, 17 0. R. 649. 
 
 Thkvt bt Person Holding Power of Attornet. 
 
 300« Every one commits theft who, being intrusted, either solely or 
 jointly with any other person, with any power of attorney for the sale, mort- 
 gage, pledge or other disposition of any property, real or personal, whether 
 capable of being stolen or not, fraudulently sells, mortgages, pledges or 
 otherwise disposes of the same or any part thereof, or fraudulently converts the 
 proceeds of any sale, mortgage, pledge or other disposition of such property, or 
 any part of such proceeds, to some purpose other than that for which he was 
 intrusted with such power of attorney. R. S. 0. o. 164, s. 62. {Am'.nded). 
 24-25V. c. 96, 8. 77, (Imp.). 
 
 See under next section. 
 
 Theft of Proceeds Under Direction. 
 
 310. Every one commits theft who, having received, either solely or 
 jointly with any other person, any money or valuable security or any power of 
 attorney for the sale of any property, real or personal, with a direction that 
 such money, or any part thereof, or the proceeds, or any part of the proceeds 
 of such security, or such property, shall be applied to any purpose or paid to 
 any persnu specified in such direction, in violation of good faith and contrary 
 to such direction, fraudulently applies to any other purpose or pays to auy 
 other person such money or proceeds, or any part thereof. 
 
 2. Provided, that where the person receiving such money, security or 
 power of attorney, and the person from whom he receives it, deal with each 
 other on such terms that all money paid to the former would, in the absence of 
 any such direction, be properly treated as an item in a debtor and creditor 
 account between them, this section shall not apply unless such direction is in 
 writing. R. S. C. c. 164, s. 60. (Ametided). 
 
 There is under this code no " embezzlement " as a 
 distinct offence: see Imp. Commissioners' Report under 
 8. 805, p. 889, ante. 
 
 " Valuable security " defined, s. 3. 
 
 Seo. 310] 
 
 Punisl 
 320, 367, i 
 and simpi; 
 
 Under 
 (except as j 
 repealed st 
 8. 809 mus 
 and the po^ 
 also to be 
 Cosser, 13 ( 
 
 Theindi 
 in tbe usual 
 taken at the 
 tbe statute: 
 may be in tb 
 
 Tndictmet 
 did receive fi 
 property of tl 
 A. B. to pay 
 M. N. and th 
 good faith an 
 convert the £ 
 thereby steal 
 
 Indictment 
 being intruste 
 sale of a certs 
 same did frauc 
 to wit, the SUE 
 than that for 
 attorney by ur 
 
 own use and be 
 to wit, tbe said 
 
 Indictment \ 
 did give a pow< 
 one hundred ba 
 dollars, for the 
 
See. 310] 
 
 THEFT BY AGENTS, ETC. 
 
 343 
 
 PuniBbment under three next preceding sections: ss^ 
 320, 357, po8t. What was embezzlement is now theft purely 
 and simply. 
 
 Under s. 810 the direction need not be in writing 
 (except as per proviso) as it was needed to be in s. 60 of the 
 repealed statute. But the power of attorney mentioned in 
 g, 309 must be in writing: B. v. Chouinard, 4 Q. L. B. 220; 
 and the power of attorney mentioned in s. 810 would have 
 also to be in writing. As to who is an agent: see B. v. 
 Cosser, 18 Cox, 187; B. v. Cronmire, 16 Cox, 42. 
 
 The indictment under these three sections may be drawn 
 in the usual short form for simple theft but care must be 
 taken at the trial that the evidence brings the facts within 
 the statute: B. v. Haigh, 7 Cox, 408. Special indictments 
 may be in the following forms: — 
 
 Indictment under s. 308. — that A. B. on 
 
 did receive from C. D., a sum of one thousand dollars, the 
 property of the said C. D. on terms requiring him the said 
 A. B. to pay the said sum of one thousand dollars to one 
 M. N. and that the said A. 6. afterwards, in violation of 
 good faith and contrary to his obligation, fraudulently did 
 convert the said sum to his own use and benefit and did 
 thereby steal the same. 
 
 Indictment under s. 309. — that A. B. on 
 
 being intrusted by C. D. with a power of attorney for the 
 sale of a certain piece of land having afterwards sold the 
 same did fraudulently convert the proceeds of the said sale, 
 to vrit, the sum of to some purpose other 
 
 than that for which he was intrusted with such power o£ 
 attorney by unlawfully applying the said proceeds to his 
 own use and benefit, and did thereby steal the said proceeds, 
 to wit, tbe said sum of 
 
 Indictment under a. 309. — that A. B. on 
 
 did give a power of attorney and thereby intrust to C. D., 
 one hundred bales of cotton, of tbe value of four thousand 
 dollars, for the purpose of selling the same, and that the 
 
 If 
 
dM 
 
 OFFENCES AGAINST PROPERTY, ETC. 
 
 [Sec. 810 
 
 said G< D. afterwards, contrary to and without the authority 
 t)f the Mid A. B., for hie own benefit, and in violation of 
 good faith, unlawfully did deposit the said cotton with E. F. 
 of as and by way of a pledge, lien and security, 
 
 for a sum of money, to wit, four hundred dollars, by the 
 said G. D., then borrowed and received of and from the said 
 JSi.F., and that the said G. D. did thereby steal the said 
 one hundred bales of cotton of the goods and chattels of the 
 Baid A. B, 
 
 Indictment under 8. 310. — that A. B. on 
 
 did intrust G. D. with a certain large sum of money, to wit, 
 ihe sum of four hundred dollars, with a direction to the said 
 G. D. to pay the said sum cf money to a certain peraon 
 specified in the said direction, and that the said G. D. after- 
 wards, to wit, on in violation of good faith and 
 contrary to the terms of such direction, frauduleiitly did 
 convert to his own use and benefit the said sum of money 
 so to him intrusted as aforesaid, and that the said G. D. 
 thereby did steal the said money of the goods and chattels 
 of the said A. B. {A count should he added stating partic- 
 ularly to whom the money was to be paid). 
 
 See E. v. Gooper, 12 Cox, 600 ; R. v. Tatlock, 13 Cox, 
 828; R. V. Fullagar, 14 Cox, 370; R. v. Brownlow, 14 Cox, 
 216; Ex parte Piot, 15 Cox, 208; R. v. Bowerman, 17 Cox, 
 X51, (X891) 1 Q. B. 112, Warb. Lead. Gas. 177; Ex parte 
 Bellencoutre, 17 Cox, 263, [1891] 2 Q. B. 122. 
 
 The changes in the law introduced by this code must 
 not be lost sight of in the reference to these cases. All 
 criminal breaches of common law trusts are now either 
 theft under the preceding sections, or punishable under s. 
 868, post, and the distinctions of larceny by bailees, or 
 embezzlements or frauds by agents, bankers, factors, 
 attornies, etc., are superseded. The imperfections in the 
 l^ngliflh law alluded to by the Judges in Ex parte Bellen- 
 ooutre, 17 Cox, 258. [1891] 2 Q. B. 122. have now been 
 removed in Canada. 
 
Sees. 311, 312] 
 
 THEFT BY CO-OWNER. 
 
 345 
 
 Theft bt Co-Owner. 
 
 311. Theft may be committed by the owner of anything capable of being 
 stolen against a person having a special property or interest therein, or by a per- 
 son having a special property or interest therein against the oumer thereof, or by 
 a lessee against his reversioner, or by one of several joint owners, tenants in 
 tonmon or partners of, nr in any such thing against the other persons interested 
 therein, or by the directors, puUie officers or members of a public company, or 
 hodii corporate, or of an unincorporated body or society associated together for 
 any lawful purpose, against such public company or body corporate or unincorpor- 
 ated body or society. R. S. C. o. 164, s. 58. (Amended). 31-32 V. o. 116, s. 1, 
 (Imp.). 
 
 See R. V. Bobaon, Warb. Lead. C :i8. 139. 
 
 Indictment. — that on at 
 
 Thomas Butterworth, of was a member of a certain 
 
 co-partnership, to wit, a certain co-partnership carrying on 
 the business of and trading as waste dealer, and which said 
 co-partnership was constituted and consisted of the said 
 Thomas Butterworth and of John Joseph Lee, trading as 
 aforesaid ; and, thereupon, the said Thomas Butterworth, 
 at aforesaid, during the continuance of the said 
 
 copartnership, and then being a member of the same as 
 aforesaid, to wit, on the day and year aforesaid, eleven bags 
 of cotton waste of the property of the said co-partnership 
 unlawfully did steal: B. v. Butterworth, 12 Cox, 132. 
 
 See B. V. Balls, 12 Cox, 96, for an indictment against a 
 partner for embezzlement, now theft, of partnership prop* 
 erty ; also, R. v. Blackburn, 11 Cox, 157. 
 
 A partner, at common law, may be guilty of larceny ot 
 the partnership's property ; so may a man be guilty of 
 larceny of his own goods : R. v. Webster, L. & C. 77 ; R. 
 V. Burgess, L. & C. 299 ; R. v. Moody, L. & C. 173 ; that is 
 when the property is stolen from another person in whose 
 custody it is, and who is responsible for it. See also, R. 
 V. Diprose, 11 Cox, 185, and R. v. Rudge, 13 Cox, 17. 
 
 CoNCKAiiNo Gold or Silver with Intent, Etc. 
 
 812» Every one commits theft who, with intent to defraud his co-partner, 
 cu-adventurer, joint tenant or tenant in common, in any mining claim, or in 
 any share or interest in any such claim, secretly keeps back or conceals any 
 gold or silver found in or upon or taken from such claim. R. S. C. c. 164 
 
 8.31. 
 
V 
 
 346 
 
 OFFENCES AGAINST PROPERTY, ETC. 
 
 [Sec 313 
 
 Not in the Imperial Statute. 
 Panishment under s. 356, post. 
 
 Indictment may be as for simple theft : ss. 611, 613. As 
 to search warrant, s. 571. 
 
 Husband and Wifk. (New). 
 
 313* No husband shall be convicted of stealing, during co-habitation, the 
 property of his wife, and no wife shall be convicted of stealing, during 6o> 
 habitation, the property of her husband ; but while they are living apart from 
 each other either shall be guilty of theft if he or she fraudulently takes or 
 converts anything which is, by law, the property of the other in a manner 
 which, in any other person, would amount to theft. 
 
 2. Every one commits theft who, while a husband and wife are living 
 together, knowingly — 
 
 (a) assists either of them in dealing with anything which is the 
 property of the other in a manner which would amount to theft if ther 
 were not married ; or 
 
 (6) receives from either of them anything, the property of the other 
 obtained from that other by such dealing as aforesaid. 
 
 " By the present law a husband or wife cannot steal from 
 his wife or her husband, even if they are living apart, although 
 by recent legislation the wife is capable of possessing separate 
 property. 
 
 " So long as co-habitation continues this seems reasonable, 
 but when married persons are separated, and have separate pro- 
 perty, it seems to us to follow that the wrongful taking of it 
 should be theft. This section is also framed so as to put an end 
 to an unmeaning distinction, by which it is a criminal offence 
 in an adulterer to receive from his paramour the goods of her 
 husband, but no offence in any one else to receive such goods 
 from the wife." — Imp. Comm. Rep. 
 
Sec 314] 
 
 RECEIVING STOLEN GOODS. 
 
 347 
 
 \ PART XXV. 
 
 RECEIVING STOLEN GOODS. 
 
 314> Every one is guilty of an indictable offence, and liable to fourteen 
 vears' imprisonment, who receives or retotns in his |)0««es8um anything obtained 
 ly any offence punishable <m indictment, or hy any acts wheresoever committed, 
 vte'i) ^f committed in Canada after the commencement of this Act, would have 
 tmttituted an offence punishable upon indictment knowing such thing to have 
 beea so obtained. R. S. C. o. 164, s. 82. 24-25 V. c. 96, s. 91 (Imp.). 
 
 The words in italics are new. See s. 627, post, as 
 to indictment of receivers in certain cases; also ss. 715, 716, 
 717 as to trial, and s. 3, ante, as to what constitutes " hav- 
 ing in possession." See remarks under next section. 
 
 Obtaining by false pretenses is punishable by three 
 years, s. 359 ; but knowingly receiving anything so obtained 
 is punishable by fourteen years. 
 
 Receiving property obtained by any indictable otfence 
 abroad is punishable under this section ; s. 355 is limited 
 to theft and the thief himself. 
 
 Indictment against a receiver of stolen goods. — that 
 A. B., on at one silver tankard, of the goods and 
 
 chattels of J. N. before then unlawfully stolen, did unlaw- 
 fully receive and have, he the said A. B. at the time when 
 lie so received the said silver tankard as aforesaid, then 
 I well knowing the same to have been stolen. 
 
 Any number of receivers at different times of stolen 
 I property may be charged with substantive felonies in the 
 1 same indictment, s. 627, post. 
 
 And where the indictment contains several counts for 
 [larceny, describing the goods stolen as the property of dif- 
 ferent persons, it may contain the like number of counts^ 
 Uith the same variations, for receiving the same goods : B. 
 iT.BeetoD, 1 Den. 414. It is not necessary to state by whom 
 
 stealing was committed: B. v. Jervis, 6 G. & P. 156; 
 land, if stated, it is not necessary to aver that the principal 
 
V 
 
 -948 
 
 RECEIVING STOLEN GOODS. 
 
 [Sec. 314 
 
 has not been convicted : B. v. Baxter, 5 T. B. 83. Where 
 an indictment charged Woolford with stealing a gelding, 
 and Lewis with receiving it knowing it to have been "go 
 feloniously stolen as aforesaid," and Woolford was acquitted 
 Patteson, J., held that Lewis could not be convicted upon 
 this indictment, and that he might be tried on another 
 indictment, charging him with having received the gelding 
 knowing it to have been stolen by some person unknown : 
 B. V. Woolford, 1 M. & Bob. 384 ; 2 Buss. 656. 
 
 An indictment charging that a certain evil-disposed 
 person feloniously stole certain goods, and that C. D. and 
 E. F. feloniously received the said goods knowing them to 
 be stolen, was holden good against the receivers, as for a 
 substantive felony ; B. v. Caspar, 2 Moo. 101. The defend- 
 ant may be convicted both on a count charging him as 
 accessory before the fact and on a count for receiving : B. 
 V. Hughes, Bell, 242. The first count of the indictment 
 charged the prisoner with stealing certain goods and chat- 
 tels ; and the second count charged him with receiving 
 ** the goods and chattels aforesaid of the value aforesaid so 
 as aforesaid feloniously stolen." He was acquitted on the 
 first count but found guilty on the second : Held, that the 
 conviction was good : B. v. Huntley, Bell, 238 ; B. v. Grad- 
 dock. 2 Den. 31. 
 
 Indictmentagainstthe principaland receiver jointly.— 
 that G. D. on at one silver spoon and 
 
 one table-cloth, of the goods and chattels of A. B., unlaw- 
 fully did steal, and the jurors aforesaid, do further present, 
 that J. S. afterwards, on the goods and chattels afore- 
 said, so as aforesaid stolen, unlawfully did receive and hare, 
 he the said J. S. then well -knowing the said goods and chat- 
 tels to have been stolen. 
 
 Indictment against the receiver as accessory, the prin- 
 cipal having been convicted. — that heretofore, to 
 wit, at the general sessions of the holden at od 
 it was presented, that one J. T. {continuing the for- 
 
8ec.314] 
 
 RECEIVING STOLEN GOODS. 
 
 349 
 
 ^r indictment to the end ; reciting it, however, in the 
 pst and not in the present tense :) upon which said indict- 
 ment the said J. T., at aforesaid, was duly convicted 
 of the theft aforesaid. And the jurors aforesaid, upon their 
 oath aforesaid, do further present, that A. B. after the 
 committing of the said theft as aforesaid, to wit, on 
 the goods and chattels aforesaid, so as aforesaid stolen, 
 anla\7fully did receive and have, he the said A. B. then 
 well knowing the said goods and chattels to have been 
 stolen. ' 
 
 Indictment against a receiver where the principal 
 offence is obtaining under false pretenses.-^ on 
 
 at one silver tankard of the goods and chattels of J. 
 
 N. then lately before unlawfully, knowingly, and designedly 
 obtained from the said J. N. by false pretenses, unlawfully 
 did receive and have, he the said A. B. at the time when he 
 so received the said silver tankard as aforesaid, then well 
 knowing the same to have been unlawfully, knowingly, and 
 designedly obtained from the said J. N. by false pretenses. 
 
 The indictment must allege the goods to have been 
 obtained by false pretenses, and known to have been so; it 
 is not enough to allege them to have been " unlawfully 
 obtained, taken and carried away " : E. v. Wilson, 2 Moo. 
 52. 
 
 At common law receivers of stolen goods were only 
 guilty of a misdemeanour, even when the thief had been 
 convicted of felony: Fost. 373. 
 
 The goods must be stolen goods when they are received. 
 If the owner has resumed possession, though the receiver 
 does not know it, there is no receiving of stolen property: 
 K. V. Villensky 11892] , 2 Q. B. 597; see s. 318 post,- R. v. 
 Schmidt, Warb. Lead. Gas. 180. 
 
 There may be a criminal receiving from a first receiver : 
 K.v. Reardon, L. R. 1 C. C. R. 31. 
 
 The goodb must be so received as to divest the posses- 
 sion out of the thief: R. v. Wiley, 2 Den. 37. But a person 
 
 f 
 
350 
 
 RECEIVING STOLEN GOODS. 
 
 [Seo. iU 
 
 having a joint possession with the thief may be convicted 
 as a receiver : B. v. Smith, Dears. 494. Manual possesaion 
 is unnecessary ; it is sufficient if the receiver has a control 
 over the goods: B. v. Hobson, Dears. 400; B. v. Smith, 
 Dears. 494 ; see ante, s. U, and post, s. 317, as to the words 
 " having in possession." The defendant may be convicted 
 of receiving although he assisted in the theft : B. v. Dyer, 2 
 East, P. 0. 767; B. v. Craddock, 2 Den. 31; B. v. Hilton, Bell, 
 20 ; B. V. Hughes, Bell, 242. But not if he actually stole 
 • the goods: B. v. Perkins, 2 Den. 459. Where the jury 
 found that a wife received the goods without the knowledge 
 or control of her husband, and apart from him, and that be 
 afterwards adopted his wife's receipt, no active receipt on 
 his part being shown, it was held that the conviction of the 
 husband could not be sustained; B. v. Dring, Dears. &£. 
 829; but see B. v. Woodward, L. & C. 122. 
 
 There must be a receiving of the thing stolen, or of part 
 of it ; and where A. stole six notes of illOO each and having 
 changed them into notes of £20 each, gave some of them to 
 B.: it was held that B. could not be convicted of receiving 
 the said notes, for he did not receive the notes that \rere 
 stolen : B. v. Walkley, 4 C. & P. 182. But where the 
 principal was charged with sheep-stealing, and the acces- 
 sory witb receiving "twenty pounds of mutton, parcel of 
 the goods," it was held good : B. v. Gowell, 2 East, P. C. 
 617, 781. In the last case the thing received is the same, 
 for part, as the thing stolen, though passed under a new 
 denomination, whilst in the first case nothing of the article 
 or articles stolen have been received, but only the proceeds 
 thereof. And, says Greaves' note, 2 Buss, 561, it is con- 
 ceived that no indictment could be framed for receiving the 
 proceeds of stolen property. The section only applies to 
 receiving the chattel stolen, knowing that chattel to bare 
 been stolen. In the case of gold or silver, if it were melted 
 after the stealing an indictment for receiving it might be 
 supported, because it would still be the same chattel though 
 
Sec. 314] 
 
 RECEIVING STOLEN GOODS. 
 
 351 
 
 altered by the melting; but where a dSlOO note is changed 
 for other notes the identical chattel is gone and a person 
 might as well be indicted for receiving the money for which 
 a stolen horse was sold, as for receiving the proceeds of a 
 atolen note. 
 
 The receiving must be subsequent to the theft. If a 
 servant commit a larceny at the time the goods are received 
 both servant and receiver are principals, but if the goods 
 are received subsequently to the act of larceny it becomes 
 a case of principal and receiver: R. v. Butteris, 6 C. & P. 
 147; R. V. Gruncell, 9 C. & P. 365; R. v. Roberts, 3 Cox, 74. 
 
 The receiving need not be lucri causa ; if it is to conceal 
 the thief, it is sufficient : R. v. Richardson, 6 C. & P. 365 ; 
 R. V. Davis, 6 C. & P. 177. 
 
 There must be some evidence that the goods were stolen 
 by another person, R. v. Densley, 6 C. & P. 399 ; R. v. 
 Cordy 2 Russ. 556. 
 
 A husband may be convicted of receiving property which 
 his m(e has stolen, R. v. McAthey, L. & G. 250, if he 
 receive it knowing it to have betn stolen. 
 
 The principal felon is a competent witness to prove the 
 larceny: R. v. Haslam, 1 Leach, 418. But his confession 
 is not evidence against the receiver, R. v. Turner, 1 Moo. 
 347, unless made in his presence and assented to by him : 
 R. V. Cox, 1 F. & F. 90. If the principal has been convicted 
 the conviction, although erroneous, is evidence against the 
 receiver until reversed : R. v. Baldwin, R. & R. 241. 
 
 To prove guilty knowledge other instances of receiving 
 similar goods stolen from the same person may be given in 
 evidence, although they form the subject of other indict- 
 ments, or are antecedent to the receiving in question : R. 
 V. Dunn, 1 Moo. 146 ; R. v. Davis, 6 C. »fe P. 177 ; R. v. 
 Nicholls, 1 F. & F. 51 ; R. v. Mansfield, Gar. & M. 140. But 
 evidence cannot be given of the possession of goods stolen 
 from a different person: R. v. Oddy, 2 Den. 264; see now s. 
 
 # 
 
35f 
 
 RECEIVING STOLEN GOODS. 
 
 [Sea3U 
 
 716, pott. Where the Btolen goods are goods that have been 
 found the jury must be satisfied that the prisoner knew 
 that the circumstances of the finding were such as to con- 
 stitute larceny : B. v. Adams, 1 F. & P. 86. Belief that the 
 goods are stolen, without actual knowledge that they are 
 so, is sufficient to sustain a conviction: B. v. White, i 
 F. & F. 666. 
 
 Becent possession of stolen property is not generally 
 alone sufficient to support an indictment under this section: 
 2 Buss. 666; B. v. Perry, 10 E. L. 66. However, in Rv. 
 Langmead, L. & C. 427, the judges would not admit this as 
 law, and maintained the conviction for receiving stolen 
 goods grounded on the recent possession by the defendant 
 of stolen property: see also B. v. Deer, L. & C. 240. 
 
 An indictment charged S. with stealing eighteen shil- 
 lings and sixpence, and G. with receiving the same. The 
 facts were : S. was a barman at a refreshment bar, and G. 
 went up to the bar, called for refreshments and put down 
 a florin. S. served G., took up the florin, and took from bis 
 employer's till some money, and gave G. as his change 
 eighteen shillings and six pence, which G. put in his pocket 
 and went away with. On leaving the place he took some 
 silver from his pocket and was counting it when he was 
 arrested. On entering the bar signs of recognition took 
 place between S. and G., and G. was present when S. took 
 the money from the till. The jury convicted S. of stealing 
 and G. of receiving. Held, that this was evidence which 
 the judge ought to have left to the jury as reasonable evi- 
 dence upon which G. might have been convicted as a prin- 
 cipal in the second degree, and that, therefore, the convic- 
 tion for receiving could not be sustained : B. v. Coggins, 
 12 Cox, 517. 
 
 On the trial of a prisoner on an indictment charging 
 him with receiving property which one M. had feloniously 
 stolen, etc., the crime charged was proved, and evidence 
 for the defence was given to the effect that M. had been 
 
Sec. 315] 
 
 STOLEK" POST-LETTER, ETC. 
 
 35S 
 
 tried on a charge of stealing the same property and 
 acquitted. The counsel for the crown then applied to 
 amend the indictment by striking out the allegation that 
 M.had stolen the property, and inserting the words "some 
 evil disposed person " which was allowed. Heldf 1. That 
 the record of the previous acquittal of M. formed no defence 
 OD the trial of this indictment, and was improperly 
 received in evidence. 2. That the amendment was im- 
 properly allowed : R. v. Ferguson, 4 P. &. B. (N.B.) 259. 
 
 Defendant sold to C, among other things, a horse 
 power and belt, part of his stock in the trade of a butcher 
 in which he also sold a half interest to G. The horse 
 power had been hired from one M. and at the time of the 
 sale the term of hiring had not expired. At its expiry M. 
 demanded it and G. claimed that he had purchased it from 
 the defendant. Defendant then employed a man to take 
 it out of the premises where it was kept and deliver it to 
 M., which he did. Defendant was summarily tried before 
 a police magistrate and convicted of an offence against 
 32 & 33 V. c. 21, s. 100. Held, that the conviction was 
 bad, there being no offence against that section. Remarks 
 upon the improper use of criminal law in aid of civil rights : ■ 
 R. V. Young, 5 0. R. 410. 
 
 On an indictment for receiving stolen goods it is not 
 necessary to prove by positive evidence that the property 
 found in the possession of the prisoner belongs to the. 
 prosecutor : R. v. Gillis, 27 N. B. Rep. 30. 
 
 Rkckivi.vg Stolen Post-Letter. Eto. 
 
 313. Every oae is guilty of an indictable offence and liable to fite years* 
 imprisonment who receives or retains in his possession anj' (stolen) post letter 
 post letter bag, or ani/ chattel, numey or valuable security, parcel or other thing, 
 the stealing whereof is hereby declared to be an indictable offence knowing 
 the same to have been stolen. R, S.C. o. 35, ss. 83, 84 (Amended). ~ Wm. IV 
 1 1 V. c. 36, 8. 30 (Imp. ). 
 
 See ss. 622 ife 627, post, as to indictment and trial ; 
 also 38. 715, 716, 717, po»t: ss. 326 & 327 are the 
 
 m 
 
 Criu. Law— 28 
 
354 
 
 RECEIVING STOLEN GOODS. 
 
 [Sec. 31G 
 
 enactments on the stealing of post letters, etc. See s. 4 
 ante, for definitions of expressions in the Post Office Acl. 
 
 Indictment. — that A. B., on at one po8t 
 
 letter the property of the postmaster-general before then, 
 from and out a certain post letter bag unlawfully stolen, 
 unlawfully did receive and reta'n in his possession, he, the 
 said A. B., then well knowing the said letter to have been 
 stolen. 
 
 Why is the punishment less under this clause than 
 under the preceding one ? 
 
 For stealing, the fact that the article stolen is a post 
 letter is an aggravation, and renders it liable to imprison- 
 ment for life, B. 326, whilst stealing money or other things is 
 punishable by only seven years, s. 356 ; but for criminal 
 receiving of a stolen post letter, the ofifence is punishable 
 T)nly by five years, whilst the criminal receiving of any 
 other stolen thing is fourteen years ! Then, this s. 315 
 enacts that every one is guilty of an indictable offence 
 punishable by five years, who receives any chattel, money, 
 or valuable security, parcel or other thing, the stealing 
 whereof is hereby declared to be an indictable offence, know- 
 ing the same to have been stolen, whilst s. 314 enacts a 
 punishment of fourteen years against any one who know- 
 ingly receives anything obtained by any offence pun ishahk 
 on indictment. The consequence is that s. 314 does not 
 apply to any chattel, Tnoney or valuable security, parcel or 
 ether thing, the stealing whereof is declared by the Code to 
 be an indictable ofifence. Its provisions are cut down by 
 8. 815. This last section, it may be assumed, was intended 
 to apply only to money or valuable security stolen out of 
 a post letter, but it does not say it. 
 
 Recbivino Property— Other Cases. 
 
 31 0« Every one who receives or retains in his possession a,ny thing, know- 
 ing the same to be unlawfully obtained, the stealing of which 18 punishable, on 
 summary conviction, either for every offence, or for the first and second offwice 
 only, is guilty of an offence and liable on summary conviction, for every first, 
 second or subsequent offence of receiving, to the same punishment as if he were 
 
Sees. 317-319] WHEN RECEIVING COMPLETE. 
 
 355 
 
 wilty of a first, second or subsequent offence of stealing tho same. R. S. 0. 
 c, 164, s. 84. 24-25 V. c. 5)6, s. 97 (Imp.). 
 
 This enactment is singularly worded. 
 
 Whkn Reckivino Complbtk. 
 
 317* The act of receiving anything unlawfully obtained is complete as 
 goon ftx the offender hrt><, either exclusively or jointly with the thief or any other 
 person, possession of or control over such thing, or aids in concealing or disixjs- 
 
 ing of it. 
 
 See cases, ante, under s. 314. 
 
 Rrokiving Aktkr Restoration to Owner. 
 
 5M8. When the thing unlawfully obtained has been restored to the owner, 
 or when a legal title to the thing so obtained has been acquired by any person, 
 a subsequent receiving thereof shall not be an offence although the receiver 
 may know that the thing had i)reviou8ly been dishonestly obtained. 
 
 See cases, ante, under s. 314, and K. v. Yilleusky, 
 1892],2Q. B. 597. 
 
 PART XXVI. 
 
 PUNISHMENT OF THEFT AND OFFENCES RESEMBLING THEFT 
 COMMITTED BY PARTICULAR PERSONS IN RESPECT OF 
 PARTICULAR THINGS IN PARTICULAR PLACES. 
 
 Theft bv Clerks or Servants. 
 310* Every one is guilty of an indictable offence and liable to fourteen 
 years' impriHonment, who — 
 
 (a) being a clerk or servant, or being employed for the purpose or in 
 the capacity of a clerk or servant, steals anything belonging to or in the 
 possession of his master or employer ; or 
 
 (b) ixiijf a cashier, assistant cashier, manager, officer, clerk or servant 
 of any bank, or savings bank, steals any bond, obligation, bill obligatory 
 or of credit, or other bill or note, or any security for money, or any money 
 or effects of such bank or lodged or dejwsited with any such bank ; 
 
 (c) being employed in the service of Her Majesty, or of the Govern- 
 ment of Canada or the Government of any province of Canada, or of any 
 municipality, steals anything in his jxtssession by virtue of his employ- 
 ment. R. S. C. 0. 164, 88. 51, 52, 53, 54 & 59 {Ametuled). 24-25 V. c. 96, 
 s-dletseq. (Imp.). 
 
356 
 
 THEFT, ETC. 
 
 [Sec. 310 
 
 I 
 I 
 
 See s. 623, post, as to indictments against public ser- 
 vants. 
 
 Special provisions as to embezzlement by post-office 
 officers are contained in s. 105, c. 35, B. S. C. 
 
 There is no such thing as embezzlement under the Code. 
 What constituted embezzlement is now theft. 
 
 Indictment under (a). — on was clerk to 
 
 J. N., and that the said J. S., whilst he was such clerk to 
 the said J. N., as aforesaid, to wit, on the day and year 
 aforesaid, certain money to the amount of forty dollars, 
 ten yards of linen cloth, and one hat, of and belonging to 
 the said J. N., his master, unlawfully did steal. 
 
 Indictment under (b). — being employed in the pub- 
 lic service of Her Majesty, and being intrusted, by virtue 
 of such employment, with the receipt, custody, manage- 
 ment and control of a certain valuable security, to wit, 
 
 did then and there, whilst he was so employed as afore- 
 said, receive and take into his possession the said valuable 
 security, and the said valuable security then fraudulently 
 and unlawfully did steal : see E. v. Cumraings, 16 U. C. 
 Q. B. 15. 
 
 If the defendant is not shown to be the clerk or servant 
 of J. N., but a larceny is proved, he may be convicted of 
 the larceny merely, and punishable then under s. 356, 
 post : B. V. Jennings, Dears. & B. 447. It is not neces- 
 sary by the statute that the goods stolen should be the 
 property of the master ; the words of the statute are, 
 belonging to, or in the possession of the master. A second 
 count stating the goods " then being in the i^ossession " of 
 the master, may be added. 
 
 Evidence of acting in the capacity of an officer employed 
 by the crown is sufficient to support an indictment; and 
 the appointment need not be regularly proved : B. v. Town- 
 send, Car. & M. 178 ; R. v. Borrett, 6 C. & P. 124 ; E. v. 
 Boberts, 14 Cox, 101 
 
Sec. 319] 
 
 BY CLERKS OR SERVANTS. 
 
 357 
 
 Upon the trial of any offence under this section, the 
 jury, if the evidence warrants it may convict of an attempt 
 to commit the same, under s. 711. 
 
 As to what is sufficient evidence of an attempt to steal : 
 see R. v. Cheeseman, L. & C. 140. 
 
 On an indictment for larceny as servants the evidance 
 showed that the complainant advanced money to the 
 prisoners to buy rags, which they were to sell to the com- 
 plainant at a certain price, their profit to consist in the 
 difference between the rate they could buy the rags at, and 
 this fixed price. The prisoners consumed the money in 
 drinks and bought no rags. Held, no larceny : R. v. 
 Chareat, 9 L. N. 114; but now these same facts would 
 constitute a theft under s. 305, ante. 
 
 It was the prisoner's duty as a country traveller to 
 collect moneys and remit them at once to his employers. 
 On the 18th of April he received money in county Y. On 
 the 19th and 20th he wrote to his employers not mention- 
 ing that he had received the money; on the 2l8t, by 
 another letter, he gave them to understand that he had 
 not received the money. The letters were posted in county 
 Y. and received ia county M. Held, that the prisoner 
 might be tried in county M. for the oflfence of embezzling 
 the money: R. v. Rogers, 14 Cox, 22. 
 
 Embezzlement means the appropriation to his own use 
 by a servant or clerk of mone^ or chattels received by him for 
 or on account of his master or employer. Embezzlement 
 differs from larceny in this, that in the former the property 
 misappropriated is not at the time in the actual or legal 
 possession of the owner, whilst in the latter it is. The 
 distinctions between larceny and embezzlement were often 
 extremely nice and subtle and it was sometimes ditHicult 
 to say under which head the offence ranged. But em- 
 bezzlement and theft are now offences of the same nature. 
 
 Greaves says : " The words of the former enactment 
 s-8. (rt) were "shall by virtue of such employment receive 
 
 \ ; 
 
358 
 
 THEFT, ETC. 
 
 [Se\ 319 
 
 or take into bis possession any chattel, etc., for, or in the 
 name, or on the account of his master." In the present 
 clause, the words "by virtue of such employment" are 
 advisedly omitted in order to enlarge the enactment, and 
 get rid of the decisions on the former enactment. The 
 clause is so framed as to include every case where any 
 chattel, etc., is delivered to, received or ta;ken possession 
 of by the clerk or servant, for or in the name or on account 
 of the master. If therefore a man pay a servant money 
 for his master the case will be within the statute, thouah 
 it was neither his duty to receive it, nor had he authority 
 to do bo; and it is perfectly just that it should be so; for, 
 if my servant receive a thing, which is delivered to him for 
 me, his possession ought to be held to be my possession 
 just as much as if it were in my house or in my cart. And 
 the effect of this clause is to make the possession of the 
 servant the possession of the master wherever any property 
 comes into his possession within the terms of this clause, 
 so as ' D make him guilty of embezzlement if he converts 
 it to his own use. The cases of R. v. Snowley, 4 C. & P, 
 390 ; Crow's Case, 1 Lewin, 88 ; R. v. Thorley, 1 Moo. 343; 
 R. v. Hawtin, 7 C. & P. 281 ; R. v. Mellish. R. & R. 80, 
 and similar cases are consequently no authorities on this 
 clause. It is clear that the omission of the words in 
 question, and the change in the terms in this clause, render 
 it no longer necessary to prove that the property was 
 received by the defendant by virtue of his employment; in 
 other words, that it is no longer necessary to prove that 
 the defendant had authority to receive it. . . " Greaves 
 adds : ' Mr. Davis says " still it must be the master's 
 money which is received by the servant, and not money 
 wrongfully received by the servant by means of false pre- 
 tenses or otherwise.' This is plainly incorrect. A.'s 
 servant goes to B., who owes A. £10, and falsely states 
 that A. has sent him for the m^^ney, whereupon B. pays 
 him the money. This case is clearly within the clause; 
 for the money is delivered to and received and taken into 
 
Sec. 319] 
 
 BY CLERKS OR SERVANTS. 
 
 359 
 
 possession by him for and in the name and on the account 
 of bis master, so that the case comes within every one of 
 the categories of the clause, and if it came within any one 
 it would suf^ce ; in fact, no case can be put where property 
 is delivered to a servant for his master that does not come 
 within the clause, and it is perfectly immaterial what the 
 moving cause of the delivery was ": Greaves, Cons. Acts, 156. 
 
 The words "by virtue of his employment " are inserted 
 in s-s. (c). 
 
 If the defendant has been guilty of other acts of stealing 
 within the period of six months, the same not exceeding 
 three in number, may be charged in the same indictment 
 in separate counts, (s. 626), as follows : And the jurors 
 aforesaid, do further present, that the said J. S., after- 
 wards, and within six calendar months from the time of 
 the committing of the said offence ia the first count of this 
 indictment charged and stated, to wit, on in the year 
 
 aforesaid, being then employed as clerk to the said A. B.^ 
 did then, and whilst he was so employed as last aforesaid,, 
 receive and take into his possession certain other money to- 
 a large amount, to wit, to the amount of for and in 
 
 the name and on the account oi the said A. B., his said 
 master, and ili > said last mentioned money then, and with- 
 in the said si; cakmrlar months, fraudulently and unlaw- 
 fully did stei' , and 30 the jurors aforesaid upon their oath 
 aforesaid, do say, th»': ihe said J. S. then, in manner and 
 form Rfor<:jaid, the said money, the property of the said A. 
 B., his said master, from the said A. B., his said master, 
 unlawfully did steal, (and so on for a third count, if re- 
 quired.) 
 
 The indictment must show by express^ words that the 
 different sums ^vere stolen within the six months : R. v. 
 Noake, 2 C. & K. 620 ; U. v. Purchase, Car. & M. 617. It 
 was the duty of the defendant, an agent and collector of a 
 coal club, to receive payment, by small weekly instalments, 
 and to send in weekly accounts on Tuesdays, and on each 
 
 , I 
 
360 
 
 THEFT, ETC. 
 
 [Sec. 319 
 
 Tuesday to pay the gross amount received into the bank to 
 the credit of the club ; the defendant was a shareholder and 
 co-partner in the society, and indicted as such ; the indict- 
 ment'charged him with three different acts of embezzlement 
 during six months ; each amount as charged was proved 
 by the different payments of smaller sums, making altogether 
 each amount charged; held, that the indictment might 
 properly charge the embezzlement of a gross sum and 
 be proved by evidence of smaller sums received at different 
 times by the prisoner, and that it was not necessary to 
 charge the embezzlement of each particular sum composing 
 the gross sum, and that, although the evidence might show 
 a large number of small sums embezzled, the prosecution 
 was not to be confined to the proof of three of such small 
 sums only ; E. v. Balls, 12 Cox, 96 ; R. v. Furneaux, R. & 
 R. 335 ; R. v. Flower, 8 D. & R. 512 ; R. v. Tyers, R. & R. 
 402, holding it necessary in all cases of embezzlement to 
 state specifically in the indictment some article embezzled, 
 are not now law. In case the indictment alleges tho em- 
 bezzlement of money such allegation, so far as regards the 
 •<lescription of the property, is sustained by proof that the 
 •offender embezzled any amount, although the particular 
 species of coin or valuable security of which such amount 
 ^vas composed shall not be proved ; or by proof that he 
 embezzled any piece of coin or any valuable security, or 
 any portion of tbe value thereof, although such piece of coin 
 or valuable security may have been delivered to him in order 
 that dome part of the value thereof should be returned to 
 the party delivering the same, or to some other person, and 
 such part shall have been returned accordingly ; but an in- 
 dictment for embezzling money is not proved by showing 
 merely that the prisoner embezzled a cheque without 
 evidence that the cheque had been converted into money: 
 R. V. Keena, 11 Cox, 123. The indictment must allege 
 the goods embezzled to be the property of the master : R. 
 V. McGregor, 3 B. & P. 106, R. & R. 23 ; R. v. Beacall, 1 
 Moo. 15 : and it has been su.id that it must show that the 
 
Sec. 319] 
 
 BY CLERKS OR SERVANTS. 
 
 361 
 
 defendant was servant at the time : R. v. Somerton, 7 B. & 
 0. 463. See, however, R. v. Lovell, 2 M. & Rob. 236. It 
 is not necessary to state from whom the money was received: 
 R, v. Beacall, 1 Moo. 15, and note in R. v. Crighton, 
 B. & R. 62. But the judge may order a particular of the 
 clinrge to be furnished to the prisoner : R. v. Bootyman, 5 
 C. .. P. 800; R. V. Hodgson, 8 C. & P. 422; s. 613, post. 
 
 A female servant is within the meaning of the Act : R. 
 V. Smith, R. & R. 267 ; so is an apprentice though under 
 age : R. v. Mellish, R. & R. 80 ; and any clerk or servant, 
 whether to person in trade or otherwise : R. v. Squire, R. 
 &R. 349; R. v. Townsend, 1 Den. 167; R. v. Adey, 1 Den. 
 571. A clerk of a savings bank, though elected by the 
 managers, was held to be properly described as clerk to 
 the trustees: R. v. Jenson, 1 Moo. 434. The mode by 
 which the defendant is remunerated for his services is im- 
 material, and now, if he has a share or is a co-partner in 
 the society whose monies or chattels he embezzled, he may 
 be indicted as if he was not such shareholder or co-part- 
 ner : R. V. Hartley, R. & R. 139 ; R v. Macdonald, L. & C. 
 85 ; R. V. Balls, 12 Cox, 96. So, where the defendant was 
 employed as a traveller to take orders and collect money, 
 was paid by a percentage upon the orders he got, paid his 
 owu expenses, did not live with the prosecutors, and was 
 employed as a traveller by other persons also, he was 
 holden to be a clerk of the prosecutors within the meaning 
 of the Act: R. v. Carr, R. & R. 193; R. v. Hoggins, R. & 
 R. 145; R. v. Tite, L. & C. 29, 8 Cox, 458. Where the 
 prisoner was emplo\ ed by the prosecutors as their agent 
 for the sale of coals on commission, and to collect monies 
 in connection with his orders, but he was at liberty to dis- 
 pose of his time as he thought best, and to get or abstain 
 from getting orders as he might choose, he was held not to 
 be a clerk or servant within the statute : R. v. Bowers, 10 
 Cos, 250. In delivering judgment in that case, Erie, C. J., 
 observed : '* The cases have established that a clerk or ser- 
 vant must be under the orders of his master, or employed 
 
362 
 
 THEFT, ETC. 
 
 [Sec. 31» 
 
 to receive the monies of hia employer, to be within the 
 statute ; but if a man be intrusted to get orders and to re- 
 ceive money, getting the orders where and when he chooses, 
 and getting the money where and when he chooses, he is 
 not a clerk or servant within the statute : see R. v. Walker, 
 Dears. & R. 600; R. v. Maj, L. & C. 13 ; R. v. Hall, 13 
 Cox, 49. A person whose duty it is to obtain orders where 
 and when he likes, and forward them to his principal for 
 execution, and then has three months within which to col- 
 lect the money for the goods sent, is not a clerk or servant; 
 if such a person, at the request of his principal, collects a 
 sum of money from a customer, with the obtaining of 
 whose order he has had nothing to do, he is a mere volun- 
 teer, and is not liable to be prosecuted for embezzlement 
 if be does not pay over or account for the money so 
 received: R. v. Mayle, 11 Cox, 160. The prisoner was 
 employed by a coal merchant under an agreement whereby 
 "he was to receive one shilling per ton procuration fee, 
 payable out of the first payment, four per cent, for collect- 
 ing, and three pence on the last payment ; collections to be 
 paid on Friday evening before 5 p.m., or Saturday before 
 2 p.m." He received no salary, was not obliged to be at 
 the office except on the Friday or Saturday to account for 
 what he had received ; he was at liberty to go where be 
 pleased for orders : Held, that the prisoner was not a clerk 
 or servant within the statute relating to embezzlement. 
 R. v. Marshall, 11 Cox, 490. Prisoner was engaged by U., 
 at weekly wages to manage a shop; U. then assigned all 
 his estate and effects to R. and a notice was served on 
 prisoner to act as the agent of R. in the management of the 
 shop. For fourteen days afterwards R. received from U. the 
 shop moneys. Then the shop money was taV.en by U. as be- 
 fore. Prisoner received his weekly wageb from U. during 
 the whole time. Some time after a -iooaposition deed was 
 executed by R. and U. and U.'s creditors, by which R. re- 
 conveyed the estate and effects to U., but this deed was not 
 registered until after the embezzlement charged against the 
 
 fi-^\ 
 
Sec. 319] 
 
 BY CLERKS OR SERVANTS. 
 
 363 
 
 prisoner ; Held, that prisoner was the servant of U. at the 
 time of the embezzlement : R. v. Dixon, 11 Cox, 178. The 
 prisoner agreed with the prosecutor, a manufacturer of 
 earthenware, to act as his traveller, and " diligently em- 
 ploy himself in going from town to town, in England, Ire- 
 land and Scotland, and soliciting orders for the printed 
 and decorated earthenware manufactured by thp prosecu- 
 tor, and that he would not, without the consent in writing 
 of the prosecutor, take or execute any order for vending or 
 disposing of any goods of the nature or kind aforesaid for 
 or on account of himself or any other person." It was 
 further agreed that the prisoner should be paid by commis- 
 sion, airl should render weekly accounts. The prosecutor 
 subsequently gave the prisoner written permission to take 
 orders for two other manufacturers. The prisoner being 
 indicted for embezzlement : Held, that he was a clerk or 
 servant of the prosecutor within the meaning of the 
 btatute: R. v. Turner, 11 Cox, 551. Lush, J., in this case,, 
 said: " If a person says to another carrying on an inde- 
 pendent trade, ' if you get any orders for mo I will pay 
 you a commission,' and that person receives monpy and 
 applies it to his own use, he is not guilty of embezzlement, 
 for he is not a clerk or sercant ; l)ut if a man says ; ' I em- 
 ploy you and will pay you, not by salary, but by commis- 
 sion,' the person employed is a servant. In the first case 
 the person employing has no control over the person em- 
 ployed ; in the second case the person employed is subject 
 to the control of the employer. And on this, this ca«e was 
 distinguished from R. v. Bowers, and R. v. Marshall, supra. 
 So, iu R. V. Bailey, 12 Cox, 66, the prisoner was employed 
 as traveller to solicit orders, and collect the moneys due on 
 the execution of the orders, and to pay over moneys on the 
 evening of the day when collected, or the day following. 
 The prisoritr had no salary but was paid by commission. 
 The prisoner might get orders where and when he pleased 
 within his district. He was to be exclusively in the employ 
 of the prosecutors, and to give the whole of his time, the 
 
 ff 
 
■^l :| 
 
 i 
 
 
 
 364 
 
 THEFT, ETC. 
 
 [Sec. 319 
 
 whole of every day, to their service. Held, that the pris- 
 oner was a clerk and servant within the statute": see R. y. 
 Foulkes, 13 Cox, 63. 
 
 A person engaged to solicit orders and paid by com- 
 mission on the sums received, which sums he was forth- 
 with to hand over to the prosecutors, was at liberty to 
 apply for orders, when he thought most convenient, and 
 was not to employ himself to any other person. Held, not 
 a clerk or servant within the statute ; the prisoner was not 
 under the control and bound to obey the orders of the 
 prosecutors : E. v. Negus, 12 Cox, 492, Warb. Lead. Cas. 
 185 ; R. \ Hall, 13 Cox, 49 ; R. v. Coley, 16 Cox, 226. 
 
 Prisoner was employed by 0. to navigate a barge, and 
 was entitled to half the earnings after deducting the 
 expenses. His whole time was to be at O.'s service, and his 
 duty was to account to 0. on his return after every voyage. 
 In October prisoner was sent with a barge load of bricks 
 to London, and was there forbidden by 0. to take manure 
 for P. .Notwithstanding this prisoner took the manure, 
 and received £i for the freight which he appropriated to 
 his own use. It was not proved that he carried the 
 manure or received the freight for his master, and the per- 
 son who paid the f 4 did not know for whom it was paid. 
 Held, that the prisoner could not be convicted of embezzle- 
 ment, as the money was not received by him in the name of 
 or for, or on account of his master : R. v. CuUum, 12 Cox, 
 469 ; see R. v. Gale, 13 Cox, 340. 
 
 It is not necessary that the employment should be per- 
 manent ; if it be only occasional it will be sufdcient, 
 Where the prosecutor having agreed to let the defendant 
 carry out parcels when he had nothing else to do, for 
 which the prosecutor was to pay him what he pleased, gave 
 him an order to receive two pounds, which he received and 
 embezzled, he was holden to be a servant within the 
 meaning of the Act : R. v. Spencer, R. & R. 299 ; E. v. 
 Smith, R. & R. 516. And in R. v. Hughes, 1 Moo. 370, 
 
r! ' '■■ 
 
 Sec. 319] 
 
 BY CLERKS OR SERVANTS. 
 
 365 
 
 where a drover, who was employed to drive two cows to a 
 purchaser and receive the purchase money, embezzled it» 
 be was holden to be a servant within the meaning of the 
 Act by the Judges ; but the Judge presiding at the trial 
 seemed to be of a contrary opinion, and B. v. Nettleton, 1 
 Moo. 259 ; R. v. Burton, 1 Moo. 237, appear to be adverse 
 to R. V. Hughes : see R. v. Tongue, Bell 289 ; R. v. Hall, 
 1 Moo. 374 ; R. v. Miller, 2 Moo. 249 ; R. v. Proud, L. & 
 C. 97» 9 Cox, 22. The treasurer of a friendly society, 
 into whose hands the monies received on behalf of the 
 society were to be paid, and who was to pay no money 
 except by an order signed by the secretary and counter- 
 signed by the chairman or a trustee, and who by the statute 
 was bound to render an account to the trustees, and to pay 
 over the balance on such accounting when required, but 
 was not paid for his services, is not a clerk or servant, and 
 cannot be indicted for embezzlement of such balance : R. 
 V. Tyrie, 11 Cox, 241. And before the statute making it 
 larceny or embezzlement for a partner to steal or embezzle 
 any of the co-partnership property, the secretary of a 
 friendly society, and himself a member of it, could not be 
 convicted on an indictment for embezzling the society's 
 monies, laying the property in, and describing him as the 
 servant of, A. B. (another member of the society) and 
 others, because the "others" would have comprised himself, 
 and so the indictment would in fact have charged him with 
 embezzling his own money, as his own servant : R. v. 
 Diprose, 11 Cox, 185'; R. v. Taffs, 4 Cox, 169 ; R. v.Bren, 
 L. & C. 346. But a stealing by a partner is now provided 
 for by s. 311 ante. 
 
 The trustees of a benefit building society borrowed 
 money for the purpose of their society on their individual 
 responsibility ; the money, on one occasion, was received 
 by their secretary and embezzled by him: Held, that the 
 secretary might be charged in the indictment for embezzle- 
 ment of the property of W. and others, W. being one of the 
 
 ■f;'' 
 

 366 
 
 '."HEFT, ETC. 
 
 [See. 319 
 
 trusteea, and a member of the society; R. v. Bedford, 11 
 Cox, 367 A person cannot bo convicted of embezzlement 
 as clerk or servant to a society which, in consequence of 
 administering an unlawful oath to its members, is unlawful, 
 and prohibited by law: R. v. Hunt, 8 C. & P. 642. But an 
 unregistered friendly society or trades union may prosecute 
 its servants for embezzlement of its property, though some 
 of its rules may be void as being in restraint of trade, and 
 contrary to public policy. Rules in a trades union or 
 society imposing fines upon members for working beyond 
 certain hours, or for applying for work at a firm where 
 there is no vacancy, or for taking a person into a shop to 
 learn weaving where no vacant loom exists, though void as 
 being in restraint of trade, do not render the society crim- 
 inally responsible: R. v. Stainer, 11 Cox, 483. If the clerk of 
 several partners embezzle the private money of one of them 
 it is an embezzlement within the Act, for he is a servant 
 of each. So where a traveller is employed by several 
 persons and paid wages, to receive money he is the indi- 
 vidual servant of each: R. v. Carr, R. &R. 198; R.v, Batty, 2 
 Moo.- 257. So a coachman, employed by one proprietor of 
 a coach to drive a certain part of the journey, and to receive 
 money and hand it over to him, may be charged with em- 
 .bezzling the money of that proprietor, though the money, 
 when received, would belong to him and his partners: R. 
 v. White, 2 Moo. 91. 
 
 In R. V. Glover, L. & C. 466, it was held that a county 
 court bailiff, who has fraudulently misappropriated the 
 proceeds of levies made under county court process, can- 
 not be indicted for embezzling the monies of the high-bailiif, 
 bis master ; these monies are not the property of the high- 
 bailiff. A distraining broker employed exclusively by the 
 prosecutor, and paid by a weekly salary and by a commis- 
 sion, is a servant within the statute: R. v. Flanagan, 10 
 Cox, 661. 
 
 Where the prisoner was charged with embezzlement, 
 but his employer who made the engagement with him was 
 
Sw. 31!)] 
 
 BY CLERKS OR SERVANTS. 
 
 367 
 
 (Mit 
 
 not called to prove the terms thereof, but only his manag- 
 ing clerk, who knew them through repute alone, having 
 been informed of them by his employer, it was held that 
 there was no evidenc3 to go to the jury that the prisoner 
 was servant to the prosecutor: R. v. Taylor, 10 Cox, 544. 
 
 Money received by the defendant from his master him- 
 self for the purpose of paying it to a third poroii, and 
 appropv ted by the defendant, is larceny : H. v, P./jk, 2 
 Rusp !i>; R. V. Smith, R.&R. 267; R. v. Hi. vkin>^, 1 Den. 
 584; K Goodenough, Dears. 210. 
 
 In . <Trove, 1 Moo. 447, a majority of ^the Judges 
 (ei^ht against seven) are reported to have held that an 
 indictment for embezzlement might be supported by proof 
 of a general deficiency of monies that ought] to be forth- 
 coming, without showing any particular sum received and 
 not accounted for. See also, R. v. Lambert, 2 Cox, 309 ; 
 R. v. Moah, Dears. 626. But in R. v. Jones, 8 C. & P. 288, 
 where, upon an indictment for embezzlement, it was opened 
 that proof of a general deficiency in the prisoner's accounts 
 would be given, but none of the appropriation of a specific 
 sum, Anderson, B., said : "Whatever difference of opinion 
 there might be in R. v. Grove, {tihi aupra) that proceeded 
 more upon the particular facts of that case than upon the 
 law; it is not sufficient to prove at the trial a general 
 deficiency in account ; some specific sum must be proved to 
 be embezzled, in like manner as in larceny some particular 
 article must be proved to have been stolen. See also, R. 
 V. Lister, Dears.&B. 118; R. v.Guelder,Bell,284 ; Greave's 
 note, 2 Russ. 455 ; R. v. Chapman, 1 C. & K. 119, 2 Russ. 
 460, and R. v. Wolstenholme, 11 Cox, 313 ; R. v. Balls, 
 12 Cox, 96. 
 
 On a trial for embezz' raent, held, that evidence of a 
 general deficiency having been given the conviction was 
 right, though it was not proved that a particular sum 
 coming from a particular person on a particular occasion, 
 was embezzled by the prisoner : R. v. Glass, 1 L. N. 41; 
 R. V. Slack, M. L. R. 7 Q. B. 408. 
 
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 PUNISHMENT OF THEFT. 
 
 [Sec 319 
 
 
 
 11 
 
 
 i- 
 
 But a general deficiency alone is not sufficient to 
 support an indictment for larceny : B. v. Glass M. L. R, 
 7 Q. B. 405. If it was sufficient before the Code to support 
 an indictment for embezzlement, it w^uld seem that it 
 would be sufficient now to support an indictment for 
 larceny. 
 
 A conductor of a tramway car was charged with embez- 
 zling three shillings. It was proved that on a certain 
 journey there were fifteen threepenny fares, and twenty-five 
 twopenny fares, and the conductor was seen to give tickets 
 to each fare and to receive money from each, but what sum 
 did not appear. He made out a way bill for the journey 
 debiting himself with only nine threepenny fares and six- 
 teen twopenny fares. The mode of accounting was to 
 deliver the way bills for each journey to a clerk, and to 
 hand in all the money received during each day on the fol- 
 lowing morning. The prisoner's money should have been 
 £S Is. 9d., according to his way bills for the day, but be 
 paid in only £d Os. 8d. Heldf that there was sufficient 
 evidence of the receipt of seven shillings and eleven pence, 
 the total amount of fares of the particular journey, and of 
 the embezzlement of three shillings, part thereof : B. t. 
 King, 12 Cox, 73. 
 
 Where the indictment contains only one count, charging 
 the receipt of a gross sum on a particular day, and it appears 
 in evidence that the money was received in different sums 
 on different days, the prosecutor will be put to his election, 
 and must confine himself to one sum and one day : R. t. 
 Williams, 6 C. & P. 626. 
 
 The prisoner, not having been in the employment of the 
 prosecutor, was sent by him to one Milner with a horse as 
 to which Milner and the prosecutor, who owned the horse, 
 had had some negotiations, with an order to Milner to give 
 the bearer a cheque if the horse suited. On account of a 
 difference as to the price the horse was not taken and the 
 prisoner brought him back. Afterwards the prisoner, with - 
 
 Mffi'i 
 
Sees. 320, 321] 
 
 BY CLERKS OR SERVANTS. 
 
 369 
 
 out any authority from the owner, took the horse to Milner 
 and sold it as his own property, or professing to have a 
 right to dispose of it, and received the money, giving a 
 receipt in his own name. 
 
 Held, that a conviction for embezzlement could not be 
 suBtained as the prisoner, when he received the money, did 
 not receive it as a servant or clerk but sold the horse as his 
 own and received the money to his own use : R. v. Topple, 
 3 R. & C. (N. S.) 566. 
 
 Punishment Under Sections 308, 309, 310. 
 
 320i Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who steals anything by any act or omission amounting to 
 theft under the provisions of sections three hundred and eight, three hundred 
 and nine and three hundred and ten. 
 
 See ante, ss. 308, 309, 310, pp. 341 & 342. 
 
 Public Servants Refusing to Deliver up Books, Etc. 
 
 331« Every one is guilty of an indictable offence and liable to fourteen) 
 years' imprisonment who, being employed in the service of Her Majesty or of 
 the Government of Canada or the Government of any province of Canada, or 
 of any municipality, and intrusted by virtue of such employment with the 
 keeping, receipt, custody, management or control of any chattel, money,, 
 valuable security, book, paper, account or document, refuses or fails to deliver 
 up the same to any one authorized to demand it. R. S. C. o. 164, s. 55. 
 (Amended), 
 
 See s. 623 as to indictment. The repealed clause made 
 this offence an embezzlement. The present one does not 
 make it a theft. " Valuable security " defined, s. 3. A 
 special enactment as to postmasters is contained in s. 101,^ 
 c. 85, Br. S. C. 
 
 Indictment. — that A. B. on at 
 
 being employed in the service of the Government of Can- 
 ada as a and intrusted by virtue of such employ- 
 ment with the books and papers of his office, did unlawfully 
 refuse {or fail) to deliver up the said books and papers to 
 CD., then and there duly authorized to demand the said 
 books and papers. It would seem that after an officer - 
 has ceased to be in the employment of Her Majesty, it 
 might be contended that this section doei not apply. 
 
 Criu. Law— 24 
 
 , 1 
 
V 
 
 370 
 
 THEFT. 
 
 [Sees. 322-324 
 
 Stealing bt Tknants and Lodoebs. 
 322« Every one who steals any chattel or fixture let to be used by him 
 or her in or with any house or lodgring is gruilty of an indictable ofiFence and 
 liable to two years' imprisonment, and if the value of such chattel or fixture 
 exceeds the sura of twenty-five dollars to four years' imprisonment. R. S. C. 
 c. 164, 8. 67. 24-25V.C. 96, s. 74(Imp.). 
 
 Fine, s. 958. 
 
 If the indictment be for stealing a chattel it may be, by 
 8. 625 post, in the common form for larceny, and in case of 
 stealing a fixture the indictment may be in the same form 
 as if the offender were not a tenant or lodger, and the 
 property may be laid either in the owner or person letting 
 ;to hire. 
 
 'Jhere may be a conviction of an attempt to commit any 
 t>BPence mentioned in this section, upon a trial for that 
 ofifence, s. 711, post. 
 
 By common law a lodger had a special property in the 
 goods which were let with his lodgings ; during the lease 
 he, and not the landlord, had the possession ; therefore the 
 landlord could not maintain trespass for taking the goods; 
 in consequence, the taking by the lodger was not felonious; 
 Meere's Case, 2 Euss. 519 ; B. v. Belstead, B. & B. 411. 
 Hence, the statutory enactments on the subject. 
 
 Stealing Testamentary Instruments. 
 333* Every one is guilty of an indictable offence and hable to imprison- 
 ment for life who, either during the life of the testator or after his death, steals 
 the whole or any part of a testamentary instrument, whether the same relates 
 to real or personal property, or to both. R. S. C. c. 164, s. 14. 24-25 V. c. 96, 
 a. 29 (Imp.). 
 
 " Testamentary instrument " defined s. 3. 
 
 Indictment. — a certain mV X testamentary 
 
 instrument of one J. N. unlawfully did steal. {Add counU 
 varying description of the will, etc.) 
 
 The cases of B. v. Skeen, Bell 97, and E. v. Strahan, 
 7 Cox, 85, are not now law : Greaves Cons. Acts, 126. 
 
 Stealing Documents of Title to Lands ob Goods. 
 324* Every one is guilty of an indictable offence and liable to three years' 
 imprisonment who steals the whole or any part of any document of title to 
 lands or goods. R. S. C. c. 164, s. 13. 24-25 V. c. 96, s. 28 (Imp.). 
 
See. 325] STEALING JUDICIAL DOCUMENTS. 871 
 
 See s. 3 for definitions of " title to lands or goods." 
 
 Fine, s. 958. The words in italics are new. 
 
 Indictment. — a certain document of title to lands, 
 
 the property of J. N., being evidence of the title of the said 
 J. N. to a certain real estate called in which 
 
 said real estate the said J. N. then had and still hath an 
 interest, unlawfully did steal. 
 
 Stealing Judicial Documents. 
 
 3S5> Every one is guiltj' of an indictable offence and liable to three 
 years' imprisonment who steals tLe whoi'e or any part of any record, writ, 
 return, affirmation, recognizance, co^inrvit actionem, bill, petition, answer, 
 decree, panel, process, interrogatory, deijosition, affidavit, rule, order or 
 warrant of attorney, or of any original document whatsoever of, or belonging 
 to any court of justice, or relating to any cause or matter begun, depending or 
 terminated in any such court, or of any original document in any wise relating 
 to the business of any office or employment under Her Majesty, and being or 
 remaining in any office apix'rtaining to any court of justice, or in any govern- 
 ment or public office. R. S. C. c. 164, s. 15 (Amended). 24-25 V. o. 96, s. 30 
 (Imp.). 
 
 Indictment for stealing a record. — a certain 
 
 judgment-roll of the Court of Our Lady ths Queen, before 
 the Queen herself, unlawfully did steal. 
 
 Stealing rolls of parchment will be larceny at common 
 law, though they be the records of a court of justice, unless 
 they concern the realty : R. v. Walker, 1 Moo. 155 ; but it 
 is not so if they concern the realty: R. v. Westbeer, 1 
 Leach, 13. 
 
 A commission to settle the boundaries of a manor is an 
 instrument concerning the realty, and not the subject of 
 larceny at common law : R. v. Westbeer, lac. cit. 
 
 An indictment describing an offence within 32 & 83 Y. 
 c. 21, s. 18, as feloniously stealing an information taken in a 
 police court, is sufficient after verdict : R. v. Mason, 22 U. 
 C. C. P. 246. 
 
 The destroying, taking, concealing, etc., judicial docu- 
 ments is provided for by ss. 863 & 354, post. 
 
Sec. 325] STEALING JUDICIAL DOCUMENTS. 871 
 
 See B. 3 for definitions of " title to lands or goods." 
 
 Fine, s. 958. The words in italics are new. 
 
 Indictment. — a certain document of title to lands, 
 
 the property of J. N., being evidence of the title of the said 
 J. N. to a certain real estate called in which 
 
 eaid real estate the said J. N. then had and still hath an 
 interest, unlawfully did steal. 
 
 Stealing Judicial Doocmknts. 
 
 3S5« Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who steals the whoi'e or any part of any record, writ, 
 return, affirmation, recognizance, cofinrDit actionem, bill, petition, answer. 
 decree, panel, process, interrogatory, deposition, affidavit, rule, order or 
 warrant of attornny, or of any original document whatsoever of, or belonging 
 to any court of justice, or relating to any cause or matter begun, depending or 
 terminated in any such court, or of any original document in any wise relating 
 to the business of any office or employment under Her Majesty, and being or 
 remaining in any office apjjertaining to any court of justice, or in any govern- 
 ment or public office. R. S. C. c. 1G4, s. 15 (Amended). 24-25 V. o. 96, s. 30 
 (Imp.). 
 
 Indictment for stealing a record. — a certain 
 
 judgment-roll of the Court of Our Lady the Queen, before 
 the Queen herself, unlawfully did steal. 
 
 Stealing rolls of parchment will be larceny at common 
 law, though they be the records of a court of justice, unless 
 they concern the realty : R. v. Walker, 1 Moo. 155 ; but it 
 is not so if they concern the realty: R. v. Westbeer, 1 
 Leach, 13. 
 
 A commission to settle the boundaries of a manor is an 
 instrument concerning the realty, and not the subject of 
 larceny at common law : R. v. Westbeer, loc. cit. 
 
 An indictment describing an offence within 32 & 83 V. 
 c. 21, 8. 18, as feloniously stealing an information taken in a 
 police court, is sufficient after verdict : R. v. Mason, 22 U. 
 C. C. P. 246. 
 
 The destroying, taking, concealing, etc., judicial docu- 
 ments is provided for by ss. 363 & 354, post. 
 
 tl:; 
 
\ 
 
 372 
 
 THEFT. 
 
 [Sees. 326-328 
 
 :KI 
 
 4,1 
 
 Stealing Post Letter Bags, Etc. 
 
 336. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life, or for any term not less than three years who steals — 
 
 (a) a post letter bag ; or 
 
 (6) a post letter from a post letter bag, or from any post office, or from 
 any officer or person employed in any business of the post office of Canada, or 
 from a mail ; or 
 
 (c) a post letter oontaininf^r any chattel, money or valuable security ; or 
 
 (d) any chattel, money or valuable secuiity from or out of a post letter. 
 R. S. C. c. 35, 88. 79, 80 & 81. 7 Wm. IV. & 1 V. c. 36 (Imp.). 
 
 " Valuable security " defined, s. 3. 
 
 See 8. 4, ante, as to meaning of words in enactments 
 relating to post office, and s. 624, post, as to indictment 
 
 Indictment. — that A. B., on unlawfully 
 
 did steal one post letter, the property of the postmaster- 
 general, from a post lette^r bag (or from a post office) (or a 
 post letter containing a sum of money) (or a sum of money 
 out of a post letter). 
 
 To unlawfully open la post letter bag is punishable bj 
 five y^ars : ss. 82, 89, c. 35, R. S. C. ; see R. v. Jones, 1 
 Den. 188 ; R. v. Pearce, 2 East P. C. 603 ; R. v. Poynton, 
 
 L. & C. 247. 
 
 Stealing Letters, Etc. 
 
 3ST- Every one is guilty of an indictable offence and liable to imprison- 
 ment for any term not exceeding «cicn years, and not less than three years, who 
 steals — 
 
 (a) any post letter, except as mentioned in paragraph (V) of section three 
 hundred and twenty -six ; 
 
 (&) any parcel sent by parcel post, or any article contained in any such 
 parcel ; or 
 
 (c) any key suited to any lock adopted for use by the Post Office Depart- 
 ment, and in use on any Canada mail or mail bag. R. S. C. c. 33, 
 88. 79, 83 & 88. 
 
 See under preceding section. 
 
 Stealing Other Mailable MAriER. 
 
 3%8. £very[one is guilty of an indictable offence and liable to five years' 
 imprisonment who'steals any printed vote or proceeding, newspaper, printed 
 paper or book, packet or package of patterns or samples of merchandise or 
 goods, or of seeds, cuttings, bulbs, roots, scions or grafts, or any post card or 
 other mailable matter (not being a post letter) sent by mail. R. S. C. c. 33, 
 8.90. 
 
 Fine, s. 958 ; see remarks under s. 826, ante. 
 
Sees. 329-331] STEALING, ETC., ELECTION DOCUMENTS. 373 
 
 Stkalino Election Dooumknts. 
 
 339. Every one is guilty of an indictable offence and liable to a fine in 
 the discretion of the court, or to seven years' imprisonment, or to both fine and 
 imprisonment who steals, or unlawfully takes from any person having the 
 lawful custody thereof, or from its lawful place of deposit for the time being, 
 any writ of election, or any return to a writ of election, or any indenture, 
 poll-i)0f)k, voters' list, certiiioate, affidavit or report, ballot or any document or 
 paper made, prepared or drawn out according to or for the requirements of 
 any law in regard to Dominion, provincial, municipal or civic elections. 
 R. S. C. c 8, 8. 102 ; o. 164, s. 56. 
 
 The words in italics are new. S. 102, c. 8, R. S. C. is 
 unrepealed. See under s. 551, post, a reference to the 
 above section. 
 
 Stealing Railway Tickets, Etc. 
 
 330. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who steals any tramway, railway or steamboat ticket, or any 
 order or receipt for a passage on any railway or in any steamboat or other 
 vessel. R. S. C. c. 164, s. 16. 
 
 Fine, s. 958. 
 
 Stealing Cattle. 
 
 331. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who steals any cattle. R. S. C. c. 164, ss. 7 & 8. 
 
 See ante, s. 3, for interpretation of the word cattle. 
 
 Indictment. — that J. S. on at one 
 
 horse of the goods and chattels of J. N. unlawfally did 
 steal. {The indictment must give the animal one of the 
 descriptions mentioned in the statute ; otherwise the defend- 
 ant can he punished as for simple larceny merely) : R. v. 
 Beaney, R. & R. 416. 
 
 If a person go to an inn, and direct the ostler to bring 
 out bis horse, and point out the prosecutor's horse as his, 
 and the ostler leads out the horse for the prisoner to 
 meant, but, before the prisoner gets on the horse's back, 
 the owner of the horse comes up and seizes him, the offence 
 ot horse-stealing is complete : R. v. Pitman, 2 C. & P. 423. 
 
 The prisoners enter another's stable at night, and take 
 out bis horses, and ride them 32 miles, and leave them at 
 an inn, and are afterwards found pursuing their journey on 
 foot. On a finding by the jury that the prisoners took the 
 
I 
 
 Sees. 329-331] STEALING, ETC., ELECTION DOCUMENTS. 
 
 373 
 
 Stkalino Election Dooumknts. 
 
 339. Every one is guilty of an indictable offence and liable loaftne in 
 the discretion of the court, or to seven years' imprisonment, or to both fine and 
 iiiiprisonment who steals, or unlawfully takes from any person havinpr the 
 lawful custody thereof, or from its lawful place of deposit for the time being, 
 any writ of election, or any return to a writ of election, or any indenture, 
 l)oll-lxx)k, voters' list, certificate, affidavit or report, ballot or any document or 
 paper made, prepared or drawn out according to or for the requirements of 
 any law in regard to Dominion, provincial, municipal or civic elections. 
 R. S. C. c 8, 8. 102 ; o. 164, s. 56. 
 
 The words in italics are new. S. 102, c. 8, B. S. C. is 
 unrepealed. See under s. 551, post, a reference to the 
 above section. 
 
 Stealinq Railway Tickets, Etc. 
 
 330. Every one is guilty of an indictable offence and liabU to ttoo years' 
 imprisonment who steals any tramway, railway or steamboat ticket, or any 
 order or receipt for a passage on any railway or in any steamboat or other 
 vessel. R. S. C. c. 164, s. 16. 
 
 Fine, s. 958. 
 
 Stealing Cattle. 
 
 331. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who steals any cattle. R. S. Co. 164, ss. 7 & 8. 
 
 See ante, s. 3, for interpretation of the word cattle. 
 
 Indictment. — that J. S. on at one 
 
 horse of the goods and chattels of J. N. unlawfully did 
 steal. (The indictment must give the animal one of the 
 descriptions mentioned in the statute ; otherwise the defend- 
 out can be punished as for simple larceny merely) : R. v. 
 Beaney, R. & R. 416. 
 
 If a person go to an inn, and direct the ostler to bring 
 out his horse, and point out the prosecutor's horse as his, 
 and the ostler leads out the horse for the prisoner to 
 mount, but, before the prisoner gets on the horse's back, 
 the owner of the horse comes up and seizes him, the offence 
 of horse-stealing is complete : R. v. Pitman, 2 C. & P. 423. 
 
 The prisoners enter another's stable at night, and take 
 out his horses, and ride them 32 miles, and leave them at 
 an inn, and are afterwards found pursuing their journey on 
 foot. On a finding by the jury that the prisoners took the 
 

 374 
 
 THEFT. 
 
 [See. 332 
 
 horses merely with intent to ride and afterwards leave them, 
 and not to return or make any further use of them, held, 
 trespass and not larceny : R. v. Fhilipps, 2 East, P. C. 662. 
 But now, it would be theft under s. 805, ante. 
 
 If a horse be purchased and delivered to the buyer, it is 
 no felony though he immediately ride away with it with- 
 out paying the purchase money : E. v. Harvey, 1 Leach, 
 467. 
 
 If a person stealing other property take a horse, not 
 with intent to steal it, but only to get off more conveniently 
 with the other property, such taking of the horse is not a 
 felony: R. v. Crump, 1 C. & P. 658. 
 
 Obtaining a horse under the pretense of hiring it for a 
 day, and immediately selling it, is a felony at common law 
 if the jury find the hiring was animu furandi: R. v. Pear, 1 
 Leach, 212; R. v. Gharlewood, 1 Leach, 409: see now e. 
 805, ante. It is larceny (at common law) for a person h\m\ 
 for the special purpose of driving sheep to a fair to convert 
 them to his own use, the jury having found that he intended 
 80 to do at the time of receiving them from the owner: R. 
 V. Stock, 1 Moo. 87; see now s. 305, ante. Where the 
 defendant removed sheep from the fold into the open field, 
 killed them, and took away the skins merely, the judges 
 held that removing the sheep from the fold was a sufficient 
 driving away to constitute larceny: R. v. Rawlins, 2 East 
 P. C. 617. 
 
 Any variance between the indictment and the proof, in 
 the description of the animal stolen, may be amended: 
 8. 723, post; R. v. Gumble, 12 Cox, 248. 
 
 Stealing Dogs, Birds, Etc. 
 
 332. Every one is guilty of an offence and liable on summary conviction 
 to a penalty not exceeding twenty dollarH over and above the value of the 
 property stolen, or to one months' imprisonment with hard labour, who steals 
 any dcg, or any bird, beast or other animal ordinarily kept m a state of 
 confinement or for any domestic purpose, or for any lawful purpose of profit or 
 advantage. 
 
Sees. 333, 334] 
 
 KILLING PIGEONS, ETC. 
 
 375 
 
 2. Every one who, having been convicted of any such ofiFence, afterwards 
 commits any such offence is liable to three months' imprisonment with hard 
 labour. R. S. C. c. 164, s. 9. 24-25 V. o. 96, ss. 18, 21 (Imp.). 
 
 The words in italics are not in the Enp;lish Act. 
 For injuries to such animals, see a. 501, post. 
 
 Killing Pigeons," Etc. 
 
 3S8. Every one who unlawfully and vnlfuUy kills, wounds or takes any 
 houbt-dove or pigoon, under such circumstances as do not amount to theft, is 
 guilty of an offence and liable, upon complaint of the owner thereof, on summary 
 conviction, to a penalty not exceeding ten dollars over and above the value of 
 the bird, R. S. 0. c. 164, b. 10. 24-25 V. c. 96, s. 23 (Imp.). 
 
 The words in italics are new. 
 
 This clause does not extend to killing pigeons under a 
 claim of right : Taylor v. Newman, 9 Cox, 314, 4 B. & S. 
 89 ; 8ee ante, s. 804, and note. 
 
 This section is out of place. It ought to be under Part 
 XXXVII. post. 
 
 Stealing Oysters. 
 
 334- Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who steals oysters or oyster brood. 
 
 2. Every one is guilty of an indictable offence and liable to three months 
 imprisonment who unlawfully and wilfully uses any dredge or net, instrument 
 or engine whatsoever, within the limits of any oyster bed, laying or fishery ,) 
 biing the property of any otheriperson, and sufficiently marked out or knownv 
 as such, for the purpose of taking oysters or oyster brood, although none are> 
 actually taken, or unlawfully and wilfully with any net, instrument oc engine^ 
 drags upon the ground of any such fishery. 
 
 3. Nothing herein applies to any person fishing for or catching any 
 swimming fish within the limits of any oyster fishery with any net, instrument 
 or engine adapted for taking swimming fish only. R. S. C. c. 164, s. 11. 24-2.5 
 V.c. 96, 8. 26(Imp.). 
 
 See 8. 304, s-s. 6, ante, and s. 619 (e), post. 
 
 Indictment for stealing oysters or oyster brood. — 
 from a certain oyster-bed called the property of 
 
 J. N. and sufficiently marked out and known as the property 
 of the said J. N., one thousand oysters unlawfully did steal. 
 
 Indictment for using a dredge in the oyster fishery of 
 another. — within the limits of a certain oyster-bed 
 
 called the property of J. N., and sufficiently marked 
 
 out and known as the property of the said J. N., unlawfully 
 

 Sees. 333, 334] 
 
 KILLING PIGEONS, ETC. 
 
 375 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any auoh offence ia liable to three months' imprisonment with hard 
 labour. R. S. C. c. 164, s. 9. 24-25 V. c. 96, ss. 18, 21 (Imp.). 
 
 The words in italics are not in the English Act. 
 For injuries to such animals, see a. 501, post. 
 
 Killing Piokons," Etc. 
 
 388. Every one who unlawfully and wilfully kills, wounds or takes any 
 hou^e-dove or pigeon, under such circumstances as do not amount to theft, is 
 guilty of an offence and liable, upon complaint of the ovmer thereof, on summary 
 conviction, to a penalty not exceeding ten dollars over and above the value of 
 the bird. R. S. C. c. 164, s. 10. 24-25 V. c. 96, s. 23 (Imp.). 
 
 The words in italics are new. 
 
 This clause does not extend to killing pigeons under a 
 claim of right : Taylor v. Newman, 9 Cox, 814, 4 B. & B. 
 89 ; see ante, s. 304, and note. 
 
 This section is out of place. It ought to be under Part 
 XXXVII. post. 
 
 Stealing Oysters. 
 
 334. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who steals oysters or oyster brood. 
 
 2. Every one is guilty of an indictable offence and liable to three months 
 imprisonment who unlawfully and wilfully uses any dredge or net, instrument 
 or engine whatsoever, within the limits of any oyster bed, laying or fishery,, 
 biing the property of any otheriperson, and sufficiently marked out or knowni 
 as such, for the purpose of taking oysters or oyster brood, although none are, 
 actually taken, or unlawfully and wilfully with any net, instrument or engine^ 
 drags upon the ground of any such fishery. 
 
 3. Nothing herein applies to any person fishing for or catching an^ 
 swimming fish within the limits of any oyster fishery with any net, instrument 
 or engine adapted for taking swimming fish only. R. S. C. c. 164, s. 11. 24-25 
 V.C.96, 8. 26(Imp.). 
 
 See s. 304, s-s. 6, ante, and s. 619 (e), post. 
 
 Indictment for stealing oysters or oyster brood. — 
 from a certain oyster-bed called the property of 
 
 J. N. and suflSciently marked out and known as the property 
 of the said J. N., one thousand oysters unlawfully did steal. 
 
 Indictment for using a dredge in the oyster fishery of 
 another. — within the limits of a certain oyster-bed 
 
 called the property of J. N., and sufficiently marked 
 
 out and known as the property of the said J. N., unlawfully 
 
376 
 
 THEFT. 
 
 [Sec. 338 
 
 and wilfully did use a certain dredge for the purpose of 
 then and there taking oysters. 
 
 In support of an indictment for stealing oysters iu a 
 tidal river it is sufficient to prove ownership by oral evi- 
 dence as, for instance, that the prosecutor and his father 
 for forty-five years had exercised the exclusive right of 
 oyster fishing in the loctia in quo, and that in 1846 an 
 action had been brought to try the right, and the verdict 
 given in favour of the prosecutor : R. v. Downing, 11 Cox, 
 680. 
 
 Steauko Thinob Fixed to Bdildinos 
 
 3*I5' Every one ia guilty of an indictable ofiFenoe and liable to seven 
 years' imprisonment who steals any glass or woodwork belonging to any 
 building whatsoever, or any lead, iron, copper, brass or other metal, or any 
 utensil or fixture, whether made of metal or other material, or of both, respect- 
 ively fixed in or to any building whatsoever, or anything made of metal fixed 
 in any land, being private proijerty, or for a fence to any dwelling-house, 
 garden or area, or in any square or street, or in any place dedicated to public 
 use or ornament, or in any burial ground. R. S. C. c. 164, s. 17. 
 
 The repealed section covered the " ripping, severing, 
 cutting and breaking" of the things therein specified, as 
 well as the stealing thereof. 
 
 At common law lai:c8ny could not be committed of 
 things attached to the freehold. Hence, the necessity 
 heretofore of such statutory enactments. But in this 
 Code they are perfectly useless. 
 
 This part of the Commissioners' draft, recopied verbatim 
 in this Code, well says Sir James Stephens, " is needlessly 
 minute, and shows an undue anxiety to avoid changes in the 
 existing law which might greatly simplify it " : 8 Stephen's 
 Hist. 167. It would have been better perhaps to leave out 
 8uch a provision as this one contained in s. 835 than the 
 one relating to the stealing of promissory notes and other 
 valuable securities as has been done in s. 858, post. 
 
 This enactment extends the offence much further than 
 the prior Acts did, as it includes all utensils and fixtures of 
 whatever materials made, either fixed to buildings or in 
 land, or in a square or street. A church, and indeed all 
 
Sec. 336] 
 
 TREES, SAPLINGS, ETC. 
 
 377 
 
 buildings are within the Act, and an indictment for stealing 
 lead lixed to a certain building without further description 
 will suffice : Greaves' note ; R. v. Parker, 2 East P. C. 592 ; 
 K. V. Norris, R. & R. 69. An unfinished building boarded 
 on all sides, with a door and a lock, and a roof of loose ' 
 gorse, was held a building within the statute : R. v. Wor- 
 rall, 7 C. & P. 616. So also where the lead stolen formed 
 the gutters of two sheds built of brick, timber and tiles 
 upon a wharf fixed to the soil, it was held that this was a 
 building within the Act : R. v. Rice, Bell, 87. But a plank 
 used as a seat, and fixed on a wall with pillars, but with no 
 roof, was held not to be a building : R. v. Reece, 2 Russ. 
 
 254. Where a man, having given a false representation of 
 himself, got into possession of a house under a treaty for 
 a lease of it, and then stripped it of the lead, the jury, being 
 of opinion that he obtained possession of the house with 
 intent to steal the lead, found him guilty, and he after- 
 wards had judgment : R. v. Munday, 2 Leach, 850. 
 
 The prisoners were found guilty of having stolen a 
 copper sun-dial fixed upon a wooden post in a churchyard. 
 Conviction held right : R. v. Jones, Dears. & B. 555. 
 
 The ownership of the building from which the fixture is 
 stolen must be correctly laid in the indictment : 2 Russ. 
 
 255. If necessary, it may now be amended at the trial, 
 and if not laid in the indictment at all the omission will 
 not vitiate it. 
 
 Indictment for stealing metal, etc. — two 
 
 hundred pounds weight of iron, the property of J. N., then 
 filed in a certain land then being private property, to wit, 
 in a garden of the said J. N., situate did unlawfully 
 
 steal. 
 
 Trees, Saplings, Etc. 
 
 336 Every one is guilty of an indictable oifence and liable to ttvo years' 
 imprisonment who steals the whole or any part of any tree, sapling or shrub, 
 or any underwood, the thing stolen being of the value of twenty -five dollars, 
 or of the value of five dollars if the thing stolen grows in any park, pleasure 
 
 # 
 
378 
 
 TfeEFT. 
 
 [Sec. 337 
 
 jpround, garden, orchard or avenue, or in any ground adjoining or belonging to 
 any dwelling-house. R. S. C. c. 164, a. 18. 24-23 V. o. 96, a. 32 (Imp.). 
 
 Fine, a. 958. 
 
 Injuring trees is provided for in s. 508, post. 
 
 The words " grounds adjoining" mean grounds in active 
 contact with the dwelling-house. Whether the ground be 
 a park or garden, etc., is a question for the jury. It seems 
 it is not material that it should be in every, part of it a 
 park or garden : B. v. Hodges, M. & M. 341. The amount 
 of injury mentioned in this and the following section must 
 be the actual injury to the tree or shrub itself, and not the 
 consequential injury resulting from the act of the defend- 
 ant : B. V. Whiteman, Dears. 353. The respective values 
 of several trees, or of the damage thereto, may be added 
 to make up the twenty-five dollars, in case the trees were 
 cut down, or the damage done as part of one continuous 
 transaction : B. v. Shepherd, 11 Cox, 119. 
 
 Indictment for stealing trees, etc.. in paries, etc., of a 
 value above jive dollars. — one oak tree of the value 
 
 of eight dollars, the property of J. N., then growing in a 
 certain park of the said J. N., situate in the said 
 
 park, unlawfully did steal. 
 
 Indictment under first part of the section. — 
 one ash tree of the value of thirty dollars, the property of 
 J. N., then growing in a certain close of the said J. N., 
 situate in the said close, unlawfully did steal. 
 
 It is not necessary to prove that the close was not a 
 park or garden, etc. 
 
 Stealing Sapling a, Shrubs, Etc. 
 
 33T. Every one who steals the whole or any part of any tree, sapling or 
 shrub, or any underwood, the value of the article stolen, or the amount of the 
 damage done, being twenty-five cents at the least, is guilty of an offence and 
 liable on summary conviction, to a penalty not exceeding twenty-five dollars 
 over and above the value of the article stolen or the amount of the injury done. 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is liable on summary ccmviction, to three months' 
 imprisonment with hard labour. 
 

 Sec. 337] 
 
 SAPLINGS, SHRUBS, ETC. 
 
 379 
 
 3. Every one, who, having been twice convicted of any such ofFence, 
 afterwards commits any such otTcnce is guilty of an indictable offence and 
 liable to five years' imprisonment. R. S. C. c. 104, s. 19. 24-25 V. c. 06, s. 33 
 
 (Imp.). 
 
 Fine, under s-s. 8, s. 958. 
 
 Injuring trees, etc.: see post, s. 508, et seq. 
 
 Indictment under s-s. 3. — that J. S. on 
 
 one oak sapling of the value of forty cents, the property of 
 J. N., then growing in certain land situate unlaw- 
 
 fully did steal, and the jurors aforesaid, do say, that 
 heretofore, and before the committing of the offence herein 
 before mentioned, to wit, on at the said 
 
 J. S. was duly convicted before J. P., one of Her said 
 Majesty's justices of her peace for the said district of 
 for that he, the said J. S., on {as in the first convic- 
 
 tion); and the said J. S. was thereupon then and there 
 adjadged, for his said offence, to forfeit and pay the sum of 
 twenty dollars, over and above the value of the said tree so 
 stolen as aforesaid, and the further sum of forty cents, 
 being the value of the said tree, and also to pay the further 
 sum of for costs ; and in default of immediate payment 
 of the said sums, to b3 imprisoned in the common gaol of 
 tbe said district of for the space of unless 
 
 the said sums should be sooner paid. And the jurors 
 aforesaid, do further say, that heretofore and before the 
 committing of the offence first hereinbefore mentioned, to 
 wit, on at the said J. S. was duly convicted 
 
 before 0. P., one of Her said Majesty's justices of the peace 
 for the said district of for that he {setting 
 
 out the second conviction m the same manner as the first, and 
 proceed thvs). And so, the jurors aforesaid, do say, that 
 the said J. S., on the day and year first aforesaid, the said 
 oak sapling of the value of forty cents, the property of the 
 said J. N., then growing in the said land situate 
 unlawfull}' did steal: Greaves on s. 116 of the Larceny Act, 
 and 37 of the Coin Act; R, v. Martin, 11 Cox, 343; see s. 
 628 and s. 676, post, as to previous convictions. 
 
380 
 
 THEFT. 
 
 [Sees. 338-340 
 
 Timber Found Adrift. 
 
 338. Every one is guilty of an indictable offence and liable to three years' 
 
 imprisonment who — 
 
 (rt) without the consent of the owner thereof : 
 
 (i) fraudulently takes, holds, keeps in his possession, collects, conceals 
 receives, appropriates, purchases, sells or causes or procures or assists to be 
 taken possession of, collected, concealed, received, appropriated, purchased 
 or sold, any timber, mast, spar, saw-log or other description of lumber 
 which is found adrift in, or oast ashore on the bank or beach of, any river 
 stream or lake ; 
 
 (ii) wholly or ^lartially defaces or adds, or causes or procures to be 
 defaced or added, any mark or number on any such timber, mast, spar 
 saw-log or other description of lumber, or makes or causes or procures to 
 be made any false or counterfeit mark on any such timber, mast, spar 
 saw-log or other description of lumber ; or 
 (6) refuses to deliver up to the proper owner thereof, or to the person in 
 
 charge thereof, on behalf of such owner, or authorized by such owner to receive 
 
 the same, any such timber, mast, spar, saw-lojf or other description of lumber. 
 
 R S. C. c. 164, s. 87. i . 
 
 Fine, a. 958. 
 
 See s. 572, post, as to search warrant, and s. 708, as to 
 evidence. 
 
 Stealing Fences, Etc. 
 
 83V. Every one who steals any part of any live or dead fence, or any 
 ■wooden post, pale, wire or rail set up or used as a fence, or any stile or gate, 
 or any part thereof respectively, is guilty of an offence and liable, on sum- 
 mary conviction, to a penalty not exceeding twenty dollars over and above 
 the value of the article or articles so stolen or the amount of the injury doue, 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is liable, on summary conviction, to 'hree months' 
 imprisonment with hard labour. R. S. C. c. 164, s. 21. 24-25 V. c. 96, 8.31, 
 <Imp.). 
 
 Injuring fences, etc. : see s. 507, post. 
 
 Unlawful Possession of Tree, Sapling, Etc. 
 
 34LO. Every one who, having in his ix>ssession or on his premises with 
 his knowledge, the whole or any part of any tree, sapling or shrub, or any 
 underwood, or ary part of any live or dead fence, or any post, pale, wire, rail, 
 stile or gate, or any fiart thereof, of the value of twenty-five cents at the least, 
 is taken or summoned before a justice of the peace, and does not satisfy such 
 justice that he came lawfully by the same, is guilty of an offence and liable, on 
 summary conviction, to a penalty not exceeding ten dollars, over and above 
 the value of the article so in his pos^essioa or on his premises. R. S. C. 
 c. 164, a. 22. 
 
 " Having in possession " defined : s. 8. 
 
Sec. 341] 
 
 PLANTS, ETC., IN GARDENS. 
 
 381 
 
 This section does not apply to cord- wood: R. v. Caswell, 
 33 U. C. Q. B. 303. 
 
 Plants, Etc., in Gardens. 
 
 34 !• Every one who steals any plant, root, fruit or vegetable productioa 
 growing in any garden, orchard, pleasure ground, nursery ground, hot-house, 
 green-house or conservatory is guilty of an offence and liable, on summary 
 conviction, to a penalty not exceeding twenty dollars over and above the value 
 of the article so stolen or the amount of the injury done, or to one month's 
 imprisonment with or without hard labour. 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is guilty of an indictable offence and liable to three 
 years' imprisonment. R. S. C c. 164, s. 23. 24-25 V. c. 96, s. 36 (Imp.). 
 
 Fine, s. 958 ; injuring plants, etc., s. 509, post. 
 
 The words plant and vegetable production do not apply 
 to young fruit trees: B. v. Hodges, M. & M. 341. Steal- 
 ing trees would fall under ss. 336 and 337. 
 
 Indictment under s-a. 2. — . that J. S., on 
 
 twenty pounds' weight of grapes, the property of J. N., then 
 growing in a certain garden of the said J. N., situate 
 unlawfully did steal ; and the jurors aforesaid, do say that 
 heretofore, and before the committing of the offence here 
 inbefore mentioned, to wit, on at the said J. S. 
 
 was duly convicted before J. P., one of Her Majesty's jus 
 tices of the said district of for that he, the said J. S. 
 
 on {as in the previous conviction) and the said J. S. 
 
 was thereupon then and there adjudged for the said offence 
 to forfeit and pay the sum of twenty do^^rs, over and 
 above the value of the article so stolen as aforesaid, and 
 the further sum of six shillings, being the amount of the 
 said injury ; and also to pay the sum of ten shillings for 
 costs, and in default of immediate payment of the said 
 sums, to be imprisoned in for the space of un- 
 
 less the said sum should be sooner paid, and so the jurors 
 aforesaid, do say, that the said J. S., on the day and in the 
 year first aforesaid, the said twenty pounds' weight of 
 grapes, the property of the said J. N., then growing in the 
 said garden of the said J. N., situate unlawfully did steal. 
 See ss. 628 and 676, post^ as to previous convictions. 
 
 =^f*^ 
 
 
382 
 
 THEFT. 
 
 [Sees, 342, 343 
 
 I 
 
 Plants Etc., not in Gardens. 
 
 343. Every one w ho steals any cultivated root or plant used for the fcxxl 
 of man or lieast, or for medicine, or for distilling, or for dyeing, or for or in the 
 course of any manufacture, and growing in any land, open or inclosed, not 
 being a garden, orchard, pleasure ground, or nursery ground, is guilty of an 
 offence and liable, on summary conviction, to a penalty not exceeding five 
 dollars over and above the value of the article so stolen or the amount of the 
 injury done, or to one months' imprisonment with hard labour. 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is liable to throe months' imprisonment with hard 
 labour. R. S. 0. c. 164, s. 24. 24-25 V. c. 96, s. 37 (Imp.). 
 
 Injuring roots, etc., s. 510, post. 
 
 Clover has been held to be a cultivated plant : R. v. 
 
 Brumby, 8 G. & E. 315 ; but it was doubted whether grass 
 
 v.ere so : Morris v. Wise, 2 F. & F. 51. 
 
 t 
 
 Stealing Ore, Minerals, Etc. 
 
 343. Every one is guilty of an ihdictable offence and liable to two years' 
 imprisonment who steals the ore of any metal, or any quartz, lapis calaminaris 
 manganese, or mundic, or any piece of gold, silver or other metal, or any wad, 
 black oawk, or black lead, or any coal, or cannel coal, or any imirble, stone or 
 other minerul, from any mine, bed or vein thereof respectively. 
 
 2. It is not an offence to take, for the puriJoses of exploration or scientific 
 investigation, any specimen or specmiens of any ore or mineral from any piece 
 of ground uninclosed and not occupied or worked as a mine, quarry or digging, 
 
 R. S. C. c. 164, s. 25. 24-25 V. c. 96, s. 38 (Imp.). 
 
 Fine, s. 958. 
 
 See S3. 571, 621 & 707, which apply to this section. 
 
 Sections 312 and 354 provide for the concealing of gold 
 and silver from a mine, or of anything that can be stolen. 
 
 The words "or any marble, stone, or other mineral" 
 are not in the English Act. 
 
 R V. Webb, 1 Moo. 431 ; R. v. Holloway, 1 Den. 370; 
 R. V. Poole, Dears. & B. 345, would now fall under s. 854, 
 post. It must be alleged and proved that the ore was 
 stolen from the mine : R. v. Trevenner, 2 M. & Rob. 476. 
 
 Indictment. — twenty pounds' weight of copper 
 
 ore, the property of J. N., from a certain mine of copper 
 ore of the said J. N., situate unlawfully did steal. 
 
=SB" 
 
 Sec. 344] 
 
 STEALING FROM TH. 
 
 SON. 
 
 383 
 
 Stealing fbom the Pe.".iOX. 
 344* Every one is guilty of an indictable offonce and liable to fourteen 
 years' imprisonment who steals any chattel, money or valuable security from 
 the person of another, R. S. C. c. 164, s. 32. 24-25 V. c. 96, s. 40 (Imp.). 
 
 •' Valuable security " defined, s. 3 ; and see remarks 
 under s. 353, post. 
 
 Indictment for stealing from the person. — one 
 
 watch, one pocket-book and one pocket handkerchief of the 
 aoods and chattels of J. N., from the person of the said 
 J. N., unlawfully did steal. 
 
 The words " from the person of the said J. N." consti- 
 tute the characteristic of this offence, as distinguished from 
 simple larceny ; the absence of force, violence or fear dis- 
 tinguishes it from robbery. 
 
 The indictment need not negative the force or fear 
 necessary to constitute robbery ; and though it should ap- 
 pear upon the evidence that there was such force or fear, 
 the punishment for stealing from the person may be in- 
 flicted: R. V. Robinson, R. & R. 821; R. v. Pearce, R. & 
 R. 174. 
 
 To constitute a stealing from the person the thing 
 taken must be completely removed from the person. 
 Where it appeared that the prosecutor's pocket-book was in 
 the inside front pocket of his coat, and the prosecutor felt 
 a hand between his coat and waistcoat attempting to get 
 the book out, and the prosecutor thrust his right hand 
 down to his book, and on doing so brushed the prisoner's 
 hand ; the book was just lifted out of the pocket an inch 
 above the top of the pocket, but returned immediately into 
 the pocket; it was held by a majority of the judges that the 
 prisoner was not rightly convicted of stealing from the 
 person, because from first to last the book remained about 
 the person of the prosecutor, but the judges all agreed that 
 the simple larceny was complete. Of ten judges, four were 
 of opinion that the stealing from the person was complete: 
 R. V. Thompson, 1 Moo. 78. 
 
384 
 
 THEFT. 
 
 [Sec. 345 
 
 Where the prosecutor carried his watch in his waistcoat 
 pocket, fastened to a chain, which was passed through a 
 button-hole of the waistcoat, and kept there by a. watch-key 
 at the other end of the chain ; and the defendant took the 
 watch out of the pocket, and forcibly drew the chain and 
 key out of the button-hole, but the point of the key caught 
 upon another button, and the defendant's hand being seized 
 the watch remained there suspended, this was held a suffi- 
 cient severance. The watch was no doubt temporarily, 
 though but for a moment, in the possession of the pri- 
 soner: R. V. Simpson, Dears. 421. In this case Jervis, CJ., 
 said he thought the minority of the judges in Thompson's 
 case, supra, were right. 
 
 Where a man went to bed with a prostitute, leaving his 
 watch in his hat, on the table, and the woman stole it whilst 
 he was asleep, it was held not to be stealing from the per- 
 son, but stealing in the dwelling-house : R. v. Hamilton, 
 8 C. & P. 49. 
 
 Upon the trial of any indictment for stealing from the 
 person, if no asportation be proved the jury may convict 
 the prisoner of an attempt to commit that offence, under 
 8. 711. 
 
 In R. V. Collins, L. & G. 471, it was held that there 
 can only be an attempt to commit an act, where there is 
 such a beginning as if uninterrupted would end in the 
 completion of the act, and that if a person puts his hand 
 into a pocket with intent to steal, he cannot be found guilty 
 of an attempt to steal, if there was nothing in the pocket. 
 But that case is overruled : see s. 64. p. 42, ante, and cases 
 
 cited. 
 
 Stealing in a Dwkllinq-hocse. 
 
 34S. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who — 
 
 (a) steals in any dwelling-house any chattel, money or valuable security to 
 the value in the whole of twenty-five dollars or more ; or, 
 
 (b) steals any chattel, money or valuable security in any dwelling-house, 
 and by any menace or threat puts any one therein in bodily fear. R. S. C. 
 c. 164, S3. 45 & 46. 24-25 V. c. 96, ss. 60, 61 (Imp.). 
 
Sec. 346] 
 
 STEALING IN A DWELLING-HOUSE. 
 
 385 
 
 t there 
 ihere is 
 
 in the 
 is hand 
 guilty 
 
 pocket, 
 kd cases 
 
 fourteen 
 
 tecurityto 
 
 Ing-houBe, 
 R.S.C. 
 
 As to the meaning of the words "valuable security": 
 see ante, s. 3, and remarks under s. 853, post. 
 
 Indictment under (a). — one silver sugar basin, 
 
 of the value of twenty-five dollars, of the goods and chattels 
 of A. B., in the dwelling-house of the said A. B., situate 
 unlawfully did steal. 
 
 If no larceny is proved the defendant must of course be 
 acqiiitted altogether, except if the jury should find him 
 guilty of the attempt to commit the offence charged, under 
 s. 711, but the jury could not find him guilty of an attempt 
 to commit a simple larceny: R. v. McPherson, Dears. & B. 
 197; but see now s. 713. 
 
 The word "dwelling-house*' has the same meaning as in 
 burglary. If the proof fails to prove the larceny to have 
 been committed in a dwelling-house or in the dwelling- 
 house described, or that the value of the things stolen at 
 any one time amounts to twenty-five dollars, the defendant 
 must be acquitted of the compound offence, and may be 
 found guilty of the simple larceny only. 
 
 The goods must be stolen to the amount of twenty-five 
 dollars or more at one and the same time: K. v. Petrie, 1 
 Leach, 294; R. v. Hamilton, 1 Leach, 348; 2 Russ. 85. 
 
 It has been held in several cases that, if a man steal the 
 goods of another in his own house, R. v. Thompson, R. v. 
 Gould, 1 Leach, 338, it is not within the statute, but these 
 cases appear to be overruled by R. v. Bowden, 2 Moo. 285. 
 Bowden was charged with having stolen Seagall's goods in 
 his, Bowden's house, and having been found guilty the 
 conviction was affirmed. Where a lodger invited an 
 acquaintance to sleep at his lodgings, without the know- 
 ledge of his landlord, and, during the night, stole his watch 
 from his bed's head, it was doubted at the trial whether the 
 lodger was not to be considered as the owner of the house 
 with respect to the prosecutor; but the judges held that the 
 defendant was properly convicted of stealing in the dwelling- 
 house of the landlord; the goods were under the protection 
 
 Cbim. Law— 25 
 
386 
 
 THEFT. 
 
 [Sec. 345 
 
 of the dwelling-house: B. y. Taylor, R. & B. 418. If the 
 goods be under the protection of the person of the prose- 
 cutor, at the time they are stolen, the case will not be 
 within the statute; as, for instance, where the defendant 
 procured money to be delivered to him for a particular 
 purpose and then ran away with it: B. v. Campbell, 2 
 Leach, 664 ; and so, where the prosecutor, by the trick of 
 ring-dropping, was induced to lay down his money upon 
 the table, and the defendant took it up and carried it away: 
 B. Y. Owen, 2 Leach, 572. For a case to be within the 
 statute the goods must be under the protection of the 
 house. But property left at a house for a person supposed 
 to reside there will be under the protection of the house, 
 within the statute. Two boxes belonging to A., who resided 
 at 38 Bupert street, were delivered by a porter, whether 
 by mistake or design di(^ not appear, at No. 33 in the same 
 street ; the owner of the house imagining that they were 
 for the defendant who lodged there delivered them to him; 
 the defendant converted the contents of the boxes to his own 
 use, and absconded; it was doubted at the trial whether the 
 goods were sufficiently within the protection of the dwelling- 
 house to bring the case within the statute, but the judges 
 held that they were: B. v. Carroll, 1 Moo. 89. If one on 
 going to bed put his clothes and money by the bedside 
 these are under the protection of the dwelling-house and 
 not of the person ; and the question whether goods are under 
 the protection of the dwelling-house, or in the personal 
 care of the owner, is a question for the court, and not for 
 the jury: B. v. Thomas, Carr. Supp. 3rd Ed. 295. So where 
 a man went to bed with a prostitute, having put his watch 
 in his hat on a table, and the woman stole the watch while 
 he was asleep; this was held to be a stealing in a dwelling- 
 house, and not a stealing from the person : B. v. Hamilton, 
 8 C. & P. 49. But if money be stolen from uuder the 
 pillow of a person sleeping in a dwelling-house this is not 
 stealing in the dwelling-house within the meaning of the 
 Act: 2 Buss. 84. In ascertaining the value of the articles 
 
Sec. 345] 
 
 STEALING IN A DWELLING-HOUSE. 
 
 387 
 
 stolen the jury may use that general knowledge which any 
 man can bring to the subject, but if it depends on any 
 particular knowledge of the trade by one of the jurymen 
 this juryman must be sworn and examined as a witness : 
 R. V. Rosser, 7 C. & P. 648. Under s-s. (6) the indictment 
 must expressly allege that some pe? son in the house was 
 put in fear by the defendant: B. v. Etherington, 2 Leach, 
 671. 
 
 The observations, post, under the head " Burglary " 
 upon questions which may arise as to what shall be deemed 
 a dwelling-house, will apply to the offence under this 
 clause : 2 Russ. 78. 
 
 The value, if amounting to twenty-five dollars, had 
 better always be inserted, as then, if no menace or threat, 
 or no person in the house being put in fear, are proved, thr 
 defendant may be convicted of stealing in the dwelling- 
 house to the value of twenty-five dollars, under s-s. (a). 
 If there is no proof of a larceny in a dwelling-house, or the 
 dwelling house alleged, or if the goods stolen are not laid 
 and proved to be of the value of twenty-five dollars, the 
 defendant may still be convicted of simple larceny if the 
 other aggravating circumstances are not proved. 
 
 The value is immaterial if some person was in the 
 house at the time, and was put in bodily fear by a menace 
 or threat of the defendant, which may either be by words or 
 gesture : R. v. Jackson, 1 Leach, 267. 
 
 It is clear that no breaking of the house is necessary to 
 constitute this offence ; and it should seem that property 
 might be considered as stolen in the dwelling-house, 
 within the meaning of the statute, if a delivery of it out of 
 the house should be obtained by threats, or an assault upon 
 the house by which some persons therein should be put in 
 fear. But questions of difficulty may perhaps arise as to 
 the degree of fear which must be excited by the thief. 
 Where, however, the prosecutor, in consequence of the 
 threat of an armed mob, fetched provisions out of his house 
 

 ■"" '7'' ■ '; 
 
 
 Bill 
 
 
 I'll^ 
 
 9 
 
 K P 
 
 ifflV 
 
 r V-.; 
 
 388 
 
 THEFT. 
 
 [Sec. 345 
 
 and gave them to the mob, who stood outside the door, this 
 was holden not to be a stealing in the dwelling house : B. 
 V. Leonard, 2 Buss. 78. But Greaves adds : *' It is sub- 
 mitted with all deference that this decision is erroneous ; 
 the law looks on an act done under the compulsion of 
 terror as the act of the person causing that terror just as 
 much as if he had done it actually with his own hands. 
 Any asportation, therefore, of a chattel under the effects of 
 terror is in contemplation of law the asportation of tbe 
 party causing the terror " : Note g, 2 Euss. loe. cit. 
 
 It does not appear to have been expressly decided under 
 the repealed statute whether or not it was necessary to 
 prove the actual sensation of fear felt by some person in 
 the house, or whether fear was to be implied, if some 
 person in the house were conscious of the fact at the time 
 of tbe robbery. But it was suggested as the better opinion, 
 and was said to have been the practice, that proof should 
 be given of an actual fear excited by the fact, when 
 committed out of the presence of the party, so as not to 
 amount to a robbery at common law. And it was observed 
 that where the fact was committed in the presence of the 
 party, possibly it would depend upon the particular 
 circumstances of the transaction whether fear would or 
 would not be implied; but that clearly, if it should appear 
 that the party in whose presence the property was taken 
 was not conscious of the fact at the time, the case was not 
 within that statute. But now, by tbe express words of the 
 statute, the putting in fear must have been by an actual 
 menace or threat : 2 Russ. 79 ; Archbold, 401. 
 
 A person outside a house may be a principal in the 
 second degree to menaces used in the house ; menaces used 
 out of the house may be taken into consideration with 
 menaces used in the house : R. v. Murphy, 6 Cox, 840. 
 
 Upon the trial of any offence mentioned in this section 
 the jury may, under s. 711, convict of an attempt to 
 commit such offence. 
 
Sees. 346, 347] STEALING BY PICKLOCKS, ETC. 
 
 889 
 
 Indictment under (b). — one silver basin {of the 
 
 v:ilue of twenty-five dollars) of the goods and chattels of J. 
 N., in the dwelling house of the said J. N., situate 
 unlawfully did steal ; one A. B. then, to wit, at the time of 
 the committing of the offence aforesaid being in the said 
 dwelling-house, and therein by the said (defendant) 
 
 by a certain menace and threat then used by the said 
 (defendant) then being put in bodily fear. (As 
 to value, see ante p. 387.) 
 
 SiBAtiNO BY Picklocks, Etc. (New). 
 
 340- Evety one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who, by means of any picklock, false key or other instru- 
 ment steals anything from any receptacle for projjerty locked or otherwise 
 
 secured. 
 
 This enactment is taken from the English draft code. 
 
 Indictment. — that A. B. on at 
 
 unlawfully did steal by means of a picklock (false key or 
 
 other instrument) the sum of ten dollars, of the goods and 
 
 chattels of C. D., from a receptacle for property locked and 
 
 secured. 
 
 Stbaunq in Mancfactoriks. 
 
 347. Every one is guilty of an indictable offence and liable to^ve years' 
 imprisonment who steals, to the value of two dollars, any woollen, linen, 
 hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton, 
 alpaca or mohair, or of ".ny one or more of such materials mixed with each 
 other or mixed with any other material, while laid, placed or exposed, during 
 any stage, process or progress of manufacture, in any building, field or other 
 place. R. S. C. c. 164, s. 47. 24-25 V. c. 96, s. 62 (Imp.). 
 
 Fine, s. 958. Injuring such goods, s. 499. post. 
 
 If you prove the larceny, but fail to prove the other 
 circumstances so as to brinp; the case within the statute, 
 the defendant may be found guilty of the simple larceny 
 only. 
 
 Goods remain in "a stage, procebs or progress of 
 manufacture," though the texture be complete, if they be 
 not yet brought into a condition fit for sale : R. v. Wood- 
 head, 1 M. & Rob. 549. See R. v. Hugill, 2 Russ. 517; R. 
 V. Dixon, R. & R. 53. 
 
390 
 
 THEFT. 
 
 [Seo8. 348, m 
 
 Upon the trial of any offence mentioned in this section 
 the jury may, under s. 711, convict the prisoner of an 
 attempt to commit the same. 
 
 Indictrtient — on thirty yards of linen 
 
 cloth, of the value of four dollars, of the goods and chattels 
 of J. N., in a certain building of the said J. N., situate 
 unlawfully did steal, whilst the same were laid, placed and 
 exposed in the same building, during a certain state, 
 process and progress of manufacture. (Other counts may 
 be added, stating the particular process and progress of 
 manufacture in which the goods were when stolen. J 
 
 Fraud in Disposal op Goods for Manupacturk. 
 
 348- Every one is Ruilty of an indictable offence and liable to hco years' 
 imprisonment, when the offence is not within the next preceding section, wlio, 
 having been intrusted with, for the purpose of manufacture or for a special 
 purpose connected with manufacture, or employed to make, any felt or hat, or 
 to prepare or work up any woollen, linen, fustian, cotton, iron, leather, fur, 
 hemp, flax or silk, or any such materials mixed with one another, or having 
 been so intrusted, as aforesaid, with any other article, materials, fabric or 
 thing, or with any tools or apparatus for manufacturing the same, fraudulently 
 disposes of the same or any part thereof. R. S. C. c. 164, s. 48. 6-7 V. c. 40, 
 8. 2 (Imp.). 
 
 Fine, s. 968. 
 
 Indictment. — that A. B. on at 
 
 having been intrusted with, for the purpose of manufactuve, 
 a large quantity of, to wit of felt, of the goods and 
 
 chattels of 0. D., fraudulently disposed of the same [orauy 
 part thereof). 
 
 Stealing proji Ships, Wharves, Etc. 
 
 340. Every one is guilty of an indictable offence and liable to fuurteeu 
 years' imprisonment who — 
 
 (a) steals any goods or merchandise in any vessel, barge or boat of any 
 description whatsoever, in any haven or in any port of entry or discharge, or 
 upon any navigable river or canal, or in any creek or basin belonging to or 
 communicating with any such haven, port, river or canal ; or 
 
 (6) steals any goods or merchandise from any dock, wharf or quay adjaaut 
 to any such haven, port, river, canal, creek or basin. R. S. C. c. IH s. 49. 
 24-25 V. c. 96, 8. 63 (Imp.). 
 
 See sched. one, form F. F., under s. 611 pont. 
 
Sec. 349] 
 
 STEALING IN SHIPS, ETC. 
 
 391 
 
 Indictment for stealing in a vessel on a navigable 
 river. — on twenty pounds weight of indigo 
 
 of the goods and merchandise of J. N., then being in a 
 certain ship called the Rattler upon the navigable river 
 Thames, in the said ship, unlawfully did steal. 
 
 hulictment for stealing from a dock. — on 
 
 twenty pounds weight of indigo of the goods and 
 
 merchandise of J. M., then being in and upon a certain 
 
 dock adjacent to a certain navigable river called the Thames, 
 
 from the said dock, unlawfully did steal. 
 
 The value is immaterial, and need not be laid. If the 
 prosecutor fails to prove any of the circumstances necessary 
 to bring the case within the statute, but proves a larceny, 
 the defendant may be convicted of the simple larceny. 
 
 The construction of the old statutes was generally con- 
 fined to such goods and merchandise as are usually lodged 
 in ships, or on wharves or quays ; and therefore where 
 Grimes was indicted for stealing a considerable sum of 
 money out of a ship in port, though great part of it con- 
 sisted in Portugal money, not made current by proclama- 
 tion, but commonly current, it was ruled not to be within 
 the statute : B. v. Grimes, Fost. 79 : B. v. Leigh, 1 Leach, 
 52. The same may be said of the present statute, by 
 reason of the substitution of the words " goods or merchan- 
 dise" for the words "chattel, money or valuable security" 
 which are used in other parts of the Act : Archbold. 
 
 It would not be sufficient, in an indictment for stealing 
 goods from any vessel on a certain navigable river, to prove 
 in evidence that the vessel was aground in a dock in a creek 
 of the river, unless the indictment were amended : B. v. 
 Pike, 1 Leach, 317. The words of the statute are " in any 
 vessel," and it is therefore immaterial whether the defend- 
 ant succeeded in taking the goods from the ship or not, if 
 there was a sufficient asportation in the ship to constitute 
 larceny : 3 Burn, 254. 
 
 
392 
 
 THEFT. 
 
 [Sees. 350, 361 
 
 
 The MTords of the statute are " from any dock," so that, 
 upon an indictment for stealing from a dock, wharf, etc., a 
 mere removal will not suffice; there must be an actual 
 removal /rom the dock, etc : Archbold, 409. 
 
 A man cannot be guilty of this offence in his own ship: 
 B. V. Madox, B. & B. 92 ; but see B. v. Bowden, 2 Moo. 
 285. And now, s. 805, ante, would apply to such a case, 
 being stealing by fraudulent conversion. 
 
 The luggage of a passenger going by steamer is within 
 the statute. The prisoners were indicted for stealing a 
 portmanteau, two coats and various other articles, in a 
 vessel upon the navigable Biver Thames. The property 
 in question was the luggage of a passenger going on board 
 the Columbian steamer from London to Hamburg ; and it 
 was held that the object of the statute was to protect 
 things on board a ship, and that the luggage of a passenger 
 came within the general description of goods : B. v. Wright, 
 7 C. & P. 159. 
 
 Upon an indictment for any offence mentioned in this 
 section the jury may convict of dn attempt to commit the 
 same, under s. 711, if the evidence warrants it. 
 
 Stkalino Wrecks. 
 
 330. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who steals any wreck. R. S. C. c. 81, s. 36 (c). 24-25 V. 
 c. 96, 8. 64, (Imp.). 
 
 " Wreck " defined, s. 3. 
 
 Indictment. — that on at 
 
 a certain ship, the property of a person or persons to the 
 jurors unknown (or of ) was stranded, and that 
 
 A. B., on the said day, ten pieces of oak planks, being 
 parts of the said ship (or twenty jiounds weight' of cotton 
 of the goods and merchandize of a shipwrecked 'person 
 belonging to the said ship), unlawfully did steal. 
 
 Stealing on Railways. (Ifew). 
 
 391. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who steals anything in or from any railway station or 
 building, or front any engine, tender or vehicle of any kind on any railway. 
 
Sees. 362, 863] STEALING IN INDIAN GRAVE. 
 
 398 
 
 IndictTTMnt.— that A. B., at on 
 
 unlawfully did steal a leather portmanteau of the ^oods and 
 chattels of C. D. in (or from) a railway station, to wit, the 
 station there situate belonging to the Canadian Pacific 
 Railway. 
 
 The value is immaterial. A verdict for attempt, s. 711, 
 or for simple larceny, s. 718, may be given if the evidence 
 warrants it. In the first case, the punishment would be 
 under s. 628, post : in the latter case, under s. 856. 
 
 See remarks under s. 849 as to the words in or from 
 in this section. 
 
 Stbalino Things in Indian Gravb. 
 
 SI58. Every one who steals, or unlawfully injures or removes, any 
 image, bones, article or thinf^ deposited in or near any Indian grave is guilty 
 of an oSenoe and liable, on summary conviction, for a first offence to a penalty 
 not exceeding one hundred dollars or to three months' imprisonment, and for 
 a subsequent offence to the same penalty and to six months' imprisonment 
 with hard labour. R. S. C. c. 164, s. 98. (Amended). 
 
 This enactment by the repealed statute applied only to 
 British Columbia. 
 
 Dkstroyino DoCCMENTa. 
 
 35S. Every one who destroys, cancels, conceals or obliterates any docu- 
 ment of title to goods or lands, or any valuable security, testamentary 
 instrument, or judicial, official or other document, for any fraudulent purpose, 
 i!> guilty of an indictable offence and liable to the same punishment as if he 
 had stolen such document, security or instrument. R. S. C. c. 164, ss. 12, 13, 
 14. (Amended). 24-25 V. o. i)6, ss. 27, 28, 29 (Imp.). 
 
 See ante remarks under s. 385. S. 101, c. 35, R. S. C, 
 provides for certain offences of the same nature by post- 
 masters. 
 
 "Document of title to goods or lands," "valuable 
 security " and *' testamentary instrument " defined, s. 3. 
 Punishment, for stealing testamentary instruments, is 
 provided for by s. 323; documents of title to lands or goods, 
 by s. 824; and judicial or official document, by s. 325. 
 For stealing other documents not specially provided for 
 iu this Code, and for promissory notes, bills of exchange, 
 and other valuable securities, the punishment falls under 
 
 «? 
 
394 
 
 THEFT. 
 
 [Sec. 353 
 
 8S. 356 & 357. The repealed section (12, o. 164, R. 8. C.) 
 provided in express terms for the stealing of such securities, 
 but the Code has no express provision on the subject. 
 S. 303 is the only one under which the stealing of these 
 securities may be held to be indictable: s. 353 merely 
 assumes that they are. 
 
 As to what constitutes a " valuable security," it must 
 be remarked that the interpretation given to this word, 
 in s. 3, ante, is wider or, at least, more explicit than the 
 interpretation given in the Imperial Act, 24 & 25 "V. c. 96, 
 8. 1. The case of Scott v. R., 2 S. C. R. 849, and (in first 
 instance) 21 L. C. J. 225, refers to a number of cases as to 
 unstamped documents, where stamps are necessary. B. y. 
 Phipoe, 2 Leach, 673, and R. v. Edwards, 6 C. & P. 521, 
 would now fall under s. 405, post. An instrument need 
 not be negotiable to be a " valuable security " under the 
 statute : R. v. John, 13 Cox, 100. See Austin and King's 
 cases, 2 East P. C. 602 ; R. v. Hart, 6 C. & P. 106; 
 R. V. Clark, R. & R. 181 ; R. v. Watts, 6 Cox, 304 ; R. v. 
 Morton, 2 East P. C. 955 ; R. v. Dewitt, 21 N. B. 17 ; R. 
 V. Bowerman, 17 Cox, 151, [1891] 1 Q. B. 112. The 
 cheque of a firm before it is endorsed by the payee, and 
 while still in the hands of one of the members of the firm, 
 is not a valuable security within the meaning of this Act : 
 R. V. Ford, M. L. R. 7 Q. B. 413 ; but a receipt is : R. v. 
 Doonan, M. L. R. 6 Q. B. 186. 
 
 Indictment under 8. 353. — on a certain 
 
 valuable security, to wit, one bill of exchange for the pay- 
 ment of one hundred dollars (drawn ) unlawfully did, 
 for a fraudulent purpose, destroy and cancel (conceal or 
 obliterate), the said bill of exchange, being then due and 
 unsatisfied. (In another count detail the purpose.) 
 
 Upon an indictment for taking a record from its place 
 of deposit, with a fraudulent purpose, the mere taking is 
 evidence from which fraud may fairly be presumed, unless 
 it be satisfactorily explained. 
 
Sec, 353] 
 
 DESTROYING DOCUMENTS. 
 
 395 
 
 The first count charged the prisoner with stealing a 
 certain process of a court of record, to wit, a certain war- 
 rant of execution issued out of the county court of Berk- 
 shire, in an action wherein one Arthur was plaintiff and the 
 prisoner defendant. The second count stated that at the 
 time of committing the offence hereinafter mentioned, one 
 Brooker had the lawful custody of a certain process of a 
 court of record, to wit, a warrant of execution out of the 
 county court of that defendant intending to prevent 
 
 the due course of law, and to deprive Arthur of the rights, 
 benefits and advantages from the lawful execution of the 
 warrant, did take from Brooker the said warrant, he, 
 Brooker, having then the lawful custody of it. Brooker 
 was the bailiff who had seized the defendant's goods, under 
 the said writ of execution. The prisoner, a day or twa 
 afterwards, forcibly took the warrant out of the bailiff's 
 band, and kept it. He then ordered him away, as having 
 no more authority, and, on his refusal to go, forcibly 
 turned him out. The prisoner was found guilty, and the 
 conviction affirmed upon a case reserved. Cockburn,^ 
 C.J., said : " I think that the first count of the indictment 
 which charges larceny will not hold. There was no taking 
 liicri causa, but for the purpose of preventing the bailiff 
 from having lawful possession. Neither was the taking 
 animo furandi. I may illustrate it by the case of a man 
 who, wishing to strike another person, sees him coming 
 along with a stick in his hand, takes the stick out of his 
 band, and strikes him with it. That would be an assault, 
 but not a felonious taking of the stick. There is, however, 
 a second count in the indictment which charges in effect 
 that the prisoner took the warrant for a fraudulent pur- 
 pose. The facts show that the taking was for a fraudulent 
 purpose. He took the warrant forcibly from the bailiff, in 
 order that he might turn him out of possession. That wa» 
 a fraud against the execution creditor, and was also con- 
 trary to the law. I am therefore of opinion that it amounts 
 to a fraudulent purpose within the enactment, and that the 
 
 i^W 
 
mi' I 
 
 ltti'K^3 
 
 396 
 
 THEFT. 
 
 [Sees. 354.355 
 
 conviction must be affirmed " : E. v. Bailey, 12 Cox, 129. 
 Such a case would now fall under next section. 
 
 Maliciously destroying an information or record of the 
 police court is a felony within 32 & 83 V. c. 21, s. 18 ; E. 
 V. Mason, 22 U. C. C. P. 246. 
 
 Concealing. (Neie). 
 
 354- Every one is guilty of an indictable offence and liable to two 
 years' imprisonment who, for any fraudulent purpose, takes, obtains, removes 
 or conceals anything capable of being stolen. 
 
 Fine, s. 958. See remarks and cases under ss. 843 and 
 358, ante. S. 26, c. 164, R. S. C. was confined to the 
 concealing of minerals. 
 
 Indictment. — on did unlawfully take [or 
 
 obtain, remove or conceal) ten bushels of oats, the property 
 of of the value of five dollars, for a fraudulent 
 
 purpose, to wit, for the purpose of 
 
 Bringing by Thief into Canada of Anything Stolen Elsewherk. 
 
 355. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, having obtained elsewhere than in Canada any 
 proi)erty by any act which, if done in Canada, would have amounted to theft, 
 brings such property into or has the same in Canada. R. S. C. c. 164, s. 8S. 
 {Aiaetuled). 
 
 "Property" defined, s. 3: see R. v. Hennessej*, 35 
 U. C. Q. B. 603. 
 
 The repealed section extended to property obtained by 
 false pretenses. There is no statutory enactment of this 
 kind in England : R. v. Prowes, 1 Moo. 349 ; R. v. Debruiel, 
 11 Cox, 207. One was proposed in the draft code. 
 
 Receiving in Canada property stolen abroad by any 
 other person does not fall under the above clause. It falls 
 under s. 314, ante. 
 
 On a charge of having in possession goods stolen in a 
 foreign country not always necessary to prove state of the 
 law in that country. Crown proved that prisoner had iu 
 Canada property taken in another country under circum- 
 stances which would have made it felony in Canada if so 
 
Sees. 356-358] 
 
 OTHER CASES. 
 
 397 
 
 taken there. Ofifence held proved. Allegation in indict- 
 ment that prisoner ** feloniously had taken and carried 
 £ivfay," the goods does not impose any additional harden 
 of proof on the Crown : R. v. Jewell, 6 Man. L. R. 460. 
 
 Punishment in Other Cases. 
 
 356. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who steals anything for the stealing of which no punish- 
 ment is otherwise provided, or commits in respect thereof any offence for which 
 he is liable to the same punishment as if he had stolen the same. 
 
 2. The offender is liable to ten years' imprisonment if he has been 
 previously convicted of theft. R. S. C. c. 164, ss. .'), 6 & 85. (Amended). 
 
 As to previous convictions, see ss. 628, 676. The words 
 "any felony" stood in lieu of the word "theft" in the 
 repealed clause. The words in italics are superfluous. 
 
 Punishment when Value Exceeds $200. 
 
 357. If the value of anything stolen, or in respect of which any offence 
 is committed for which the offender is liable to the same punishment as if he 
 had stolen it, exceeds the sum of two hundred dollars, the offender is liable to 
 /jCQ yetars' imprisonment, in addition to any punishment to which he is other- 
 wise liable for such offence. R. S. C. c. 164, s. 86. {Amended). 
 
 The indictment must specially aver that the value 
 exceeds two hundred dollars. The additional punishment 
 was seven years by the repealed clause, which also applied 
 to obtaining by false pretenses. 
 
 PART XXVII. 
 
 OBTAINING PROPERTY BY FALSE PRETENSES AND OTHER 
 CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY. 
 
 Definition. 
 
 358- A false pretense is a representation, either by words or otherwise, 
 uf a matter of fact either present or past, which representation is known to the 
 person making it to Ite false, and which is made with a fraudulent intent to 
 induce the person to whom it is made to act \i\yon such representation. 
 
•398 
 
 FALSE PRETENSES. 
 
 [Sec. 359 
 
 2. Exaggerated commendation or depreciation of the quality of anythine 
 is not a false pretense, unless it is carried to such an extent as to amount to a 
 fraudulent misrepresentation of fact. 
 
 3. It is a question of fact whether such commendation or depreciation does 
 or does not amount to a fraudulent misrenresentation of fact. 
 
 This definition is taken from the English draft, where 
 it is given as existing law. 
 
 * Punishment. 
 
 3S0- Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who, with intent to defraud, by any false pretense 
 cither directly or through the medium of any contract ohtaitied by such false 
 pretense, obtains anything capable of being stolen, or procures anything capable 
 of being stolen to be delivered to any other person than himself. R. s, C. 
 ■c. 164, 8. 77. (Amended). 
 
 As to what things are capable of being stolen, see 
 remarks under s. 353, ante. 
 
 The first part of this section is based on 24 & 25 V. c. 96, 
 s. 88, the second part on s. 89 of the Imperial Act. 
 
 Section 198 of the Procedure Act, which allowed a 
 conviction for obtaining under false pretenses on a trial for 
 larceny, and s. 196 of the same Act which enacted that on 
 a trial for obtaining under false pretenses, if a larceny was 
 proved the defendant could nevertheless be found guilty of 
 the oflfence charged, have not been re-enacted: 3 Stephen's 
 Hist. 162 ; R. v. Adams, 1 Den. 38 ; R. v. Rudge, 13 Cox, 
 17 ; R. V. Bryan, 2 Russ. 664, note ; R. v. Solomons, 17 
 Cox, 93 ; R. v. Gorbutt, Dears. & B. 166. 
 
 By 8. 711, upon an indictment under this sectioQ, the 
 jurj may return a verdict of guilty of an attempt to commit 
 the oflfence charged, if the evidence warrants it : R. v. 
 Roebuck, Dears. & B. 24 ; R. v. Eagleton, Dears. 376, 515 ; 
 R. V. Hensler, 11 Cox, 670; R. v. Goff, 9 U. C. C. P. 438. 
 
 By ss. 613 and 616 post, in indictments for obtaining or 
 attempting to obtain under false pretenses, a general intent 
 to defraud is a sufficient allegation, and it is not necessary 
 to allege any ownership of the chattel, money or valuable 
 security. 
 
Sec. 369] 
 
 FALSE PRETENSES. 
 
 399 
 
 To constitate the offence of obtaining goods by false 
 pretenses three elements are necessary. 1st, the statement 
 upon which the goods are obtained must be untrue ; 2nd, 
 the prisoner must have known at the time he made the 
 statement that it was untrue ; 8rd, thd^ goods must have 
 been obtained by reason and on the representation of that 
 false statement : B. v. Burton, 16 Cox, 62 ; see R. v. 
 Buckmaster and R. v. Solomons, Warb. Lead. Cas. 158, 
 160 ; R. V. Russett, 17 Cox, 534. 
 
 The distinction between larceny and false pretenses is 
 that, if by means of any trick or artifice the owner of pro- 
 perty is induced to part with the possession only, still mean- 
 ing to retain the right of property, the taking by such means 
 will amount to larceny ; but if the owner part with not only 
 the possession of the goods, but the right of property in them 
 also, the offence of the party obtaining them will not be lar- 
 ceny, but the offence of obtaining goods by false pretenses. 
 
 Indictment. — that J. S., on unlawfully, and 
 
 with a fraudulent intent, did falsely pretend to one A. B. 
 that be, the said J. S., then was the servant of one 0. E., 
 of tailor, (the said 0. K. then and long before being 
 
 well known to the said A. B., and a ciustomer of the said 
 A. B. in hia business and way of trade as a woollen 
 draper), and that he, the said J. S., was then sent by the 
 said 0. E. to the said A. B. for five yards of superfine 
 woollen cloth, by means of which said false pretenses, the 
 said J. S. did then unlawfully and fraudulently obtain from 
 the said A. B. five yards of superfine woollen cloth. 
 
 A form is given in schedule one, F. F.: see under s. 611. 
 Under s. 982, an indictment drawn upon that form is suffi- 
 cient. But, to avoid the necessity of giving particulars, 
 which the court will not refuse to the defendant, ss. 616, 
 617, the false pretenses should be averred in the indictment. 
 It is not necessary, however, as heretofore, to aver that the 
 false pretenses were not true. 
 
 m 
 
m^ 
 
 
 400 
 
 FALSE PRETENSES. 
 
 [Sec. 359 
 
 The pretense must be set out in the indictment : R. v. 
 Mason, 2 T. R. 581 ; R. v. (joldsmith, 12 Cox, 479; see 
 now 8. 616, post. And it must be stated to be false: 
 R. V. Airey, 2 East, 30. And it must be of some existing 
 fact ; a pretense that the defendant will do some act, or 
 that he has got to do some act is not sufficient : R. v 
 Goodhall, R. & R. 461 ; R. v. Johnston, 2 Moo. 264 ; R. v. 
 Lee, L. & C. 809. Where the pretense is partly a misre- 
 presentation of an existing fact, and partly a promise to do 
 some act, the defendant may be convicted, if the property is 
 parted with in consequence of the misrepresentation of fact 
 although the promise also actf^d upon the prosecutor's mind: 
 R. V. Fry, Dears. & B. 449 ; R. v. West, Dears. & B. 575; 
 R. V. Jennison, L. & C. 167, Warb. Lead. Cas. 167. 
 
 Where the pretense, gathered from all the circumstances, 
 was that the prisoner had power to bring back the hus- 
 band of the prosecutrix, though the words used were 
 merely promissory that she, the prisoner, would bring him 
 back, it was held a sufficient pretense of an existing fact, 
 and that it is not necessary that the false pretense should 
 be made in express words, if it can be inferred from all the 
 circumstances attending the obtaining of the property: 
 R. V. Giles, L. & C. 602. 
 
 Where the indictment alleged that the prisoner pre- 
 tended to A.'s representative that she was to give him 
 twenty shillings for B., and that A. was going to allow B. ten 
 shillings a week, it was held that it did not sufficiently 
 appear that there was any false pretense of fku existing 
 fact : R. v. Henshaw, L. 6i, C. 444. 
 
 An indictment alleged that the prisoner obtained a coat 
 by falsely pretending that a bill of parcels of a coat, value 
 £0 148. 6d. of which £0 4s. 6d. had been paid on account, 
 and £0 10s. Od. only was due, was a bill of parcels of 
 another coat of the value of twenty-two shillings. The evi- 
 dence was that the prisoner's wife had selected the £0 Us. 
 6d. coat for him, subject to its fitting him, and had 
 
GENERAL REMARKS. 
 
 401 
 
 £0 4s. 6d. account, for which she on received a bill of parcels 
 giving credit for that amount. On trying on the coat it 
 \vas found to be too small, and the prisoner was then mea- 
 sured for one to cost twenty-two shillings. When that was 
 made it was tried on by the prosecutor, who was not privy 
 to the former part of the transaction. The prisoner when 
 the coat was given to him handed/ the bill of parcels for 
 the £0 14s. 6d. and also £0 10s. Od. to the prosecutor, saying 
 " There is £0 10s. Od. to pay." The bill was receipted, and 
 the prisoner took the twenty-two shillings 3oat away with 
 him. The prosecutor stated that believing the bill of par- 
 cels to refer to the twenty-two shillings coat he parted with 
 that coat on payment of £0 10s. Od. otherwise he should 
 not have done so : Held, that there was evidence to support 
 a conviction on the indictment : B. v. Steels, 11 Cox, 5. 
 
 So the defendant may be convicted although the pre- 
 tense is of some existing fact, the falsehood of which might 
 have been ascertained by inquiry by the party defrauded 
 R. V. Wickham, 10 A. & E. 34 ; R. v. Woolley, 1 Den. 559 
 R. V. Ball, C. & M. 249 ; R. v. Roebuck, Dears. & B. 24 
 or against which common prudence might have guarded 
 R. V. Young, 3 T. R. 98 ; R. v. Jessop, Dears. & B. 442 
 R. V. Hughes, 1 F. & F. 355. If, however, the prosecutor 
 knows the pretense to be false : R. v. Mills, Dears. & B. 
 205 ; or does not part with the goods in consequence of 
 defendant's representation : R. v. Roebuck, Dears. & B. 24 ; 
 or parts with them before the representation is made : R. 
 V. Brooks, 1 F. & F. 502 ; or in consequence of a represen- 
 tation as to some future fact : R. v. Dale, 7 G. & P. 352 ; or 
 if the obtaining of the goods is too remotely connected with 
 the false pretense, which is a question for the jury : R. v. 
 Gardner, Dears. & B. 40; R. v. Martin, 10 Cox, 383, Warb. 
 Lead. Gas. 173; or if the prosecutor continues to be 
 interested in the money alleged to have been obtained, as 
 partner with the defendant, R. v. Watson, Dears. & B. 348 ; 
 B. V. Evans, L. & G. 252 ; or the objest of the false pretense 
 
 Cbim. Law— 26 
 
 V.' Jh 
 -5? Y 
 
402 
 
 FALSE PRETENSES, ETC. 
 
 is something else than the obtaining of the moriey : B. \. 
 Stone, 1 F. & F. 311, the defendant cannot be convicted. 
 
 Falsely pretending that he has bought goods to a 
 certain amount, and presenting a check-ticket for them : 
 R. V. Barnes, 2 Den. 69 ; or overstating a sum due for dock 
 dues or custom duties : R. v. Thompson, L. & G. 233 ; will 
 render the prisoner liable to be convicted under the statute 
 {See reporter's note to this last case.) 
 
 The pretense need not be in words but may consist of 
 the acts and conduct of the defendant. Thus the giving a 
 cheque on a banker with whom the defendant has no 
 account : R. v. Flint, R. & R. 460; R. v. Jackson, 3 Camp. 
 370 ; R. V. Parker, 2 Moo. 1 ; R. v. Spencer, 3 C. & P. 420; 
 R. V. Wickman, 10 A. & E. 34 ; R. v. Philpotts, 1 C. & K 
 112 ; R. V. Freeth, R. &-R. 127 ; or the fraudulently assum- 
 ing the name of another to whom money is payable : R. v. 
 Story, R. & R. 81 ; R. v. Jones, 1 Den. 551 ; or the fraudulently 
 assuming the dress of a member of one of the universities, 
 is a false pretense within the statute : R. v. Barnard, 7 C. 
 & P. 784, Warb. Lead. Gas. 162. 
 
 The prisoner obtained a sum of money from the prose- 
 cutor by pretending that he carried on an extensive busi- 
 ness as an auctioneer and house agent, and that he wanted 
 a clerk, and that the money was to be deposited as security 
 for the prosecutor's honesty as such clerk. The jury found 
 that the prisoner was not carrying on that business at all. 
 Held, that this was an indictable false pretense : R v. 
 Grab, 11 Gox, 85; R. v. Gooper, 13 Gox, 617. 
 
 The defendant, knowing that some old country bank 
 notes had been taken by histuncle forty years before, and 
 that the bank had stopped payment, gave them to a man 
 to pass, telling him to say, if asked about them, that he 
 had taken them from a man he did not know. The mau 
 passed the notes, and the defendant obtained value for 
 them. It appears that the bankers were made bankrupt. 
 Held, that the defendant was guilty of obtaining money by 
 
GENERAL REMARKS. 
 
 403 
 
 ■y bank 
 )re, and 
 } a man 
 that he 
 'he mau 
 ,lue for 
 inkrupt. 
 loney by 
 
 false pretenses, and that the bankruptcy proceedings need 
 not be proved : R. v. Dowey, 11 Cox, 116. 
 
 The indictment alleged that the prisoner was living 
 apart from her husband under a deed of separation, and 
 vvas in receipt of an income from her husband, and that he 
 was not to be liable for her debts, yet that she falsely 
 pretended to the prosecutor that she was living with her 
 husband, and was authorized to apply for and receive from 
 the prosecutor goods on the account and credit of her 
 husband, and that her husband was then ready and willing 
 to pay for the goods. The evidence at the trial was that 
 the prisoner went to the prosecutor's shop and selected the 
 goods, and said that her husband would give a cheque for 
 them as soon as they were delivered, and that she would 
 send the person bringing the goods to her husband's office, 
 and that he would give a cheque. When all the goods were 
 delivered the prisoner told the man who delivered them to 
 go to her husband's office, and that he would pay for them. 
 The man went but could not see her husband, and ascer- 
 tained that there was a deed of separation between the 
 prisoner and her husband, which was shown to him. He 
 communicated what he had learned to the prisoner who 
 denied the deed of separation. The goods were shortly 
 after removed and pawned by the prisoner. The deed of 
 separation between the prisoner and her husband was put 
 in evidence, by which it was stipulated that the husband 
 was not to pay her debts ; and it was proved that she was 
 living apart from her husband, and receiving an annuity 
 from him, and that she was also cohabiting with another 
 man. Held, that the false pretenses charged were 
 sufficiently proved by this evidence : R. v. Davis, 11 Cox, 
 181. 
 
 On an indictment for fraudulently obtaining goods in a 
 market by falsely pretending that a room had been taken 
 at which to pay the market people for their goods, the jury 
 found that the well known practice was for buyers to 
 
 ii:;^ 
 
 Mf'i 
 
404 
 
 FALSE PRETENSES. ETC. 
 
 engage a room at a public house, and that the prisoner, pre- 
 tending to be a buyer, conveyed to the minds of the market 
 people that she had engaged such a room, and that they 
 parted with their goods on such belief : Held, there being 
 no evidence that the prisoner knew of such a practice 
 and the case being consistent with a promise only on her 
 part to engage such a room and pay for the goods there, 
 the conviction could not be sustained : R. v. Burrows, 11 
 Cox, 258. 
 
 On the trial of an indictment against the prisoner for 
 pretending that his goods were unencumbered, and obtain- 
 ing thereby eight pounds from the prosecutor with intent 
 to defraud, it appeared that the prosecutor lent money to 
 the prisoner at interest, on the security of a bill of sale on 
 furniture, a promissory note of prisoner and another person 
 and a declaration made by prisoner that the furniture was 
 unencumbered. The declaration was untrue at the time it 
 was handed to the prosecutor, the prisoner having a few 
 hours before given a bill of sale for the furniture to 
 another person, but not to its full value : Held, that there 
 was evidence to go to the jury in support of a charge of 
 obtaining money by false pretenses: R. v. Meakin, 11 
 Cox, 270. 
 
 A false representation as to the value of a business will 
 not sustain an indictment for obtaining money by false 
 pretenses. On an indictment for obtaining money by false 
 pretenses it appeared that the prisoner, on engaging an 
 assistant from whom he received a deposit, represented to 
 him that he was doing a good business, and that he had 
 sold a good business for a certain large sum, whereas the 
 business was worthless and he had been bankrupt : UeJd, 
 that the indictment could not be sustained upon either of 
 the representations : R. v. Williamson, 11 Cox, 328. 
 
 It has been seen, ante, that in R. v. Mills, Dears. & B. 205, 
 Warb. Lead. Cas. 172, it was held that the defendant 
 cannot be convicted if the prosecutor knows the pretense 
 
GENERAL REMARKS. 
 
 405 
 
 to be false. The defendant, however, in such cases may, 
 under s. 711, po8t, be found guilty of an attempt to commit 
 the oflfence charged, or be, in the first instance, indicted 
 for the attempt. In R. v. Hensler, 11 Cox, 570, the prisoner 
 was indicted for attempting to ojbtain money by false 
 pretenses in a begging letter. In reply to the letter the 
 prosecutor sent the prisoner five shillings ; but he stated in 
 bis evidence at the trial that he knew that the statements 
 contained in the letter were untrue ; it was held, upon a 
 case reserved that the prisoner might be convicted, on this 
 evidence, of attempting to obtain money by false pretenses. 
 But an indictment for an attempt to obtain property by 
 false pretenses must specify the attempt : B. v. Marsh, 1 
 Den. 505. The proper course is to allege the false pretenses, 
 and to deny their truth in the same manner as in an indict- 
 ment for obtaining property by false pretenses, and then to 
 allege that by means of the false pretenses the prisoner 
 attempted to obtain the property; note by Greaves, 2 
 Russ. 698. 
 
 An indictment charged that the prisoner falsely pre- 
 tended that he had got a carriage and pair, and expected it 
 down to T.* that day or the next, and that he had a large 
 property abroad. The evidence was that the prisoner was 
 at E., assuming to be a man of position and wealth, but was 
 in a destitute condition, and could not pay his hotel and 
 other bills. That three days after he came to T., and 
 induced prosecutor to part with goods on the representa- 
 tion that he had just come from abroad and had shipped a 
 large quantity of wine to R., from EIngland, and expected 
 his carriage and pair to come down, and that he had taken 
 a large house at T., and was going to furnish it : Held, 
 that the false pretenses charged were suflScient in point of 
 law, and also that the evidence was sufficient to sustain a 
 conviction: R. v. Howarth, 11 Cox, 588. 
 
 Prisoner was indicted for obtaining from George Hislop, 
 the master of the workhouse of the Strand Union, one pint 
 
 tr 
 
Hf 
 
 406 
 
 FALSE PRETENSES, ETC. 
 
 of milk and one egg, by falsely protending that a certain 
 child then brought by him had been by him found in 
 Leicester Square, whereas these facts were untrue. The 
 facts were that the prisoner was waiter at an hotel in 
 George Street, Hanover Square. A female servant there, 
 named Spires, had been delivered of a child by him, which 
 was put out to nurse. The child falling ill the nurse 
 brought it to the hotel, and the prisoner, saying that he 
 would find another nurse, took the woman with him to 
 Westminster, where the nurse put the child into his arms 
 and went away. He took it to the work-house of St. 
 Martin-in-the-Fields, which is in the Strand Union, and 
 delivered it to the Master, stating that he had found it in 
 Leicester Square. It was by the master delivered to the 
 nurse to be taken care of, and the nurse fed it with the pint 
 of milk and egg which was the subject of the charge of the 
 indictment as the property obtained by the false pretenses 
 alleged : Held, that this evidence did not sustain the indict- 
 ment, and that the food given to the child was too remote 
 an object : R. v. Carpenter, 11 Cox, 600. 
 
 In R. V. Walne, 11 Cox, 647, the conviction was also 
 quashed on the deficiency of the evidence, as no false 
 pretense of an existing fact was proved : see R. v. Speed, 15 
 Cox, 24. 
 
 Prisoner by falsely pretending to a liveryman that he 
 was sent by another person to hire a horse for him for a 
 drive to E., obtained the horse. The prisoner returned in 
 the same evening but did not pay for the hire : Held, that 
 this was not an obtaining of a chattel with intv.nt to defraud 
 within the meaning of the statute. To constitute such an 
 offence, there must be an intention to deprive the owner of 
 the property: R. v, Kilham, 11 Cox, 561, Warb. Lead. Cas. 
 175. It may, perhaps, be stealing now in Canada. 
 
 There may be a false pretense made in the course of a 
 contract, by which money is obtained under the contract : 
 R. V. Kenrick, D. & M. 208; R. v. Abbott, 2 Cox, 430; 
 
GENERAL REMARKS. 
 
 407 
 
 R. V. Burgon, Dears. & B. 11 ; as to weight or quantity of 
 (foods sold when sold by weight or quantity : R. v. Sher- 
 vvood, Dears. & B. 251 ; R. v. Ragg, Bell, 214 ; R. v. Goss, 
 Bell, 208 ; R. v. Lees, L. & C. 418 ; R.^v. Ridgway, 3 F. & F. 
 838 ; but, in all such cases, there must be a misrepresenta- 
 tion of a definite fact. 
 
 But " puffing " or a mere false representation as to 
 quality is not indictable : R. v. Bryan, Dears. & B. 265, and 
 the coinraents upon it by the judges, in Ragg's case, Bell. 
 2U ; R. V. Pratt, 8 Cox, 334 ; see R. v. Foster, 13 Cox, 393. 
 Thus representing a chain to be gold, which turns out to be 
 made of brass, silver and gold, the latter very minute in 
 uuautity, is not within the statute : R. v. Lee, 8 Cox, 233 ; 
 sed qiuere ? And see Greaves' observations, 2 Russ. 664, 
 and R. v. Suter, 10 Cox, 577 ; and cases collected in R, v. 
 Bryan, Warb. Lead. Cas. 170. 
 
 It is not a false pretense, within the statute, that more 
 money is due for executing certain work than is actually 
 due, for that is a mere wrongful overcharge : R. v. Oates, 
 Deal's. 459. So, where the defendant pretended to a parish 
 officer, as an excuse for not working, that he had no clothes, 
 and thereby obtained some from the officer, it was held that 
 he was not indictable, the statement being rather a false 
 excuse for not working than a false pretense to obtain 
 goods : R. V. Wakeling, R. & R. 504. 
 
 Where the prisoner pretended, first, that he was a 
 single man, and next, that he had a right to bring an action 
 tor breach of promise, and the prosecutrix said that she was 
 induced to pay him money by the threat of the action, but 
 she would not have paid it had she known the defendant 
 to be a married man, it was held that either of these tvro 
 false pretenses was sufficient to bring the case within the 
 statute : R. v. Copeland, Car. & M. 516. 
 
 Where the prisoner represented that he was connected 
 with J. S., and that J. S. was a very rich man, and obtained 
 goods by that false representation, it was held within the 
 
 W 
 
408 
 
 FALSE PRETENSES, ETC. 
 
 statute : R. v. Archer, Dears. 449. Obtaining by falsely 
 pretending to be a medical man or an attorney is within 
 the statute : R. v. Bloomfield, Car. & M. 537 ; R. v. Asterley, 
 7 C. & P. 191. 
 
 It is no objection that the moneys have been obtained 
 only by way of a loan : R. v. Crossley, 2 M. & Rob. 17 ; 
 2 Russ. 668, and R. v. Kilham, 11 Cox, 561. 
 
 Obtaining goods by false pretenses intending to pay 
 for them is within the statute : R. v. Naylor, 10 Cox, 149, 
 Warb. Lead. Cas. 169. 
 
 It must be alleged and proved that the defendant knew 
 the pretense to be false at the time of making it : R. v. 
 Henderson, 2 Moo. 192; R. v. Philpotts, 1 C. & K. 112; 
 R. V. Gray, 17 Cox, 299. After verdict, however, an 
 indictment following the words of the statute is sufficient: 
 R. V. Bo wen, 3 Cox, 483 ; Hamilton v. R. in error, 2 Cox, 
 11. It is no defence that the prosecutor laid a trap to draw 
 the prisoner into the commission of the offence : R. v 
 Adamson, 2 Moo. 286 ; R. v. Ady, 7 C. & P. 140. 
 
 Upon a charge of obtaining money by false pretenses 
 it is sufficient if the actual substantial pretense, which is 
 the main inducement to part with the money, is alleged 
 in the indictment, and proved, although it may be shewn 
 by evidence that other matters not laid in the indictment 
 in some measure operated upon the mind of the prosecutor 
 as an inducement for him to part with his money : R. v. 
 Hewgill, Dears. 315. The indictment must negative the 
 pretenses by special averment, and the false pretense must 
 be proved as laid. Any variance will be fatal, unless 
 amended : 3 Bum, 277. But proof of part of the pretense, 
 and that the money was obtained by such proof is suffi- 
 cient : R. V. Hill, R. & R. 190 ; R. v. Wickham, 10 A. & E. 
 34 ; R. V. Bates, 3 Cox, 201 ; see s. 616 and form F. F., 
 sched one, under s. 611. 
 
 But ttie goods must be obtained by means of some of the 
 pretenses laid : R. v. Hunt, 8 Cjx, 495 ; R. v. Jones, 15 
 
GENERAL REMARKS. 
 
 40& 
 
 Cox, 475. And where the indictment alleged a pretense 
 which in fact the prisoner did at first pretend, but the 
 prosecutor parted with his property in consequence of a 
 subsequent pretense, which was not alleged, it was held 
 that the evidence did not support the indictment: R. v. 
 Bulmer, L. & C. 476. 
 
 Where money is obtained by the joint effect of several 
 mis-statements, some of which are not and some are false 
 pretenses within the statute, the defendant may be convicted: 
 R. V. Jennison, L. &; C. 157 ; but the property must be 
 obtained by means of one of the false pretenses charged, 
 and a subsequent pretense will not support the indictment : 
 R. V. Brooks, 1 F. & F. 502 ; see R. v. Lince, 12 Cox, 451. 
 
 Parol evidence of the false pretense may be given, 
 although a deed between the parties, stating a different 
 consideration for parting with the money, is produced, such 
 deed having been made for the purpose of the fraud : R. v. 
 Adamson, 2 Moo. 286. So also parol evidence of a lost 
 written pretense may be given : R. v. Chadwick, 6 C. & P. 
 181. On an indictment for obtaining money from A., 
 evidence that the prisoner about the same time obtained 
 money from other persons by similar false pretenses is not 
 admissible : R. v. Holt, 8 Cox, 411, Bell, 280. But other 
 false pretenses at other times to the same persons are 
 admissible, if they are so connected as to form one contin- 
 uing representation, which it is the province of the jury to 
 determine : R. v. Welman, Dears. 188, 6 Cox, 153. See R. 
 V. Durocher, 12 R. L. 697. 
 
 Inducing a person by a false pretense to accept a bill of 
 exchange is not within this section : R. v. Danger, Dears. 
 & B. 307 ; see R. v. Gordon, 16 Cox, 622 ; see s. 360, post. 
 
 A railway ticket obtained by false pretenses is within 
 the statute, R. v. Boulton, 1 Den. 508 ; R. v. Beecham, 5 
 Cox, 181 ; ss. 330, 369 ; and so is an order by the president 
 of a burial society on a treasurer for the payment of 
 money : R. v. Greenhalgh, Dears. 267. 
 
410 
 
 FALSE PRETENSES, ETC. 
 
 
 Where the defendant only obtains credit and not any 
 specific sum by .the false pretenses it is not within the 
 statute : R. v. Wavell, 1 Moo. 224 ; R. v. Garrott, Dears. 232; 
 R. V. Crosby, 1 Cox, 10. 
 
 There must be an intent to defraud. Where C. B.'s 
 servant obtained goods from A.'s wife by false pretenses, in 
 order to enable B., his master, to pay himself a debt due 
 from A., on which he could not obtain payment from A., it 
 was held that C. could not be convicted : R. v. Williams, 7 
 C. & P. 354. But it is not necessary to allege nor to 
 prove the intent to defraud any person in particular. 
 With intent to defraud are the words of the statute. 
 
 But these words " with intent to defraud" are a material 
 and necessary part of the indictment; their omission is 
 fatal, and cannot be remedied by an amendment inserting 
 them. By Lush, J., R. v. James, 12 Cox, 127 ; R. v. Davis, 
 18 U. C. Q. B. 180 ; R. v. Norton, 16 Cox, 59. At the trial 
 the court might, it seems, allow the amendment; s. 723, psf. 
 
 An indictment for false pretenses charged that the 
 defendant falsely pretended that he had a lot of trucks of 
 coal at a railway station on demurrage, and that he required 
 forty coal bags. The evidence was that defendant sa\y 
 prosecutor and gave him his card, " J. W. and Co., timber 
 and coal merchants," and said that he was largely in the 
 coal and timber way, and inspected some coal bags, but 
 objected to the price. The next day he called again, 
 showed prosecutor a lot of correspondence, and said that he 
 had a lot of trucks of coal at the railway station under 
 demurrage, and that he wanted some coal bags imme- 
 diately. Prosecutor had only forty bags ready, and it was 
 arranged that defendant was to have them, and pay for 
 them in a week. They were delivered to defendant, and 
 prosecutor said he let the defendant have the bags in con- 
 sequence of his having the trucks of coal under demurrage, 
 at the station ; there was evidence as to the defendant 
 having taken premises, and doing a small business in coal, 
 
GENERAL REMARKS. 
 
 411 
 
 again, 
 that he 
 , under 
 imrae- 
 id it was 
 pay for 
 ant, and 
 s in con- 
 inurrage, 
 ifendant 
 in coal, 
 
 but he had no trucks of coal on demurrage at the station. 
 The jury convicted the prisoner, and on a case reserved 
 the judges held that the false pretense charged was not too 
 remote to support the indictment, and that the evidence was 
 sufficient to maintain it : R. v. Willot, 12 Cox, 68. 
 
 The prisoner induced the prosecutor to buy a chain by 
 knowingly and falsely asserting, (inter alia), " it is a 15- 
 carat fine gold, and you will see it stamped on every link." 
 In point of fact, it was little more than 6-carat gold : Held^ 
 upon a case reserved, that the above assertion was suffi- 
 cient evidence of the false representation of a definite 
 matter of fact to support a conviction for false pretenses : 
 R. V. Ardley, 12 Cox, 23 ; R. v. Bryan, Dears. & B. 265, was 
 said by the judges not to be a different decision, but that 
 there was in that case no definite matter of fact falsely 
 represented: see Warb. Lead. Cas. 170. 
 
 On an indictment for inducing the prosecutor, by means 
 of false pretenses, to enter into an agreement to take a field 
 for the purpose of brick-making, in the belief that the soil 
 of the field was fit to make bricks, whereas it was not, he 
 being himself a brickmaker, and having inspected the field 
 and examined the soil : Held, that nevertheless, if he had 
 been induced to take the field by false and fraudulent 
 representations by the defendant of the specific matters of 
 fact relating to the quality and character of the soil, as, for 
 instance, that he had himself made good bricks therefrom, 
 the indictment would be sustained : Held, also, that it 
 would be sufficient, if he was partly and materially, though 
 not entirely, influenced by the false pretenses : R. v. 
 English, 12 Cox, 171. 
 
 If the possession only and not the property has been 
 passed by the prosecutor the offence is larceny and not 
 false pretenses: R. v. Radcliffe, 12 Cox, 474. 
 
 All persons who concur and assist in the fraud are 
 principals, though not present at the time of making the 
 
mr 
 
 
 •■ii«f 
 
 412 
 
 FALSE PRETENSES, ETC. 
 
 pretense or obtaining the property : R. v. Moland, 2 Moo. 
 276 ; R. V. Kerrigan, L. & C. 383. 
 
 On the last part of this s. 359, Greaves says: "This 
 clause is new. It is intended to meet all eases where any 
 person by means of any false pretense induces another to 
 part with property to any person other than the party 
 making the pretense. It was introduced to get rid of the 
 narrow meaning which was given to the word ' obtain ' in 
 the judgments in R. v. Garrett, Dears. 232, according to 
 which it would have been necessary that the property 
 should either have been actually obtained by the party 
 himself, or for his benefit. * * This clause includes every 
 case where a defendant by any false pretense causes 
 property to be delivered to any other person, for the use 
 either of the person ipaking the pretense, or of any other 
 person. It, therefore, is a very wide extension of the law 
 as laid down in R. v. Garrett, and plainly includes every 
 case where any one, with intent to defraud, causes any 
 person by means of any false pretense to part with any 
 property to any person whatsoever." 
 
 Prisoner was indicted for an attempt to obtain money 
 from a pawnbroker by false pretenses, (inter alia) that a 
 ring was a diamond ring. To show guilty knowledge evi- 
 dence that he had shortly before offered other false articles 
 of jewellery to other pawnbrokers was held to be properly 
 admissible : R. v. Francis, 12 Cox, 612, Warb. Lead. Cas. 
 176. 
 
 Goods fraudulently obtained by prisoner on his cheque 
 on a bank where he had no funds : Held, that he cannot 
 be found guilty of having falsely represented that he had 
 money in the bank, but that he was guilty of falsely 
 representing that he had authority to draw the cheque, and 
 that they were good and valid orders for the payment of 
 money : R. v. Hazelton, 13 Cox, 1, Warb. Lead. Cas. 164 
 
 See R. v. Holmes, 15 Cox, 343, as to where is the juris- 
 diction when offence is committed by a letter. 
 
!n;7' 
 
 GENERAL REMARKS. 
 
 413 
 
 Prisoner convicted of obtaining his wages by false 
 pretenses in representing falsely that he had performed a 
 condition precedent to his right to be paid : R. v. Bull, 13 
 Cox, 608. 
 
 The indictment must state the pretense which is pre- 
 tended to have bec^i false, and must negative the truth of 
 the matter so pretended with precision : R. v. Kelleher, 14 
 Cox, 48. See R. v. Perrott, 2 M. & S. 379 ; see s. 616 and 
 form F. F., sched. one, under s. 611 
 
 Obtaining by false pretenses. What constitutes false 
 pretenses : R. v. Durocher, 12 R. L. 697 ; R. v. Judah, 7 L. 
 N. 385 ; R. V. Lavall^e, 16 R. L. 299 ; R. v. Ford, M. L. R. 
 7 Q. B. 413. 
 
 To prove intent to defraud, evidence of similar frauds 
 having recently been practiced upon others is admissible : 
 R. V. Durocher, 12 R. L. 697. 
 
 An indictment for obtaining board under false pretenses 
 is too general : R. v. McQuarrie,22 U. C. Q. B. 600. 
 
 A clause of a deed by which the borrower of a sum of 
 money falsely declares a property well and truly to belong 
 to him may constitute a false pretense : R. v. Judah, 8 
 L N. 124. 
 
 On a trial for obtaining under false pretenses property 
 of a joint stock company, parol evidence that the company 
 has acted as an incorporated company is sufficient evidence 
 of its incorporation : R. v. Langton, 13 Cox, 345. 
 
 The prisoner who had been discharged from the service 
 of A. went to the store of D. and S. and represented herself 
 as still in the employ of A., who was in the habit of dealing 
 there, and asked for goods in A.'s name, which were put up 
 accordingly, but sent to A.'s house instead of being delivered 
 to the prisoner. The prisoner, however, went directly from 
 the store to A.'s house, and remaining in the kitchen with 
 the servant until the clerk delivered the parcel, snatched 
 it from the servant, saying " that is for me, I was going to 
 
 If 
 
Mi ;. 
 mm I'l 
 
 414 
 
 FALSE PRETENSES, ETC. 
 
 [Sec. 360 
 
 71 j> 
 
 see A." but, instead of going in to see A., went out of the 
 house with the parcel. Conviction for having obtained 
 goods from D. & S. by false pretenses, held good : R. v. 
 Robinson, 9 L. C. R. 278. 
 
 Where the prosecutor had laid a trap for the prisoner 
 who had written to induce him to buy counterfeit notes 
 and prisoner gave him a box which he pretended contained 
 the notes, but which, in fact, contained waste paper and 
 received the prosecutor's watch and $50. 
 
 Held, that the prisoner was rightly convicted of obtain- 
 ing the prosecutor's property under false pretenses : R. v. 
 Corey, 22 N. B. Rep. 543 ; see R. v. Cameron, 23 N. S. 150. 
 
 Obtaining Valuable Seoukity by False Pretenses. 
 
 360. Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who, with intent to defraud or injure any person by any 
 false pretense, causes or induces any person to execute, make, accept, endorse 
 or destroy the whole or any part of any valuable security, or to write, impress 
 or affix any name or seal on any paper or parchment in order that it may after 
 wards be made or converted into or used or. dealt with as a valuable security 
 R. S. C. c. 164, s. 78. 24-25 V. c. 96, s. 90 (Imp.). 
 
 " Valuable security " defined, s. 3. 
 
 See remarks under s. 353. See ss. 613, 616, as to indict- 
 ment. 
 
 On the corresponding clause Greaves says : " This 
 clause is principally new ; it will include such cases as R, 
 V. Danger, Dears. & B. 307." 
 
 Indictment — that A. B., on unlawfully, 
 
 knowingly and designedly did falsely pretend to one J. K, 
 that' by means of which false pretense the said A. 
 
 B. did then unlawfully and fraudulently induce the said 
 J. N. to accept a certain bill of exchange, that is to say, a 
 bill of exchange for five hundred dollars, with intent 
 thereby then to defraud and injure the said J. N., whereas, 
 in truth and in fact (here negative the false 'pretenses). 
 
 Prisoner was indicted at the Court of Queen's Bench for 
 having induced, by false and fraudulent pretenses, one B., 
 a farmer, to endorse a promissory note for $170.45 and 
 
Sec. 360] 
 
 OBTAINING VALUABLE SECURITY, 
 
 415 
 
 moved to quash on the ground that the indictment did not 
 state that the endorsement in question had been declared 
 false in any manner by competent iiuthority, etc., nor that 
 the said endorsement had been obtained for the purpose of 
 converting the said note or paper-writing into money — 
 Motion rejected. And a motion to quash, on the ground 
 that the crown prosecutor, representing the attorney gene- 
 ral, had refused to furnish to prisoner the particulars of the 
 false pretenses charged, although demanded, was refused : 
 R. V. Boucher, 10 K L. 183. 
 
 Proof that the defendant had obtained from the 
 prosecutor a promissory note on a promise to pay the plain- 
 tiff what he owed him out of the proceeds of the note when 
 discounted is not sufficient to sustain a conviction of ob- 
 taining a signature with intent to defraud under this sec- 
 tion : R. V. Pickup, 10 L. C. J. 310. 
 
 An indictment charging prisoner with unlawfully and 
 fraudulently, with intent to defraud them, inducing prose- 
 cutors to " make a certain valuable security," to wit, a 
 promissory note for £100 by the false pretense that he was 
 prepared to pay them or one of them £100 ; held good. It 
 must be taken by necessary inference to allege a false 
 pretense of an existing fact, viz., that he was prepared to 
 pay prosecutors £100 and had the money ready for them 
 on their signing the note. It also showed the offence of 
 fraudulently causing a person to "make a valuable security" 
 under 24 & 25 V. c. 96, s. 90, though note might not be of 
 value until delivered to prisoner : R. v, Gordon, 23 Q. B. D« 
 354, 16 Cox, 622. 
 
 Prisoner fraudulently induced prosecutor to sign a con- 
 tract for seed wheat, representing that he was agent of H. 
 named in contract. H. afterwards induced prosecutor to 
 give him a note for price of wheat, though contract did not 
 provide for a note. Prosecutor swore he gave note because 
 he had entered into the contract. Indictment for, by false 
 pretenses, fraudulently inducing prosecutor to write his 
 
416 
 
 FALSE PRE'JENSES, ETC. 
 
 [Sec. 360 
 
 name on a paper so that it might be afterwards dealt 
 with as a valuable security ; 2nd count, for procuring, by 
 false pretenses, prosecutor to deliver to H. a valuable 
 security. Held, on case reserved, that charge of false 
 pretenses could be sustained as well as where the money 
 was obtained or note procured to be given through the 
 mediam of a contract, as when obtained or procured with- 
 out contract ; that a note instead of monej'' was given 
 did not relieve prisoner from consequences of his fraud 
 giving of note was direct result of the fraud upon which the 
 contract was procured and that defendant was properly 
 convicted on 1st count under c. 174, s. 78. But held, that 
 note before delivery to H. was not a valuable security, but 
 only a paper on which prosecutor had written his name so 
 that it might be used as such, and conviction on 2nd count 
 could not stand : R. v. Danger, Dears. & B. 307, followed ; 
 R. V. Rymal, 17 O. R. 227. 
 
 Prisoner indicted on two counts. First, for obtaining 
 from H. a note with intent to defraud ; second, inducing 
 H, to make a note with said intent. Evidence showed that 
 prisoner's agent obtained from H. an order on prisoner for 
 wheat which H. was to put out on shares and to pay 
 prisoner $240 on delivery, and equally divide balance of 
 proceeds with holder of order. Later, prisoner by false 
 and fraudulent representations as to quality of wheat, etc., 
 induced H. to sign a note, telling him it would not be 
 negotiable. Evidence was given, subject to objection, of 
 similar frauds on others, and that prisoner was pursuing a 
 series of like frauds. Prisoner was convicted. 
 
 Held, on case reserved, that conviction should be sus- 
 tained on second count, as evidence showed that H. signed 
 note on faith of representations made and not merely to 
 secure the carrying out of the contract ; that it was 
 immaterial that a note was given when the order called 
 for cash, and that the evidence objected to was admissible : 
 H. V. Hope, 17 O. R. 463. 
 
! I: 
 
 Sees. 361-363] PRETENDING TO INCLOSE MONEY. 
 
 417 
 
 Falskly Pretbndino to Inclose Money in a Lbtteb. 
 
 361* Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who, wrongfully and with wilful falsehr' pretends or 
 alleges that he inclosed and sent, or caused to be inclosed an ^ sent, in any post 
 letter any money, valuable security or chattel, which in fact he did not so 
 inclose and send or cause to be inclosed and sent therein. R. S. C. c. 164, s. 79. 
 {Amended). ^ 
 
 This section is not in the English statutes : " Valuable 
 security " defined, s. 3. Bee s. 618, 'post, as to indictment 
 and trial under this section. 
 
 Obtaining Passage by False Tickets. 
 
 36%. Every one is guilty of an indictable offence and liable to six 
 months' imprisonment who, by means of any false ticket or order, or of any 
 other ticket or order, fraudulently and unlawfully obtains or attempts to obtain 
 any passage on any carriage, tramway or railway, or in any steam or other 
 R. S. C. c. lfS4, 8. 81. 
 
 The clause provides for the offence and the attempt to 
 commit the offence. Under s. 711,/)0«<, upon the trial of an 
 indictment for any offence the jury may convict of the 
 attempt to commit the offence charged, if the evidence 
 warrants it. 
 
 Criminal Breach op Trust. 
 
 363- Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, being a trustee of any property for the use or benefit, 
 either in whole or in part, of some other person, or for any public or charitable 
 purpose, with intent to defraud, and in violation ot his trust, converts any- 
 thing of which he is trustee to any use not authorized by the trust. R. S. C. 
 0. 164, 8. 65. 24-25 V. c. 96, s. 80, (Imp.). 
 
 See R. V. Cox, 16 O. R. 228 ; R. v. Stansfeld, 8 L. N. 123. 
 
 Section 197 of the Procedure Act, which allowed a con- 
 viction under this clause though a larceny was proved, has 
 not been re-enacted in express terms. 
 
 " Trustee " defined, s. 3. 
 
 By 8. 547, posi, no prosecution is to be commenced under 
 this section without the consent of the Attorney-General of 
 the province. 
 
 Indicttnent — that A. B., at on then 
 
 heing the trustee of certain property under the will of 
 Grim. Law— 27 
 
 
 I: ■ f 
 
 1 
 
 I, 
 
418 
 
 FRAUD. 
 
 [Sec. 364 
 
 for a certain public (or charitable) purpose, to wit, for 
 unlawfully, with intent to defraud and in violation of his 
 trust, did convert and appropriate the same to a use not 
 authorized by the said trust, and for a purpose other than 
 the said public (or charitable) purpose, contrary to s. 363 
 of the Criminal Code of 1892. 
 
 ^■^■M 
 
 w 
 
 PART XXVIII. 
 
 FRAUD. 
 
 By Directors, Etc. 
 
 304. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, being a director, manager, public officer or mp!iiber 
 of any body corporate or public ct)mpany, with intent to defraud — 
 
 (a) destroys, alters, mutilates or falsifiea any book, paper, writing or 
 valuable security belonging to the body corporate or public company ; or 
 
 (6) makes, or concurs in making, any false entry, or omits or concurs in 
 omitting to enter any material particular, in any book of account or other 
 document. R. S. C. c. 164, s. 68. 24-26 V. c- 96, s. 83 (Imp.). 
 
 "Valuable security" defined, s. 3. 
 
 Section 197 of the Procedure Act, which applied to the 
 repealed section, has not been re-enacted. 
 
 Sections 97 et seq. of the Banking Act, 53 V. c. 31, pro- 
 vide for offences by bank officers. 
 
 Indictment against a director for destroying or falsify- 
 ing books, etc. — that C. D., on then being a 
 director of a certain body corporate, called unlaw- 
 fully, with intent to defraud, did destroy (alter, or muti- 
 late, or falsify) a certain book (or paper, or writing, or 
 valuable security), to wit, belonging to the said body 
 corporate. 
 
Sees. 366, 366] 
 
 FALSE STATEMENT. 
 
 419 
 
 False Statbment by Promoters, Directors, Etc. 
 
 365- Every one iti (iruilty of an indictable o£Fence and liable to five years' 
 imprisonment who, being a promoter, director, public officer or manager of any 
 body corporate or public company, either existing or intended to be formed, 
 makes, circulates or publishes, or concurs in making, circulating or publishing, 
 any prospeetiu, statement or account which he knows to be false in any material 
 particular, with intent to induce persons {lehether aieertained or not) to become 
 Bhareholders or partners, or with intent to deceive or defraud the members, 
 shareholders or creditors, or any of them {whether aaoertained or not), of such 
 body corporate or public company, or with intent to induce any person to 
 intrust or advance any property to such body corporate or public company, or 
 to enter into any security for the benefit thereof. R. S. C. c. 164, s. 69 
 (Amndcd). 24-25 V. c. 96, s. 84 (Imp.). 
 
 The words in italics are new. 
 
 Fine, s. 958 ; " Property " and " public officer " defined, 
 
 8.3. 
 
 Indictment against a director for publishing fraudu- 
 lent statements. — that before and at the time of the 
 committing of the offences hereinafter mentioned, C. D. was 
 a director of a certain public company, called and 
 that he, the said C. D., .o being such director as aforesaid, 
 on did unlawfully circulate and publish a certain 
 statement and account, which said statement was false in 
 certain mattrial particulars, that is to say, in this, to wit, 
 that it was thv^rtin falsely stated that {state the particulars), 
 he the said C. D., then well knowing the said written state- 
 ment and account to be false in the several particulars 
 aforesaid, with intent thereby then to de'^cive and defraud 
 J. N., then being a shareholder of the saic public company 
 {(yr with intent ) . {Add counts stating the 
 intent to he to deceive and defraud " certain persons to the 
 jwrors aforesaid unknown, being shareholders of the said 
 pvhlic company," and also varying the allegation of the in- 
 tent as in the section) : see s. 616, post. 
 
 False Accounting by Clerks. (New). 
 
 366. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, being or acting in the capacity of an officer, clerk, 
 or servant, with intent to defraud — 
 
 (a) destroys, alters, mutilates or falsifies any book, paper toriting, 
 valuable security or document which belongs to or is in the possession of his 
 
 m"" 
 
420 
 
 FRAUD. 
 
 [Sec. 360 
 
 employer, or has been received by him for or on behalf of his employer, or 
 concurs in so doing ; or 
 
 (h) makes, or concurs in making, any false entry in, or omits or alters, or 
 concurs in omitting or altering, any matarial particular from, any such book, 
 paper writing, valuable security or document. 38-39 V. c. 24 (Imp.). 
 
 There should be a comma between paper and writing. 
 " Valuable security " and " writing " defined, s. 3. 
 
 Ip.dictment. — that A. B., on, &c., at, &c., beinj^ 
 
 then clerk (officer, servant, or any person employed or act- 
 ing in the capacity of a clerk, ojfficer, or ftervant) to C. D., did 
 then and whilst he was such clerk to the said C. D. as afore- 
 said, unlawfully, wilfully, and with intent to defraud, 
 destroy, to wit, by burning the same (destroy, alter, rautil- 
 ate, or falsify) a certain book (any book, paper, writing, 
 valuable security, or document), to wit, a cash-book, which 
 said book then belonged to (which belongs to or is in the 
 possession of his employer, or has been received by him for 
 or on behalf of his employer) the said C. D., his employer. 
 
 Second Count. — That the said A. B., on the day and in 
 the year aforesaid, being then clerk to the said C. D., did 
 then and whilst he was such clerk to the said C. D., as 
 aforesaid, unlawfully, wilfully, and with intent to defraud, 
 make (make or concur in making any false entry in, or 
 omit, or alter, or concur in omitting, or altering any 
 material particular) a certain false entry in a certain book 
 (from, or in any such book, paper, writing, valuable secu- 
 rity, or document), to wit, a cash book w^hich said book 
 then belonged to the said C. D., his employer, by falsely 
 entering in such books under the date of a sum of 
 
 , as having been paid on that day to one E. F., 
 whereas in truth and in fact the said sum of was not 
 
 paid on the said day to the said E. F. as he, the said A. B., 
 well knew at the time when he made such false entry as 
 aforesaid, and which said entry was in the words and 
 figures following (setting it out); see R. v. Butt, 15 Cox, 
 564. 
 
S«;8. 367-370] FALSE STATEMENT. 421 
 
 False Statement by Public Officer. (JVeir). 
 
 :|6T. Every one is gr^iilty of an indictable offencf and liable to five years' 
 iiiiprlMonment, and to a fine not exceeding five hundred dollars, who, being an 
 offictT, collector or receiver, intrusted with the receipt, custody or management 
 (if any part of th.i public revenues, knowingly furnishes any false statement or 
 return of any sum of money collected by him or intrusted to his care, or of any 
 balance of money in his hands or under his control. 
 
 This section is a re-enactment of 50 Geo. III. c. 59, s, 2, 
 with an increased punishment. It ought to form part of 
 the preceding section. 
 
 AssioNiNo WITH Intent to Defraud. 
 
 308. Every one is guilty of an indictable offence and liable to a fine of 
 eight hundred dollars and to one year's imprisonment who — 
 ((f) with intent to defraud his creditors, or any of them, 
 
 (i) makes, or causes to be made, any gift, conveyance, assignment, 
 sale, transfer or delivery of his property ; 
 
 (ii) removes, conceals or disposes of any of his property ; or 
 (M with the intent that any one shall so defraud his creditors, or any one 
 of theiTi, receives any such pioperty. R. 3. C. c. 173, s. 28. 
 
 This is a re-enactment of c. 26, s. 20, C. S. U. C. See 
 R. V. Henry, 21 O. R. 113. 
 
 Destroying Books with Intent to Defraud. 
 
 360. Every one is guilty of an indictable offence and liable to ten years' 
 imprisonment who, with intent to defraud his creditors, or any of them, de- 
 stroys, alters, mutilates or falsifies any of hia books, papers, writings or 
 securities, or makes, or is privy to the making of, any false or fraudulent entry 
 in any book of account jr other document. R. S. C. c. 173, s. 27. 
 
 This is also taken from c. 26, C. S. U. C. Under the 
 repealed clause the punishment was six months' imprison- 
 ment. 
 
 Concealing Deeds or Inochbranoes. 
 
 370- Every one is guilty of an indictabia offence and liable to a fine, or 
 to two years' imprisonment, or to both, who being a seller or mortgagor of land, 
 or of any chattel, real or personal, or chose in action, or the solicitor or agent of 
 any such seller or mortgagor (and having been served with a written demand 
 of an abstract of title by or on behalf of the purchaser or mortgagee before the 
 completion of the purchase or mortgage) conceals any settlement, deed, will or 
 other instrument material to the title, or any encumbrance, from such 
 purchasrr or mortgagee, or falsifies any pedigree upon which the title 
 depeP'Is, with intent to defraud and in order to induce such purchaser or 
 mortgagee to accept the title offered or produced to him. R. S. C. c. 164, s. 91. 
 
422 
 
 FRAUD. 
 
 [Sees. 371-374 
 
 ill 
 
 
 No prosecution without leave of Attorney-General of 
 the Province ; s. 548. 
 
 Fraud in RfloisTBATioN. 
 
 37 1 • Every one is guilty of an indictable offence and liablo to three 
 years' imprisonment who, acting either as principal or agent, in any proceeding 
 to obtain the regpistration of any title to land or otherwise, or in any transaction 
 relating to land which is, or is proposed to be, put on the register, knowingly 
 and with intent to deceive makes or assists or joins m, or is privy to the mak- 
 ing of, any matenal false statement or representation, or suppresses, conceals 
 assists or joins in, or is privy to the suppression, withholding or concealing 
 from, any judge or registrar, or any person employed by or assisting the 
 registrar, any material document, fact or matter of information. R. S. C. 
 0. 164, 88. 96 & 97. 
 
 This section, by the repealed Act, applied only to British 
 Columbia. 
 Fine, s. 958. 
 
 Fraudulent Sales, HYPOTHEOATioNa, Seizures, etc. 
 
 378. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment, and to a fine not exceeding two thousand dollars, who, knowing 
 the existence of any unregistered prior sale, gr&nt, mortgage, hypothec, 
 privilege or encumbrance of or upon any real property, fraudulently makes 
 any subsequent sale of the same, or of any part thereof. R. S. C. c. 164, as. 92 
 &93. 
 
 See R. V. Palliser, 4 L. C. J. 276. 
 
 873* Eveiy one who pretends to hypothecate, mortgage, or otherwise 
 charge any real property to which he knows he has no legal or equitable title 
 is guilty of an indictable offence and liable to one year's imprisonment, and to 
 a fine not exceeding one hundred dollars. 
 
 2. The proof of the ownership of the real estate rests virith the person so 
 pretending to deal with the same. R. S. C. o. 164, ss. 92 &; 94. 
 
 374i Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who, in the province of Qud)€c, wilfully causes or procures to be 
 seized and taken in execution any lands and tenements, or other real property, 
 not being, at the time of such seizure, to the knowledge of the person causing 
 the same to be taken in execution, the bona fide property of the person or 
 persons against whom, or whose f^tate, the execution is issued. R. S. C, 
 c. 164, 88. 92 & 95. 
 
 Fine, s. 958. These three sections, by the repealed sta- 
 tute, applied only to the Province of Quebec. Why s. 374 
 has also not been either extended to the other Provinces or 
 repealed, has not been explained. 
 
Sees. 375, 876] 
 
 UNLAWFUL DEALINGS. 
 
 423 
 
 Unlawful Deaunos with Gold. 
 
 379* Every one is guilty of an indictable offence and liable to two years' 
 imprisonment, who — 
 
 (a) being the holder of any lease or license issued under the provisions of 
 any Act relating to gold or silver mining, or by any persons owning land sup- 
 posed to contain any gold or silver, by fraudulent device or contrivance 
 defrauds or attempts to defraud Her Majesty, or any person, of any gold, 
 silver or money payable or reserved by such lease, or, with such intent as 
 aforesaid, conceals or makes a false statement as to the amount of gold or 
 silver procured by him ; or 
 
 (b) not being the owner or agent of the owners of mining claims then 
 being worked, and not being thereunto authorized in writing by the proper 
 
 ' officer on that behalf named in any Act relating to mines in force in any 
 province of Canada, sells or purchases (except to or from such owner or autho- 
 rized person) any quartz containing gold, or any smelted gold or silver, at or 
 within three miles of any gold district or mining district, or gold mining 
 division ; or 
 
 (c) purchases any gold in quartz, or any unsmelted or smelted gold or 
 silver, or otherwise unmanufactured gold or silver, of the value of one dollar 
 or upwards (except from such owner or authorized person), and does not, at the 
 same time, execute in triplicate an instrument in writing, stating the place 
 and time of purchase, and the quantity, quality and value of gold or silver so 
 purchased, and the name or names of the person or persons from whom the 
 same was purchased, and file the same with such proper officer within twenty 
 days next after the date of such purchase. R. S. C. c. 164, ss. 27, 28 & 29. 
 
 Fine, s. 958 ; s. 569 for search warrant, and s. 621 for 
 indictment. 
 
 Warehousbsien Giving False Reobifts. 
 
 376- Every one is guilty of an indictable offence and liable to three 
 years' imprisonment, who — 
 
 (a) being the keeper of any warehouse, or a forwarder, miller, master of 
 a vessel, wharfinger, keeper of a cove, yard, harbour or other place for storing 
 timber, deals, staves, boards, or lumber, curer or packer of pork, or dealer m 
 wool, carrier, factor, agent or other person, or a clerk or other person in his 
 employ, knowingly and wilfully gives to any person a writing purporting to 
 be a receipt for, or an acknowledgment of, any goods or other property as 
 having been received into his warehouse, vessel, cove, wharf, or other place, 
 or in any such place about which he is employed, or in any other manner 
 received by him, or by the i)erson in or about whose business he is employed, 
 before the goods or other property named in such receipt, acknowledgment or 
 writing have been actuaHy delivered to or received by him as aforesaid, with 
 intent to mislead, deceive, injure or defraud any person, although such 
 person is then unknown to him ; or 
 
 (b) knowingly and wilfully accepts, transmits or uses any such false 
 receipt or acknowledgment or writing. R. S. C. o. 164, s. 73. 
 
 Fine, s. 958 ; see s. 379. This is not in the Imperial Act. 
 
 ff 
 
424 
 
 FRAUD. 
 
 [SeoB. 377-379 
 
 li 
 
 Frauds in Trade, Etc. 
 
 377* Every one i« guilty of an indictable offence and liable to three 
 years' imprisonment, who — 
 
 (a) having, in his name, shipped or delivered to the keeper of any ware- 
 house, or to any other factor, agent or carrier, to be shipped or carried, any 
 merchandise upon which the consignee has advanced any money or given any 
 valuable security afterwards, with intent to deceive, defraud or injure such 
 consignee, in violation of good faith, and without the consent of such 
 consignee, makes any disposition of such merchandise different from and 
 inconsistent with the agreement made in that behalf between him and such 
 consignee at the time of or before such money was so advanced or such 
 negotiable security so g^ven ; or 
 
 (&) knowingly and wilfully aids and assists in making such disposition for 
 the purpose of deceiving, defrauding or injuring such consignee. 
 
 2. Xo person commits an offence under this section who, before making 
 such disposition of such merchandise, pays or tenders to the consignee the full 
 amount of any advance made thereon. R. S. C. c. 164, s. 74. 
 
 Fine, a. 958 ; see s. 379. This is not in the Imperial 
 
 Act. 
 
 Other Frauds. 
 
 SYS* Every person is guilty of &a indictable offence and liable to three 
 years' imprisonment who — 
 
 (a) wilfully makes any false statement in any receipt, certificate or 
 acknowledgment for grrain, timber or other goods or property which can be 
 used for any of the purposes mentioned in The Bank Act ; or 
 
 (6) having given, or after any clerk or person in his employ has, to his 
 knowledge, given, as having been received by him in any mill, warehouse, 
 vessel, cove or other place, any such receipt, certificate or acknowledgment for 
 any such grain, timber or other goods or property,— or having obtained any 
 such receipt, certificate or acknowledgment, and after having endorsed or 
 assigned it to any bank or person, afterwards, and without the consent of the 
 holder or endorsee in writing, or the production and delivery of the receipt, 
 certificate or acknowledgment, wilfully alienates or parts with, or does not 
 deliver to such holder or owner of such receipt, certificate or acknowledgment, 
 the grain, timber, goods or other property therein mentioned. R. S. G. c. 164, 
 8. 75. 
 
 Fine, s. 958 ; see next section. This is not in the Im- 
 perial Act. 
 
 370* If any offence mentioned in any of the three sections next 
 preceding is committed by the doing of anything in the name of any Rrm, 
 company or co-partnership of persons, the person by whom such thing is 
 actually done, or who connives at the doing thereof, is guilty of the oflfence, 
 and not any other person. R. S. C. c. 164, s. 76. 
 
 Section 197 of c. 174, R. S. C, which applied to the three 
 preceding sections, has not been re-enacted. 
 
Seci. 380-383] 
 
 SELLING WRECKS, ETC. 
 
 42& 
 
 Selling Wrecks, Etc. 
 
 380> Every one'is guilty of an indictable offence and liable to seven years'' 
 imprisonment who, not having lawful title thereto, seUs any vessel or wreck 
 found within the limits of Canada. R. S. C. c. 81, s. 36 (d). 
 
 « Wreck " defined, s. 3. 
 
 Other Offences Rkspectiko Wreck. 
 
 38l« Every one is guilty of an indictable offence and liable, on convic- 
 tion on indictment to two years' imprisonment, and on summary conviction 
 before two justices of the peace to a penalty of four hundred dollars or six 
 months' imprisonment, with or without hard labour, who — 
 
 (a) secretes any wreck, or defaces or obliterates the marks thereon, or uses 
 means to diagxiise the fact that it is wreck, or in any manner conceals the 
 character thereof, or the fact that the same is such wreck, from any person 
 entitled to inquire into the same; or 
 
 (b) receives any wreck, knowing the same to be wreck, from any person,. 
 other than the owner thereof or the receiver of wrecks, and does not within 
 forty-eight hours inform the receiver thereof ; 
 
 (c) offers for sale or r^herwise deals with any wreck, knowing it to be 
 wreck, not having a lawfil ti"''^ to sell or deal with the same ; or 
 
 {d) keeps in his possesi.'' vx wreck, knowing it to be wreck, without a 
 lawful title so to keep the s k- ''■! any time longer than the time reasonably 
 necessary for the delivery ot the same to the receiver ; or 
 
 (t) boards any vessel which is wrecked, stranded or in distress against the 
 will of the master, unless the person so boarding is, or acts by command of, the 
 receiver, R. S. C. c. 81, s. 37. 
 
 $ 
 
 Offences— Marine Stores— Public Stores, Etc. 
 
 38S« Every person who deals in the purchase of old marine stores of any 
 description, including anchors, cables, sales, junk, iron, copper, brass, lead and 
 other marine stores, and who, by himself or his agent, purchases any old 
 marine stores from any person under the age of sixteen years, is guilty of an- 
 offence and liable, on summary conviction, to a penalty of four dollars for the 
 first offence and of six dollars for every subsequent offence. 
 
 2. Every such person who, by himself or his agent, purchases or receives 
 any old marine stores into his shop, premises or places of deposit, except in the 
 day-time between sunrise and sunset, is guilty of an offence and liable, on sum- 
 mary conviction, to a penalty of five dollars for the first offence and of seven 
 dollars for every subsequent offence. 
 
 3. Every person, purporting to be a dealer in old marine stores, on whose 
 premises any such stores which were stolen are found secreted is guilty of an 
 indictable offence and liable to five years' imprisonment. R. S. C. o. 81, s. 35. 
 
 U§3« In the next six sections, the following expressions have the mean- 
 ing assigned tx) them herein : 
 
 (a) The expression ''public department" includes the Admiralty and the' 
 War Department, and also any public department or office of the Government 
 

 426 
 
 FRAUD. 
 
 [Sees. 384, 385 
 
 of Canada, or of the public or oivil service thereof, or any branch of guch 
 department or office; -•• 
 
 (b) The expression "public stores" includes all stores under the oar« 
 superintendence or control of any public department as herein defined, or of 
 any person in the service of such department; 
 
 (c) The expression " stores " includes all goods and chattels, and any single 
 store or article. SO-51 V. c. 45 s. 2. 
 
 Section 670, as to search-warrant. 
 
 The Imperial statute on public stores is 38 & 39 V. c. 25. 
 
 384. The following marks may be applied in or on any public stores to 
 denote Her Majesty's property in such stores, and it shall be lawful for any 
 public department, and the contractors, officers and workmen of such depart- 
 ment, to apply such marks, or any of them, in or on any such stores :— 
 
 Marks appropriated for Her Majesty's use in or on Naval, Military, Ordnance, 
 Barrack, Hospital and Victualling Stores. 
 
 Stores. 
 Hempen cordage and wire rope. 
 
 Canvas, fearnought, hammocks and 
 
 seamen's bags. 
 Bunting. 
 Candles. 
 
 Timber, metal and other stores not 
 before enumerated 
 
 Marks. 
 White, black or coloured threads laid 
 
 up with the yams and the wire, 
 
 respectively. 
 A blue line in a serpentine form. 
 
 A double tape in the warp. 
 
 Blue or red cotton threads in each 
 
 wick or wicks of red cotton. 
 The broad arrow, with or without tli" 
 
 letters W. D. 
 
 Marks appropriated for use on Stores, the property of Her Majesty in tlie right m 
 
 Her Government of Canada, 
 
 Storbs. 
 
 Public stores. 
 
 Marks. 
 
 The name of any public department, 
 or the word " Canada," either alone 
 or in combination with a Crown or 
 the Royal Arms. 
 
 50-51 V. c. 45, 8. 3. 53 V. c. 38. 
 
 3S3< Every one is guilty of an indictable offence and liable to tivo yearsi' 
 imprisonment who, without lawful authority the proof of which shall lie on 
 him, applies any of the said marks in or on any public stores. 50-51 V. c. 4ii. 
 A. 4. 
 
 Fine, s. 958 ; see s. 709 as to offences under this and the 
 four next following sections. 
 
 Indictment — that A. B., on the day of 
 
 , unlawfully and without lawful authority 
 applied a certain mark, to wit, a double tape in the warp, 
 in and on certain stores, to wit, five hundred yards of 
 bunting. 
 
Sees. 386-388] OFFENCES-MARINE STORES, ETC. 
 
 427 
 
 880* Every one is guilty of an indictable offence and liable to tvn years' 
 imprisonment who, with intent to conceal Her Majesty's property in any 
 public stores, takes out, desbroys or obliterates, wholly or in part, any of the 
 gaid marks. 50-61 V. c. 46, s. 6. 
 
 Fine, s. 958. 
 
 Indictment. — The jurors for our lady the Queen 
 
 present that J. S., on the first day of June, in the year of 
 our Lord , unl&vv fully, with intent to conceal Her 
 
 Majesty's property in the stores hereinafter mentioned, 
 took out (" takes out, destroys, or obliterates, wholly or in 
 part ") from 100 yards of canvas, which said canvas was 
 then stores of and belonging to Her Majesty, and under the 
 care, superintendence and control of the (as the case may 
 he), a certain mark, to wit, a blue line in a serpentine form, 
 which said mark was then applied on the said canvas in 
 order to denote Her said Majesty's property therein. 
 
 387* Every one who, without lawful authority the proof of which lies 
 on him, receives, possesses, keeps, sells or delivers any public stores bearinfr 
 any such mark, is guilty of an indictable offence and liable on conviction on 
 indictment to one year's imprisonment and, if the value thereof does not 
 exceed twenty-five dollars, on summary conviction, before two justices of the 
 pvace, to a fine of one hundred dollars or to six months' imprisonment, with or 
 without hard labour. 50-51 "V. c. 45, ss. 6 & 8. 
 
 Fine, s. 958. 
 
 IndidTnent. — that T. V., on the day of 
 
 , without lawful authority, unlawfully possessed 
 (" receives, possesses, keeps, sells, or delivers ") five hundred 
 yards of canvas, which said canvas was then naval stores of 
 and belonging to Her Majesty, and then bore a certain 
 raark (" any such mark as aforesaid,"), to wit, a blue line 
 in a serpentine form, then applied thereon, in order to 
 denote Her Majesty's property in naval stores so marked, 
 the said T. V., then well knowing the said canvas to bear 
 the said mark. 
 
 388* Every one, not being in Her Majesty's service, or a dealer in 
 marine stores or a dealer in old metals, in whose possession any public stores 
 bearing any such mark are found who, when taken or summoned before two 
 justices of the peace, does not satisfy such justices that he oame lawfully by 
 such stores so found, is guilty of an offence and liable, on summary conviction, 
 to a fine of twenty-five dollars ; and 
 
428 
 
 FRAUD. 
 
 [Sees. 389-391 
 
 2. If any such person satisfies such justices that he came lawfully by th>v 
 stores so found, the justices, in their discretion, as the evidence given or % 
 circumstances of the case require, may summon before them every person 
 through whose hands such stores appear to have passed ; and 
 
 3. Every one who has had possession thereof, who does not satisfy such 
 justices that he came lawfully by the same, is liable, on summary conviotion of 
 having had possession thereof, to a fine of twenty-five dollars, and in default 
 of payment to three months' imprisonment with or without hard labour 
 60-51 V. 0. 45, s. 9. 
 
 Having in possession, defined, s. 3. 
 
 3N0* Every one who, without permission in writing from the Admiralty 
 or from some person authorized by the Admiralty in that behalf, creeps 
 sweeps, dredges, or otherwise searches for stores in the sea, or any tidal or 
 inland water, within one hundred yards from any vessel belonging to Her 
 Majesty, or in Her Majesty's service, or from any mooring place or anchorinir 
 place appropriated to such vessels, or from any mooring belonging to Her 
 Majesty, or from any of Her Majesty's wharfs or docks, victualling or gteum 
 factory yards, is guilty of an offence and liable, on summary conviction before 
 two justices of the peace, to a fine of twenty-five dollars, or to three months' 
 imprisonment, with or without hard labour. 50-51 V. c. 45, ss. 11 & 12. 
 
 Reoeivino Soldiers' or Sailors' Necessaries. 
 800* Every one is guilty uf an indictable offence and liable on convic- 
 tion on indictment to five years' imprisonment, and on summary conviction 
 before two justices of the peace to a penalty not exceeding forty dollars and 
 not less than twenty dollars and costs, and, in default of payment, to sk 
 months' imprisonment, with or without hard labour, who— 
 
 (a) buys, exchanges or detains, or otherwise receives from any soldier. 
 militiaman or deserter any arms, clothing or furniture belonging to Her 
 Majesty, or any such articles belonging to any soldier, militiaman or deserter 
 as are generally deemed regimental necessaries according to the custom of the 
 army ; or 
 
 (b) causes the colour of such clothing or articles to be changed ; or 
 
 (c) exchanges, buys or receives from any soldier or militiaman any pro 
 visions, without leave in writing from the officer commanding the regiment or 
 detachmeiut to which such soldier belongs. R. S. C. c. 169, ss. 2 & 4. 
 
 301* Every one is guilty of an indictable offence and liable, on convic- 
 tion on indictment, to five years' imprisonment, and on summary conviction 
 before two justices of the peace to a penalty not exceeding one hundred and 
 twenty dollars, and not less than twenty dollars and costs, and in default of 
 payment to six months' imprisonment, who buys, exchanges or detains, or 
 otherwise receives, from any seaman or marine, upon any account whatsoever, 
 or has in his possession, any arms or clothing, or any such articles, belonging 
 to any seaman, marine or deserter, as are generally deemed necessaries accord- 
 ing to the custom of the navy. R. S. C. c. 169, ss. 3 & 4. 
 
 Fine, s. 958. " Having in possession " defined, s. 3 ; see 
 next section. These four sections, 390, 391 , 392, 393, should 
 form only one. 
 
Sees. 392-394] 
 
 CONSPIRACY TO DEFRAUD. 
 
 429 
 
 308* Every one is guilty of an indictable offence who detaini, buys, 
 exchanges* takes on pawn or receives, from any seaman or any person acting 
 for a seaman, any seaman's property, or solicits or entices any seaman, or is 
 employed by -vny seaman to sell, exchange or pawn any seaman's property, 
 unless he acts in ignorance of the same being seaman's property, or of the 
 nenon with whom he deals being or acting for a seaman, or unless the same 
 vas sold by the order of the Admiralty or Commander-in-Chief. , 
 
 2. The offender is liable, on conviction on indictment to five years' 
 imprisonment, and on summary conviction to a penalty not exceeding one 
 hundred dollars ; and for a second offence, to tl. ee ^nalty, or, in the 
 discretion of the justice, to six months' imprisf • -^nt, * )r without hard 
 
 labour. 
 
 3. The expression " seaman " means every person, not being % commis- 
 sioned, warrant or subordinate officer, who is in or belongs to Her Majest}''s 
 gavy, and is borpe on the books of any one of Her Majesty's ships in commis- 
 sion, and every person, not being an officer as aforesaid, who, being borne on 
 llie books of any hired vessel in Her Majesty's service, is, by virtue of any Act 
 of Parliament of the United Kingdom for the tim6 being in force for the dis- 
 cipline of the navy, subject to the provisions of such Act. 
 
 4. The expression " seaman's property " means any clothes, slops, medals, 
 necessaries or articles usually deemed to be necessaries for sailors on board 
 sliip, which belong to any seaman. 
 
 5. The expression " Admiralty " means the Lord High Admiral of the 
 United Kingdom, or the Commissioners for executing the office of Lord High 
 Admiral. R. S. C. c. 171, ss. 1 & 2. 
 
 393* Every dhe in whose possession any seaman's property is found who 
 does not satisfy the justice of the peace before whom he is taken or summoned 
 that he came by such property lawfully is liable, on summary conviction, to a 
 3 of twenty -five dollars. R. S. C. o. 171, s. 3. 
 
 " Having in possession " defined, s. 3. 
 
 Conspiracy to Defraud. (New). 
 
 394* Every one is guilty of an indictable offence and liable to seven 
 
 I years' imprisonment who conspires with any other person, by deceit or false- 
 
 I hood or other fraudulent means, to defraud the public or any person, ascertained 
 
 01 unascertained, or to affect the public market price of stocks, shares, 
 
 merchandise or anything else publicly sold, whether such deceit or falsehood 
 
 (II other fraudulent means would or would not amount to a false pretense as 
 
 1 hereinbefore defined. 
 
 Sections 613, 616, as to indictment. 
 
 This is a common law misdemeanour; 
 
 IndidTnent. — that A. B. and C. D., on un- 
 
 I lawfully, fraudulently and deceitfully did conspire and 
 
 agree together to defraud the public by falsely : 3 
 Chit. 1139, 1164. 
 
430 
 
 FRAUD. 
 
 [Sec. 395 
 
 A conspiracy for concealing treasure trove might, per- 
 haps, be indictable under this section. By s. 3, the word 
 person includes Her Majesty. As to the offence of conceal- 
 ing treasure trove, see R. v. Thomas, Warb. Lead. Cas. 79. 
 
 t Chkatino at Play, Etc. 
 
 395* Every one is guilty of an indictable offence and liable to three year«' 
 imprisonment who, with intent to defraud any person, cheats in playing at 
 any game, or in holding the stakes, or in betting on any event. R. S. G. c. 164 
 8. 80. (Amended). 8-9 V. c. 109, s. 17 (Imp.). ' 
 
 Fine, s. 958 ; ss. 613, 616, as to indictment. 
 
 Indictment. — that A. B., on in playing at 
 
 and with cards (any game) unlawfully did, with intent to 
 defraud C. D., and others, cheat, (or unlawfully did hi 
 fraud and cheating win from the said G. D. a sum of one 
 hundred dollars.) 
 
 See R. V. Moss, Dears. &; B. 104 ; R. v. Hudson, Bell, 
 263 ; R. V. Rogier, 2 D. & R. 431 ; R. v. Bailey, 4 Cox, 392; 
 R. V. O'Connor, 15 Cox, 3. 
 
 The Imperial Act, 14 & 15 V. c. 100, s. 29 {Lord Camp- 
 hell's Act,) also provides for the punishment of cheats, 
 frauds and conspiracies, not otherwise specially provided 
 for. 
 
 In R. v, Roy, 11 L. C. J. 89, Mr. Justice Drummond 
 said : " The only cheats or frauds punishable at common 
 law are the fraudulent obtaining of the property of another 
 by any deceitful and illegal practice, or token, which affects 
 or may affect the public, or such frauds a^ are levelled 
 against the public justice of the realm." 
 
 It is not every species of fraud or dishonesty in trans- 
 actions between individuals which is the subject matter of 
 a criminal charge at common law : 2 East, P. C. 816. 
 
 Fraud, to be the object of criminal prosecution, must be 
 of that kind which in its nature is calculated to defraud 
 numbers, as false weights or measures, false tokens, or 
 where there is a conspiracy; per Lord Mansfield: R v- 
 Wheatly, 2 Burr. 1125. 
 
Sec. 395] 
 
 CHEATING AT PLAY, ETC. 
 
 431 
 
 
 
 [ 
 
 ft- 
 
 s 
 
 So cheats, by means of a bare lie, or false affirmation in 
 a private transaction, as if a man selling a sack of coin 
 falsely affinns it to be a bushel, where it is greatly defi- 
 cient, has been holden not to be indictable : R. v. Pinkney, 
 2 East, P. C. 818. 
 
 So, in R. V. Channell, 2 East, P. C. 818, it was held that 
 a miller charged with illegally taking and keeping corn 
 could not be criminally prosecuted. 
 
 And in R. v. Lara, cited in 2 East, P. C. 819, it was held 
 that selling sixteen gallons of liquor for and as eighteen 
 gallons, and getting paid for the eighteen gallons, was an 
 unfair dealing and an imposition, but not an indictable 
 offence. 
 
 The result of the cases appears to be, that if a man sell 
 hy false weights, though only to one person, it is an indict- 
 able offence, but if, without false weights, he sell, even to 
 many persons, a less qvuntity than he pretends to do, it is 
 not indictable : 2 Russ. 610 ; R. v. Eagleton, Dears. 376, 
 515. 
 
 If a man, in the coui-se of his trade, openly and publicly 
 carried on, were to put a false mark or token upon an 
 article, so as to pass it oflT as a genuine one, when in fact it 
 was only a spurious one, and the article was sold and 
 money obtained by means of that false token or mark, that 
 would be a cheat at common law, but the indictment, in 
 such a case, must show clearly that it was by means of 
 such false token that the defendant obtained the money : 
 by Chief Justice Cockbum, in R. v. Closs, Dears. & B. 460. 
 
 Offences of this kind would now generally fall under the 
 " TniiU Marks Offences" s. 443, 'post 
 
 Frauds and cheats by forgeries or false pretenses are 
 also regulated by statute. 
 
 All frauds affecting the crown or the public at large are 
 indictable, though arising out of a particular transaction or 
 contract with a private party. So the giving to any person 
 
432 
 
 FRAUD. 
 
 [Sec 395 
 
 unwholesome victuals, not fit for a man to eat, lucri causa 
 or from malice and deceit is an indictable misdemeanour; 
 2 East, P. C. 821, 822. And if a baker sell bread contain- 
 in;]r alum in a shape which renders it noxious, although he 
 ^ave directions to his servants to mix it up in a manner 
 which would have rendered it harmless, he commits an 
 indictable offence ; he who deals in a perilous article must 
 be wary how he deals ; otherwise, if lie observe not proper 
 -caution, he will be responsible. The intent to injure in 
 such cases is presumed, npon the univei'sal principle that 
 •when a man does an act of which the probable consequence 
 may be highly injurious, the intention is an inference of 
 law resulting from doing the act: R. v. Dixon, 3 M. & S. 11. 
 
 If a person maim himself in order to have a more spe- 
 cious pretense for asking charity, or to prevent his being 
 -enlisted as a soldier, he may be indicted : 1 Hawk. 108. 
 
 In indictments for a cheat or fraud at common law it is 
 not sufficient to allege generally that the cheat or fraud 
 was efiected by means of certain false tokens or false pre- 
 iienses, but it is necessary to set forth what the false tokens 
 or pretenses were, so that the court may see if the false 
 tokens or pretenses are such within the law : 2 East, P. C 
 837. But the indictment will be sufficient if upon the 
 whole it appears that the money has been obtained by 
 means of the pretense set forth, and that such pretense 
 was false : 2 East, P. C. 838 ; see s. 616, post 
 
 It would seem that s. 838, post, does not apply to cheats 
 And frauds at common law, and that, therefore, the court 
 has no power of awarding restitution of the property 
 fraudulently obtained, upon convictions on indictments 
 >other than those brought for stealing or receiving stolen 
 property : 2 East, P. C. 839. 
 
 Upon an indictment for any offence, if it appeal's to the 
 jury upon the evidence that the defendant did not complete 
 the offence charged, but that he was guilty only of an 
 
Sec. 396] 
 
 PRACTISING WITCHCRAFT, ETC. 
 
 433 
 
 attempt to commit the same, the jury may convict of the 
 attempt : b. 711, post. 
 
 Praotisinq Witchcraft, Etc. {New). 
 
 396> Every one is firuilt^ of an indictable ofifenoe and liable t« one year's> 
 imprisonment who pretends to exercise or use any kind of witchcraft, sorcery,, 
 enchantment or conjuration, or undertakes to tell fortunes, or pretends fronb 
 his skill or knowledge in any occult or crafty science, to discover where or in. 
 what manner any goods or chattels supposed to have been stolen or lost may he- 
 found. 
 
 Fine, s. 958. — This section is a re-enactment of 9 Geo. II. 
 c. 5, s. 4 : see R. v. Milford, 20 O. R. 306 ; 2 Stephen'* 
 Hist. 430. 
 
 ROBBERY. 
 
 The crime of robbery is a species of theft, aggravated by^ 
 the circumstances of a taking of the property from the- 
 person or whilst it is under the protection of the person 
 hy means either of violence " or " putting in fear : 4th Rep. 
 Cr. L. Commrs. LXVII. 
 
 Robbery is larceny committed by violence from the 
 person of one put in fear : 2 Bishop, Cr. L. 1156. 
 
 To constitute this offence there must be : 1. A larceny 
 embracing the same elements as a simple larceny ; 2. vio- 
 lence, but it need only be slight for anything which calls-. 
 out resistance is sufficient, or, what will answer in place of" 
 actual violence, there must be such demonstrations as put 
 the person robbed in fear. The demonstrations of fear 
 must be of a physical nature ; and 3. the taking must be > 
 from what is technically called the "person," the meaning 
 of which expression is, not that it must necessarily be fromi 
 the actual contact of the person, but it is sufficient if it is; 
 from the personal protection and presence : Bishop, Stat. 
 
 Cr. 517. 
 
 1. Larceny. — Robbery is a compound larceny, that is, it, 
 is larceny aggravated by particular circumstances. ThuSy 
 the indictment for robbery must contain the description of 
 the property stolen as in an indictment for larceny ; the 
 ownership must be in the same way set out, and so of the 
 Crim. Law— 28 
 
434 
 
 ROBBERY. 
 
 rest. Then if the aggravating matter is not proved at the 
 trial the defendant may be convicted of the simple larceny. 
 If a statute makes it a larceny to steal a thing of which 
 there could be no larceny at common law then it becomes 
 by construction of law, a robbery to take this thing forci- 
 bly and feloniously from the person of one put in fear : 2 
 Bishop, Cr. L. 1168, 1159, 1160. An actual taking either 
 by force or upon delivery must be proved, that is, it must 
 appear that the robber actually got possession of the goods. 
 Therefore if a robber cut a man's girdle in order to get his 
 purse, and the purse thereby fall to the ground, and the 
 robber run off or be apprehended before he can take it up, 
 this would not be robbery, because the purse was never in 
 the possession of the robber : 1 Hale, P. C. 553. 
 
 But it is immaterial whether the taking were by force 
 or upon delivery, and if by delivery it is also immaterial 
 whether the robber have compelled the prosecutor to it by 
 a direct demand in the ordinary way, or upon any colourable 
 pretense. 
 
 A carrying away ; lUst also be proved as in other cases 
 of larceny. And therefore where the defendant, upon 
 meeting a man carrying a bed, told him to lay it down or 
 he would shoot him, and the man accordingly laid down 
 the bed, but the robber, before he could take it up so as to 
 remove it from the place where it lay, was apprehended, 
 the judges held that the robbery was not complete : R. v. 
 Farrell, 1 Leach, 322. 
 
 But a momentary possession, though lost again in the 
 same instant, is sufficient. James Lapier was convicted of 
 robbing a lady, and taking from her person a diamond 
 earring. The fact was that as the lady was coming out of 
 the Opera house she felt the prisoner snatch at her earring 
 and tear it from her ear. which bled, and she was much 
 hurt, but the earring fell into her hair where it was found 
 after she returned home. The judges were all of opinion 
 that the earring being in the possession of the prisoner for 
 
ROBBERY. 
 
 435 
 
 ft 
 I' 
 
 a moment, separate from the lady's person, was sufficient 
 to constitute robbery, although he could not retain it but 
 probjibly lost it again the same instant : 2 East, P. C. 557. 
 
 If the thief once takes possession of the thing the 
 offence is complete, though he afterwards return it ; as if 
 a robber, finding little in a purse which he had taken from 
 the owner, restored it to him again, or let it fall in strug- 
 n-ling, and never take it up again, having once had posses- 
 sion of it : 2 East, loc. cit; 1 Hale, 533 ; R. v. Peat, 1 Leach, 
 228. 
 
 The taking must have been done animo furandi, as in 
 larceny, and against the will of the party robbed, that is, 
 that they were either taken from him by force and vio- 
 lence, or delivered up by him to the defendant, under the 
 impression of that degree of fear and apprehension which 
 is necessary to constitute robbery. 
 
 Where, on an indictment for robbery, it appeared that 
 the prosecutor owed the prisoner money, and had pro- 
 mised to pay him five pounds, and the prisoner violently 
 assaulted the prosecutor and so forced him then and there 
 to pay him his debt, Erie, C.J., said that it was no rob- 
 bery, there being no felonious intent : R. v. Hemmings, 4 
 F. & F. 50. 
 
 2. Violence. — The prosecutor must either prove that 
 he was actually in bodily fear from the defendant's 
 actions, at the time of the robbery, or he must prove cir 
 cumstances from which the court and jury may presuni;; 
 such a degree of apprehension of danger as would induce 
 the prosecutor to part with his property; and in this letter 
 case, if the circumstances thus proved be audi an are 
 calculated to create such a fear, the court will not pursue 
 the inquiry further, and examine whether the fear actually 
 erdsted. Therefore, if a man knock another down, and 
 steal from him his property whilst he is insensible on the 
 ground, that is robbery. Or suppose a man makes a man- 
 ful resistance, but is overpowered, and his property taken 
 
 «P 
 
436 
 
 ROBBERY. 
 
 1^ 
 
 from him by the mere dint of superior strength, this is a 
 robbery : Fost. 128 ; R v. Davies, 2 East, P. C. 709. 
 
 One Mrs. Jeffries, coming out of a ball, at St. James' 
 Palace, where she had been as one of the maids of honour, 
 the prisoner snatched a diamond pin from her head-dress 
 with such force as to remove it with part of the hair from 
 the place in which it was fixed, and ran away with it: 
 Held, to be a robbery : R. v. Moore, 1 Leach, 335. See 
 Lapier's Case, 1 Leach, 320. 
 
 Where the defendant laid hold of the seals and chain of 
 the prosecutor's watch, and pulled the watch out of his fob, 
 but the watch, being secured by a steel chain which went 
 round the prosecutor's neck, the defendant could not take 
 it until, by pulling and two or three jerks, he broke the 
 chain, and then ran off with the watch ; this was holden 
 to be robbery : R. v. Mason, R. & R. 419. But merely 
 snatching property from a person unawares, and running 
 away with it, will not be robbery : R. v. Steward, 2 East, 
 P. C. 702 ; R. V. Homer, Id. 703 ; R. v. Baker, 1 Leach, 290; 
 R. V. Robins, do. do.; R. v. Macauley, 1 Leach, 287; because 
 fear cannot, in fact, be presumed in such a case. When the 
 prison i.' caught hold of the prosecutor's watch-chain, and 
 jerked his watch from his pocket with considerable force, 
 upon which a scuffle ensued and the prisoner was secured, 
 Garrow, B., held that the force used to obtain the watch 
 did not make the offence amount to robbery, nor did the 
 force used afterwards in the scuffle ; for the force necessary 
 to constitute robbery must be either immediately before or 
 at the time of the larceny, and not after it : R. v. Gnosil, 1 
 C & P. 304. The rule, therefore, appears to be well estab- 
 lished, that no sudden taking or snatching of property 
 unawares from a person is sufflcient to constitute robbery, 
 unless some injury be done to the person, or there be a 
 previous struggle for the possession of the property, or 
 some force used to obtain it : 2 Russ. 104. 
 
ROBBERY. 
 
 437 
 
 If a man take another's child, and threaten to destroy 
 him unless the other give him money, this is robbery : R. 
 V. Reane, 2 East, P. C. 734; R. v. Donally, Id. 713. So 
 where the defendant, at the head of a mob, came to the 
 prosecutor's house and demanded money, threatening to 
 destroy the house unless the money were given, the prose- 
 cutor therefore gave him five shillings, but he insisted on 
 more, and the prosecutor, being terrified, gave him five 
 shillings more ; the defendant and the mob then took bread, 
 cheese and cider from the prosecutor's house, without his 
 permission, and departed, this was holden to be a robbery 
 as well of the money as of the bread, cheese and cider: R. v. 
 Simons, 2 East, P. C. 731; R. v. Brown, Id. So where, during 
 some riots at Birmingham, the defendant threatened the 
 prosecutor that unless he would give a certain sum of money 
 he should return with the mob and destroy his house, and 
 the prosecutor, under the impression of this threat, gave 
 him the money, this was holden by the judges to be rob- 
 bery: R. V. Astley, 2 East, P. C. 729. So where, during the 
 riots of 1780, a mob headed by the defendant came to the 
 prosecutor's house, and demanded half a crown, which the 
 prosecutor, from terror of the mob, gave, this was holden to 
 be robbery, although no threats were uttered: R. v. Taplin, 
 2 East, P. C. 712. Upon an indictment for robbery it ap- 
 peared that a mob came to the house of the prosecutor, and 
 with the mob the prisoner, who advised the prosecutor to 
 give them something to get rid of them, and prevent mischief, 
 by which means they obtained money from the prosecutor ; 
 and Parke, J., after consulting Vaughan and Anderson, JJ., 
 admitted evidence of the acts of the mob at other places 
 before and after on the same day, to show that the advice 
 of the prisoner was not honajide, but in reality a mere 
 mode of robbing the prosecutor : R. v. Winkworth, 4 C. & 
 P. 444. Where the prosecutrix was threatened by some 
 person at a mock auction to be sent to prison, unless she 
 paid for some article they pretended was knocked down to 
 her, although she never bid for it ; and they accordingly 
 
438 
 
 ROBBERY. 
 
 called in a pretended constable, who told her that unless she 
 gave him a shilling she must go with him, and she gave him 
 a shilling accordingly, not from any apprehension of per- 
 sonal danger but from a fear of being taken to prison, the 
 judges held that the circumstances of the case were not 
 sufficient to constitute the offence of robbery ; it was 
 nothing more than a simple duress, or a conspiracy to 
 defraud: R. v. Knewland, 2 Leach, 721; 2 Russ. 118; see 
 s. 404, posf. In R. v. MacGrath, 11 Cox, 347, a woman 
 went Into a mock auction room, where the prisoner professed 
 to act as auctioneer. Some cloth was put up by auction, for 
 which a person in the room bid 25 shillings. A man stand- 
 ing between the woman and the door said to the prisoner 
 that she had bid 26 shillings for it, upon which the prisoner 
 knocked it down to the Woman. She said she had not bid for 
 it, and would not pay for it, and turned to go out. The pri- 
 soner said she must pay for it before she would be allowed 
 to go out, and she was prevented from going out. She then 
 paid 26 shillings to the prisoner, because she was afraid, 
 and left with the cloth ; the prisoner was indicted for lar- 
 ceny, and having been found guilty the conviction was 
 affirmed; but Martin, B., was of opinion that the facts 
 proved also a robbery. Where the defendant, with an 
 intent to take money from a prisoner who was under his 
 charge for an assault, handcuffed her to another prisoner, 
 kicked and beat her whilst thus handcuffed, put her into a 
 hackney coach for the purpose of carrying her to prison, 
 and then took four shillings from her pocket for the pur- 
 pose of paying the coach hire, the jury finding that the 
 defendant had previously the intent of getting from the 
 prosecutrix whatever money she had, and that he used all 
 this violence for the purpose of carrying his intent into 
 execution, the judges held clearly that this was robbery : 
 R. V. Gascoigne, 2 East, P. C. 709. Even in a case where 
 it appeared that the defendant attempted to commit a rape 
 upon the prosecutrix, and she, without any demand from 
 him, gave him some money to desist, which he put into his 
 
ROBBERY, 
 
 489 
 
 pocket, and then continued his attempt until he was inter- 
 rupted ; this was holden by the judges to be robbery, for the 
 woman from violence and terror occasioned by the prisoner's 
 behaviour and to redeem her chastity, offered the money 
 which it is clear she would not have given voluntarily, and 
 the prisoner, by taking it, derived that advantage to himself 
 from his felonious conduct, though his original intent was 
 to commit a rape : R. v. Blackham, 2 East, P. C. 711. 
 
 And it is of no importance under what pretense the 
 robber obtains the money if the proseicutor be forced to 
 deliver it from actual fear, or under circumstances from 
 which the court can presume it. As, for instance, if a man 
 with a sword drawn ask alms of me, and I give it him 
 through mistrust and apprehension of violence, this is 
 felonious robbery. Thieves come to rob A., and finding 
 little about him force him by menace of death to swear 
 to bring them a greater sum, which he does accordingly, 
 this is robbery ; not for the reason assigned by Hawkins,, 
 because the money was delivered while the party thought 
 himself bound in conscience to give it by virtue of the 
 oath, which in his fear he was compelled to take ; which 
 manner of stating the case affords an inference that the fear 
 had ceased at the time of the delivery, and that the owner 
 then acted solely under the mistaken compulsion of his 
 oath. But the true reason is given by Lord Hale and 
 others; because the fear of that menace still continued 
 upon liim at the time he delivered the money: 2 East, P. C. 
 TU. Where the defendant, at the head of a riotous mob, 
 stopped a cart laden with cheeses, insisting upon seizing 
 them for want of a permit ; after some altercation he went 
 with the driver, under pretense of going before a ujagistrate> 
 and during their absence the mob pillaged the cart ; this 
 was holden to be a robbery: Merriman v. Hundred of 
 Chippenham, 2 East, P. C. 709. On this case, it is well 
 observed that the opinion tliat it amounted to a robbery 
 must have been grounded upon the consideration that the 
 
 Hi' 
 
 I' 
 
 ll >; 
 
 11 !il!I':' 
 
\ 
 
 440 
 
 ROBBERY. 
 
 first seizure of the cart and goods by the defendant, being 
 by violence and while the owner was present, constituted 
 the offence of a robbery: 2 Russ. 111. 
 
 So where the defendant took goods from the prosecutrix 
 to the value of eight shillings, and by force and threats com- 
 pelled her to take one shilling under pretense of payment 
 for them, this was holden to be a robbery : Simon's Case 
 and Spencer's Case, 2 East, P. C. 712. .The fear must pre- 
 cede the taking. For if a man privately steal money from 
 the person of another, and afterwards keep it by putting 
 him in fear, this is no robbery, for the fear is subsequent 
 to the taking: R, v. Harman, 1 Hale, 534; and R. v. Gnosil, 
 1 C. & P. Z'^4>. 
 
 " It remains further to be considered of what nature 
 this fear may be. This is an inquiry the more difficult, 
 because it is nowhere defined in any of the acknowledged 
 treatises upon the subject. Lord Hale proposes to consider 
 what shall be said a putting in fear, but he leaves this part 
 of the question untouched. Lord Coke and Hawkins do 
 the same. Mr. Justice Foster seems to laj'- the greatest 
 stress upon the necessity of the property's being taken 
 againi^t the will of the party, and he leaves the circum- 
 stance of fear out of the question; or that at any rate, when 
 the fact is attended with circumstances of evidence or 
 terror, the law, in odium spoliatoris, will presume fear if 
 it be necessary, where there appear to be so just a ground 
 for it. Mr. Justice Blackstone leans to the same opinion. 
 But neither of them afford any precise idea of the nature 
 of the fear or apprehension supposed to exist. Stauud- 
 ford defines robbery to be a felonious taking of anything 
 from the person or in the presence of another, openly ami 
 against his will ; and Bracton also rests it upon the latter 
 circumstance. I have the authority of the judges, as men- 
 tioned by Willes, J., in delivering their opinion in Donally's 
 Case, in 1779, to justify me in not attempting to draw the 
 exact line in this case ; but thus much, I may venture to 
 
ROBBERY. 
 
 441 
 
 state, that on the one hand the fear is not confined to an 
 apprehension of bodily injury, and, on the other hand, it 
 must be of such a nature as in reason and common experi- 
 ence is likely to induce a person to part with his property 
 against his will, and to put him, as it were, under a tem- 
 porary suspension of the power of exercising it through the 
 influence of the terror impressed; in which case fear 
 supplies, as well in sound reason as in legal construction, 
 the place of force, or an actual taking by violence, or 
 assault upon the person": 2 East, P. C. 713. 
 
 It has been seen, ante, R. v. Astley, 2 East, P. C. 729, 
 that a threat to destroy the prosecutor's house is deemed 
 sufficient by law to constitute robbery, if money is obtained 
 by the prisoner in consequence of it. This is no exception 
 to the law which requires violence or fear of bodily injury, 
 because one without a house is exposed to the inclement 
 elements ; so that to deprive a man of his house is equiva- 
 lent to inflicting persoital injury upon him. In general 
 terms, the person robbed must be, in legal phrase, put in 
 fear. But if force is used there need be no other fear than 
 the law will imply from it ; there need be no fear in fact. 
 The proposition is sometimes stated to be that there must 
 be either force or fear, while there need not be both. The 
 true distinction is doubtless that, where there is no actual 
 force, there must be actual fear, but where there is actual 
 force the fear is conclusively inferred by the law. And 
 within this distinction, assaults where there is no actual 
 battery, are probably to be deemed actual force. Where 
 neither this force is employed,nor any fear is excited, there 
 is no robbery, though there be reasonable grounds for fear : 
 2 Bishop, Cr. L. 1174; see s. 404, ^^os^. 
 
 From the person. — The goods must be proved to have 
 been taken from the person of the prosecutor. The legal 
 meaning of the word person, however, is not here, that the ^ 
 taking must necessarily be from the actual contact of the 
 body, but if it is from under the peraonal protection that 
 
 if 
 
it 'if^- 
 
 K 
 
 }^ 
 
 442 
 
 ROBBERY. 
 
 will suffice. Within this doctrine the person may be 
 deemed to protect all things belonging to the individual 
 within a distance, not easily defined, over which the influ- 
 ence of the personal presence extends. If a thief, say& 
 Lord Hale, come into the presence of A., and, with violence 
 and putting A. in fear, drive away his horse, cattle or 
 sheep, he commits robbery. But if the taking be not 
 either directly from his person or in his presence it is 
 not robbery. In robbery, says East, 2 P. C. 707, it is 
 sufficient if the property be taken in the presence of the 
 owner ; it may not be taken immediately from his person 
 so that there be violence to his person, or putting him 
 in fear. As where one, having first assaulted another, 
 takes away his horse standing by him ; or, having put him 
 in fear, drives his cattle out of his pasture in his presence, 
 or takes up his purse which the other in his fright had 
 thrown into a bush. Or, adds Hawkins, rob my servant of 
 my mone^- before my face, after having first assaulted me: 
 1 Hawk. 214. Where, on an indictment for robbery, it 
 appeared that the prosecutor gave his bundle to his brother 
 to carry for him, and while they were going along the road 
 the prisoners assaulted the prosecutor, upon which his 
 brother laid down his bundle in the road, and ran to his 
 assistance, and one of the prisoners then ran away with the 
 bundle; Vaughan, B., intimated an opinion that under these 
 circumstances the indictment was not sustainable, as the 
 bundle was in the possession of another person at the time 
 when the assault was committed. Highway robbery was 
 a felonious taking of tiie property of another by violence 
 against his will, either from his person or in his presence: 
 the bundle in this case was not in the prosecutor's posses- 
 sion. If these prisoners intended to take the bundle, why 
 did they assault the prosecutor, and not the person who 
 had it : R. v. Fallows, 2 Russ. 107. The prisonera were 
 convicted of a simple larceny. Qucere, whether if the 
 indictment had been for robbinjr the brother, wlio was 
 carrying the bundle, it might not have been sustained, as 
 
ROBBERY. 
 
 44'^ 
 
 it was the violence of the prisoners that made him put it- 
 jown and it was taken in his presence. In R. v. Wright. 
 Styles, 156, it was holden that if a man's servant be robbed 
 of his master's goods in the sight of his master, this ia 
 robbery of the master : note by Greaves. 
 
 Where, on an indictment for robbery and stealing from 
 the person, it was proved that the prosecutor, who was. 
 paralyzed, received, whilst sitting on a sofa in a room, a 
 violent blow on the head from one prisoner, whilst the 
 other prisoner went and stole a cash-box from a cupboard 
 in the same room ; it was held that the cash-box being in 
 the room in which the prosecutor was sitting, and he being^ 
 aware of that fact, it was virtually under his protection r 
 and it ^^'as left to the jury to say whether the cash-box waa 
 under the protection of the prosecutor at the time i^ was 
 stolen : R. v. Selway, 8 Cox, 235. 
 
 The taking must be charged to be with violence from 
 the person, and against the will of the party ; but it does 
 not appear certain that the indictment should also charge 
 that he was put in fear, though this is usual, and, therefore^ 
 safest to be done. 
 
 But in the conference on Donally's case, where the sub- 
 ject \vas much considered, it was observed by Eyre, B., that. 
 the more ancient precedents did not state the putting in 
 fear.and that, though others stf'-ted the putting in corporeal 
 fear, yet the putting in fear of life was of modern intro- 
 duction. Other judges considered that the gist of the 
 offence was the taking by violence, and that the putting in 
 fear was only a constructive violence, supplying the place 
 of actual force. In general,however,as was before observed,. 
 no technical description of the fact is necessary, if upon the 
 whole it plainly appears to have been committed with 
 violence against the will of the party : 2 East, P. C. 783, 
 
 The ownership of the property must be alleged the same 
 as in an indictment for larceny. The value of the article* 
 stolen need not necessarily be stated. In R. v. Binglej', 5 
 
 1, :'; ^ ^ 
 
 
 1 
 
 i# 
 

 444 
 
 ROBBERY AND EXTORTION. 
 
 [Sees. 397, 398 
 
 C. & p. 602, the prisoner robbed the prosecutor of a piece 
 of paper, containing a memorandum of money that a person 
 owed him, and it was held sufficient to constitute a robbery, 
 
 PART XXIX. 
 ROBBERY AND EXTORTION. 
 
 Definition. 
 
 897. Robbery is theft accompanied with violence or threats of violence 
 to any person or property us(ed to extort the property stolen, or to prevent or 
 overcome resistance to its being stolen. 
 
 Agobavated Robbery. 
 
 308« Every one is guil ty of an indictable offence and liable to imprison- 
 ment for life and to he whipped who — 
 
 (a) robs any person and at the time of, or immediately before or imme- 
 diately after, such robbery wounds, beats, strikes, or uses any i^ersonal violence 
 to, such person ; or 
 
 {b) being together with any other person or persona robs, or assaults witii 
 intent to rob, any person ; or 
 
 (c) being armed with an offensive weapon or instrument robs, or assaults 
 ■with intent to rob any person. R. S. C. c. 164, s. 34. 24-25 V. c. 96, s. 43 
 (Imp.). 
 
 This clause provides for five offences : 1. Being armed 
 with any offensive weapon or instrument, robbing any 
 person. 
 
 2. Being so armed, assaulting any person with intent to 
 rob this person. 
 
 3. Together with one or more person or persons, robbing 
 any other person. 
 
 4. Together with one or more person or persons, assault- 
 ing any person with intent to rob this peraon. 
 
 5. Robbing any person, and at the time of or imme- 
 diately before, or immediately after such robbery, wound- 
 
fissaults with 
 
 S€C.398] 
 
 AGGRAVATED ROBBERY. 
 
 445 
 
 ing, beating, striking, or using any other personal violence 
 to any person. 
 
 1. Indictment for a robbery by a person armed thai 
 
 J S., on at being then armed with a certain 
 
 offensive weapon and instrument, to wit, a bludgeon, in and 
 upon one D. unlawfully did make an assault, and him the 
 said D. in bodily fear and danger of his life then unlaw- 
 fully did put, and a sum of money, to wit, the sum of ten 
 dollars, of the moneys of the said D., then unlawfully and 
 violently did steal 
 
 2. Indictment for an assault by a person armed with 
 
 Yflient to commit robbery that J. S. on at 
 
 beinf? then armed with a certain offensive weapon and 
 instrument, called a bludgeon, in and upon one D. unlaw- 
 fully did make an assault, with intent the moneys, good* 
 and chattels of the said D. from the person and against the 
 will of him the said D., then unlawfully and violently tO' 
 steal 
 
 3. Indictment for robbery by two or more persons in 
 
 company that A. B. and D. H. together, in and upon 
 
 one J. N. unlawfully did make an assault, and him the said 
 J. N. in bodily fear and danger of his life then and there 
 together unlawfully did put, and the moneys of the said 
 
 J. N. to the amount of from the person and against 
 
 the will of the said J. M. then unlawfully and violently 
 together did steal. (// one only of them be apprehended it 
 will charge him by name together with a certain other 
 person, or certain other persons, to the jurors aforesaid 
 unknown). 
 
 4. Indictment for, together with one or more person 
 w persons, assaulting with intent to rob. — Can be drawn 
 on forms 2 and 3. 
 
 5. Robbery accompanied by wounding, etc. — that J. 
 N. at on in and upon one A. M. unlawfully 
 did make an assault, and him the said A. M. in bodily fear 
 
 ^P 
 
{l- 
 
 446 
 
 ROBBERY AND EXTORTION. 
 
 [Sec. 399 
 
 and danger of his life then unlawfully did put, and the 
 moneys of the said A. M. to the amount of ten dollars and 
 one gold watch, of the goods and chattels of the said 
 A. M. from tlie person and against the will of the said 
 A. M. then unlawfully and violently did steal, and that the 
 said J. N. immediately before he so robbed the said A. II. 
 as aforesaid, the said A. M. did unlawfully wound. 
 {It ivill he iTnmaterial, in any of these indictments, if the 
 place where the robbery was committed be stated incorrectly.) 
 
 The observations ante, applicable to robbery generally 
 apply to these offences. 
 
 Under indictment No. 1 the defendant may be con- 
 victed of the robbery only, or of an assault with intent to 
 rob. The same, under indictments numbers 3 and 5. 
 And wherever a robbery, Yith aggravating circumstances, 
 that is to say, either by a person armed, or by several 
 persons together, or accompanied with wounding, is charged 
 in the indictment, the jury may convict of an assault with 
 intend to rob, attended with the like aggravation, the 
 assault following the nature of the robbery: R. v Mitchell, 
 2 Den. 468, and remarks upon it, in Dears. 19. 
 
 By 8. 713 a verdict of common assault may be returned 
 if the evidence warrants it. And by s. 711, if the offence 
 has not been completed, a verdict of guilty of the attempt to 
 commit the oifence charged may be given, if the evidence 
 warrants it. 
 
 Upon an indictment for robbery charging a wounding 
 the jury may convict of unlawful wounding under s. 242, 
 or of an assault causing actual bodily harm under s. 262. 
 
 See remarks under next section. 
 
 Punishment op Robbery. 
 
 300« Every one who commits i-obbery is guilty of an indictable offence 
 and liable to fourteen years' imprisonment. R. S, C. c. 164, s. 32. 
 
 Indictment for robbery. — in and upon one 
 
 J. N. unlawfully did make an assault, and him, the said 
 
 J. N., in bodily fear and danger of his life then did put, and 
 
Sees. 400, 401] 
 
 ASSATTLT WITH INTENT. 
 
 447 
 
 the moneys of the said J. N., to the amount of ten dollars, 
 from the person and against the will of the said J. N. then 
 unlawfully and violently did steal. 
 
 The indictment may charge the defendant with having 
 assaulted several persons and stolen different sums from 
 them, if the whole was one transaction. 
 
 If the robbery be not proved the jury may return a 
 verdict of an assault with intent to rob, if the evidence 
 warrants it, and then the defendant is punishable as under 
 s. 400. By 8. 713, if the intent be not proved a verdict of 
 common assault may be given : R. v. Archer, 2 Moo 283 ; 
 R. V. Hagan, 8 C. & P. 167; R. v. Ellis, 8 C. & P. 654 ; R. v. 
 Nicholls, 9 C. & P. 267 ; R. v. Woodhall, 12 Cox, 240, is 
 not to be followed here, as the enactment to the same effect 
 is now, in England, repealed, 
 
 The word " together " is not essential in an indictment 
 for robbery against two persons to show that the offence 
 was a joint one : R. v. Provost, M. L. R, 1 Q. B. 477. 
 
 Assault with Intent to Rob. 
 
 400« Every one who assaults any person with intent to rob him is guilty 
 of an indictable oifenoe and liable to three years' imprisonment. K. S. C. 
 0. 164,8. 33 ; 24-25 V. c. 96 s. 42 (Imp.). 
 
 Fine, s. 958 : see annotation under the three next pre- 
 ceding sections. 
 
 Indictment. — in and upon one C. D., unlaw- 
 
 fully did make an assault with intent the moneys, goods 
 and chattels of the said C. D., from the person and against 
 the will of the said C. D. unlawfully and violently to steal : 
 R. V. Huxley, Car. 2 M. 596 ; R. v. O'Neil, 11 R. L. 334. 
 
 Stopping the Mail with Intent to Rob. 
 
 401* Every one is guilty of an indictable offence and liable to imprison- 
 ment for life, or to any term not less than five years, who stops a mail with 
 intent to rob or search the same. R. S. C. c. 35, s. 81. 7 Wm. IV. and 1 V. 
 
 c 36 (Imp.). 
 
 Section 4, ante, as to definitions, and s. 624, post, as to 
 indictment. 
 
 I! 111! 
 
 I 
 
 
1^1 
 
 448 
 
 ROBBERY AND EXTORTION. 
 
 [8«a <o 
 
 Indictment. — 
 
 _ a certain mail for the conveyance 
 
 of post letters, unlawfully did stop with intent to rob the 
 same. 
 
 A verdict of attempt may be given, if the evidence 
 warrants it, s. 711. 
 
 CoHPSLLINO EXBOUnON OF DOOUHINTS. 
 
 40*2* Every one is guilty of an indictable offeree and liable to imprison- 
 ment for life who, with intent to defraud, or injure, by unlawful violence to 
 or restraint of the person of another, or by the threat that either the offender 
 or any other person will employ such violence or restraint, unlawfully compela 
 any person to execute, make, accept, endorse, alter or destroy the whole or 
 any part of any valuable security, or to write, impress or affix any name or 
 seal upon any paper or parchment, in order that it may be afterwards made or 
 converted into or used or dealt with as a valuable security. R. S. G. c. 173, 
 ss. 5 & C (Avwnded). 24-25 V. o. 96, s. 48 (Imp.). 
 
 The obtaining money by accusing or threatening to 
 accuse of any treason, felony or any crime, now falls under 
 ss. 405-406, post. 
 
 " Valuable security " defined, s. 3. 
 
 On this clause, Greaves says : " This clause is new. It 
 will meet all such cases as R. v. Phipoe, 2 Leach, 673, and 
 R. V. Edwards, 6 C. & P. 521, where persons by violence to 
 the person or by threats induce others to execute deeds 
 bills of exchange or other securities. 
 
 The defendants, husband and wife, were indicted under 
 this clause, for having by threats of violence and restraint 
 induced the prosecutor to write and affix his name to the 
 following document : " London, July 19th, 1875. I hereby 
 agree to pay you JEIOO on the 27th inst, to prevent any 
 action against me." 
 
 Held, that this document was not a promissory note, but 
 was an agreement to pay money for a valid consideration 
 which could be sued upon and was therefore a valuable 
 security. To constitute a valuable security within the 
 meaning of the statute an instrument need not be negoti- 
 able. A wife who takes an independent part in the com- 
 mission of a crime when her husband is not present is not 
 
•I'C] 
 
 EXTORTION BY LETTER. 
 
 449 
 
 |v. otected by her coverture : R. v. John, 13 Cox, 100 ; see 
 oiseH under 8. 405, pout. 
 
 See that case of R. v. John as to form of indictment. 
 
 Extortion bv Letter. 
 
 403- Every one in guilty of un indictable offence and liable to/ourteen 
 iiMfs' imprisonment wlio aenda, delivera or utters, or directly or indirectly 
 causes to be received, knowing the contents thereof, any letter or writing 
 demanding of any jierson with menaces, and without any reasonable or pro- 
 bable caiiHe, any property, chattel, money, vuluable Ht-curity or other valuable 
 thing. R. S. C. c. 173, i. 1. 24-25 V. c. 9C, a. 44 (Imp. ). 
 
 " Valuable security " and " writing " defined, s. 3. 
 
 An indictment on this clause should always contain a 
 count for uttering without stating the pei*son to whom the 
 letter or writing is uttered : Greaves, Cons. Acts, 135. 
 
 Indictment for 8enJ,ing a letter, demanding money 
 with menaces. — that J. S., on unlawfully did send 
 to one J. N. a certain letter, directed to the said J. N. by 
 the name and description of Mr. J. N., of demanding 
 
 money from the said J. N. with menaces, and without 
 reasonable or probable cause, he the said J. S. then well 
 knowing the contents of the said letter ; and which said 
 letter is as follows, that is to say, (here set out the letter 
 verbatim). And the jurors aforesaid, do further present, 
 that the said J. S. on the day and in the year aforesaid, 
 unlawfully did utter a certain writing demanding money 
 from the said J. N. with menaces and without any reason- 
 able or probable cause, he the said J. S. then well knowing 
 the contents of the said writing and which said writing is 
 as follows, that is to say (here set out the writing vei'hatini). 
 iiee 8. 613. 
 
 Where the letter contained a request only, but intimated 
 that, if it were not complied with, the writer would publish 
 a certain libel then in his possession accusing the prosecutor 
 of murder, this was holden to amount to a demand : R. v. 
 Robinson, 2 Leach, 749. The demand nmst be with 
 menaces, and without any reasonable or probable cause, and 
 it will be for the jury to consider whether the letter does 
 Ckim. Law— 29 
 
 # 
 
450 
 
 ROBBERY AND EXTORTION. 
 
 [Sec. 404 
 
 expressly or impliedly contain a demand of this description. 
 The words " without any reasonable or probable cause " 
 apply to the demand of money, and not to the accusation 
 threatened by the defendant to be made against the prose- 
 cutor ; and it is, therefore, immaterial in point of law, 
 whether the accusation be true or not : R. v. Hamilton, 1 
 C. & K. 212 ; R. v. Gardner, 1 C. & P. 479. A letter 
 written to a banker, stating that it was intended by some 
 one to burn his books and cause his bank to stop, and that 
 if 250 pounds were put in a certain place the writer of the 
 letter would prevent the mischief, but if the money were 
 not put there it would happen, was held to be a letter 
 demanding money with menaces : R. v. Smith, 1 Den. 510. 
 The judges seemed to think that this decision did not inter- 
 fere with R. V. Pickford, 4 C. & P. 227. In R. v. Piekford 
 the injury threatened was to be done by a third person. It 
 is immaterial whether the menaces or threats hereinbefore 
 mentioned be of violence, injury or accusation to be caused 
 or made by the offender, or by any other person. See R. v. 
 Tranchant, 9 L. N. 333 and R. v. Grimwade, 1 Den. 30. 
 
 32 & 33 V.C.21, s. 43 made it a felony to send "any letter 
 demanding of any person with menaces, and without any 
 reasonable or probable cause, any money, etc." Held, that 
 the words " without reasonable or probable cause " apply 
 to the money demanded.and not to the accusation threatened 
 to be made : R v. Mason, 24 U. C. C. P. 58. 
 
 Demanding with intent to Steal. 
 
 404> Every one is guilty of an indictable offence and liable to two yean' 
 imprisonment who, with menaces, demands from any person, eilher for hiiimlj 
 or for any other person, anything capable of being stolen with intent to steal it, 
 R, S. C. c. 173, 8. 2. 24-25 V. c. 90, s. 15 (Imp.). 
 
 The repealed clause had the words " or by force " after 
 menaces. The words in italics are new. 
 
 Indictment. — unlawfully with menaces did de- 
 
 mand of A. B. the money of him the said A. B. with intent 
 the said money from the said A. B. unlawfully to steal. 
 
Sec. 405] 
 
 EX-IORTION BY THREATS. 
 
 451 
 
 The prosecutor must prove a demand by the defendant 
 of the money or other thing stated in the indictment " by 
 menaces " with intent to steal it. It is not necessary to 
 prove an express demand in words ; the statute says " with 
 menaces." " Demands," and menaces are of two kinds, by 
 words or by gestures ; so that, if the words or gestures of 
 the defendant at the time were plainly indicative of what 
 he required, and tantamount in fact to a demand, it should 
 seem to be sufficient proof of the allegation of demand in 
 the indictment : R. v. Jackson, 1 Leach, 267. If a person, 
 with menaces, demand money of another, who does not give 
 it him, because he has it not with him, this is a felony 
 within the statute ; but if the party demanding the money 
 knows that it is not then in the prosecutor's possession, andi 
 only intends to obtain an order for the payment of it, it is 
 otherwise : R. v. Edwards, 6 C. & P. 515. That would now 
 fall under this section. 
 
 See Ji. V. Walton, L. & C. 288 ; R. v. Robertson, L. & C. 
 483 ; 3 Russ. 203, note by Greaves. 
 
 Why is the punishment only two years under this section ^ 
 and fourteen under the next preceding one ? 
 
 Extortion by Certain Threats. 
 
 405. Every one is guilty of an indictable offence and liable to fourteenr 
 years' imprisonment who, with intent to extort or gain anything from any 
 
 person- 
 Id) accases or threatens to accuse either that person or any other person, 
 whether the ptrwii. accused or threatened loith accusation is guilty or not, of 
 
 (i) any oilcnce punishable by law with death or imprisonment for 
 
 seven years or more ; 
 
 (ii) any assault with intent to commit a rape, or any attempt or 
 end«avour to commit a rape, w any indecent assault ; 
 
 (iii) carnally knowing or attempting to know any child so as to be pun- . 
 ishablc under this Act ; 
 
 (iv) any infamous offence, that is to say, buggery, an attempt or 
 assault with intent to commit buggery, or any unnatural practice, or 
 
 iiicest ; 
 
 (v) counselling or procuring any person to commit any such infamous ; 
 offence ; or 
 
 (6) threatens that any person shall be so accused by any other person ; or • 
 
 ■M%' 
 
452 
 
 ROBBERY AND EXTORTION. 
 
 [Sec, 405 
 
 (o) causes any person to receive a document containing such accusation 
 or threat, knowing the contents thereof ; 
 
 (d) by any of the means aforesaid compels or attempts to compel any 
 person to execute, make, accept, endorse, alter or destroy the whole or any 
 part of any valuable security, or to write, impress or aflBx any name or seal 
 upon or to any paper or parchment, in order that it may be afterwards made 
 or converted into or used or dealt with as a valuable security. R. S. C. c. I73 
 sa. 3, 4, 1, 5, &, G (Amended). 24-25 V. c. 96, as. 46, 47, 48 (Imp.). 
 
 The words in italics are new. 
 
 *' Valuable security," defined, s. 3. 
 
 Extortion at common law : see R. v. Tisdale, 20 U. C. 
 Q. B. 272. 
 
 Indictmient . — that J. S., on unlawfully 
 
 did send to one J. N., a certain letter, directed to the said 
 J. N., by the name and description of Mr. J. N., threatenino- 
 to accuse him, the said J. N., of having attempted and 
 endeavoured to commit the abominable crime of bugo-ery 
 with him the said J. S., with a view and intent thereby 
 then to extort and gain money from the said J. N., he the 
 said J. S., then well knowing the contents of said letter, 
 and which said letter is as follows, to wit (here set ov ' flie 
 letter verbatim) : see s. 613. 
 
 An indictment for sending a letter threatening to accuse 
 a man of an infamous crime need not specify such crime 
 for the specific crime the defendant threatened to cliaroe 
 might intentionally by him be left in doubt : R. v. Tucker, 
 1 Moo. 134. The threat may be to accuse another person 
 than the one to whom the letter was sent. It is imma- 
 terial whether the prosecutor be innocent or guilty of the 
 offence threatened to be imputed to him; s-s. (a): R, v, 
 Gardner, 1 C. & P. 479; R. v. Richards, 11 Cox, 43. 
 
 Where it was doubtful from the letter what charae wiis 
 intended parol evidence was admitted to explain it, and 
 the prosecutor proved that having asked the prisoner what 
 he meant by certain expressions in the lettei*, the prisoner 
 said that he meant ttiat the prosecutor had taken indecent 
 liberties with his person ; the judges held tlie conviction to 
 be right : R. v. Tucker, 1 Moo. 134. 
 
Sec. 405] 
 
 EXTORTION BY THREATS. 
 
 453 
 
 The court will, after the bill is found, upon the appli- 
 cation of the prisoner, order the letter to be deposited with 
 an officer, in order that the prisoner's witnesses may 
 inspect it : R. v. Harrie, 6 C. & P. 105. 
 
 In R. V. Ward, 10 Cox, 42, on an indictment containing 
 three counts for sending three separate letters, evidence of 
 the sending of one only was declared admissible. The 
 threat need not be by letter under s. 405. 
 
 It is immaterial whether the menaces or threats herein- 
 before mentioned be of accusation to be caused or made by 
 the offender or by any other person ; " s-s. (6). 
 
 Indictment. — unlawfully did threaten one J. N., 
 
 to accuse him the said J. N., of having attempted and 
 endeavoured to commit the abominable crime of buggery 
 with the said J. S., with a view and intent thereby then to 
 extort and gain money from the said J. N. 
 
 It must be a threat to accuse, or an accusation ; if J. N. 
 be indicted or in custody of an offence, and the defendant 
 threaten to procure witnesses to prove the charge, this 
 will not be a threat to accuse within the meaning of the 
 statute. But it need not be a threat to accuse before a 
 judicial tribunal ; a threat to charge before any third pei-son 
 is sufficient : R. v. Robinson, 2 M. & Rob. 14. It is 
 immaterial whether the prosecutor be innocent or guilty of 
 the offence charged, and therefore, although the prosecutor 
 may be cross-examined as to his guilt of the offence im- 
 puted to him, with a view to shake his credit, yts uo 
 evidence will be allowed to be given, even in cross-exam- 
 ination of another witness, to prove tliat the prosecutor 
 was guilty of such offence: R. v. Gardner, 1 C. & P. 479 ; 
 R. V. Cracknell, 10 Cox, 408. Whether the crime of which 
 the prosecutor was accused by the prisoner was actually 
 committed is not material in this, that the prisoner is 
 equally guilty if he intended by such accusation to extort 
 money; but it ia material in considering the (question 
 whether, under the circumstances of the case, the intention 
 
 €P 
 
 
\ 
 
 454 
 
 ROBBERY AND EXTORTION. 
 
 [Sec. 406 
 
 of the prisoner was to extort money or merely to compound 
 a felony : E. v. Richards, 11 Cox, 43. In Archbold, 482, 
 this last decision seems not to be approved of. — A person 
 . threatening A's father that he would accuse A. of having 
 committed an abominable offence upon a mare for the pur- 
 pose of putting off the mare, and forcing the father, under 
 terror of the threatened charge to buy and pay for her at 
 the prisoner's price, is guilty of threatening to accuse 
 within this section: R. v. Redman, 10 Cox, 159, Warb. 
 Lead. Cas. 142. On the trial of an indictment for threaten- 
 ing to accuse a person of an abominable crime, with intent 
 to extort money, and by intimidating the party by the 
 threat, in fact obtaining the money, the jury need not confine 
 themselves to the consideration of the expression used 
 before the money was, given, but may, if those expressions 
 are equivocal, connect with them what was afterwards said 
 by the prisoner when he was taken into custody : R. v. 
 Kain, 8 C. & P. 187. 
 
 See R. V. Popplewell, 20 O. R. 303. 
 
 As to what is a " valuable security," see cases under ss. 
 353 and 402. 
 
 A letter sent to a tavern keeper demanding a sum of 
 money and threatening, in default of payment, to bring a 
 prosecution under the Liquor License Act, is not a menace 
 within the meaning of c. 173, s. 1. 
 
 The test is whether or not the menace is such as a fiim 
 and prudent man might and ought to have resisted : R. v. 
 McDonald, 8 Man. L. R. 491. 
 
 Extortion by Other Threats. (New). 
 
 400. Every one is guilty of an indictable offence, and liable to imprison- 
 ment for seven years' who — 
 
 (ii) with intent to extort or gain anything from any person accuses or 
 threatens to accuse either that (jerson or any other person of any offence other 
 than those 8i)ecified in the last section whether the ijerson accused or threatened 
 wich acounation is guilty or not of that offence; or 
 
 (h) wi*^h such intent as aforesaid, threatens that any person shall be ao 
 Accused by any person ; or 
 
Sec. 406] 
 
 EXTORTION BY THREATS. 
 
 455 
 
 (e) causes any person to receive a document containing such accusation or 
 threat knowing the conten<;s thereof ; or 
 
 {d) by any of the means aforesaid, compels or attempts to compel any 
 person to execute, make, accept, endorse, alter or destroy the whole or any 
 part of any valuable Hecurity, or to write, impress or affix any name or seal 
 upon or to any pajier or parchment, in order that it may be afterwards made 
 or converted into, or used or dealt with at a valuable security. 
 
 " At present a policeman or gamekeeper who levies black- 
 mail under threats of larceny or poaching, if crimini y respon- 
 sible at all, is only punishable with imprisonment and fine." — 
 Imp. Comm. Rep. 
 
 This section extends the provisions of the preceding 
 section to threats of every accusation whatever. 
 
i.«:| 
 
 SB.'! 'IH 
 
 456 
 
 BURGLARY. 
 
 BURGLARY. 
 
 GENERAL REMARKS. 
 
 See R. V. Hughes, Warb. Lead. Cas. 190, and cases there 
 cited. * 
 
 Burglary, or nocturnal housebreaking, hurgi latrocl- 
 nium, which, by our ancient law, was called hamesecken, 
 has always been looked upon as a very heinous offence 
 for it always tends to occasion a frightful alarm, and often 
 i3ads by natural consequence to the crime of murder itself, 
 its malignity also is strongly illustrated by considering 
 how particular and tender a regard is paid by the law of 
 F/dgland to the immunity of a man's house, which it styles 
 n^H castle, and will never suffer to be violated with impunity; 
 agreeing herein with the sentiments of Ancient Rome, as 
 expressed in the words of Tully {Pro Domo. 41) "quid 
 enim sand his, quid omni religione 7nunitiu8,quam domm 
 uni iiscujusque civium ? " For this reason no outward doora 
 can, in general, be broken open to execute any civil pro- 
 cess, though, in criminal cases, the public safety supersedes 
 the private. Hence, also, in part arises the animadversion 
 of the law upon eavesdroppers, nuisancers, and incendiaries; 
 and to this principle it nmst be assigned, that a man may 
 assemble people [together lawfully (at least if they do not 
 exceed eleven), without danger of raising a riot, rout or 
 unlawful assembly, in order to protect and defend his 
 house, which he is nof ;>err.' iited to do in any other case: 
 4 Stephens' Black.s. 104 s. 79, s-s. 3 anf>>. 
 
 Burglary! is ^ break ;,'?.g and entering the man,sion-liouse 
 of another in the night, with intent to commit some felony 
 within the same, whether .such felonious intent be executed 
 o.* not : now any indictable offence, s. 410, j)Ost. In wliich 
 definition there are four things to be considered, the tvne, 
 the pl((ce, ihe manner, and the intent. 
 
GENERAL REMARKS. 
 
 457 
 
 The time. — The time must be by night and not by day, 
 for in the day time there is no burglary. As to what is 
 reckoned night and what day for this purpose, anciently 
 tlie day was accounted to begin only at sunrising, and to end 
 immediately upon sunset; but the better opinion afterwards 
 was that if there were daj^light or crepusculuvi enough> 
 bef'un or left, to discern a man's face withal, it was no 
 burglary. But this did not extend to moonlight, for then 
 many midnight burglaries would have gone unpunished^ 
 and besides, the malignity of the offence does not so properly 
 arise from its being done in the dark, as at the dead of 
 nit'ht, when all creation is at rest. But the doctrines of the 
 common law on this subject are no longer of practical 
 importance, as it is enacted by s. 3, ante, that the night 
 commences at nine of the clock in the afternoon of each day, 
 and concludes at six of the clock in the forenoon of the next 
 succ'isding day, and the day includes the remainder of the 
 twenty-four hours. The breaking and entering must both 
 be committed in the night-time; if the breaking be in the 
 day, and the entering in the night, or vice versa, it is no 
 burglary: see s. 410, post; 1 Hale, 551. But the breaking 
 and entering need not be both done in the same night ; for 
 if thieves break a hole in a house one night, with intent to 
 enter another night and commit felony and come accord- 
 ingly another night and commit a felony, this seems to be 
 burglary.for the breaking and entering were both noctanter, 
 though not the same night: 2 Russ. 39. The breaking on 
 Friday night with intent to enter at a future time, and the 
 entering on the Sunday night constitute burglary: R. v. 
 Smith, R. & R. 417. And then, the burglary is supposed 
 to have taken place on the night of the entry, and is to be 
 charged as such: 1 Hale, 551. In Jordan's Case, 7 C. & P. 
 432, it was lield that whero the breaking is on one night 
 and the entry on ano^-her, a party present at the breaking, 
 but absent at the entry, is a principal. 
 
 The place. — The breaking and entering must take place 
 in a mansion or dwelling-house to constitute burglary. 
 
 W 
 
 (Hk ^"'^^ 
 
 IS-) 
 
iiy M 
 
 :i: 
 
 m^ 
 
 \'ih hi 
 
 
 - *i 
 
 458 
 
 BURGLARY. 
 
 At common law, Lord Hale says that a church may be the 
 subject of burglary, 1 Hale, 559, on the ground, according 
 to Lord Coke, that a church is the mansion house of God, 
 though Hawkins, 1 vol. 133, does not approve of that 
 nicety, as he calls it, and thinks that burglary in a church 
 ^eems to be taken as a distinct burglary from that in a 
 house. However, this offence is now provided for : ss. 408 
 and 409, peat. 
 
 What is a dwelling house ? — See s. 407, post. From all 
 the cases it appears that it must be a place of actual 
 residence. Thus a house under repaira, in which no one 
 lives though the owner's property is deposited there, h not 
 Sk place in which burglary can be committed : R. v. L^ us, 
 1 Leach, 185 ; in this case neither the proprietor of the 
 house, nor any of his family, nor any person whatever had 
 yet occupied the house. 
 
 In Fuller's Case, 1 Leach, 186, note, the defendant 
 was charged of a burglary in the dwelling-house of Henry 
 Holland. The house was new built, and nearly finished; 
 a workman who was constantly employed hy Hollaiid slept 
 in it for the purpose of protecting it, but none of Holland's 
 family had yet taken possession of the house, and the 
 Court held that it was not the dwelling-house of Holland, 
 and that where the owner has never by himself or by any of 
 his family slept in the house, it is not his dwelling house, 
 so as to make the breaking thereof burglary, though hehaa 
 used it for his meals, and all the purposes of his business : 
 see R. V. Martin. R. & R. 108 
 
 If a porter lie in a warehouse for the purpose of pritect- 
 ing goods, R. v. Smith, 2 East, P. C. 497, or a servant lit in a 
 barn in order to watch thieves, R. v. Brown, 2 East, P. C. 501, 
 this does not make the warehouse or barn a dwelling-house in 
 which burglary can be committed. But if the agent of a 
 public company reside at a warehouse belonging to his 
 •employers this crime may be committed by breaking it, and 
 he may be stated to be the owner : R. v. Margetts, 2 Leach, 
 
GENERAL REMARKS. 
 
 459 
 
 slept 
 
 tusiness : 
 
 pri'tect- 
 
 t lit in a 
 P.C.501, 
 
 house in 
 rent of a 
 o- to his 
 \g it, anil 
 
 2 Leach, 
 
 930. Where the landlord of a dwelling-house, after the 
 tenant, whose furniture he had bought, had quitted it, put a 
 gervant into it to sleep there at night, until he should re-let it 
 to another tenant, but had no intention to reside in it him- 
 self, the judges held that it could not be deemed the 
 dwelling-house of the landlord : R, v. Davies, 2 Leach, 876. 
 So where the tenant had put all his goods and furniture 
 into the house, preparatory to his removing to it with his 
 family, but neither he nor any of his family had as yet 
 slept in it, it was holden not to be a dwelling-house in w^hich 
 bui'^lary can be committed : R. v. Hallard, 2 East, P. C. 498 1 
 R. V. Thompson, 2 Leach, 771. And the same has been ruled 
 when under such circumstances the tenant had put a 
 person, not being one of the family, into the house for the 
 protection of the goods and furniture in it, until it should 
 be ready for his residence : R. v, Harris, 2 Leach, 701 ; R. v. 
 Fuller, 1 Leach, 186. A house will not cease to be the 
 house of its owner, on account of his occasional or temporary 
 absence, even if no one sleep in it provided the owner has 
 an animus revertendi: R. v. Murry, 2 East, P. C. 496; and in 
 3. V. Kirkham, 2 Starkie, Ev. 279, Wood, B., held that the 
 offence of stealing in a dwelling-house had been committed, 
 although the owner and his family had left six months 
 before, having left the furniture and intending to return : 
 III, Nutbrown's Case, 2 East, P. C. 496. And though a man 
 leaves hia house and never means to live in it again, yet if 
 he uses part of it as a shop, and lets his servant and his 
 family live and sleep in another part of it for fear the 
 place should be robbed, and lets the rest to lodgers, the 
 :abitation by his servant and family will be a habitation 
 by him, and the shop may still be considered as part of his 
 dwelling-house : R. v. Gibbons, R. & R. 442. But where 
 the prosecutor and upholsterer left the house in which he 
 had resided with his fan.ily, without any intent of return- 
 ing to live in it, and took a ilwelling-house elsewhere, but 
 still retained the former house as a warehouse and work- 
 shop; two women emplo^'^ed by him as workwomen in his 
 
 W 
 
460 
 
 BURGLARY. 
 
 business, and not as domestic servants, slept there to take 
 care of the house, but did not have their meals tlc^re, or 
 use the house for any other purpose than sleepinjT iu jt j^g 
 a security to the house ; the judges held that this was not 
 properly described as the dwelling-house of the prosecutor: 
 R. V. Flannagan, R. & R. 187. The occupation of a servant 
 in that capacity, and not as tenant, is in many cases the 
 occupatljn ot a master, and will be a sufficient residence to 
 render it the dwelling-house of the master : R. v. Stock, 
 R. & R. l.So ; R. V. Wilson, R. & R. 115. Where the pri- 
 sonei' was indicted for burglary in the dwelling-house of 
 J. B., J. B. worked for one W., who did carpenter's work for 
 a public company, and put J. B. into the house in question, 
 which belonged to the company, to take care of it, and 
 some mills adjoining. J. ii. received no more wages after 
 than before he went to live in the house. It was held not 
 rightly laid : R. v. Rawlins, 7 C. & P. 150. If a servant 
 live in a house of his master's at a yearly rent the house 
 cannot be des'^rlbed as the master's house: R. v. Jarvis, 1 
 Moo. 7. Every permanent building, in which the renter 
 or o\»'ner and ids family dwell and lie, is deemed a dwell- 
 ing-liou.se, and burglary may be committed in it. Even a 
 set of chaTiibers in an inn of court or college is deemed a 
 distinct dwelling-house for this purpose. And it will be 
 sufficient if any part of his family reside in the house. 
 Thus where a servant boy of the prosecutor always slept 
 over his brew-house, which was separated from his dwell- 
 ing-house by a public passage, but occupied therewith, it was 
 holden, upon an indictment for burglary, that the brew- 
 house was the dwelling-house of the prosecutor, although, 
 being separated by the passage, it could not be deemed to be 
 part of the house in which he himself actually dwelt : K v. 
 Westwood, R. & R. 495. Burglary cannot be committed in 
 a tent or booth in a market or fair, even although the owner 
 lodge in it, because it is a temporary not a permanent edifice; 
 1 Hale, 557 ; but if it be a permanent building, though used 
 only for the purpose of a fair, it is a dwelling-house : R, v. 
 
GENERAL REMARKS. 
 
 4G1 
 
 ,o take 
 !'^ve, or 
 \v it aa 
 vas not 
 aecutor; 
 servant 
 ases the 
 dence to 
 V. Stock, 
 the pri- 
 ■house of 
 work for 
 question, 
 )f it, and 
 iges after 
 3 held not 
 a servant 
 the house 
 Jarvis, 1 
 ihe renter 
 Id a dwell- 
 Even a 
 deemed a 
 it will be 
 )he house, 
 ■ays slept 
 Ihis dwell- 
 lith.itwas 
 ihe hrew- 
 althougli, 
 smedtobe 
 •elt: R.V. 
 iinitted in 
 the owner 
 snt edifice; 
 toughused 
 
 luse : ^- 'V- 
 
 Smith, 1 I^t- & Kob. 256. So even a loft, ovei* a stable, used 
 for the abode of a coachman, which he rents for his own use 
 and that of his family, is a place wKich may be burglar- 
 iously broken : R. v. Turner, 1 Leach, 305. If a house be 
 divided, so as to form two or more dwelling-houses within 
 the meaning of the word in the definition of burglary, and 
 all internal communication be cut off, the partitions come 
 distinct houses and each part will be regarded as i niau- 
 sion : R. v. Joncs, 1 Leach, 537. But a house tit ioint 
 property of partnera in trade in which their bu is 
 
 carried on may be described as the dwelling-li >\iim of all 
 the partners, though only one of the partners reside in it : 
 R. V. Athea, 1 Moo. 329. If the owner, who lets out 
 apartments in his house to other persons, sleep under the 
 same I'oof and have but one outer door common to him and 
 his lodo-era, such lodgers are only inmates and all their 
 apartments are parcel of the one dwelling-house of the 
 owner. But if the owner do not lodge in the same house, 
 or if he and the lodgers enter by different outer-doors, the 
 apartments so let out are the mansion for the time being of 
 each lodger respectively, even though the rooms are let by 
 the year : 2 East, P. C. 505. If the owner let off a part, but 
 do not dwell in the part he reserves for himself, then the part 
 let off is deemed in law the dwelling-house of the party 
 who dwells in it, whether it communicates internally with 
 the other part or not ; but the part he has reserved for 
 himself is not the subject of burglary; it is not his dwelling- 
 house for he does not dwell in it, nor can it be deemed the 
 dwelling-house of the tenant for it forms no part of his 
 lodging: R. v. Rogers, R. v. Carrell, R. v. Trapshaw, 1 
 Leach, 80, 237, 427. If the owner let the whole of a dwell- 
 ing-house, retaining no part of it for his or his family's 
 dwelling, the part each tenant occupies and dwells in is 
 deemed in law to be the dwelling-house of such tenant, 
 whether the parts holden by the respective tenants com- 
 municate with each other internally or not : R. v. Bailey, 
 
 « 
 
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 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 872-4S03 
 

 
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 w 
 
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 462 
 
 BURGLARY. 
 
 1 Moo. 23 ; R. v. Jenkins, R. & R. 244 ; R. v. Carrell, 1 
 Leach, 237. 
 
 The term chvelling-hotLse includes in its legal significa- 
 tion all out-houses occupied with and imn.3diately commu- 
 nicating with the dwelling-house. But by s. 407, po8t, no 
 building," although within the same curtilage with any 
 dwelling-house, and occupied therewith, shell be deemed to 
 be part of such dwelling-house for any of the purposes of 
 this Act, unless there shall be a communication between 
 such building and dwelling-house, either immediate or by 
 means of a covered and enclosed passage leading from the 
 one to the other. Where the prosecutor's house consisted 
 of two living-rooms, another room used as a cellar, and a 
 wash-house on the ground floor, and of three bed-rooms up- 
 stairs, one of them! over the wash-house and the bedroom 
 over the house-place communicated with that over the 
 wash-house, but there was no internal communication 
 between the wash-house and any of the rooms of the house, 
 but the whole was under the same roof, and the defendant 
 broke into the wash-house, and was breaking through the 
 partition-wall between the wash-house and the house-place, 
 it was holden that the defendant was properly convicted of 
 burglary in breaking the house : R. v. Burrowes, 1 Moo., 
 274. But where adjoining to the house was a kiln, one end 
 of which was supported by the wall of the house, and 
 adjoining to the kiln a dairy, one end of which was sup- 
 ported by the wall of the kiln, the roofs of all three being 
 of different heights, and there being no internal communi- 
 cation from the house to the dairy, it wAs held that 
 burglary was not committed by breaking into the dairy : 
 R. V. Higgs, 2 C. & K. 322. To be within the meaning of 
 this section the building must be occupied with the house 
 in the same right ; and therefore where a house let to and 
 occupied by A. adjoined and communicated with a building 
 let to and occupied by A. and B., it was holden that the 
 building could not be considered a part of the dwelling- 
 
GENERAL REMARKS. 
 
 463: 
 
 ''"(it- 11 
 
 house of A.: R. v. Jenkins, R. & R. 244. If there be any 
 doubt as to the nature of the building broken and entered 
 a count may be inserted for breaking and entering a 
 building within the curtilage, under s. 413, post. 
 
 It has always been held necessary to state with accuracy 
 in the indictment to whom the dwelling-house belongs : see 
 now, 8. 613, post. But in all cases of doubt the pleader 
 should vary in different counts the name of the owner, 
 although thero can be little doubt that a variance in this 
 respect would be amended at the trial : Archbold, 496. As 
 to the local description of the house it must be proved as- 
 laid; if there is a variance between the indictment and 
 evidence in the parish, etc., where the house is alleged to be 
 situate, the defendant must be acquitted of the burglary 
 unless an amendment be made. To avoid difficulty differ- 
 ent counts should be inserted, varying the local description. 
 If the house be not proved to be a dwelling-house the 
 defendant must be acquitted of the burglary but found 
 guilty of the simple larceny, if larceny is proved : Arch- 
 bold, 489, 496. 
 
 The manner. — There must be both a breaking and an 
 entering of the house: see s. 4:07 , post The breaking is 
 either actual or constructive. Every entrance into the 
 house by a trespasser is not a breaking in this case. As if 
 the door of a mansion-house stand open and the thief enter, 
 this is not breaking ; so if the window of the house be 
 open, and a thief with a hook or other engine draweth out 
 some of the goods of the owner, this is no burglary because 
 there is no actual breaking of the house. But if the thief 
 breaketh the glass of a window, and, with a hook or other 
 engine draweth out some of the goods of the owner, this 
 is burglary for there was an actual breaking of the house :: 
 1 Hale, 551. Where a window was a little open, and not 
 sufficieutly so to admit a person, and the prisoner pushed 
 it wide open and got in, this was held to be sufficient- 
 breaking: R. V. Smith, 1 Moo. 178 ; s. 407, post. 
 
 
464 
 
 BURGLARY. 
 
 If there be an aperture in a cellar window to admit 
 light, through which a thief enter inTthe night, this is not 
 burglary : R. v. Lewis, 2 C. & P. 628 ; R. v. Spriggs, i 
 M. & Rob. 357. There is no need of any demolition of 
 the walls or any manual violence to^constitute a breakirio-. 
 Lord Hale says: "and these acts amount to an actual 
 breaking, viz., opening the casement, or breaking the glass 
 window, picking open a lock of a door with a false key, or 
 putting back the lock with a knife or dagger, unlatching 
 the door that is only latched, to put back the leaf of a 
 window with a dagger." In Roberts' case, 2 East, P. C. 487, 
 where a glass window was broken, and the window opened 
 wath the hand, but the shutters on the inside were not 
 broken, this was ruled to be burglary by Ward, Powis and 
 Tracy, JJ. ; but they thought this the extremity of 
 the law ; and, on a subse>iuent conference. Holt, C.J., and 
 Powell, C.J., doubting and inclining to another opinion, no 
 judgment was given. In Bailey's Case, R. & R. 341, it was 
 held by nine judges that introducing the hand between the 
 glass of an outer window and an inner shutter is a sufficient 
 entry to constitute burglary. If a thief enter by the 
 chimney it is a breaking, for that is as much closed as the 
 nature of things will permit. And it is burglarious break- 
 ing though none of the rooms of the house are entered. 
 Thus, in R. v. Brice, R. & R. 450, the prisoner got in at a 
 chimney and lowered himself a considerable way down, 
 just above the mantel piece of a room on the ground floor. 
 Two of the Judges thought he was not in the dwelling- 
 house till he was below the chimney-piece. The rest of 
 the judges, however, held otherwise, that tL inmey was 
 part of the dwelling-house, that the getting ..i at the top 
 was breaking of the dwelling-house, and that the lowering 
 himself was an entry therein. 
 
 Where the prisoner effected an entry by pulling down 
 the upper sash of a window, which had not been fastened 
 but merely kept in its place by the pulley weight, the 
 
GENERAL REMARKS. 
 
 465 
 
 admit 
 ) is not 
 
 iggs, 1 
 tion of 
 eakirig. 
 actual 
 lie glass 
 key, or 
 latching 
 3af of a 
 ^C.487, 
 / opened 
 vere not 
 owis and 
 jmity of 
 C.J., and 
 union, no 
 tl, it was 
 ,ween the 
 sufficient 
 by the 
 led as the 
 13 break- 
 entered. 
 It in at a 
 ay down, 
 lund floor. 
 Idwelling- 
 .6 rest of 
 vmey was 
 ,t the top 
 lowering 
 
 ling 
 
 down 
 fastened 
 ■ht, tlie 
 
 iig 
 
 judges held this to be a sufficient breaking to constitute 
 burglary, even although it also appeared that an outside 
 shutter, by which the window was usually secured, was not 
 closed or fastened at the time : R. v. Haines, R. &; R. 451. 
 Where an entry was effected, first into an outer cellar by 
 lifting up a heavy iron grating that led into it, and then 
 into the house by a window, and it appeared, that the 
 window, which opened by hinges, had been fastened by 
 means of two nails as wedges, but could, notwithstanding, 
 easily be opened by pushing, the judges held that opening 
 the window so secured was a breaking sufficient to consti- 
 tute burglary : R. v. Hall, R. &. R. 355. So where a party 
 thrust his arm through the broken pane of a window, and 
 in so doing broke some more of the pane, and removed the 
 fastenings of the window and opened it : R. v. Robinson, 
 1 Moo. 327. 
 
 But if a window thus opening on hinges, or a door, be 
 not fastened at all opening them would not be a breaking 
 within the definition of burglary. Even where the heavy 
 flat door of a cellar, which would keep closed by its ownr 
 weight, and would require some degree of force to raise it, 
 was opened; it had bolts by which it might have been 
 fastened on the inside, but it did not appear that it was sa 
 fastened at the time, the judges were divided in opinion^ 
 whether the opening of this door was such a breaking of 
 the house as constituted burglary : R. v. Callan, R. &. R. 157. 
 It was holden in Brown's Case that it was : 2 East, P.O. 487. 
 In R. v. Lawrence, 4 C. & P. 231, it was holden that it was 
 not In R. V. Russell, 1 Moo. 377, it vvas holden that it was.. 
 See s. 407, j50si. 
 
 Where the offender, with intent to commit a felony, 
 obtains admission by some artifice or trick for the purpose 
 of effecting it he will be guilty of burglary, for this is a 
 constructive breaking. Thus, where thieves, having an 
 intent to rob, raised the hue-and-cry, and brought the 
 constable, to whom the owner opened the door ; and when 
 Grim. Law— 30 
 
 w 
 
'T 1 
 
 '&-|r 
 
 466 
 
 BURGLARY. 
 
 they came in they bound the constable and robbed the 
 owner, this was held a burglary. So if admission be 
 gained under pretense of business, or if one take lodging 
 with a like felonious intent and afterwards rob the land- 
 lord, or get possession of a dwelling-house by false affidavits 
 without any colour of title, and then rifle the house, such 
 •entrance being gained by fraud, it will be burglarious. In 
 Hawkins' Case she was indicted for burglary ; upon evi- 
 <dence it appeared that she was acquainted with the house 
 and knew that the family were in the country, and meetino- 
 with the boy who kept the key she prevailed upon him to 
 go with her to the house by the promise of a pot of ale ; 
 the boy accordingly went with her, opened the door and let 
 her in, whereupon she sent the boy for the pot of ale, 
 robbed the house and went off, and this being in the night 
 time it Vv'as adjudged that the prisoner was clearly guilty 
 of burglary : 2 East, P. C. 485. If a servant conspire with 
 a robber, and let him into the house by night, this is 
 burglary in both : 1 Hale, 553 ; for the servant is doing an 
 unlawful act, and the opportunity afforded him of doing 
 i'-. with greater ease rather aggravates than extenuates the 
 guilt. But if a servant, pretending to agree with a robber 
 open the door and let him in for the purpose of detecting 
 and apprehending him, this is no burglary for the door is 
 lawfully open : R. v. Johnson, Car. & M. 218. 
 
 And the breaking necessary to constitute burglary is not 
 restricted to the breaking of the outer wall or doors or 
 windows of a house ; if the thief got admission into tlie 
 house by the outer door or windows being open, and after- 
 wards breaks or unlocks an inner door for the purpose of 
 entering one of the rooms in the house, this is burglary: 
 1 Hale, 553 ; 2 East, P. C. 488. So if a servant open his 
 master's chamber door, or the door of any other chamber 
 not immediately within his trust, with a felonious design, 
 or if any other person lodging in the same house, or ui a 
 public mn, open and enter another's door with such evil 
 intent, it is burglary; '2 East, P. C. 491 ; 1 Hale, 553; R. 
 
GENERAL REMARKS. 
 
 467 
 
 Ml •■ 
 
 V. Wenmouth, 8 Cox, 848. The breaking open chests is not 
 burglary : 1 Hale, 554. The breaking must be of some 
 part of the house ; and therefore, where the defendant 
 opened an area gate with a skeleton key, and then passed 
 through an open door into the kitchen, it was holden not 
 to be a breaking, there being no free passage from the area 
 to the house in the hours of sleep : R. v. Davis, R. & R. 322 ; 
 R. V. Bennett, R. & R. 289 ; R. v. Paine, 7 C. & P. 135. It 
 is essential that there should be an entry as well as a 
 breaking, and the entry must be connected with the break- 
 ing : 1 Hale. 555 ; R. v. Davis, 6 Cox, 369 ; R. v. Smith, 
 R. & R. 417. It is deemed an entry when the thief breaketh 
 the house, and his body or any part thereof, as his foot or 
 his arm, is within any part of the house; or when he 
 putteth a gun into a window which he hath broken, though 
 the hand be not in, or into a hole of the house which he 
 hath made, with intent to murder or kill, this is an entry 
 and breaking of the house ; but if he doth barely break 
 the house, without any such entry at all, this is no burg- 
 lary : 3 Inst. 64 ; 2 East, P. C. 490. Thieves came by night 
 to rob a house; the owner went out and struck one of 
 them ; another made a pass with a sword at persons he saw 
 in the entry, and, in so doing, his hand was over the 
 threshold : this was adjudged burglary by great advice : 
 2 East, P. C. 490. 
 
 In Gibbon's Case evidence that the prisoner in the night 
 time cut a hole in the window-shutters of a shop, part of 
 a dwelling-house, and putting his hand through the hole 
 took out watches, etc. was holden to be burglary although 
 no other entry was proved: 2 East, P. C. 490. Introducing 
 the hand through a pane of glass, broken by the prisoner, 
 between the outer window and the inner shutter, for the 
 purpose of undoing the window latch, is a sufficient entry : 
 R. v. Bailey, R. »fe R. 341. So would the mere introduction 
 of the offender's finger: R. v. Davis, R. & R. 499. So an 
 entry down a chimney is a sufficient entry in the house for 
 
3> 
 
 m<J . it 
 
 5" ' 
 
 ^ii 
 
 m 
 
 468 
 
 BURGLARY. 
 
 a chimney ia part of the house: R. v. Brice, R. & R. 450; 
 8. 407, post 
 
 It is even said that discharging a loaded gun into a 
 house is a sufficient entry: 1 Hawk. 132. Lord Hale, 
 1 vol. 155, is of a contrary opinion, but adds qucurel 2 East, 
 P. C. 490, seems to incline towards Hawkins' opinion. 
 Where thieves bored a hole through the door with a centre- 
 bit, and parts of the chips were found in the inside of the 
 house, this was holden not a sufficient entry to constitute 
 burglary: R. v. Hughes, 2 East, P. C. 491. If divers come 
 in the night to do a burglary, and one of them break and 
 enter, the rest of them standing to watch at a distance, this 
 is burglary in all: 1 Bum, 550. 
 
 In R. v. Spanner, 12 Cox, 155, Bramwell, B., held, that 
 an attempt to commit a burglary may be established on 
 proof of a breaking with intent to rob the house, although 
 there be no proof of an actual entry. The prisoner Avas 
 indicted for burglary, but no entry having been proved a 
 verdict for an attempt to commit a burglary was given. 
 
 The intent, — There can be no burglary but where the 
 indictment both expressly alleges, and the verdict also finds, 
 an intention to commit sonie felony (now any indictable 
 offence); for if it appear that the offender meant only to 
 commit a trespass, as to beat the party or the like, he is not 
 guilty of burglary: 1 Hale, 561. The intent must be proved 
 as laid. Where the intent laid was to kill a horse, and the 
 intent proved was merely to lame him in order to prevent 
 him, from running a race, the variance was holden fatal: R. 
 V. Dobbs, 2 East, P. C. 513. It is immaterial whether the 
 felonious intent be executed or not; thus, they are burglars 
 who, with a felonious intent, break any house or church in 
 the night, although they take nothing away. And herein 
 this offence differs from robbery, which requires that some- 
 thing be taken though it be not material of what value. 
 The felonious intent with which the prisoner broke and 
 entered the house cann'^>t be proved by positive testimony; 
 
Sec. 407] 
 
 DEFINITIONS. 
 
 469 
 
 it can only be proved by the admission of the party, or by 
 circumstances from which the jury may presume it. Where 
 it appears that the prisoner actually committed a felony 
 after he entered the house this is satisfactory evidence and 
 almost conclusive that the intent with which he broke and 
 entered the house was to commit that felony. Indeed, the 
 very fact of a man's breaking and entering a dwelling-house 
 in the night time is strong presumptive evidence that he 
 did 80 with intent to steal, and the jury will be warranted 
 in finding him guilty upon this evidence merely: R. v. Brice, 
 R. & R. 450; R. v. Spanner, 12 Cox, 155. If the intent be 
 at all doubtful it may be laid in different ways in different 
 counts: R. v. Thompson, 2 East, P. C. 515; 2 Russ. 45. It 
 seems sufficient, in all cases where a felony has actually 
 been committed, to allege the commissi., i of it, as that is 
 sufficient evidence of the intention. But the intent to com- 
 mit a felony (now any indictable offence), and the actual 
 commission of it, may both be alleged; and in general this 
 is the better mode of statement: R. v. Furnival, R. & R. 445. 
 
 As to punishment see post, s. 410. 
 
 nil ' i 
 
 
 PART XXX. 
 
 BURGLARY AND HOUSEBREAKING. 
 
 Definitions. 
 
 40T» In thia part the following^ words are used in the following senses : 
 
 (a) " Dwelling-house " means a i^ennanant building the v/hole or any part 
 
 of which is kept by the owner or occupier for the residence therein of himself, 
 
 his family or servants, or any of them, although it may at intervals be 
 
 unoccupied ; 
 
 (i) A building occupied with, and within the same curtilage with, any 
 dwelling-house shall be deemed to be part of the said dwellinv-house if 
 there is between such building and dwelling-house a communication, either 
 immediate or by means of a covered and inclosed passage, leading from the 
 
i in 
 
 I 
 
 470 
 
 BURGLARY AND HOUSEBREAKING. 
 
 tSeo. 408 
 
 one to the other, but not otherwise. R. S. C. o. 164, 8. 36. 24-2S V. o. t)6 
 8. fi3(Imp.). 
 
 (b) To " break " means to break any part, internal or external, of a build- 
 ing, or to open by any means whatever (including lifting, in the oase of things 
 kept in their places by their own weight), any door, window, shutter, cellar- 
 flap or other thing intended to cover openings to the building, or to give 
 passage from one part of it to another; 
 
 (i) An entrance into a building is made as soon as any part of the body 
 of the person making the entrance, or any part of any instrument used by 
 him, is within the building ; 
 
 (ii) Every one who obtains entrance into any building by any threat 
 or artifice used for that purpose, or by collusion with any person in the 
 building, or who enters any chimney or other aperture of the building per- 
 manently left open for any necessary purpose, shall be deemed to have 
 broken and entered that building. 
 
 These definitions are taken from the English draft 
 where they are given as existing law. 
 
 Breaking Places of Wokbhip. 
 I 
 408* Every one is guilty of an indictable oifence and liable to fourteen 
 years' imprisonment who breaks and enters any place of public Korthip and 
 commits any indictable offence therein, or who hMving committed any indictable 
 offence therein, breaks out of such place. R. S. C. c. 164, s. 35. {Aviended). 
 24-25V. c. 96, 8. 60(Imp.). 
 
 A tower of a parish church is a part of the church ; so 
 is the vestry : R. v. Wheeler, 3 C. & P. 585 ; R. v. Evans, 
 Car. & M. 298. 
 
 The goods of a dissenting chapel, vested in trustees, 
 cannot be described as the goods of a servant put in charge 
 of the chapel and the things in it : R. v. Hutchinson, R. & 
 R. 412. Where the goods belonging to a church are stolen 
 they may be laid in the indictment to be the goods of the 
 parishioners : 2 Russ. 73. 
 
 Indictment for breaking and entering a church and 
 stealing therein. — a place of public worship, to wit, 
 
 the church of the parish of in the county of 
 
 unlawfully did break and enter, and there, in the said 
 church, one silver cup of the goods and chattels of 
 unlawfully did steal : see ss. 619-620. 
 
 Indictment for stealing in and breaking out of a 
 church. — that at A. B., one silver cup, 
 
Sees. 409, 410] 
 
 PLACE OF WORSHIP. 
 
 471 
 
 rch and 
 
 ), to wit, 
 
 i 
 
 ihe said 
 
 f 
 
 nd of a 
 vev cup, 
 
 of the goods and chattels of in a place of public 
 
 worship, to wit, the church of the said parish there situate, 
 unlawfully did steal, and that the said (defendant) so being 
 in the said church as aforesaid, afterwards, and after he 
 had so coipmitted the said offence in the said church, as 
 aforesaid, on the day and year aforesaid, unlawfully did 
 break out of the said church : see ss. 619-620. 
 
 If a chapel which is private property be broken and 
 entered lay the property as in other cases of larceny. If 
 the evidence fails to prove the breaking and entering a 
 church, etc., the defendant may be convicted of simple 
 larceny. Upon the trial of any offence under this section 
 the jury may, under s. 711, convict of an attempt to com- 
 mit such offence. 
 
 Breakino Place of Worship with Intent. 
 
 409* Every one is guilty of an indictable offence and liable, to seven 
 years' imprisonment who breaks and enters any place of public worship with 
 intent to commit any indictable offence therein. R. S. 0. c. 164, s. 42 {amended), 
 24-25 V. c 96, s. 57 (Imp.) 
 
 /S'ee form under s. 412, j^ost. 
 
 BlTRGLARY— PONISHMBNT. 
 
 410> Every one is guilty of the indictable offence called burglary, and 
 liable to imprisonment for life, who — 
 
 ((() breaks and enters a dwelling-house by night with intent to commit any 
 indictable offence therein ; or 
 
 {b) breaks out of any dwelling-house by night, either after committing an 
 indictable offence therein, or after having entered such dwelling-house, either 
 by (lay or by night, with intent to commit an indictable offence therein. 
 R. S. C. c. 164, s. 37 (Amended). 24-25 V. c. 96, ss. 51, 52 (Imp.). 
 
 Section 3, ante, declares what is " night." 
 
 If a peraon commits a felony in a house, and afterwards 
 breaks out of it in the night-time, this is burglary, although 
 he might have been lawfully in the house ; if, therefore, a 
 lodger has committed a larceny in the house and in the 
 night-time even lifts a latch to get out of the house with 
 the stolen property, this is a burglarious breaking out of 
 the house : R. v. Wheeldon, 8 C. & P. 747. 
 
 W 
 
11 
 
 472 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 410 
 
 It has been held that getting out of a house by pushing 
 up a new trap-door, which was merely kept down by its 
 own weight, and on which fastenings had not yet been put, 
 but the old trap-door, for which this new one was substi- 
 tuted, had been secured by fastenings, was not a sufficient 
 breaking out of the house : R. v. Lawrence, 4 C. & P. 231. 
 On this case Greaves says : " unless a breaking out of a 
 house can be distinguished from the breaking into a 
 house, this case seems overruled by R. v. Russell, 1 Moo. 
 377." 
 
 If the felon, to get out of the dwelling-house, should 
 break an inside door the case would plainly enough be 
 within the statute. But the facts of the cases seem not to 
 have raised the question, absolutely to settle it, whether 
 where the intent is not to get out the breach of an inner 
 door by a person already within, having made w'hat is 
 tantam6unt to a felonious entry, but not by breaking, is 
 sufficient to constitute burglary, if there is no entry through 
 ;the inner door thus broken. There are indications that 
 the breaking alone in such circumstances may be deemed 
 enough : R. v. Wheeldon, supra. On the other hand, it 
 was held that burglary is not committed by an entry, with 
 felonious intent, into a dwelling-house, without breaking, 
 followed by a mere breaking, without entry, of an inside 
 door : R. v. Davis, 6 Cox, 369 ; 2 Bishop Cr. L. 100. But 
 in Kelyng's Cr. C. 104, it is said that if a servant in the 
 house, lodging in a room remote from his master in the 
 night-time, draweth the latch of a door to come into his 
 master's chamber, with an intent to kill him, this is burg- 
 lary. 
 
 On any indictment for burglary the prisoner may be 
 convicted of the offence of breaking the dwelling-house 
 under s. 412, post * 
 
 On an indictment for burglary the prisoner cannot be 
 found guilty of felonious receiving : St. Laurent v. R., 7 
 Q. L. R. 47! 
 
Sec. 410 
 
 by its 
 m put, 
 substi- 
 fficient 
 P. 231. 
 i of a 
 into a 
 1 Moo. 
 
 , should 
 )ugh be 
 n not to 
 whether 
 Hi mner 
 what is 
 aking, is 
 through 
 ons that 
 deemed 
 hand, it 
 iry, with 
 ireaking, 
 ,n inside 
 |0. But 
 it in the 
 )V in the 
 into his 
 is burg- 
 
 [may be 
 ag-house 
 
 annot be 
 V. R, 7 
 
 Sec. 410] 
 
 BURGLARY AND HOUSEBREAKING. 
 
 473 
 
 Indictment for burglary and larceny to the value of 
 twenty-five dollars. — that J. S., on about 
 
 the hour of eleven of the clock, of the night of the same 
 <lay, the dwelling-house of J. N., situate unlawfully 
 
 and burglariously did break and enter, with intent the 
 (roods and chattels of one K. O. in the said dwelling-house 
 then being, unlawfully and burglariously to steal ; and then 
 in the said dwelling-house, one silver sugar basin, of the 
 value of ten dollars, six silver table-spoons of the value, of 
 ten dollars, and twelve silver tea-spoons of the value of ten 
 dollars, of the goods and chattels of the said K. O. in the 
 said dwelling-house then being found, unlawfully and bur- 
 glariously did steal. 
 
 Upon this indictment the defendant, if all the facts 
 are proved as alleged, may be convicted of burglary ; if 
 they are all proved, with the exception that the breaking 
 was by night, the defendant may be convicted of house- 
 breaking, under S.411 ; if no breaking be proved, but the value 
 of the property stolen proved to be, as alleged, over twenty- 
 five dollars, the verdict may be of stealing in a dwelling- 
 house to that amount, under s. 345, ante ; if no satisfactory 
 evidence be offered to show, either that the house was a 
 dwelling-house or some building communicating therewitli, 
 or that it was the dwelling-house of the party named in 
 the indictment, or that it was locally situated as therein 
 alleged, or that the stolen property was of the value of 
 twenty-five dollars, still the defendant may be convicted of 
 a simple larceny; s. 713: 1 Taylor, Ev. 216; R. v. Comer, 
 1 Leach, 36 ; R. v. Hungerford, 2 East, P. C. 518. Where 
 several persons are indicted together for burglary and 
 larceny the offence of some may be burglary and of the 
 others only larceny : R. v. Butterworth R. & R. 520. See 
 post, remarks under s. 415. 
 
 If no indictable offence was committed in the house the 
 indictment should be as follows : — . 
 
 #1 
 
474 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 410 
 
 ii 
 
 that A B., on about the hour of eleven in the 
 
 night of the same day, at the dwelling-house of J. 
 
 N. there situate, unlawfully and burglariously did break 
 and enter, with intent the goods and chattels of the said 
 J. N. in the said dwelling-house then and there being 
 found, then and there unlawfully and burglariously to 
 steal. 
 
 The terms of art usually expressed by the averment 
 " burglariously did break and enter " are essentially neces- 
 sary to the indictment. The word burglar iottsly cannot 
 be expressed by any other word or circumlocution ; and 
 the averment that the prisoner broke and entered is neces- 
 sary, because a breaking without an entering, or an enter- 
 ing without a breaking, will not make burglary : 2 Russ. 
 50 : see s. 611, 2>ost. The offence must be laid to have been 
 committed in a mansion-house or dwelling-house, the term 
 dwelling-house being that more usually adopted in modern 
 practice. It will not be sufficient to say a house : 2 Russ. 
 46; 1 Hale, 550. It has been said that the indictment 
 need not state whose goods were intended to be stolen, or 
 were stolen : R. v. Clarke, 1 C. & K. 42 1 ; R. v. Nicholas, 1 
 Cox, 218; R. V. Lawee, 1 C. & K. 62; nor specify which 
 goods, if an attempt or an intent to steal only is charged : 
 R. V. Johnson, L. & C. 489 : see s. 613, 2^ost. 
 
 It is better to state at what hour of the night tie acts 
 complained of took place, though it is not necessi« } that 
 the evidence should correspond with the allegation as to 
 the exact hour ; it will be sufficient if it shows the acts to 
 have been committed in the night as this word is inter- 
 preted by the statute. However, in R. v. Thompson, 2 
 Cox, 377, it was held that the hour need not be specified, 
 and that it will be sufficient if the indictment alleges in 
 the night 
 
 Indictment for burglary by breaking out. — that 
 
 J. S., on about the hour of eleven in the night of the 
 
 same day, being in the dwelling-house of K. 0., situate 
 
Sec. 411] 
 
 BURGLARY AND HOUSEBREAKING. 
 
 475 
 
 one silver sugar-basin of the value of ten dollars, 
 six silver table-spoons of the value of ten dollars, and 
 twelve silver tea-spoons of the value of ten dollars, of the 
 goods and chattels of the said K. O., in the said dwelling- 
 house of the said K. O., then being in the said dwelling- 
 house, unlawfully did steal, and that he, the said J. S., 
 being so as aforesaid in the said dwelling-house, and hav- 
 ing committed the offence aforesaid, in manner and form 
 aforesaid, afterwards, to wit, on the same day and year 
 aforesaid, about the hour of eleven in the night of the same 
 day, unlawfully and burglariously did break out of the 
 said dwelling-house of the said K. O. 
 
 An indictment alleging " did break to get out " or " did 
 break and get out " is bad ; the words of the statute are 
 "break out :" R. v. Compton, 7 C. & P. 139. See pages 4 71 et 
 seq. ante; R. v. Lawrence, 4 C. & P. 231; R. v. Wheeldon, 
 8 C. & P. 747, and remarks on burglary. If it be doubtful 
 whether an indictable offence can be proved, but there be 
 sufficient evidence of an intent to commit such an offence, 
 a count may be added stating the intent. To prove this 
 count the prosecutor must prove the entry, the intent as 
 in other cases, and the breaking out. 
 
 Upon the trial of any offence hereinbefore mentioned 
 the jury may convict of an attempt to commit such offence, 
 if the evidence warrants it, under s. 711, ^jos^. 
 
 Housebreaking and Committing an Offence. 
 
 411. Every one is guilty of the indictable offence called housebreaking, 
 and liable to fourteen years' imprisonment, who — 
 
 (rt) brea'' and enters any dwelling-house by day and commits any iiulict- 
 (iWe (fence therein ; or 
 
 [l] breaks out of any dwelling-house by day after having committed any 
 miktahh offence therein. R. S. C. c 104, s. 41 (Ametided). 24-25 V. c. 90, 
 
 See cases cited in R. v. Hughes, Warb. Lead. Cas. 190. 
 
 The words " schoolhouse, shop, warehouse or counting- 
 
 I house," in the repealed section have been omitted : see post, 
 8, 413. 
 
 m 
 
si 
 
 I 
 
 476 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 411 
 
 The breaking and entering must be proved in the same 
 manner as in burglary, except that it need not be proved 
 to have been done in the night-time. But if it be proved 
 to have been done in the night-time, so as to amount to 
 burglary, the defendant may, notwithstanding, be convicted 
 upon this indictment: R. v. Pearce, R. & R. 174; R. v. 
 Robinson, R. &; R. 321 ; Archbold, 399. And so, also, any 
 breaking and entering which would be sufficient in a case 
 of burglary would be sufficient under this section. Thus, 
 where the prisoner burst open an inner door in the inside 
 of a house, and so entered a shop, in order to steal money 
 from the till, it was held that this was a sufficient breaking 
 to support an indictment for housebreaking : R. v. Wen- 
 mouth, 8 Cox, 348. The value of the goods is immaterial 
 if a breaking and entry be proved; but if proved and 
 alleged to be of the value of twenty-five dollars, the 
 prisoner may be convicted of the offence described in s. 345, 
 ante ; if the prosecutor succeed in proving the larceny, but 
 fail in proving any of the other aggravating circumstances, 
 the defendant may be convicted of simple larceny. The 
 same accuracy in the statement of the ownership and situ- 
 ation of the dwelling-house is necessary in an indictment 
 for this offence as in burglary. But it must be remembered 
 that any error in these matters may now be amended. 
 
 As in simple larceny, the least removal of the goods 
 from the place where the thief found them, though they 
 are not carried out of the house, is sufficient upon an indict- 
 ment for house-breaking. It appeared that the prisoner, 
 after having broken into the house, took two half-sovereigns 
 out of a bureau in one of the rooms, but being detected he 
 threw them under the grate in that room ; it was held thit 
 if they were taken with a felonious intent this was a suffi- 
 cient removal of them to constitute the offence: R. v, 
 Amier, 6 C. & P. 344. 
 
 As to what was a shop under the repealed section {m^ 
 post, 8. 413), it was once said that it must be a shop for the 
 
w 
 
 Sec. 411] 
 
 BURGLARY AND HOUSEF^ 
 
 ING. 
 
 477 
 
 sale of goods, and that a mere worksn';;^^ was not within 
 the clause : R. v. Sanders, 9 C. & P. 79 ; but in R. v. Carter, 
 1 C. & K, 173, Lord Denman, C.J., declined to be governed 
 by the preceding case, and held that a blacksmith's shop, 
 used as a workshop only, was within the statute. A ware- 
 house means a place where a man stores or keeps his goods 
 which are not immediately wanted for sale ; R. v. Hill, 2 
 Russ. 95. Upon an indictment for breaking and entering 
 a counting-house, owned by Gamble, and stealing therein, 
 it appeared that Gamble was the proprietor of extensive 
 chemical works, and that the prisoner broke and entered a 
 building, part of the premises, which was commonly called 
 the machine-house, and stole therein a large quantity of 
 money. In this building, there was a weighing machine* 
 at which all goods sent out were weighed, and one of 
 Gamble's servants kept in that building a book in which 
 he entered all goods weighed and sent out. The account of 
 the time of the men employed in different departments was 
 taken in that building and their wages were paid there ; 
 the books in which their time was entered were brought to 
 that building for the purpose of making the entries and 
 paying the wages. At other times they were kept in an- 
 other building called the office, where the general books and 
 accounts of the concern were kept. It was objected that 
 this was not a counting-house ; but, upon a case reserved, 
 the judges held that it was a counting-house within the 
 statute : R. v. Potter, 2 Den. 235. 
 
 An indictment for house-breaking is good if it alleges 
 that the prisoner broke and entered the dwelling-house, 
 and the goods of in the said dwelling-house then 
 
 and there being found, then and there (omitting " in the 
 said dwelling-house ") unlawfully did steal : R. v. Andrews, 
 Car. & M. ]21, overruling R. v. Smith, 2 M. & Rob 115, 
 which Coleridge, J., [said Patteson, J., was himself since 
 satisfied had been ^wrongly decided : 2 Russ. 76, note by 
 Greaves. 
 
■'" ^ 
 
 I 5-1^.' . (■ 
 
 478 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 412 
 
 Indxcttnent — the dwelling-house of J. N., situate 
 
 unlawfully did break and enter, by day, with intent 
 the goods and chattels of the said J. N., in the said dwelling- 
 house then being, unlawfully to steal, and one dressing-case 
 of the value of twenty-five dollars, of the goods and chattels 
 of the said J. N,, then in the said dwelling-house, then un- 
 lawfully did steal. 
 
 Upon the trial of an indictment for an offence under 
 this section the jury may, under s. 711, convict the defend- 
 ant of an attempt to commit the same, if the evidence 
 warrants it. But they can only convict of the attempt to 
 commit the identical offence charged in the indictment ; the 
 prisoner was indicted for breaking and entering a dwelling- 
 house, and stealing therein certain goods specified in the 
 indictment, the pitoperty of the prosecutor. It was proved 
 at the trial that at the time of the breaking the goods 
 specified were not in the house, but there were other goods 
 there, the property of the prosecutor ; the prisoner had not 
 had time to steal anything, having been caught immediately 
 after his entering the house. The jury acquitted the 
 prisoner of the felony charged, but found him guilty 
 of breaking and entering the dwelling-house of the pro- 
 secutor, and attempting to steal his goods therein. HeW,, 
 that the conviction was wrong, and that an attempt must 
 be to do that which, if successful, would amount to the 
 felony charged : R. v. McPherson, Dears. & B. 197. The 
 prisoner, under such circumstances, may be convicted of 
 breaking and entering with intent to commit an indictable 
 offence, under s. 412, post. But only if, as in the form above 
 given, the intent is alleged, which was not the case in R. v, 
 McPherson. See s. 64, p. 42, ante. 
 
 HOUSBBRRAKINO WiTH INTENT. 
 
 412. Every one is pruilty of an indictable offence and liable to seven 
 years' imprisonment who, by day, breaks and enters any dwelling-house with 
 intent to commit any indictable offence therein. R. S. C. c. 164, s. 42 
 (Amended). 24-25 V. c. 96. s. 57 (Imp. ). 
 
Spo. 412] 
 
 BURGLARY AND HOUSEBREAKING. 
 
 479 
 
 The words " schoolhouse, shop, warehouse and counting 
 house " were in the repealed clause. 
 
 Indictment. — on the dwelling-house of 
 
 J. N., situate unlawfully did break and enter by day 
 
 with intent to commit an indictable offence therein, to wit, 
 the goods and chattels of the said J. N., in the said dwell- 
 ing-house there being, then to steal. 
 
 Where there is only an attempt it is not always possible 
 to say what goods the would-be thief meant to steal, and 
 an indictment for an attempt to commit larceny need not 
 specify the goods intended to be stolen : R. v. Johnson, 
 L & C. 489. 
 
 Upon an indictment under this section the prisoner 
 may be convicted, under s. 711, of attempting to commit 
 the offence charged : R. v. Bain, L. & C. 129. 
 
 Greaves says : " This clause is new, and contains a very 
 
 important improvement in the law. Formerly the offence 
 
 here provided was only a misdemeanour at common law. 
 
 Now it often happened that such an offence was very 
 
 inadequately punished as a misdemeanour, especially since 
 
 the night was made to commence at nine in the evening; 
 
 for at that time, in the winter, in rural districts, the poor 
 
 were often in bed. Nor could anything be much more 
 
 unreasonable than that the same acts done just after nine 
 
 o'clock at night should be liable to penal servitude for life, 
 
 but if done just before nine they should only be punishable 
 
 as a misdemeanour. It is clear that if, on the trial of an 
 
 indictment for burglary with intent to commit a felony, it 
 
 should appear that the breaking and entry were before 
 
 nine o'clock the prisoner might be convicted under this 
 
 clause. But upon an indictment in the ordinary form 
 
 for house-breaking, the prisoner could not be convicted 
 
 under this clause, because it does not allege an intent to 
 
 commit a felony (as in McPherson's Case, ante, under last 
 
 preceding section). It will be well, however, to alter the 
 
 form of these indictments, and to allege a breaking and 
 
 m 
 
 k 
 
 
 -I- \ 
 
md < 
 
 
 480 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 4ia 
 
 entry with intent to commit some felony (any indictable 
 offence), in the same manner as in an indictment for bur- 
 glary with intent to commit felony, an.d then to allege the 
 felony that is supposed to have been committed in the 
 house. If this be done, then, if the evidence fail to prove 
 the commission of that felony, but prove that the prisoner 
 broke and entered with intent to commit it, he may be 
 convicted under this clause." 
 
 Breaking Shop, Sohool-housb, Etc., and Committino an Offence. 
 
 413. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who, either by day or night, breaks and enters and com- 
 mits any indictable offence in a school-house, shop, warehouse or counting 
 house, or any building within the curtilage of a dwelling house, but not so con- 
 nected therewith as to form iiart of it under the provisions hereinbefore 
 contained. R. S. C. o. 164, s. 40 (Amended). 24-25 V. o. 96, ss. 55-56 (Imp.). 
 
 Section 407 defines what is within the curtilage. 
 
 See ante, under s. 411 what is a shop, or warehouse, or 
 counting-house : also as to indictment. 
 
 " Curtilage " is a court-yard, enclosure or piece of land 
 near and belonging to a dwelling-house. — Toml. Law Bid 
 
 The breaking and entering must be proved in the same 
 manner as in burglary, except that it is immaterial whether 
 it was done in the day or night. If this proof fail the 
 defendant may be convicted of simple larceny. 
 
 The building described in the statute is " any building 
 within the curtilage of a dwelling-house, but not so con- 
 nected therewith as to form part of it under the provisions 
 hereinbefore contained," that is, not communicating with the 
 dwelling-house, either immediately or by means of a covered 
 and enclosed passage leading from the one to other as de- 
 scribed in s. 407. To break and enter such a building was, 
 before the present statute, burglary, or house-breaking, and 
 although this enactment, which expressly defines the build- 
 ing meant thereby to be a building within the curtilage, 
 appears to exclude many of those buildings which were 
 formerly deemed parcel of the dwelling-house, from their 
 adjoining the dwelling-house, and being occupied there- 
 
Sec. 413] 
 
 HOUSEBREAKING WITH INTENT. 
 
 481 
 
 with, although not within any common enclosure or 
 curtilage, yet some of the cases decided upon these subjects 
 may afford some guide to the construction of the present 
 section. Where the defendant broke into a goose-house, 
 which opened into the prosecutor's yard, into which yard 
 the prosecutor's house also opened, and the yard was sur- 
 rounded, partly by other buildings of the homestead, and 
 partly by a wall in which there was a gate leading to the 
 road, and some of the buildings had doors opening into the 
 lane, as well as into the yard, the goose-house was holden 
 to be part of the dwelling-house : R. v. Clayburn, R. & R. 
 360. Where the prosecutor's house was at the corner of 
 the street, and adjoining thereto was a workshop, beyond 
 which a coach-house and stable adjoined, all of which were 
 used with the house and had doors opening into a yard 
 belonging to the house, which yard was surrounded by 
 adjoining buildings and was altogether enclosed, but the 
 shop had no internal communication with the house, had a 
 door opening into the street, and its roof was higher than 
 that of the house, the workshop was holden to be a parcel 
 of the dwelling-house : R. v. Chalking, R. &. R. 334. So, a 
 warehouse which had a separate entrance from the street^ 
 and had no internal communication with the dwelling-house 
 with which it was occupied but was under the same roof, 
 and had a back door opening into the yard into which the 
 house also opened and which enclosed both, was holden to 
 be part of the dwelling-house : R. v. Lithgo, R. & R. 357. 
 So, where in one range of buildings the prosecutor had a 
 warehouse and two dwelling-houses, formerly one house, 
 all of which had entrances into the street, but had also doors 
 opening into an enclosed yard belonging to the prosecutor, 
 and the prosecutor let one of the houses between his house 
 and the warehouse together with certain easements in the 
 yard, it was holden that the warehouse was parcel of the 
 dwelling-house of the' prosecutor; it was so before the 
 division of the house and remained so afterwards: R. v, 
 Crim. Law— 31 
 
 silMil: 
 
 II 
 
 mm 
 
 llrlM 
 
482 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [See. 41» 
 
 Walters, 1 Moo. 13. And where the dwelling-house of the 
 prosecutor was in the centre of a space of about an acre of 
 land, surrounded by a garden wall, the front wall of a 
 factory, and the wall of the stable-yard, the whole being 
 the property of the prosecutor who used the factory, partlv 
 for his own business and partly in a business in which he 
 had a partner, and the factory opened into an open passage 
 into which the outer door of the dwelling-house also opened, 
 it was holden that the factory was properly described as 
 the dwelling-house of the prosecutor : R. v. Hancock, R. (Sj 
 R. 170. But a building separated from the dwelling-house 
 by a public thoroughfare cannot be deemed to be part of 
 the dwelling-house : R. v. Westwood, R. & R. 495. So 
 neither is a wall, gate or other fence, being part of the out- 
 ward fence of thp Curtilage, and opening into no building 
 but into the yard only, part of the dwelling-house : R. v. 
 Bennett, R. & R. 289. Nor is the gate of an area, which 
 opens into the area only, if there be a door or fastening to 
 prevent persons from passing from the area into the house 
 although that door or other fastening may not be secured 
 at that time : R. v. Davis, R. & R. 322. 
 
 Where the building broken into was in the iold-yard of 
 the prosecutor's farm, to get to which from the house it 
 was necessary to pass through another yard called the 
 pump-yard into which the back door of the house opened, 
 the pump-yard being divided from the fold-yard by a wall 
 four feet high in which there was a gate, and the fold-yard 
 being bounded on all sides by the farm buildings, a wall 
 from the house, a hedge and gates, it was held that the 
 building was within the curtilage : R. v. Gilbert, 1 C. & E. 
 84. See R. v. Egginton, 2 Leach, 913. 
 
 Indictment. — a certain building of one J. N., 
 
 situate unlawfully did break and enter, the said 
 
 building then being within the curtilage of the d'^velling- 
 house of the said J. N. there situate, and by the said J. N. 
 then and there occupied therewith, and there being then 
 
8ac3. 414, 415] 
 
 BREAKING SHOP, ETa 
 
 488 
 
 and there no communication between the said building and 
 the said dwelling-house, either immediate or by means of 
 any covered and enclosed passage leading from the one to 
 the other, with intent the goods and chattels of the said 
 J. N. in the said building then being to steal, and that the 
 said J. S. then and there, in the said building, one silver 
 watch of the goods and chattels of the said J. N. did steal. 
 
 This count may be added to an indictment for burglary^ 
 house-breaking or stealing in a dwelling-house to the amount 
 of twenty-five dollars, and should be added whenever it 
 is doubtful whether the building is in strictness a dwelling- 
 house. If the evidence fail to prove the actual stealing, 
 but the breaking, entry and intent to steal be proved, the 
 prisoner may be convicted, under this indictment, of the 
 offence described in s. 414, as this indictment alleges the 
 intent as well as the act. 
 
 Under s. 711 a verdict of guilty of an attempt to com- 
 mit the offence charged may be given upon an indictment. 
 on this section, if the evidence warrants it. 
 
 Breakinq Shop, School-house, Etc., With Intent, 
 
 414« Every one la guilty of an indictable offence and liable to seven'' 1 
 years' imprisonment who, either by day or night, breaks and enters any of thg 
 buildings mentioned in the last preceding section with intent to commit any 
 MictaUe offence therein. R. S. C. a 164, s. 42 (Amended). 24-26 V. o. 96, 
 
 8, 57 (Imp.). 
 
 See remarks under sa. 412 & 413 ante. Iva.. ^ f ) \ 
 
 Being Found in Dwellinq-hoube by Night. 
 
 415. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who unlawfully enters, or is in, any dwelling-house by 
 night with intent to commit any indictable offence therein. R. S. C. c. 164 
 8. 39. 24-25 V. c. 96, s. 54 (Imp.). 
 
 Greaves says : " This clause is new and contains a great 
 improvement of the law. It frequently happened on the 
 trial of an indictment for burglary where no property had 
 been stolen that the prisoner escaped altogether for want 
 of sufficient proof of the house having been broken into, 
 though there was no moral doubt that it had been so. This 
 
 m^ 
 
';t. ; 
 
 484 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 416 
 
 clause will meet all such cases. It will also meet all cases 
 where any door or window has been left open, and the 
 prisoner has entered by it in the night. It is clear that if 
 on the trial of an indictment for burglary with intent to 
 commit a felony, the proof of a breaking should fail, the 
 prisoner might nevertheless be convicted of the offence 
 created by this clause for such an indictment contains 
 everything that is required to constitute an offence under 
 this clause, in addition to the allegation of the breaking 
 and the prisoner may be acquitted of the breakino- and 
 convicted of the entering with intent to commit felony, in 
 the same way as on an indictment for burglary and steal- 
 ing he may be acquitted of the breaking and convicted of 
 the stealing. And this affords an additional reason why, in 
 an indictment for burglary and committing a felonj'^, there 
 should always be introduced an averment of an intent to 
 commit a felony, so that if the proof of the commission of 
 the felony and of the breaking fail the prisoner may 
 nevertheless be convicted of entering by night with intent 
 to commit it." 
 
 Indictment. — that J. S., on about the hour 
 
 X)i eleven in the night of that same day, the dwelling of 
 K. O., situate unlawfully did enter, with intent the 
 
 goods and chattels of the said K. O., in the said dwelling- 
 house then being, to steal. 
 
 As to what is night, and what is a dwelling-house, in 
 the interpretation of this clause the same rules as for bur- 
 glary must be followed. Under s. 711 the jury may, if the 
 evidence warrants it, convict of an attempt to commit the 
 offence charged upon an indictment under this section. 
 
 Beino Found Armed With Intent. 
 
 416* Every one is guilty of an indictable offence and liable to «ctrn 
 years' imprisonment who is found — 
 
 (a) armed with any dangerous or offensive weapon or instrument by day, 
 with intent to break or enter into any dwelling-house, and to commit ani/ 
 indictable offence therein ; or 
 
liable to tern 
 
 S«c. 417] 
 
 BEING DISGUISED, ETC. 
 
 485 
 
 ((,) armed aa aforeuid by night, with intent to break into any buildingr 
 tnd to eomnnit any indietabit offence therein. R. S. C. o. 164, s. 43 {Amended). 
 J4.25 V. 0. 96, 8. 68 (Imp.). 
 
 " Offensive weapon " defined, s. 3. 
 
 The punishment' was three years under the repealed 
 clause. 
 
 The word " by day " is new. By day the offence is as 
 to a dwelling-house only. By night it is as to any building : . 
 see form of indictment under next section. 
 
 Beino DiaauisED or in Possession of Houbb-brearino Instruments. 
 
 4 IT* Every one w guilty of an indictable offence and liable to Jive yeara* 
 impriBonment who is found — 
 
 (a) having in his possession by night, without lawful excuse (the proof of 
 which shall lie upon him) any instrument of housebreaking ; or 
 
 (6) having in his possession by day any such instrument with intent to 
 commit any indictable offence ; or 
 
 (c) having his face masked or Uackened, or being otherwise disguised, by 
 nijW, without lawful excuse (the proof whereof shall lie on him) ; or 
 
 (({) having his face masked or blackened, or being otherwise disguised, by 
 iiaij, with intent to commit any indictable offence. R. S. C. c. 164, s. 43 
 {Amended). 24-25 V. c. 100, s. 58 (Imp.). 
 
 " Having in possession," defined, s. 3. 
 
 The words in italics are new. 
 
 Sub-sections (6), (c), (d) are also new or extensions of the 
 repealed statute. 
 
 " It is thought that being disguised by night affords sufficient 
 ^limajavie evidence of a criminal intent." — Imp. Comm. Rep. 
 
 The punishment was three years under the repealed 
 clause. 
 
 Indictment under 8. 4^6 for being found by night . 
 armed. — that A. B. on about the hour 
 
 of eleven of the night of the same day at was 
 
 found unlawfully armed with a certain dangerous and 
 offensive weapon (or instrument), with intent to break and 
 enter into a dwelling-house {or any other building) of C. 
 D. there situate, and the goods and chattels in the said 
 dwelling-house (or any other building), then being, unlaw- 
 fully to steal. 
 
 
 m 
 
486 
 
 BURGLARY AND HOUSKBREAKING. 
 
 [Hec. 417 
 
 It is not necessary to aver that the goods and chattels 
 were the property of any particular person : R. v. Lawes, 
 R. V. Clarke, 1 C. & K. 62, 421 ; R. v. Nicholas, 1 Cox, 218. 
 
 See, ante, s. 3, as to the interpretation of the woi'l 
 "night." 
 
 In R. V. Jarrald, L, & C. 301, it was held, upon a case 
 reserved, that an indictment under the repealed section, for 
 being found by night anued with a dangerous and oflensive 
 weapon and instrument, with intent to break and enter 
 into a building and commit a felony therein, must specify, 
 as in burglary, the building to be broken into. Cronipton, 
 J., was of opinion that the particular felony intended must 
 also be specified. 
 
 On this case Greaves, 2 Russ. 70, note g, says : " With 
 all deference it is submitted that this decision is clearly 
 erroneous. Tlie ground on which Cockburn, C.J., rests the 
 decision of the first point (as to a particular house to be 
 specified, now s. 417) is answered by the second clause of 
 the same section ; for, under it, the mere possession, with- 
 out lawful excuse, of any instrument of housebreaking in 
 the night constitutes the offence without any intent to 
 commit felony vX all ; and this offence is plainly one step 
 further from the attempt to commit a felony than where 
 the intent to commit some felony exists, though the par- 
 ticular felony is not yet fixed . . . As to the rules of 
 criminal pleading these seem, in this case, to have been 
 misconceived. It is quite a. mistake to suppose that these 
 rules require the specification of particulars where it is 
 impracticable to specify them. Wherever this is the case 
 the rules allow general or other statements instead. . . , 
 It cannot be doubted that ins decision, instead of promot- 
 ing the object of the Act in this respect, is substantially a 
 repeal of it, for it is hardly conceivable that, in the majority 
 of cases, it will be possible to prove an intent to commit 
 any particular felony." 
 
St^c. 417] 
 
 DEINO DISOUISKI), ETC. 
 
 487 
 
 To this Cave anHWCfs, (3 Burn, 252, note a) : " . . . . 
 But a close conHideration of the statute appears to contiriu 
 it (tlio decision in JarrcUd'a Case) : it may woll be that in 
 all the other cases except ' having implements )f house- 
 breaking ' an intent must be clearly proved ; for the 
 ' k'inj,' armed with a dangerous weapon ' or ' having the 
 face blacked ' or ' being by night in a dwelling-house ' 
 are clearly no offences unless done for a felonious purpose. 
 AjkI the very essence of the offence is such felonious purpose. 
 But, with regard to ' having instruments of house-breaking,' 
 the statute implies the intent from the nature of the instru- 
 ment, and throws the proof of innocence upon the prisoner, 
 The general intention of the statute is thus well carried out; 
 for if a man be found by night anywhere with house- 
 breaking implements, or such as the jury shall think he 
 intended to use as such, he may be indicted for that 
 offence. But if ho has not any house-breaking implements, 
 but is ' armed with a dangerous weapon ' not usable for 
 house-breaking, then the particular intent under s. 416 
 must be laid and proved as laid." 
 
 Indictment under a. 4-^7 (a) for having in poHseaaion, 
 by night, implements of house-breaking. — on 
 
 about the hour of eleven in the night of the same (Jay, 
 at was found, he the said (defendant) then and there, 
 
 by night as aforesaid, unlawfully having in his possession, 
 without lawful excuse, certain implements of house-break- 
 ing (to wit ). 
 
 An instrument capable of being used for lawful purposes 
 is within the statute if the jury find that such instrument 
 may also be used for the purposes of house-breaking, and 
 that the prisoner intended to use it as an implement of 
 house-breaking when found at night in possession of it: 
 R. v. Oldham, 2 Den. 472. 
 
 Where an indictment for having in possession without 
 lawful excuse certain implements of house-breaking by night 
 the jury found the prisoners guilty of the possession without 
 
488 
 
 BURGLARY AND HOUSEBREAKING. 
 
 [Sec. 418 
 
 lawful excuse, but that there was no evidence of an intent to 
 commit a felony, and the indictment omitted the words 
 " with intent to commit a felony," it was held that the 
 omission did not render the indictment bad, and that it 
 was not necessary to prove an intent to commit a felony: 
 R. V. Bailey, Dears. 244. 
 
 iTidictment uvder s. ^17 (d) for being found by day with 
 a disguised face with intent to commit an indictable offence. 
 that at on A. B. was found by day, then and 
 
 there having his face blackened (Trmsked, blackened or other- 
 wise disguised) with intent then and there to kill and 
 murder one C. D. 
 
 In R. V. Thompson, 11 Cox, 362, held, that where several 
 persons are found out together by night for the common 
 purpose of house-breaking and one only is in possession of 
 house-breaking implements all may be found guilty of the 
 misdemeanour created by this section, for the possession of 
 one is in such case the possession of all. See s. 3 for defini- 
 tion of " having in possession." 
 
 Punishment After Previous Conviction. 
 
 418« Every one who, after a previous conviction for any indictable 
 ofencCf is convicted of an indictable offence specified in this part for which the 
 punishment oa a first conviction is less than fourteen years' imprisontnont h 
 liable to fourteen years' imprisonment. R. S. 0. c. Ifri, s. 44 (Amended). 
 24-25 V. c. 96, s. 69 (Imp.). 
 
 The imprisonment was for ten years under the repealed 
 clause. As to trial of an offence after a previous convic- 
 tion see post, ss. 628 and 676. 
 
GENERAL REMARKS. 
 
 4S9 
 
 FORGERY. 
 
 ( - / 
 
 I 
 
 GENERAL REMARKS. 
 
 " To forge is metaphorically taken from the smith who 
 beateth upon his anvil, and f orgeth what fashion and shape 
 he will ; the offence is called crimen falsi, and the offender 
 falsariiis, and the Latin word, to forge, is falsare or/a6- 
 ricare": Coke, 3 Inst. 169. 
 
 " Forgery is the fraudulent making or alteration of a 
 writing, to the prejudice of another's right": 4 Blacks. 247. 
 
 " Forgery is the false making of an instrument with 
 intent to prejudice any public or private right " : 3rd Rep. 
 Crim. Law Comm. 10th June, 1847, p. 34 ; ss. 421, 422, 
 -post. 
 
 " Forgery is the fraudulent making of a false writing 
 which, if genuine, would be apparently of some legal effi- 
 cacy": Bishop, 2Cr. L. 523. 
 
 " The characteristic of the crime of forgery is the false 
 making of some written or other instniment for the pur- 
 pose of obtaining credit by deception. The relation this 
 offence bears to the general system may be thus briefly 
 established. In most affaire of importance the intentions, 
 assurances, or directions of men are notified and authenti- 
 cated by means of written instruments. Upon the authen- 
 ticity of such instruments the security of many civil rights, 
 especially the right of property, frequently depends ; it is, 
 therefore, of the highest importance to society to exclude 
 the numerous frauds and injuries which may obviously be 
 perpetrated by procuring a false and counterfeited written 
 instrument, to be taken and acted on as genuine. In refer- 
 ence to frauds of this description it is by no means essen- 
 tial that punishment should be confined to cases of actually 
 accomplished fraud ; the very act of falsely making and 
 
 
490 
 
 FORGERY. 
 
 I 
 
 constructing such an instrument with the intention to 
 defraud is sufficient, according to the acknowledged prin- 
 ciples of criminal jurisprudence, to constitute a crime,— 
 being in itself part of the endeavour to defraud, and the 
 existence of the criminal intent is clearly manifested by an 
 act done in furtherance and in part execution of that inten- 
 tion. The limits of the offence are immediately deducible 
 fpom the general principle already adverted to. As regards 
 the subject matter, the offence extends to every writing 
 used for the purpose of authentication. 
 
 "The crime is not confined to the falsification of 
 mere writings ; it plainly extends to seals, stamps, and all 
 other visible marks of distinction by which the truth of any 
 fact is authenticated, or the quality or genuineness of any 
 article is warranted, and, consequently, where a party may 
 be deceived and defrauded, from having been by false signs 
 induced to give credit where none was due. With respect 
 to the false making of any such instrument the offence 
 extends to every instance where the instrument is, under 
 the circumstances, so constructed as to induce a party to 
 give credit to it as genuine and authentic in a point where 
 it is false and deceptive. And in this respect a forged in- 
 strument differs from one which is merely false and untrue 
 ia stating facts which are false. Where the instrument is 
 forged, as where a certificate purporting to be signed by an 
 authorized officer was not, in truth, signed by him, a party 
 to whom it is shown is deceived in being induced to sup- 
 pose that the fact certified is accredited by the officer whose 
 cei'tificate it purports to be, and he is deceived in that re- 
 spect whether the fact certified be true or false. If, on the 
 other hand, such a certificate be in truth signed by the 
 offioer whose name it bears, the instrument is not forged 
 aJthough the fact certified be falsely certified, for here the 
 party receiving the certificate is deceived, not by being 
 falsely induced to believe that the officer had accredited 
 the instrumint by liis sigtiature, but from the oScer having 
 
GENEBAi:^ REMARKS. 
 
 491 
 
 falsely certified the fact. The instrument may, therefore, 
 be forged although the fact authenticated be true. The in- 
 strument may be genuine although the fact stated be false. 
 Where money or other property is obtained by an instru- 
 ment of the latter description, that is, where it is false 
 merely as containing a false statement or representation, 
 the offence belongs to the class of obtaining money or other 
 property b}'^ false pretenses " : 5th Rep. Criin. Law Comm. 
 22nd of April, 1840. 
 
 "Consistently with the principles which govern the 
 offence of forgery an instrument may be falsely made 
 although it be signed or executed by the party by whom it 
 purports to be signed or executed. This happens where a 
 party is fraudulently induced to execute a will, a material 
 alteration having been made, without his knowledge, in the 
 writing; for, in such a case, although the signature be 
 genuine the instrument is false, because it does not truly 
 indicate the testator's intentions, and it is the forgery of 
 him who so fraudulently caused such will to be signed, for 
 he made it to be the false instrument which it really is :" 
 Cr. Law Comm. Rep. loc. cit. 
 
 This passage of the Criminal Law Commissioners seems 
 to be based on a very old case, cited in Noy's Reports, 101, 
 Combes's Case ; but in a more recent case, R. v. Collins, 2 
 M. & Rob. 40 1, it was held that fraudulently to induce a 
 person to execute an instrument, on a misrepresentation of 
 its contents, is not a forgery ; and, in a case of R. v. Chad- 
 wick, 2 M. & Rob. 545, that to procure the signature of a 
 person to a document, the contents of which have been 
 altered without his knowledge, is not a forgery : see 
 Stephen's Cr. L. Art. 356, illustrations, 10, 11. 
 
 The report {loc. cit.) of the 3riniiual law commissioners 
 continues as follows : " Upon similar grounds, an offender 
 rmy be guilty of a false making of an instrument although 
 he sign or exedute it in his own name, in case it be false in 
 amy material part, and calculated to induce another to give 
 
 m% 
 
492 
 
 FORGERY. 
 
 credit to it as genuine and authentic where it is false and 
 deceptive. This happens where one, having conveyed 
 land, afterwards, for the purpose of fraud, executes an in- 
 strument purporting to be a prior conveyance of the same 
 land ; here, again, the instrument is designed to obtain 
 credit by deception, as purporting to have been made at a 
 time earlier than the true time of its execution." 
 
 This doctrine was approved of in a case, in England, of 
 R. V. Ritson, 11 Cox, 352, and it was there held, upon a case 
 reserved, that a man may be guilty of forgery by making 
 a false deed in his own name. Kelly, C.B., delivering the 
 judgment of the court, said : " I certainly entertained some 
 doubt at one time upon this case, because most of the 
 authorities are of an ancient date, and long before the 
 passing of the statutes of 11 Geo. IV. and 1 Will. IV., and 
 24 & 25 V. However, looking at the ancient authorities and 
 the text books of the highest repute, such as Com, Dig., 
 Bacon's Abr., 3 Co. Inst., and Foster's C. L. 117, they 
 are all uniformly to the effect, not that every instrument 
 containing a false statement is a forgery, but that every 
 instrument which is false in a material part, and which 
 purports to be that which it is not, or to be executed by a 
 person who is not the real person, or which purports to be 
 dated on a day which is not the real day whereby a false 
 operation is given to it, is forgery." 
 
 " Forgery, at common law, was an offence in falsely and 
 fraudulently making and altering any matter of record or 
 any other authentic matter of a public nature, as a parish 
 register or any deed or will, and punishable by tine and 
 imprisonment. But the mischiefs of this kind increasing 
 it was found necessary to guard against them by more 
 sanguinary laws. Hence we have several Acts of Parlia- 
 ment declaring what offences amount to forgery, and which 
 inflict severer punishments than there were at the common 
 law": Bacon's Abr. vol. 3, 277. Curwood, 1 Hawk. 263, 
 is of opinion that this last definition is wholly inapplicable 
 
GENERAL REMARKS. 
 
 493 ., 
 
 to the crime of forgery at common law, as, even at common 
 law, it was forgery to make false "private" writings. 
 
 "The notion of forgery does not seem so much to con- 
 sist in the counterfeiting a man's hand and seal, which may 
 often be done innocently, but in the endeavouring to give 
 an appearance of truth to a mere deceit and falsity, and 
 either to impose that upon the world as the solemn act of 
 another, which he is in no way privy to, or at least to make a 
 man's own act appear to have been done at a time when it 
 was not done, and by force of such a falsity to give it an 
 operation which in truth and justice it ought not to have": 
 
 1 Hawk. 264. 
 
 The definitions containing only the words " with intent 
 to defraud " without the words " with intent to deceive " 
 seem defective. In fact, there are many acts held to be 
 forgery where no intent to defraud, as this expression is 
 commonly understood, exists in the mind of the person 
 committing the act; as, for instance, if the person, forging a 
 note, means to take it up, and even has taken it up, so as 
 not to defraud any one, this is clearly forgery if he issued 
 it, and got money or credit or anything upon it: R. v. Hill, 
 
 2 Moo. 30; R. v. Geach, 9 C. & P. 499; or forging a bill 
 payable to the prisoner's own order, and uttering it without 
 indorsement: R. v. Birkett, R. & R. 86; or if one, while 
 knowingly passing a forged bank note, agrees to receive it 
 again should it prove not to be genuine, or if a creditor 
 executes a forgery of the debtor's name to get from the 
 proceeds payment of a sum of money due him: R. v. Wilson, 
 1 Den. 284; or if a party forges a deposition to be used in 
 court, stating merely what is true, to enforce a just claim. 
 All these acts are forgery; yet where is the intent to 
 defraud in these cases ? It may be said that the law infers 
 it. But why make the law infer the existence of what does 
 not exist? Why not say that " forgery is the false making 
 of an instrument with intent to defraud or deceive." See 
 now 8. 422,po8<. The word "deceive" would cover all the 
 
494 
 
 FORGERY. 
 
 m 
 
 W 
 
 cases above cited; in each of these cases, the intent of the 
 forger is that the instrument forged should be used as good, 
 should be taken and received as signed and made by the 
 person whose name is forged, in consequence, to deceive 
 qvxyad hoc, and for this, though he did not intend to defraud, 
 though no one could possibly be defrauded by his act, he is 
 iii law guilty of forgery: see 2 Buss. 774. 
 
 It is true that the court of Crown cases reserved, in 
 England, held in R. v. Hodgson, Dears. & B. 3, that, upon 
 an indictment for forgery at common law, it is necessary to 
 prove, not only an intent to defraud, but also an intent to 
 defraud a particular person, though, w^hen this case was 
 decided, the statute in England (14 & 15 V. c. 100, s. 8,) 
 enacted that it was not necessary in indictments for 
 forgery to allege an intent to defraud any particular 
 persoja : s. 613, po8t. In this Hodgson's case the prisoner 
 had forged and uttered a diploma of the college of sur- 
 geons ; the jury found that the prisoner forged the docu- 
 ment with the general intent to induce the belief that it 
 was genuine, and that he was a member of the college, and 
 that he showed it to certain persons with intent to induce 
 such belief in them, but that he had no intent, in forging 
 or uttering it, to commit any particular fraud or specific 
 wrong to any individual. 
 
 Though the offence charged in this case was under the 
 common law, it must be remembered that s. 8, of 14 & 15 V. 
 c. 100, applied to indictments under the common law as 
 well as to indictments under the statutes, as now also do 
 s. 44 of the English Forgery Act and ss. 422, s-s. 3 and 613, 
 po8t. 
 
 Greaves remarks on the decision in this case : — 
 " As the clause of which this is a re-enactment, 44 of the 
 English Act, was considered in R. v. Hodgson, and as that 
 case appears to me to have been erroneously decided, it may 
 be right to notice it here. The prisoner was indicted at 
 common law for forging and uttering a diploma of the 
 
GENERAL REMARKS. 
 
 465 
 
 14 of the 
 
 as that 
 I, it may 
 licted at 
 
 of the 
 
 college of surgeons, and the indictment was in the common 
 form. The college of surgeons has no power of conferring 
 any degree or qualification, but before admitting persons to 
 its membership it examines them as to their surgical know- 
 ledge, and, if satisfied therewith, admits them, and issues a 
 document called a diploma, which states the membership. 
 The prisoner had forged one of these diplomas. He pro- 
 cured one actually issued by the college of surgeons, erased 
 the name of the person mentioned in it, and substituted his 
 own. He hung it up in his sitting-room, and, on being 
 asked by two medical practitioners whether he was qualified, 
 he said he was, and produced this document to prove his 
 assertion. When a candidate for an appointment as vaccin- 
 ating officer he stated he had his qualification, and would 
 show it if the clerk of the guardians, who were to appoint 
 to the office, would go to his gig; he did not, however, 
 then produce or show it. The prisoner was found guilty, 
 the fact to be taken to be, that he forged the document 
 with the general intent to induce a belief that it was 
 genuine, and that he was a member of the college of 
 surgeons, and that he showed it to two persons with the 
 particular intent to induce such belief in these two persons, 
 but that he had no intent in forging or in altering, to 
 commit any particular fraud, or any specific wrong to any 
 individual. And upon a case reserved it was held that the 
 14 & 15 V. c. 100, s. 8, altered the form of pleading only, nd 
 did not alter the character of the offence charged, and that 
 the law as to that is the same as if the statute had not been 
 passed ; and that, in order to make out the offence of 
 forgery at common law, there must have been, at the time 
 the instrument was forged, an intention to defraud some 
 particular person. Now, this judgment is clearly erroneous. 
 The 14 & 15 V. c. 100, s. 8, does, in express terms, alter the 
 low as well as the form of the indictment, for it expressly 
 enacts, 'that on the trial of any of the oft'ences in this section 
 mentioned (forging, uttering, disposing cf or putting off any 
 instrument ivhatsoever) it shall not be necessary to prove that 
 
'^^m v' 
 
 496 
 
 FORGERY. 
 
 the defendant did the act charged with an intent to 
 defraud.' The judgment, therefore, and the clause in the 
 Act are directly in contradiction to each other, and, conse- 
 quently, the former cannot be right. The clause was 
 introduced advisedly for the very purpose of altering the 
 law. See my note to Lord Campbell's Acts, page 13. It is 
 a fallacy to suppose that there must have been an intent to 
 defraud any particular person at the time of forging the 
 document. In Tatlock v. Harris, 3 T. R. 176, that great 
 lawyer, Shepherd, said in argument, ' it is no answer to a 
 charge of forgery to say that there was no special intent to 
 defraud any particular person, because a general intent to 
 defraud is sufficient to constitute the cnme;' and this 
 position was not denied by that great lawyer, Wood, who 
 argued on the other side, and was apjiarently adopted by 
 the court. It is cited in 1 Leach, 216, note (a); 3 Chit. 
 Cr. L. 1036; and, as far as we are aware, was never doubted 
 before this case. Indeed, in R. v. Tylney, 1 Den. 319, it 
 «eem8 to have been assumed on all hands to be the law. 
 There the prisoners forged a will, but there was no evidence 
 to show that any one existed who could have been defrauded 
 by it, and the judges were equally divided whether a count 
 for forgery with intent to defraud some person unknown 
 could, under such circumstances, be supported. It is obvious 
 that this assumed that if there had been evidence that 
 there was any one who might have been defrauded, though 
 there was no evidence that the prisonera even knew of the 
 existence of any such person, the offence would have been 
 forgery. Indeed it would be very startling to suppose that 
 a man who forged a will, intending to defraud the next of 
 kin, whoever they might happen to be, was not guilty of 
 forgery because he had only that general intent." 
 
 "The point is too obvious to have escaped that able 
 criminal lawyer, Mr. Prendergast, and, as he did not take 
 it, he clearly thought it wholly untenable, and so, also, must 
 the judges who heard the case. See also the observations 
 
GENERAL REMARKS. 
 
 497 
 
 of Creaswell, J., in R. v. Marcus, 2 C. & K 356. In R. v. 
 Ntish, 2 Den. 493, Maule, J., expressed a very strong 
 opinion that it was not necessary, in order to prove an 
 intent to defraud, that there should be any person who 
 could be defrauded, and this opinion was not dissented 
 t'loin by any of the other judges." 
 
 " It has long been settled that making any instrument, 
 which is the subject of forgery, in the name of a non-exist- 
 incr person is forgery, and in Wilks' Case, 2 East, P. C. 
 957, all the judges were of opinion that a bill of exchange 
 drawn in fictitious names was a forged bill. Now, every 
 one knows that, at the time when such documents are 
 forged, the forger has no intent to defraud any particular 
 peraon, but only an intent to defraud any person whom he 
 may afterwards meet with, and induce to cash the bill ; and 
 no suggestion has ever been made in any of these cases that 
 that otfence was not forgery. The ground of the present 
 judgment seems to have been that formerly the particular 
 person who was intended to be defrauded must have been 
 named in the indictment ; no doubt it is a general rule of 
 criminal pleading that the names of persons should be 
 stated, but this rule is subject to the exception that, wher- 
 ever the stating the name of any person in an indictment 
 is highly inconvenient or impracticable, the name need not 
 be stated, for lex neminem cogit ad vana sen impossihilia. 
 Therefore, the names of inhabitants of counties, hundreds 
 and parishes need never be stated ; so, too, where there is 
 a conspiracy to defraud tradesmen in general the names 
 need not be stated. So, where there is a conspiracy to 
 raise the funds, it is not necessary to state the names of the 
 persons who shall afterwards become purchasers of stock, 
 ' for the defendants could not, except by a spirit of pro- 
 phecy, divine who would be the purchasers on a subsequent 
 day'; |>er Lord Ellenborough, C.J., in R. v. De Berenger, 3 M. 
 i» S. 73; which reason is equally applicable to the case 
 where, at the time of forging an instrument, there is no 
 
 Crim. Law— 32 
 
 fr^ 
 
 I'. ■,;! 
 
498 
 
 FORGERY. 
 
 £!i«'*' 
 
 intent to defraud any particular person. Indeed, it is now 
 clearly settled that, where a conspiracy is to defraud imleti- 
 nite individuals, it is unnecessary to name any individuals : 
 R. V. Peck, 9 A. & E. 686 ; R. v. King, 7 Q. B. 782. This 
 may be taken to be a general rule of criminal pleading, and 
 it has long been applied to forgery. In R. v. Birch, 1 Leach, 
 79, the prisonera were convicted of forging a will, and one 
 count alleged the intent to be ' to defraud the person or 
 persons who would by law be entitled to the messuages' 
 whereof the testator died seized. And it has been the 
 regular course in indictments for forging wills, at least 
 ever since that case, to insert counts with intent to defraud 
 the heir-at-law and the next of kin, generally : 3 Chit. 
 Cr. L. 1069. It is true that in general there have also been 
 counts specifying the heir-at-law or the next of kin by 
 name. But in R. v. Tylney, 1 Den. 319, there was no such 
 count. No objection seems ever to have been taken to any 
 such general count. So, also, in any forgery with intent 
 to defraud the inhabitants of a county, hundred or parish 
 the inhabitants may be generally described. These instao'-es 
 clearly show that it is not necessary in forgery any more 
 than in other cases to name individuals where there is either 
 great inconvenience or impracticability in doing so. A con- 
 viction for conspiracy to negotiate a bill of exchange, the 
 drawera of which were a fictitious firm, and thereby fraud- 
 ulently to obtain goods from the King's subjects, although 
 it did not appear that any particular person to be defrauded 
 was contemplated at the time of the conspiracy, has been 
 held good : R. v. Hevey, 2 East, P. C. 858, note (a) ; and 
 this case bears considerably on the present question. If 
 a person forged a bill of exchange with intent to defraud 
 any one whom he might afterwards induce to cash it, 
 and he uttered it to A. B., it cannot be doubted that he 
 would be guilty of uttering with intent to defraud A. B., 
 and it would indeed be strange to hold that he was guilty 
 of uttering, but not of forging, the bill. No doubt tiie 
 otTence of forgery consists in the intent to deceive or de- 
 
GENERAL REMARKS. 
 
 499 
 
 fraud ; but a general intent to defraud is just as criminal 
 as to defraud any particular individual. In each case 
 there is a wrongful act done with a criminal intent, 
 which, according to R. v. Higgins, 2 East, 5, is suffi- 
 cient to constitute an indictable offence. In the course of 
 the argument Erie, J., said : " Would it not have been 
 enough to alle^^e an intent to deceive divers persons to 
 the jurors unknown, to wit, all the patients of his late 
 master?" This approaches very nearly to the correct 
 view, viz., that it would have been enough before the 
 14 & 15 V. c. 100, s. 8, to have alleged and proved an intent 
 to deceive any persons who should afterwards become his 
 . tfcients. Wightman, J., during the argument said : " The 
 question is, whom did he intend to deceive when the forgery 
 \vas committed?" And Jervis, C.J., said: " The intent must 
 not be a roving intent but a specific intent." Now, if these 
 remarks are confined to a count for forging they are correct, 
 though, in Bolland's Case, 1 Leach, 83, the prisoner was 
 executed for forging an indorsement in the name of a non- 
 existing person, with intent to defraud a person whom he 
 does not even seem to have known when he forged the in- 
 dorsement." 
 
 " But it cannot be doubted that a man may be guilty 
 of intending to defraud divers persons at different times 
 by the same instrument, as where he tries to utter a forged 
 note to several persons one after another, in which case he 
 may be convicted of uttering with intent to defraud each of 
 them. Thus much has been said, because it is very import- 
 ant that the law on the subjects discussed in this note 
 should not be left in uncertainty, and it is much to be re- 
 gretted that R. V. Hodgson, Dears. & B. 3, was ever decided 
 as it was, as it may encourage ignorant pretenders to 
 fabricate diplomas, and thereby not only to defraud the 
 poor of their money, but to injure their health": Greaves, 
 Cons. Acts, 303. 
 
 In R. V. Nash, 2 Den. 493, Maule, J., said : " The re- 
 coTdar seems to have thought, that in order to prove an 
 
500 
 
 FORGERY. 
 
 intent to defraud there slioulJ have been some person 
 defrauded or who might possibly have been defrauded. 
 But I do not think that at all necessary. A man may have 
 an intent to defraud, and yet there may not be any person 
 who could be defrauded by his act. Suppose a person with 
 a good account at his bankers, and a friend, with his know- 
 ledge, forges his name to a cheque, either to try his credit, 
 or to imitate his handwriting, there would be no intent to 
 defraud though there would be parties who might be 
 defrauded. But where another person has no account at 
 his bankers, but a man supposes that he has, and on that 
 supposition forges his name, there would be an intent to 
 defraud in that case although no person could be de- 
 frauded." 
 
 And in E. v. Mazagora, R. & R. 291, it has been holden 
 that the jury ought to infer an intent to defraud the person 
 who would have to pay the instrument if it were genuine, 
 although from the manner of executing the forgery, or 
 from that person's ordinary caution, it would not be likely 
 to impose upon him; and although the object was general 
 to defraud whoever might take the instiniment, and the 
 intention of defrauding, in particular, the person who would 
 have to pay the instrument, if genuine, did not enter into 
 the prisoner's contemplation. See R. v. Crooke, 2 Str. 901; 
 R. V. Goate, 1 Ld. Raym. 737 ; R. v. Holden, R. & R. 154. 
 And even if the party to whom the forged instrument is 
 uttered believes that the defendant did not intend to 
 defraud him, and sweara it, this will not repel the presump- 
 tion of an intention to defraud: R. v. Shepp vd, R. & E. 
 169 ; R. V. Trentield, 1 F. & F. 43, is wretchedly reported, 
 and cannot be relied upon: 2 Russ. 790, note by Greaves; 
 see also R. v. Crowther, 5 C. & P. 316, and R. v. James, 7 
 C. & P. 553, on the question of the necessary intent to 
 defraud, in forgery ; and R. v. Boardman, 2 M. &; Rob. 147; 
 R. v. Todd, 1 Cox. 57. It has been held, in R. v. Powner, 
 12 Cox, 235, that, in all cases, an intent to defraud must be 
 alleged. This doctrine seems to have been since repudiated 
 
GENERAL REMARKS. 
 
 601 
 
 by Martin, B., in R. v. Asplin, 12 Cox, 391 ; see R. v. 
 Cronin, 36 U. C. Q. B. 342. 
 
 It should be observed that the ofTence of forgery may be 
 complete though there be no publication or uttering of the 
 forged instrument, for the very making with a fraudulent 
 intention, and without lawful authority, of any instrument 
 which, at common law or by statute, is the subject of for- 
 gery, is of itself a sufficient completion of the offence before 
 publication, and though the publication of the instrument 
 be the medium by which the intent is usually made mani- 
 fest yet it may be proved as plainly by other evidence : 2 
 East, P. C. 855. Thus in a case where the note which the 
 prisoner was charged with having forged was never 
 published, but was found in his possession at the time he 
 was apprehended, the prisoner was found guilty, and no 
 one even thought of raising the objection that the note had 
 never been published : R. v. Elliot, 1 Leach, 175. At the 
 present time most of the statutes which relate to forgery 
 make the publication of the forged instrument, with know- 
 ledge of the fact, a substantive felony. 
 
 Not only the fabrication and false making of the whole 
 of a written instrument, but a fraudulent insertion, altera- 
 tion, or erasure, even of a letter, in any material part of a 
 true instrument, and even if it be afterwards executed by 
 another person, he not knowing of the deceit, or the frau- 
 dulent application of a true signature to a false instrument 
 for which it was not intended, or vice versa, are as much 
 forgeries as if the whole instrument had been fabricated. 
 As by altering the date of a bill of exchange after accept- 
 ance whereby the payment was accelerated : 2 East, P. C. 
 855. 
 
 Even where a man, upon obtaining discount of a i)ill, 
 indorsed it in a fictitious name,when he might have obtained 
 the money as readily by indorsing it in his own name, it 
 was holden to be a forgery : R. v. Taft, 1 Leach, 172 ; R. v. 
 
502 
 
 FORGERY. 
 
 Taylor, 1 Leach, 214 ; R. v. Marshall, R. & R. 75 ; R. v. 
 Whiley, R. & R. 90 ; R. v. Francis, R. & R. 209. 
 
 It is a forgery for a person having authority to fill up a 
 blank acceptance or a cheque for a certain sum, to fill up 
 the bill or cheque for a larger sum : R. v. Hart, 1 Moo. 
 486 ; In re Hoke, 15 R. L. 92 ; (ss. 421, 422, post) ; and the 
 circumstance of the prisoner alleging a claim on his master 
 for the greater sum, as salary then due, is immaterial even if 
 true: R. v. Wilson, 1 Den. 284. 
 
 A forgery must be of some document or writing; there- 
 fore the putting an artist's name in the comer of a picture, 
 in order falsely to pass it off as an original picture by that 
 artist, is not a forgery; R. v. Closs, Dears. & B. 460; though 
 it may be a cheat at common law, s. 419, jpost. 
 
 The false signature hy a mark is forgery : R. v. Dunn, 
 1 Leach, 57. 
 
 When the writing is invalid on its face it cannot be the 
 subject of forgery, because it has no legal tendency to efFeci 
 a fraud. It is not indictable, for example, to forge a will 
 attested by a less number of witnesses than the law requires: 
 R. V. Wall, 2 East, P.C. 953; R. v. Martin, 14 Cox, 375, Warb. 
 Lead. Cas. 188 ; R. v. Harper, 14 Cox, 574 ; R. v. Moffat, 1 
 Leach, 431. 
 
 But a man may be indicted for forging an instrument 
 which, if genuine, could not be made available by reason of 
 some circumstance not appearing upon the face of the 
 instrument, but to be made out by extrinsic evidence: R.v. 
 Macintosh, 2 Leach, 883. So, a man may be indicted for 
 forging a deed, though not made in pursuance of the 
 provisions of particular statutes requiring it to be in a 
 particular form: R. v. Lyon, R. & R. 255. Signing a name 
 of a non-existing person is a forgery: R. v. White, cited in 
 R. v. Martin, Waib. Lead. Cas. 188. 
 
 And a man may be convicted of forging an unstamped 
 instrument though such instrument can have no operation 
 in law : R. v. Hawkeswood, 1 Leach, 257 ; Bee s. 422, 
 
GENERAL REMARKS. 
 
 503 
 
 8-s. 4, post. This question, a few years afterwards, again 
 underwent considerable discussion, and was decided the 
 same way, though, in the meantime, the law with regard 
 to the procuring of bills and notes to be subsequently 
 stamped, upon which in B. v. Hawkeswood the judges 
 appear in some degree to have relied, had been repealed. 
 The prisoner was indicted for knowingly uttering a forged 
 promissory note. Being convicted the case was argued 
 laefore the judges, and for the prisoner it was urged that 
 the 81 Geo. III. c. 25, s. 19, which prohibits the stamps 
 from being afterwards affixed, distinguished the case from 
 E. V. Hawkeswood. Though two or three of the judges 
 doubted at first the propriety of the latter case if the 
 matter were res Integra, yet they all agreed that, being an 
 authority in point, they must be governed by it ; and they 
 held that the statute 31 Geo. III. made no difference in the 
 question. Most of them maintained the principle in B. v. 
 Hawkeswood to be well founded, for the Acts of Parliament 
 referred to were mere revenue laws, meant to make no 
 alteration in the crime of forgery but only to provide that 
 the instrument should not be available for recovering upon 
 it in a court of justice, though it might be evidence for a 
 collateral purpose ; that it was not necessary to constitute 
 forgery that the instrument should be available ; that the 
 stamp itself might be forged, and it would be a strange 
 defence to admit, in a court of justice, that because the 
 man had forged the stamp he ought to be excused for having 
 forged the note itself, which would be setting up one fraud 
 in order to protect him from the punishment due to 
 another: B. v. Morton, 2 East, P. C. 966. The same 
 principle was again recognized in B. v. Boberts and B. v. 
 Davies, 2 East, P. C. 956, and in B. v. Teague, 2 East, 
 P. G. 979, where it was holden that, supposing the instru- 
 ment forged to be such on the face of it as would be valid, 
 provided it had a proper stamp, the offence was complete. 
 , As TO THE UTTERING. — These words, lUter, uttering, occur 
 frequently in the law of forgery, counterfeiting and the like ; 
 
504 
 
 FORGERY. 
 
 meaning, substantially, to offer. See s. 424 post, where the 
 word utter is dropped. In ss. 431, 485, 437, 438 however 
 it is used. If one offers another a thing, as, for instance, 
 a forged instrument oi: a piece of counterfeit coin, intend- 
 ing it shall be received as good, he utters it, whether the 
 thing offered be accepted or not. It is said that the offer 
 need not go so far as a tender: E. v. Welch, 2 Den. 78- 
 R. V. Ion., 2 Den. 475. But, to constitute an uttering 
 there must be a complete attempt to do the particular act 
 the law forbids, though there may be a complete conditional 
 uttering, as well as any other, which will be criminal. The 
 words " pay," " put off," in a statute are not satisfied by a 
 mere uttering or by a tender; there must be an acceptance 
 also : Bishop, Stat. Cr. 806. 
 
 Showing a man an instrument, the uttering of which 
 would be criminal, though with an intent of raising a false 
 idea in him of the party's substance, is not an uttering. 
 Nor will the leaving it, afterwards, sealed up, with the 
 person to whom it was shown, under cover, that he may 
 take charge of it as being too valuable to be carried about, 
 be an uttering : R. v. Shukard, R. & R. 200. But the 
 showing of a forged receipt to a person with whom the 
 defendant is claiming credit for it was held to be an offer- 
 ing or uttering, though the defendant refused to part with 
 the possession of it : R. v. Radford, 1 Den. 59. 
 
 Giving a forged note to an innocent agent or an accom- 
 plice that he may pass it is a disposing of and putting it 
 away : R. v. Giles, 1 Moo. 166. So, if a person knowingly 
 deliver a forced bank note to another, who knowingly utters 
 it accordingly, the prisoner who delivered such note to be 
 put off may be convicted of having disposed of and put 
 away the same : R. v. Palmer, R. & R. 72. 
 
 On the charge of uttering the guilty knowledge is a 
 tiaterial part of the evidence. Actios non facit reum nid 
 Tiiens sit rea. If there is no guilty knowledge, if the 
 person who utters a forged instrument really thinks it 
 
GENERAL REMARKS. 
 
 505 
 
 genuine, there is no tnens rea with him ; he commits no 
 offence. Therefore the prosecutor must prove this guilty 
 knowledge by the defendant to obtain a conviction. S. 424, 
 
 post. 
 
 This is not capable of direct proof. It is in nearly all 
 cases proved by evidence of facts from which the jury may 
 presume it : Archbold, 570 And by a laxity of the general 
 rules of evidence, which has long prevailed in the English 
 Courts, the proof of collateral facts is admitted to prove the 
 guilty knowledge of the defendant. Thus, on an indict- 
 ment for knowingly uttering a forged instrument, or a 
 counterfeit bank note, or counterfeit coin, proof of the 
 possession, or of the prior or subsequent utterance, either 
 to the prosecutor himself or to other persons, of other false 
 documents or notes, or bad money, though of a dif event 
 description, and though themselves the subjects of separate 
 indictments, is admissible as material to the question of 
 guilty knowledge or intent: Taylor, Evid., 1 vol. par. 322; 
 R. V. Aston, 2 Russ. 841 ; R. v. Lewis, 2 Russ. 841 ; R. v. 
 Oddy, 2 Den. 264. But in these cases it is essential to 
 prove distinctly that the instruments offered in evidence of 
 guilty knowledge were themselves forged : Taylor, loc. citi 
 R. V. Bent, 10 0. R. 557. 
 
 It seems also, that though the prosecutor may prove 
 tbe uttering of other forged notes by the prisoner, and his 
 conduct at the time of uttering them, he cannot proceed to 
 show what the prisoner said or did at another time with 
 respect to such uttering ; for these are collateral facts, too 
 remote for any reasonable presumption of guilt to be 
 founded upon them, and such as the prisoner cannot by 
 any possibility be prepared to contradict : Taylor, loc. cit.; 
 R. v. Phillips, 1 Lewin, 105 ; R. v. Cooke, 8 C. & P. 586. 
 In Phillips' case the judge said : " That the prosecutor 
 could not give in evidence anything that was said by the 
 priEoner at a time collateral to a former uttering in order 
 to show that what he said at the time of such former 
 
 tl^ 
 
I 
 
 It 
 
 506 
 
 FORGERY. 
 
 uttering was false, because the prisoner could not be pre- 
 pared to answer or explain evidence of that description; 
 that the prisoner is called upon to answer all the circum- 
 stances of a case under consideration, but not the 
 circumstances of a case which is not under consideration ; 
 that the prosecutor is at liberty to show other cases of the 
 prisoner having uttered forged notes, and likewise his 
 conduct at the time of uttering them ; but that what he 
 said or did at another time collateral to such other utter- 
 ings could not be given in evidence, as it was impossible 
 that the prisoner could be prepared to combat it." See R. 
 V. Brown, 2 F. & F. 559, and remarks of Cromptou, J., 
 therein on R. v. Cooke, cited ante, and R. v. Forbes 7 C. 
 & P. 224. The rule, in such cases, seems to be that you 
 cannot bring collateral evidence of a collateral fact, or that 
 you cannot bring evidence of a collateral circumstance of a 
 collateral fact. 
 
 The prosecutor must also prove that the uttering was 
 accompanied by an intent to defraud, as to which see 
 remarks, ante, on the necessity of this intent in forgery. 
 generally. Baron Alderson told the jury, in R. v. Hill 2 
 Moo. 30, that if they were satisfied that the prisoner uttered 
 the bill as. true, knowing at the time that it was forged, and 
 meaning that the person to whom he offered it should 
 believe it to be genuine, they were bound to infer that he 
 intended to defraud this person, and this ruling was held 
 right by all the judges. And in R. v. Todd, 1 Cox, 57, 
 Coleridge, J., after consulting Cresswell, J., said: "If a 
 person forge another person's name, and utter any bill, note, 
 or other instrument with such signature, knowing it not to 
 be the signature of the person whose signature he represents 
 it to be, but intending it to be taken to be such by the 
 party to whom it is given, the inference, as well in point of 
 fact as of law, is strong enough to establish the intent to 
 <lefraud, and the party so acting becomes responsible for 
 the legal consequences of his act, whatever may have been 
 
GENERAL REMARKS. 
 
 607 
 
 his motives. The natural, as well as the legal, consequence 
 is that this money is obtained, for which the party obtain- 
 ing it professes f,o give but cannot give a discharge to the 
 party giving up the money on the faith of it. Supposing a 
 person in temporary distress puts another's name to a bill, 
 intending to take it up when it becomes due but cannot 
 perform it, the consequence is that he has put another 
 under the legal liability of his own act, supposing the signa- 
 ture to pass for genuine " : see R. v. Vaughan, 8 C. & P. 
 276; R. V. Cooke, 8 C. & P. 682; R. v. Geach, 9 C. & P. 
 499. 
 
 At common law any one convicted of forgery was 
 incompetent as a witness, but now no one is incompetent 
 by reason of interest or crime : The Canada Evidence Act, 
 1893, s. 3. 
 
 Indictment. — that A. B. on unlawfully 
 
 did forge, knowing it to be false, a certain (here name 
 
 the document) which paid forged document is as follows that 
 is to say {here set out the document verbatim) with 
 
 intent thereby to defraud, and with intent that the said 
 document should be used as genuine {or acted upon as 
 genuine) to the prejudice of {name, as the case may 
 
 he) or of any one who would accept, take, or deal with the 
 said forged document. 
 
 And the jurors aforesaid do further present, that the 
 said J. S. afterwards, to wit, on the day and year aforesaid, 
 unlawfully and knowingly did forge a certain other {state 
 the instrument forged by any name or designation by which it 
 ts usually knoivn), with intent thereby then to defraud ; and 
 that the said document should be used as genuine {or 
 octed upon as genuine) to the prejudice of any one who 
 thereafter would accept, take or deal with or come by the 
 said forged document. 
 
 And the jurors aforesaid do further present, that the 
 said J. S. afterwards, to wit, on the day and year aforesaid, 
 unlawfully did utter, offer, dispose of, and put off, as if it 
 
 ¥P 
 
508 
 
 FORGERY. 
 
 V it."' 
 
 m> 
 
 were genuine (use, deal with, or attempt to use, etc., s. 424), 
 a certain forged document, which said forged document is 
 as follows, that is to say {here set out the instrument ver- 
 batim), with intent thereby then to defraud, he, the said J. 
 S., at the time he so uttered, offered, disposed of, and put 
 off the said last-mentioned forged document as aforesaid, 
 well knowing the same to be forged. 
 
 See E. V. Brewer, 6 C. & P. 363, and s. 613, post, as to 
 indictments, and s. 569 as to search warrant. 
 
 The evidence of a single witness is not sufficient if not 
 corroborated ; s. 684, post. The repealed s. 218, c. 174, 
 B. S. G. applied only to an interested witness : B. v. Selby, 
 16 0. E. 255 ; E. v. Bhodes, 22 0. E. 480 ; 10 & 11 V. c. 9, 
 s. 21 ; Bank Prosecutions, E. & B. 378. 
 
 At common law forger}' is a misdemeanour, punishable 
 by fine or imprisonment, or both, at the discretion of the 
 court. The court of Quarter Sessions now has jurisdictiou 
 in cases of forgery, s. 539, post. 
 
 jjut a provincial Act authorizing police magistrates to 
 try cases of forgery is unconstitutional : E. v. Toland, 22 
 0. E. 505 ; see E. v. Levinger, 22 0. E. 690. A prisoner 
 extradited from the United States on a charge of forgery 
 may, upon an indictment for forgery, be found guilty of a 
 criminal uttering : E. v. Paxton, 3 L. C. L. J. 117. 
 Making false entries in a book does not constitute the 
 crime of forgery: Ex parte Lamirande, 10 L. C. J. 280; see 
 P. V. Blackstone, 4 Man. L. E. 296, and Ex parte Eno, 10 
 Q. L. E. 194. Definition of the term forgery considered, 
 Ee Smith, 4 P. E. (Ont.) 215 ; E. v. Gould, 20 U. C. C. P. 
 154. 
 
 Where the prisoner was indicted for forging a note for 
 $500, having changed a note of which he was the maker 
 from $500 to $2,500 : Held, a forgery of a note for $500, 
 though the only fraud committed was on the endorser: 
 E. v. McNevin, 2 B. L. 711. 
 
Sees. 419, 420] 
 
 DOCUMENT DEFINED. 
 
 509 
 
 In consideration of law, every alteration of an instru- 
 ment amounts to a forgery of the whole, and an indictment 
 for forgery will be supported by proof of a fraudulent 
 alteration, though, in cases where a genuine instrument 
 has been altered, it is perhaps better to allege the altera- 
 tion in one count of the indictment : s. 422, s-s. 2. post. 
 
 If several concur in employing another to make a 
 forged instrument, knowing its nature, they are all guilty 
 of the forgery : B. v. Mazeau, 9 G. & P. 676 ; B. v. Dade, 
 1 Moo. 307. All are now principals in forgery, as in all 
 other offences, by s. 61. 
 
 A joint and several bond was executed by prisoner 
 under an assumed name for a fraudulent purpose. There 
 was no proof whether the other signatures were forged or 
 not. An indictment that prisoner had forged the bond 
 was sustained : B. v. Deegan, 6 Man. L. B. 81 ; see s. 459. 
 
 !i/ 
 
 m 
 
 PART XXXI. 
 
 FORGERY. 
 
 Document Defined. 
 
 419. A document means in this part any paper, parchment, or other 
 material used for writing or printing, marked with matter capable of being 
 read, but does not include trade marks on articles of commerce, or inscriptions 
 on stone or metal or other like material. 
 
 Bank Note, Etc., Defined. 
 
 430. "Banknote" includes all negotiable instruments issued by or on 
 behalf of any person, body corporate, or company carrying on the business of 
 banking in any part of the world, or issued by the authority of the Parliament 
 of Canada or of any foreign prince, or state, or government, or any governor 
 or other authority lawfully authorized thereto in any of Her Majesty's 
 dominions, and intended to be used as equivalent to money,either immediately 
 upon their issue or at some time subsequent thereto, and all bank bills and bank 
 post bills ; 
 
510 
 
 FORGERY. 
 
 [Sees. 421, 422 
 
 (a) *' Exchequer bill " includes exchequer bonds, notes^ debentures and 
 other securities issued under the authority of the Parliament of Canada or 
 under the authority of any legislature of any province forming part of Canada 
 whether before or after such province so became a part of Canada. 
 
 Section 129 of c. 174, R. S. C., as to description of bank 
 notes in indictments, has not been re-enacted. 
 
 False Document, Etc. Defined. 
 431* ..'he expression " false document " means — 
 
 (a) a document the whole or some material part of which purports to be 
 made by or on behalf of any person who did not make or authorize the making 
 thereof, or which, though made by, or by the authority of, the person 
 who purports to make it is falsely dated as to time or place of making, where 
 either is material ; or 
 
 (b) a document the whole or some material part of which purports to be 
 made by or on behalf of some person who did not in fact exist ; or 
 
 (c) a document which is made in the name of an existing person, either by 
 that person or by his authority, with the fraudulent intention that the docu- 
 ment should pass as being made by some person, real or fictitious, other than 
 the person who makes or authorizes it. 
 
 2. It is not necessary that the fraudulent intention should appear on the 
 face of the document, but it may be proved by external evidence. 
 
 Forgery Dekined. 
 432. Forgery is the makinsf of a false document, knowing it to be false 
 with the intention that it shall in any way be used or acted upon as genainp, to 
 the prejudice of any one, whether within Canada or not, or that some person 
 should be induced, by the belief that it is genuine, to do or refrain from doinpf 
 anything, whether within Canada or not. 
 
 2. Making a false document includes altering a genuine document in any 
 material part, and making any material addition to it or adding to it any false 
 date, attestation, seal or other thing which is material, or by making any 
 material alteration in it, either by erasure, obliteration, removal or otherwise. 
 
 3. Forgery is complete as soon as the document is made with such know- 
 ledge and intent as aforesaid, though the offender may not have intended that 
 any parti<nilar person should use or act upon it as genuine, or be induced, by 
 the belief that it is genuine, to do or refrain from doing anything. 
 
 4. Forgery is complete although the false document may be incomplete, 
 or may not purport to be nuch a document as would be binding in law, if it be 
 so made as, and is such as to indicate that it was intended, to be acted on as 
 genuine. 
 
 *• The crime of forgery was an offence at common law, the 
 punishment of which was only fine and imprisonment. It is 
 not possible to say precisely what are the documents the false 
 making of which is forgery at common law. But by a great 
 many different enactments, passed at different times, a great 
 
Sec. 428] 
 
 PUNISHMENT. 
 
 511 
 
 many forgeries have been made felonies, and as such, punishable 
 mth great severity. The statute law was, for the j-it part, 
 consolidated by the 24 & 25 V. c. 98. Like the other consolidation 
 Acts the Forgery Act assumes that the common law definition of 
 forgery is known. This definition, however, is a somewhat in- 
 tricate matter, involving various questions aa to the extent of 
 falsification implied in forgery, the character of the intent to 
 defraud essential to it, and the circumstances essential to the 
 completion of the crime. These matters are dealt with in ss. 
 313 to 817 {ss. 419 to 422, ante), both inclusive. — Imp. Comm. 
 
 Rep. 
 
 Punishment 
 
 4S3> Every one who commits forgery of the documents hereinafter 
 mentioned is guilty of an indictable oilence and liable to the following 
 punishment : — 
 
 {A) To imprisonment for life if the document forged purports to be, or was 
 intended by the offender to be understood to be or to be used as — 
 
 (a) any document having impressed thereon or affixed thereto any public 
 seal of the United Kingdom or any part thereof, or of Canada or any part 
 thereof, or of any dominion, possession or colony of Her Majesty : R. S. C. 
 c. 165, 8. 4 ; or 
 
 {b) any document bearing the signature of the Governor-General, or of 
 any administrator, or of any deputy of the Governor, or of any Lieutenant- 
 Governor, or any one at any time administering the government of any 
 province of Canada : R. S. C. c. 165, a. 5 ; or 
 
 (c) any document containing evidence of, or forming the title or any part 
 of the title to, any land or hereditament, or to any interest in or to any 
 charge upon any land or hereditament, or evidence of the creation, transfer or 
 extinction of any such interest or charge ; or 
 
 (d) any entry in any register or book, or any memorial or other document 
 made, issued, kept or lodged under any Act for or relating to the registering 
 of deeds or other instruments respecting or concerning the title to or any 
 claim uix)n any land or the recording or declaring of titles to land : R. S. C. 
 
 c. 165, 8, 38 ; or 
 
 («) any document required for the purpose of procuring the registering of 
 any such deed or instrument or the recording or declaring of any such title : 
 R. S. C. a. 165, 8. 38 ; or 
 
 (/) any document which is made, under any Act, evidence of the 
 registering or recording or declaring of any such deed, instrument or title : 
 R. S. C. c. 165, s. 38 ; or 
 
 {g) any document which is nmde hy any Act evidence affecting the title to 
 land ; or 
 
 [h) any notarial act or document or authenticated copy, or any proeh- 
 xtrhal of a surveyor or authenticated copy thereof : R. S. C. c. 165, s. 38 ; cr 
 
 W 
 
512 
 
 FORGERY. 
 
 [Sec. 423 
 
 (i) any register of births, baptisms, marriages, deaths or burials author- 
 ized or required by law to be kept, or any certified copy of any entry in or 
 •extract from any such register : R. S. C. o. 165, s. 43 ; {lee post, s. 436) ; or 
 
 ij) any copy of any such register required by law to be transmitted by or 
 to any registrar or other officer : R. S. C. c. 165, s. 44 ; or 
 
 {k) any will, codicil or other testamentary document, either of a dead 
 or living person, or any probate or letters of administration, whether with or 
 •without the will annexed : R. S. C. c. 165, s. 27 ; or 
 
 (I) any transfer or assignment of any share or interest in any stock 
 annuity or public fund of the United Kingdom or any part thereof, or of 
 Canada or any part thereof, or of any dominion, possession or colony of Her 
 Majesty, or of any foreign state or country, or receipt or certificate for interest 
 accruing thereon : R. S. C. c. 165, ss. 8 & 25 ; or 
 
 (m) any transfer or assignment of any share or interest in the debt of any 
 public body, company or society, British, Canadian or foreign, or of any share 
 or interest in the capital stock of any such company or society, or receipt or 
 certificate for interest accruing thereon : R. S. C. c. 165, s. 8 ; or 
 
 (n) any transfer or assignment of any share or interest in any claim to a 
 grant of land from the Crown, or to any scrip or other payment or allowance 
 in lieu of any such grant of land : R. S. C. c. 165, s. 8 ; or 
 
 (o) any power of attorney or other authority to transfer any interest or 
 share hereinbefore mentioned, or to receive any dividend ur money payable in 
 respect of any such share or interest : R. S. C. c. 1G5, 8. 8 ; or 
 
 (p) any entry in any book or register, or any certificate, coupon, share, 
 warrant or other document which by any law or any recognized practice is 
 evidence of the title of any person to any such stock, interest or share, or to 
 any dividend or inteiost payable in respect thereof : R. S. C. o. 165, s. 11 ; or 
 
 (q) any exchequer bill or endorsement thereof, or receipt or certificate for 
 interest accruing thereon : R. S. C c. 165, s. 13 ; or 
 
 (r) any bank note or bill of exchange, promissory note or cheque, or any 
 acceptance, endorsement or assignment thereof : R. S. C. c. 165, sa. 18, 25 & 
 28; or 
 
 (<) any scrip in lieu of land : R. S. C. c. 165, s. 13 ; or 
 
 (t) any document which is evidence of title to any portion of the debt of 
 any dominion, colony, or possession of Her Majesty, or of any foreign stttte, or 
 any transfer or assignment thereof : or 
 
 («) any deed, bond, debenture, or writing obligatory, or any warrant, 
 order, or other security for money or i>ayment of money, whether negotiable or 
 not, or endorsement or assignment thereof : R. 8. C. c. 165, ss. 2(j & 32 ; or 
 
 (v) any accountable receipt or acknowledgment of the deposit, receipt, or 
 delivery of money or goods, or endorsement or assignment thereof : K. S, C. 
 o. 165, 8. 29 ; or 
 
 {iv) any bill of lading, charter-party, policy of insurance, or an y nhipping 
 document accompanying a bill of lading, or any endorsement or amjiimnt 
 thereof; or 
 
Sec. 423] 
 
 PUNISHMENT. 
 
 513 
 
 (/) nn,'J warehnme receipt, dock imrrant, dock-keeper's certificate, delivery 
 order, or warrant for the delivery of gooiU, or of any valuable thing, or any 
 .(ndirrsement or assignment thereof; or 
 
 (y) any other document used in the ordinary course of business as proof of 
 the pimsession or control of goods, or as authorizing, either on endorsement w 
 deliver!/, the possessor of such document to transfer or receive any goods. 
 
 FOURTKKN YEARa. 
 
 (B) To fourteen years' imprisonment if the document forged purports to 
 be or was intended by the offender to be understood to be, or to be used as — 
 
 (a) any entry or document made, issued, kept or lodged under any Act 
 for or relating to the registry of any instrument respecting or concerning th« 
 title to, or any claim upon, any personal property : R. S, C. c. 166, s. 38. 
 
 (b) any public register or book not hereinbefore mentioned appointed by 
 law to bo made or kept, or any entry therein : R. S. C. c. 165, 8. 7. 
 
 Skvkn Years. 
 
 (C) To seven years' imprisonment if the document forged purports to be, 
 or wa« intended by the offender to be understood to be, or to be used as — 
 
 (rt) any record of any court of jus^^ce, or any document whatever belong- 
 ing to or issuing from any court of justice, or being or forming part of any 
 prcjceeding therein, (a. b. c. d. e, ar' an extension of the law, b. 34, c. 165, 
 R. S. C); or 
 
 (6) any certificate, office copy, or certified copy or other document which, 
 by any statute in force for the time being, is admissible in evidence ; or 
 
 (c) any document made or issued by any judge, officer or clerk of any 
 court of justice, or aiy d( cu. .>nt upon which, by the law or usage at the time 
 in force, any court of ju'itice or any officer might act ; or 
 
 ((/) any document Mrhich any magistrate is authorized or required by law 
 to make or issue ; or 
 
 (e) any entry in any register or book kept, under the pr ;' isiona of any 
 law, in or under the authority of any court of justice or magi: rate acting as 
 euch ; or 
 
 (/) any copy of any letters patent, or of the enrolment or enregistration 
 of letters patent, or of any certificates thereof : R. S. C. c. 165, s. 6 ; or 
 
 ((j) any license or certificate for or of marriage : R. S. C. c. 165, s. 42 ; or 
 
 (h) any contract or document which, either by itself or with others, amounts 
 
 ■to a contract, or is evidence of a contract ; or 
 
 (i) any poicer or letter of attorney or mandate; or 
 
 (i) any authority or request for the payment of money, or for the delivery 
 of goods, or of any note, bill, or valuable security : R. S. C. c. 165, s. 29 ; or 
 
 (i) any acquittance or discharge, or any voucher of having received any 
 goods, money, note, bill or valuable security, or any instrument which is 
 evidence of any such receipt : R. S. C. c. 165, s. 29 ; or 
 
 (/) any document to be given in evidence as a genuine document in any 
 judicial proceeding ; or 
 
 Criu. Law— 33 
 
514 
 
 FORGERY. 
 
 [Sec. 423 
 
 mKh^ 
 
 {m) any ticket or order for a free or paid passage on any carriage, tram- 
 way or railway, or on any steam or other vessel : R. S. C. c. 165, s. 33 ; or 
 
 (w) any document other than those above mentioned : R. S. C. c. lfir>, 
 
 8. 76. 
 
 The words in italics are additions to the enumeratiou 
 contained in the repealed statute. The punishments have 
 been altered in some cases. Ss. 86 & 87, c. 85, B. S. C, 
 provide for the forgery of stamps, money orders, etc., and 
 
 9. 100, c. 8, for the forgery of ballot papers at elections. 
 Upon the trial of any forgery the jury m?y, if the evidence 
 warrants it, convict the prisoner of an attempt to commit 
 the same ; s. 711. The punishment then, where none is 
 specially provided, falls under ss. 528 or 529. 
 
 Under the above s. 423, by s-s. {A.u.,) forging a warrant 
 or order for money or payment of money is punishable by 
 a life imprisonment, whilst, s-s. (C.j.), forging any author- 
 ity or request for the payment of money is punishable by 
 seven years. What is the difference between these docu- 
 ments ? Why that great difference in the punishment ? 
 Then by s-s. (A.v.) forgingany accountable receiptor acknow- 
 ledgment of the deposit, receipt or delivery of money or 
 goods is punishable by a life imprisonment, whilst s-s. 
 (C.k,,) forging any acquittance or discharge, or any voucher 
 of having received any goods or money, or any instrument 
 which is evidence of any such receipt, is punishable by 
 seven years! 
 
 The punishment for forging a railway ticket is seven 
 years ; for forging a custom house mark or brand, s. 210, 
 c. 32, R. S. C, two hundred dollars, on summary convic- 
 tion ; for forging any other custom house document, five 
 years' penitentiary ; s. 211, c. 32, R. S. C; for forging 
 election ballot papers, six months; s. 100, c. 8, R. S. C; 
 for forging a post ofiSce stamp, imprisonment for life ; s. 86, 
 c. 35, B. S. C; but for forging an inland revenue stamp 
 only fourteen years ; s. 485, post. It is only five ^e&n, 
 however, for criminally receiving a stolen post letter, whilst 
 
Sec. 423] 
 
 PUNISHMENT. 
 
 515 
 
 it is fourteen for receiving any other stol^m property; 
 88. 314, 315, ante. 
 
 (A.) (i.)-FORGERY OP MARRIAGE REGISTER. 
 
 In K. V. Asplin, 12 Gox, 891, it was held by Martin, 
 B., that upon an indictment for making a false entry in 
 a marriage register it is not necessary that the entry 
 should be made with intent to defraud, and that it is no 
 defence that the marriage solemnized was null and void, 
 being bigamous ; also that, if a person knowing his name 
 to be A„ signs another name without authority, he is guilty, 
 and it is immaterial that he is a third witness, the Marriage 
 Act only requiring two. 
 
 {A.) (fc.)-FORGERY OP WILLS. 
 
 The judges were equally divided upon the question 
 whether, in the absence of the existence of some person 
 who could have been defrauded by the forged will, a count 
 for forging it with intent to defraud a person or persons 
 unknown could be supported : R. v. Tylney., 1 Den. 319. 
 
 Forgery may be committed by the false making of the 
 will of a living person, or of a non-existing person : B. v. 
 Murphy, 2 East, P. C. 949 ; Wilks's case, 2 East P. C. 957 ; 
 P. V. Sterling, 1 Leach, 99 ; R. v. Coogan, 1 Leach 449 ; 
 R. V. Avery, 8 C. & P- 596. So, though it be signed by 
 the wrong christian name of the person whose will it pur- 
 ports to be : R. v. Fitzgerald, 1 Leach 20 ; ss. 421, 422, 
 ante. 
 
 [A.) (r.)-BANK NOTES, BILLS OP EXCHANGE, PROMISSORY 
 
 NOTES. 
 
 A bill payable ten days after sight, purporting to have 
 been drawn upon the Commissioners of the Navy by a 
 lieutenant, for the amount of certain pay due to him, has 
 been holden to be a bill of exchange : R. v. Chisholm, R. & 
 R. 297. So a note promising to pay A. & B., " steward- 
 esses " of a certain benefit society, or their " successors," a 
 certain bum of money on demand^ has been holden to be a 
 
516 
 
 FORGERY. 
 
 [Sec. 423 
 
 promissory note within the meaning of the Act. It is not 
 necessary that the note should he negotiable : B. v. Box, 
 E. & B. 300. An instrument drawn by A. on B., requiring 
 him to pay to the administrators of G. a certain sum, at a 
 certain time "without acceptance/' is a bill of exchange: 
 B. V. Kinnear, 2 M. & Bob. 117. So, though there be no 
 person named as drawee, the defendant may be indicted 
 for uttering- a forged acceptance on a bill of exchange : B. 
 V. Hawkes, 2 Moo. 60. For the act of putting the accept- 
 ance is a sort of estoppel to say it was not a bill of exchange, 
 but, without acceptance, this instrument is not a bill of 
 exchange : B. v. Curry, 2 Moo. 218. 
 
 In E. V. Mopsey, 11 Cox, 143, the acceptance to what 
 purported to be a bill of exchange was forged, but at the 
 time it was so forged the document had not been signed by 
 the drawer, and it was held that, in consequence, the 
 document was not a bill of exchange. And a document in 
 the ordinary form of a bill of exchange, but requiring the 
 drawee to pay to his own order, and purporting to be 
 indorsed by the drawer, and accepted by the drawer, can- 
 not, in an indictment for forgery or uttering, be treated as 
 a bill of exchange : B. v. Bartlett, 2 M. & Bob. 362. But 
 an instrument payable to the order of A., and directed "At 
 Messrs. F. & Co., bankers," was held to be properly de- 
 scribed as a bill of exchange : B. v. Smith, 2 Moo. 295. A 
 nurseryman and seedsman got his foreman to accept two 
 bills, the acceptance having no addition, description or 
 address, and afterwards, without the acceptor's knowledge, 
 he added to the direction a false address but no descrip- 
 tion, and represented in one case that the acceptance was 
 that of a customer, and in the other case that it was that 
 of a seedsman, there being in fact no such person at the 
 supposed false address: held, that in the one case, the 
 former, he was not guilty of forgery of the acceptance, but 
 that, in the other case, he was : B. v. Epps, 4 F. & F. 81. 
 A bill of exchange was made payable to A, B, C, D, or other 
 
Sec. 423] 
 
 51Y 
 
 forged executrixes. The indictment charged that the prisoner 
 forged on the back of the bill a certain indorsement, 
 which indorsement was as follows (naming one of the execu- 
 trixes) ; Held, a forged indorsement, and indictment suffi- 
 cient : R. V. Winterbottom, 1 Den. 41. Putting off a bill of 
 exchange of A. an existing person, as the bill of exchange of 
 A. a fictitious person, is a felonious uttering of the bill of a 
 fictitious drawer : R. v. Nisbett, 6 Cox, 320. f f there are 
 two persons of the same name, but of different descriptions 
 or additions, and one signs his name with the description 
 or addition of the other for the purpose of fraud, it is 
 forgery : R. v. Webb, cited in Bayley on Bills, 432. 
 
 There can be no conviction for forgery of an indorse- 
 ment of a bill of exchange under the above section if the 
 bill of exchange itself is not a complete instrument as such : 
 R. V. Harper, 14 Cox, 574. 
 
 \Y. a bailiff had an execution against prisoner and H. 
 M. and to settle same it was arranged to give a note made 
 by A. M. and indorsed by A. D. M. A note was drawn up 
 payable to the order of A. D. M., and prisoner took it 
 away and brought it back with the name A. D. M. indorsed. 
 It was then signed by A. M. and given to the bailiff. The 
 indorsement was a forgery, and prisoner was indicted for 
 forging an indorsement on a promissory note, and con- 
 victed. Held, following R. v. Butter wick, 2 M. & Rob. 196 ; 
 R. V. Mopsey, 11 Cox, 143 ; and R. v. Harper, 7 Q. B. D. 
 78, that the conviction could not be sustained on the indict- 
 ment as framed as the instrument, for want of the maker's 
 name at the time of the forgery, was not a promissory note ; 
 nor could it stand on the count for uttering as after it was 
 signed it was never in prisoner's possession : R. v. McFee, 
 13 0. R. 8. 
 
 Held, that the alteration of a $2 Dominion note to one 
 of the denomination of $20, such alteration consisting in 
 the addition of a cypher after the figure 2, wherever that 
 figure occurred in the margin of the note, was forgery, and 
 
 §4^ 
 
518 
 
 FORGERY. 
 
 [Sec. 423 
 
 the prisoner was rightly convicted therefor : R. v. Bail, 7 
 
 0. B. 228. 
 
 Where in an instrument, in form of a promissory note, 
 
 a blank is left for payee's name it is not a completed note 
 
 so as to support a conviction for forgery, or for forging 
 
 indorsement, nor is it a document, writing or instrument 
 
 within c. 165, ss. 46, 47 or 50. 
 I 
 
 Semhle, it might be forgery at common law : R. v. Cor- 
 mack, 21 0. R. 213. 
 
 An indictment need not state, in the counts for uttering, 
 to whom the note was disposed of: R. v. Holden, B. & £. 
 154. The intent to defraud any particular person need 
 not be alleged or proved. 
 
 Under the counts for uttering evidence may be given 
 that the defendant offered or tendered the note in payment, 
 or that he actually passed it, or otherwise disposed of it to 
 .another person. Where it appeared that the defendant 
 sold a forged note to an agent employed by the bank to 
 procure it from him the judges held this to be within the 
 Act, although it was objected that the prisoner had been 
 solicited to commit the act proved against him by the 
 bank themselves, by means of their agents : E. v. Holden, 
 R. & R. 154. So where A. gave B. a forged note to pass for 
 .him, and upon B.'s tendering it in payment of some goods 
 it was stopped ; the majority of the judges held that A., 
 by giving the note to B., was guilty of disposing of and 
 putting away the note within the meaning of the Act : B, 
 v. Palmer, R. & R. 72; B. v. Soares, R. & R. 25; E. v. 
 Stewart, R. & R. 863 ; and R. v. Giles, 1 Moo. 166, where 
 it was held that giving a forged note to an innocent agent, 
 or an accomplice, that he may pass it is a disposing of, 
 and putting it away, within the meaning of the statute. 
 
 (A) («) WARRANT, ORDER FOR PAYMENT, ETC. 
 
 A draft upon a banker, although it be post-dated, is a 
 warrant and order for the payment of money : R. v. Taylor, 
 1 C. & K. 213 ; R. v. Willoughby, 2 East, P. C. 944. Sols 
 
Sec. 423] 
 
 PUNISHMENT. 
 
 619 
 
 even a bill of exchange : B. v. Sbeppard, 1 Leacb, 226 ; 
 p. V. Smith, 1 Den. 79. An order by a foreman to his 
 employer to pay a specific sum falls under the statute : B. 
 V. Bowen, M. L. B. 7 Q. B. 468. An order need not specify 
 auy particular sum to fall under the statute : B. v. Mcin- 
 tosh, 2 East, P. C. 942. A writing in the form of a bill of 
 exchange, but without any drawee's name, cannot be 
 charged as an order for the payment of money ; at least, 
 unless shown by averments to be such : E. v. Curry, 2 Moo. 
 218. In B. V. Howie, 11 Cox, 320, it was held that a sea- 
 man's advance note was not an order for payment of 
 money. It would seem, however, to be an tvTulertaking 
 for the payment of money within the statute : B. v. Bam- 
 field, 1 Moo. 416 ; R. v. Anderson, 2 M. & Rob. 469 ; R. v. 
 Reed, 2 Moo. 62 ; R. v. Joyce, L. & C. 576. The statute 
 applies as well to a w« 'ten promise for the payment of 
 money by a third perso :. by the supposed party to the 
 instrument: R. v. Sto, c. i Den. 181. An instrument, 
 professing to be a scrip certificate of a railway company, is 
 not an undertaking within the statute : R. v. West, 1 Den. 
 258. But perhaps the present section would cover this 
 case. 
 
 In R. V. Rogers, 9 C. & P. 41, it was held that a war- 
 rant for the payment of money need not be addressed to 
 HYiy particular person : see R. v. Snelling, Dears. 219. 
 
 As to what is a warrant or order for the delivery of 
 goods the following cases may be cited : A pawnbroker's 
 ticket is a warrant for the delivery of goods : R. v. Morri- 
 son, Bell, 158. At the London docks a person bringing a 
 ^'tasting order" from a merchant having wine there is 
 not allowed to taste until the order has across it the signa- 
 ture of a clerk of the company ; the defendant uttered a 
 tasting order with the merchant's name forged to it by 
 presenting it to the company's clerk for his signature across 
 it, which the clerk refused ; it was held to be, in this state, 
 a forged order for the delivery of goods within the statute : 
 £. V. Illidge, 1 Den. 404. A request for the delivery of 
 
520 
 
 FORGERY, 
 
 [Sec. 4» 
 
 goods need not be addressed to any one ,* s. 423 (C) (j) : R. 
 V. Carney, 1 Moo. 351 ; R. v. CuUen, 1 Moo. 300 ; R. y. 
 Pulbrook, 9 G. & P. 37. Nor need it be signed by a persoD 
 who can compel a performance of it, or who has any 
 authority over or interest in the goods : B. v. Thomas, 2 
 Moo. 16 ; R. V. Thorn, 2 Moo. 210. Formerly, if upon an 
 indictment for the misdemeanour of obtaining goods under 
 false pretenses a felonious forgery were proved, the judge 
 had to direct an acquittal : R. v. Evans, 5 C. & P. 553, 
 But, by the abolition of the distinction between felonies 
 and misdemeanours, it would seem that the judge may, 
 under the same circumstances, take a verdict for the offence 
 charged. . 
 
 As to what is a receipt under this section 423, (A) (v),. 
 the additions in the present clause render many of the 
 cases on the subject of no practical importance. A turn- 
 pike toll-gate ticket is a receipt for money within this 
 section: B. v. Fitch, B. v. Howley, L. & C. 159. If a 
 person with intent to defraud, and to cause it to be supposed, 
 contrary to the fact, that he has paid a certain sum into a 
 bank, make in a book, purporting to be a pass-book of the 
 bank, a false entry which denotes that the bank has 
 received the sum, he is guilty of forging an accountable 
 receipt for money: B. v. Moody, L. & C. 173; R. v. Smith, 
 L. & C. 168. A document called a " clearance " issued to 
 members of the Ancient Order of Foresters' Friendly Society 
 certified that the member had paid all his dues and 
 demands, and authorized any Court of the Order to accept 
 the bearer as a clearance member: Held, that this was not 
 a receipt for money under this section: R. v. French, 11 
 Cox, 47 2. An ordinary railway ticket is not an acquittance, 
 or receipt, within this section : R. v. Gooden, 11 Cox, 672; 
 but now, by s. 423, (C) (m), forging a railway ticket is a dis- 
 tinct offence. The prisoner being pressed by a creditor for 
 the payment of £35 obtained further time by giving an 
 I. 0. U. for £35 signed by himself, and also purporting to 
 be signed by W.; W.'s name was a forgery: Held, that the 
 
Sees. 434, 426] 
 
 UTTERING, ETC. 
 
 521 
 
 instrument was a security for the payment of money by W: 
 jj. V. Chambers, 12 Cox, 109. , . 
 
 An indictment for forging a receipt 423, (A) (v), must 
 allege a receipt either of money or of goodp : B. v. McCorkill^ 
 8 L. C. J. 283. But the intent to defraud any particular 
 person need not be alleged : R. v. Hathaway, 8 L. C. J. 
 285; see In re Debaun, 11 L. N. 323. 
 
 The evidence of the uttering of a forged indorsement of 
 a negotiable check or order is insufficient to sustain a 
 conviction for uttering a forged order or check : R, v. Cun- 
 ningham, Cassel's Dig. 107. 
 
 The prisoner was indicted for forging a request for the 
 payment of money, s. 423 (C) (;) the said request consisting 
 of a forged telegram upon which he obtained $85 : Held^ 
 a forgery as charged: R. v. Stewart, 25 U. C. C. P. 440. 
 
 Uttkrino, Etc. 
 
 434. Every one is guilty of an indictable offence who, knowing: a docu- 
 ment to be forged, uses, deals with, or acts upon it, or attempts to use, deal 
 with, or act upon it, or causes or attempts to cause any i^erson to use, deal 
 with, or act upon it, as if it were genuine, and is liable to the same punishment 
 as if he had forged the document. 
 
 2. It is immaterial where the document was forged. 
 
 The word " utter " has been left out of this clause, 
 though retained in ss. 431, 435, 437, 438 and in the sections 
 relating to the coin, s. 460, et seq. 
 
 Counterfeiting Seals. 
 
 425> Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who unlawfully makes or counterfeits any public seal of the 
 United Kingdom or any part thereof, or of Canada or any part thereof, or of 
 any dominion, possession or colony of Her Majesty, or the impression of any 
 such seal, or uses any such seal or impression, knowing the same to be so- 
 counterfeited. R. S. C. c. 165, s. 4 (Amended). 24-25 V. c. 98, s. 1 (Imp.). 
 
 No intent to defraud necessary. 
 
 Indictment. — thatA. B., on the seal of the 
 
 Dominion of Canada, falsely and unlawfully did counterfeit. 
 {Add a count for uttering, using, dealing ivith or 
 . . . knowing the same to he so counterfeit.) 
 
 m 
 
 ;ii: 
 
522 
 
 FORGERY. 
 
 [Sees. 426-429 
 
 COUNTKRFBITINO SbAL OF CoURT. 
 
 496* Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who unlawfully makes or counterfeits any seal of a court 
 of justice, or any seal of or belonging to any registry office or bui-ial board, or 
 the impression of any such seal, or uses any such seal or impression knowing 
 the same to be counterfeited. R. S. C. c. 165, ss. 36, 3d & 43 {Amended). 
 24-25 V. c. 98, ss. 28, 31 & 36 (Imp.). 
 
 See under preceding section. 
 
 Unlawfully Printing Proclamation. 
 
 4S7« Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who prints any proclamation, order, regulation or 
 appointment, or notice thereof, and causes the same falsely to purport to have 
 been printed by the Queen'c Printer for Canada, or the Government Prinler 
 for any province of Canada, as the case may be, or tenders in evidence any 
 copy of any proclamation, order, regulation or apix)intment whi«h falsely 
 purports to have been printed as aforesaid, knowing that the same was not so 
 printed. R. S. C. o. 165, s. 37. 
 
 The repealed clause provided also for the forgery of any 
 certificate of any proclamation, etc.: see a. 423, (C) (l). ante. 
 The Canada Evidence Act of 1893 provides for the proof 
 of proclamations, etc. 
 
 Sending Telegrams in False Name. (New). 
 428. Every one is guilty of an indictable offence who, with intent to 
 defraud, causes or procures any telegram to be sent or delivered as being sent 
 by the authority of any person, knowing that it is not sent by such authority, 
 with intent tliat such telegram should be acted on as being sent by that 
 person's authority, and is liable, upon conviction thereof, to the same punish- 
 ment as if he had forged a document to the same effect as that of a telegram. 
 
 Indictment. — that A. B., at on un- 
 
 lawfully, with intent to defraud, did cause a telegram 
 purporting to be an order for money, to be sent to 
 as being sent by the authority of one C. D., knowing that 
 it was not sent by the authority of the said C. D., with 
 intent that such telegram should be acted on as being sent 
 by the said C. D. 
 
 See R. V. Stewart, p. 521 ante. 
 
 Sending False Telegrams or Letters. (New). 
 
 420* Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, with intent to injure or alarm any person, sends, causes, or 
 procures to be sent any telegram or letter or other message containing matter 
 which he knows to be false. 
 
 Fine, s. 958. 
 
Sees, 430, 481] 
 
 FORGED BANK NOTES. 
 
 523 
 
 Indictment. — that A. B., on at un- 
 
 lawfully did send {cause or 'procure to he sent) a telegram 
 to one G. D. containing matter which he, the said 
 
 A. B., knew to be false, with intent to injure {or alarm) the 
 said C. D. {Add another count giving the telegram, in 
 fidl if possible ). 
 
 The clause seems to cover the case of •» telegram or 
 letter sent to one person with intent ^ aj. ^r alarm any 
 other person, as well as the person to whom iu is sent. 
 
 Possession op Fokoed Bank Notes. 
 
 430« Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who, without lawful authority or excuse (the proof where- 
 of shall lie on him), purchases or receives from any person, or has in his 
 custody or possession, any forged bank note, or forged blank bank note, 
 whether complete or not, knowing it to be forged. R. S. C. c. 165, a. 19 
 (Amended). 24-25 V. o. 98, s. 13 (Imp.). 
 
 As to what constitutes a criminal possession seea.d. 
 
 Indictment. — The Jurors for Our Lady the Queen 
 present, that A. B. on unlawfully and without lawful 
 
 authority or excuse, had in his custody and possession five 
 forged bank notes for the payment of ten dollars each, the 
 said A. B. then well knowing the said several bank notes 
 and each and every of them respectively to be forged. 
 
 In R. V. Eowley, R. & R. 110, it was held that every 
 uttering included having in custody and possession, and, 
 by some of the judges, that without actual possession, if 
 the notes had been put in any place under the prisoner's 
 control, and by his direction, it was a sufficient possession 
 within the statute. 
 
 Upon the trial for an ofifence of purchasing forged notes 
 under this section the jury may, if the evidence warrants 
 it, under s. 711, convict the prisoner of an attempt to 
 <:ommit the same. 
 
 Drawing DocuMExxa per Procuration without Authority. 
 
 431. Every one is guilty of an indictable offence who, with intent to 
 defraud and without lawful authority or excuse, makes or executes, draws, 
 signs, accepts or endorses, in the name or on the account of another person, by 
 procuration or otherwise, any document, or makes use of or utters any such 
 
 1 i 
 
 
 I'V 
 
624 
 
 FORGERY, 
 
 [Sac. 432 
 
 document knowing it to be so made, executed, signed, accepted or endorsed 
 and is liable to the same punishment as if he had forged such document 
 R. S. C. c. 165, 8. SO {Amended). 24-25 V. c. 98, s. 24 (Imp.). 
 
 Greaves says : " This clause is framed in order to 
 make persons punishable who, without authority, make, 
 accept or endorse bills " per procuration." 
 
 The words " any document " instead of the enumera- 
 tion contained in the repealed clause are an extension : see 
 R. V. Kay, 11 Cox, 529, L. R. 1 C. C. R. 257. "Docu- 
 ment " defined, s. 419 ; R. v. White, 1 Den. 208 cannot 
 now be followed. 
 
 Demanding Property upon Forged Instrchents. 
 
 43S* Every one is gruilty ol an indictable offence and liable to fourteen 
 years' mprisonment, who— 
 
 (a) demands, receives, obtains or causes, or procures to be delivered or 
 paid to any person, anything under, upon, or by virtue of any forged instru- 
 ment knowing the same to be forged, or under, upon, or by virtue of any 
 probate or letters of administration, knowing the will, codicil, or testamentary 
 writing on which such probate or letters of administration were obtained to be 
 forged, or knowing the probate or letters of administration to have been 
 obtained by any false oath, affirmation, or affidavit ; or 
 
 (b) attempts to do any such thing as aforesaid. R S. C. c. 165, a. 45. 
 24-25 V. c. 98, s. 38 (Imp.). 
 
 The words "with intent to defraud" were in the repealed 
 section. 
 
 Greaves says: " This clause is new. It is intended to 
 embrace every case of demanding, etc., any property 
 whatsoever upon forged instruments, and to include bring- 
 ing an action on any forged bill of exchange, note, or other 
 security for money. The words * procures to be delivered 
 or paid to any person ' were inserted to include cases where 
 one person by means of a forged instrument causes money 
 to be paid to another person, and to avoid the difficulty 
 which had arisen in the cases as to obtaining money by 
 false pretenses : R. v. Wavell, 1 Moo. 224 ; R. v. Garrett, 
 Dears. 232." 
 
 In R. V. Adams, 1 Den. 88, the prisoner had obtained 
 goods at a store with a forged order ; this was held not to 
 be larceny ; it would now fall under this clause. 
 
Sees. 433, 434] INTERPRETATION OF TERMS. 
 
 525 
 
 The clause covers the attempt to commit the offence, as 
 ^ell as the offence itself, and under s. 711, on anlindict- 
 ment for the offence, a verdict for the attempt to ^commit 
 it may be given if the evidence warrants it. 
 
 I '4' 
 
 III .1, 
 ill 
 
 Mr 
 
 le to fourteen 
 
 PART XXXII. 
 
 PREPARATION FOR FORGERY AND OFFENCES RESEMBLING 
 
 FORGERY. 
 
 Interpretation of Terms. 
 
 433. In this part the following expressions are used in the following 
 senses : — 
 
 (a) "Exchequer bill paper" means any paper provided by the proper 
 authority for the purpose of being used as exchequer bills, exchequer bonds, 
 notes, debentures, or other securities mentioned in section four hundred and 
 twenty ; 
 
 (b) " Revenue paper" means any paper provided by the proper authority 
 for the purpose of being used for stamps, licenses, or permits, or for any other 
 purpose connected with the public revenue. 
 
 Instruments of Forgery and Counterfeiting. 
 
 434> Every one is guilty of an indictable ofifence and liable to fourteen 
 years' imprisonment who, without lawful authority or excuse (the proof 
 whereof shall lie on him) — 
 
 (a) makes, begins to make, uses or knowingly has in his possession, any 
 machinery or Instrument or material for making exchequer bill paper, revenue 
 paper or paper intended to resemble the bill paper of any firm or body 
 corporate; or person carrying on the business of banking : R. S. C. o. 165, 
 ss. 14, 16, 20 & 24 ; or 
 
 (b) engraves, or makes upon any plate or material anything purporting 
 to be, or apparently intended to resemble, the whole or any part of any 
 exchequer bill or bank note : R. S. C. c. 165, ss. 20, 22 & 24 ; or 
 
 (c) uses any such plate or material for printing any part of any such 
 exchequer bill or bank note : R. S. C. c. 165, ss. 22 & 23 ; or 
 
 (d) knowingly has in his possession any such plate or material as afore- 
 said : R. S. C. c. 165, ss. 22 & 23 ; or 
 
 (e) makes, uses or knowingly haa in his possession any exchequer bill 
 paper, revenue paper, or any paper intended to resemble any bill paper of any 
 firm, body corporate, company, or person, carrying on the business of banking, 
 
526 
 
 PREPARATION FOR FORGERY, ETC. 
 
 [S6C. 435 
 
 or any paper upon which ia written or printed the whole or any part of any 
 exchequer bill, or of any bank note : R. S, C. c. 105, bs. 15, 16, 20 &, 24. 
 
 (/) engraves or makes uixin any plate or material anything intended tu 
 resemble the whole or any distinguishing part of any bond or undertaking^ for 
 the payment of money used by any dominion, colony or possession of Her 
 Majesty, or by any foreign prince or state, or by any body corporate, or other 
 body of the like nature, whether within Her Majesty's dominions or without • 
 R. S. C. 0. 165, 8. 25 ; or 
 
 (g) uses any such plate or other material for printing the whole or any 
 part of such bond or imdertaking : R. S. C. c. 165, s. 25 ; or 
 
 (A) knowingly offers, disposes of, or has in his possession any paper ui on 
 which such bond or undertaking, or any part thereof, has been printt J • 
 R. S. 0. c, 165, s. 25 {Amended). 24-25 ,V, c. 98, ss. 9 & 10 (Imp.). 
 
 "Having in possession" defined, s. 3; see R. v. Bracken- 
 ridge, 11 Cox, 96 ; R. v. Keith, Dears. 486, and Greaves' 
 note on it in 2 Russ. 874 ; R. v. Warshaner, 1 Moo. 466 ; 
 R. V. Rinaldi, L. & C. 330. A verdict of attempt may be 
 given, if the evidence warrants it, s. 711. . 
 
 Counterfeiting Stamps. 
 
 435* Every one is guilty of an indictable offence and liable to fourtan 
 I/cars' imprisonment who — 
 
 («) fraudulently counterfeits any stamp, whether impressed or adhesive, 
 used for the purposes of revenue by the Government of the United Kingdom 
 or of Canada, or by the Government of any province of Canada, or of any 
 possession or colony of Her Majesty, or by any foreign prince or state ; or 
 
 (6) knowingly sells or exposes for sale, or utters or uses any such counter- 
 feit stamp ; or 
 
 (c) without lawful excuse (the proof whereof shall lie on him) makes, or 
 has knowingly in his possession, any die or instrument capable of making the 
 impression of any such stamp as aforesaid, or any part thereof ; or 
 
 ((/) fraudulently cuts, tears or in any way removes from any material any 
 such stamp, with intent that any use should be made of such stamp or of any 
 part thereof ; or 
 
 {e) fraudulently mutilates any such stamp with intent that any use 
 would be made of any part of such stamp ; or 
 
 (/) fraudulently fixes or places upon any material, or upon any such 
 stamp, as aforesaid, any stamp or part of a stamp which, whether fraudulently 
 or not, has been cut, torn, or in any other way removed from any other 
 material or out of or from any other stamp ; or 
 
 (g) fraudulently erases, or otherwise, either really rr apparently, removes, 
 from any stamped material any name, sum, date, oi other matter or thing 
 thereon written, with the intent that any use should be made of the stamp 
 upon such material ; 
 
 (A) knowingly and without lawful excuse (the proof whereof shall lie 
 upon him) has in his pos^session any stamp or part of a stamp which has been 
 
 li! 
 
Sec. 435] 
 
 COUNTERFEITING STAMPS. 
 
 527 
 
 fraiuUilently out, torn, or otherwise removed from any material, or any stamp 
 v/hiuli has been frauduk'ntly mutilated, or any stamped material out of which 
 Any name, sum, date, or other matter or thing has been fraudulently erased or 
 otlierwise, either really or apparently, removed : R. S. C. o. 166, s. 17 
 (Amended.) 32-33 V. c. 49. 33-3-t V. c. 58 (Imp.); or 
 
 (i) without lawful authority makes or counterfeits any mark or brand 
 uaecl by the Government of the United Kingdom of Great Britain and 
 Ireland, the Government of Canada, or the Government of any province of 
 Canada, or by any department or officer of any such Government for any 
 purpose in connection with the service or business of such Government, or the 
 impression of any such mark or brand, or sells or exposes for sale or has in his 
 possession any goods having thereon a counterfeit of any such mark or brand 
 knowing the same to be a counterfeit, or affixes any such mark or brand to any 
 ffoals required by law to be marketl or branded other than those to which 
 jiich mark or brand was originally afiixed. 
 
 Sub-section (h) is an extension of the repealed statute. 
 
 Section 210, c. 32, R. S. C, as to counterfeiting custom- 
 house brands, etc., is unrepealed. 
 
 As to indictment see s. 622. 
 
 See R. S. C. c. 35, s. 86, as to forgery of postal stamps. 
 
 As to what constitutes a criminal possession see ante, a. 3. 
 
 See R. V. Collicott, R. & R. 212, and R. v. Field, 1 
 Leach, 383, and general remarks on forgery. The 
 words •' with intent to defraud " are not necessary in the 
 indictment since the statute does not contain them : R. v. 
 Asplin, 12 Cox, 391. 
 
 It was held, in R. v. Ogden, 6 C. & P. 631, under a 
 similar statute, that a fraudulent intent was not necessary, 
 but in a case of R. v. Allday, 8 C. »& P. 136, Lord Abinger 
 ruled the contrary : "The Act of Parliament, he said, does 
 Dot say that an intent to deceive or defraud is essential to 
 constitute this offence, but it is a serious question whether 
 a person doing this thing innocently, and intending to pay 
 the stamp duty, is liable to be transported. I am of 
 opinion, and I hope I shall not be found to be wrong, that 
 to constitute this offence there must be a guilty mind. 
 It is a maxim older than the law of England that a man 
 is not guilty unless his mind be guilty." 
 
 Lord Abinger, in R. v. Page, 8 C. & P. 122, held, upon 
 the same principle, that giving counterfeit coin in charity, 
 knowing it to be such, is not criminal, though in the statute 
 
 iiii 
 
hk 
 
 528 
 
 PREPARATION FOR FORGERY, ETC. 
 
 [Sec. 4&5 
 
 there are no words with respect to defrauding. But this is 
 overruled, as stated by Baron Alderson, in B. v. Ion, 2 Den. 
 476; and Greaves well remarks (on B. v. Page) : "As every 
 person is taken to intend the probable consequence of bis 
 act, and as the probable consequence of giving a piece of 
 bad money to a beggar is that that beggar will pass it to 
 some one else, and thereby defraud that person, qucere, 
 whether this case rests upon satisfactory grounds? In any 
 c&pfi a party may not be defrauded by taking base coin, as 
 he ^)iay pass it again, but still the probability is that he 
 vrill be defrauded, and that is sufficient: 1 Buss. 126, 
 note (z). 
 
 And are there not cases where a party, receiving a 
 ■counterfeit coin or a false note, not only may not be 
 defrauded but will certainly not be defrauded. As for 
 example, suppose that during an election any one buys an 
 elector's vote, and pays it with e forged bill, — is the utter- 
 ing of this bill, with guilty knowlkdge, not criminal? Yet, 
 the whole bargain is a nullity; the bellor has no right to 
 sell; the buyer has no ri(,ht to buy; if he buys, and does 
 not pay, the seller has no legal or equitable claim against 
 him, though he may have fulfilled his part of the bargain. 
 If the buyer does not pay he does not defraud the seller ; he 
 -cannot defraud him, aince he does not owe him anything; 
 it, then, cannot be said that he defrauds him in giving him 
 in payment a forged note. Why see in this a fraud, and no 
 fraud in giving a counterfeit note, in charity, to a beggar ? 
 Nothing is due to this beggar, and he is not defrauded of 
 ■anything by receiving this forged bill, nor is that elector, 
 who has sold his vote, defrauded of anything, since nothing 
 was due to him ; they are both deceived but not defrauded. 
 In the general remarks on forgery, ante, an opinion was 
 expressed that forgery would be better described as " a false 
 making with the intent to defraud or deceive." When the 
 statute makes no mention of the intention does it not make 
 the act prohibited a crime in itself, apart from the intention? 
 Of course, it is a maxim of law that " actus nonfacitreim 
 
Sec. 436] 
 
 COUNTERFEITING STAMPS. 
 
 529 
 
 nisi mens sit rea " or as said in other words, by Starkie, 1 
 Cr. PI. 17"; that, ** to render a party criminally responsible, 
 a vicious will must concur with a wrongful act." " But," 
 continues Starkie, "though it be universally true, that a man 
 cannot become a criminal uAless his mind be in fault, it is 
 not so general a rule that the guilty intention must be 
 averred upon the face of the indictment." And then, for 
 example, does not the man who forges a stamp, or, scienter, 
 utters it, do wilfully an unlawful act? Does not the law say 
 that this act, by itself, is criminal ? Has parliament not the 
 right to say : " The forging, false-making a stamp, or know- 
 ingly uttering it, is a felony, by itself, whether the person 
 who does it means wrong, or whether he means right, or 
 whether he means nothing at all?" And this is exactly 
 what it has said with regard to stamps, the Great Seal, 
 records of the courts of justice, etc. It has said of these : 
 " They shall be sacred, inviolable ; you shall not deface 
 them, imitate them, falsify, or alter them in any way or 
 manner whatsoever, and if you do, you will be a felon." 
 And to show that, as regards these documents, the intent. 
 to defraud was not to be a material element of the offence, 
 it has expressly, in all the other clauses of the statute, 
 where it did require this intent to make the act criminal, 
 inserted the words " with intent to defraud," and left them 
 out in these clauses. And no one would be prepared to say, 
 that the maxim, "la Jin jiistijie les vioyena," has found its 
 introduction into the English criminal law^ and that, for 
 instance, a clerk of a court of justice is not guilty of a 
 criminal act, if he alters a record, provided that the alter- 
 ation is done with a good intent, and to put the record as 
 k thinks it ought to be, and should, in fact, be. Is it liot 
 better to say that, in such cases, the guilty mind, the evil 
 intent, the mens rea, consist in the wilful disobedience to a 
 positive law, in the infraction of the enactments of the 
 legislative authority? (From 2nd Edit.). 
 
 As to intention and "mens rea," see 2 Steph. Hist. 110, 
 and cases under s. 14, p. 11 ante. 
 
 Cbim. Law— 34 
 
 ■^*;*^ 
 
530 
 
 PREPARATION FOR FORGERY, ETC. [Sees. 436, 437 
 
 " What the law says shall not be done, it becomes 
 illegal to do, and is therefore the subject matter of an 
 indictment, without the addition of any corrupt motives": 
 R. V. Sainsbury, 4 T. R. 451. « 
 
 The definition in s. 422 of this Code does not make an 
 intent to defraud an ingredient of the oflfence : and, under it, 
 one who buys a vote with a forged bank bill is undoubtedly 
 guilty of forgery or of a criminal uttering : see R. v. 
 1 Cox, 260. 
 
 Destroying, Etc , Registers. 
 
 436- Every one is guilty of an indictable oflfence and liable to Jourteen 
 years' imprisonment, who 
 
 (a) unlawfully destroys, defaces or injures any register of births, baptisms 
 marriages, deaths or burials required or authorized by law to he kept in 
 Canada, or any part thereof, or any copy of such register, or any part thereof 
 required by law to be transmitted to any registrar or otlier officer ; or 
 
 {b) unlawfully inserts in any such register, or any such copy thereof, any 
 'entry, known by him to be false, of any matter relating to any birth, baptism, 
 marriage, death or burial, or erases from any such register or document any 
 material part thereof. R. S. C. c. 165, ss. 43 & 44 {Amended). 24-25 V. c. 98, 
 88. 36 & 37 (Imp.). 
 
 iSee next section. 
 
 Indictment. — that A. B., on at un- 
 
 lawfully did destroy, deface and injure a certain register of 
 wliich said register was then and there kept as the 
 register of marriages of the parish of and as such was 
 
 then and there in the lawful custody of : R. v. Bowen, 
 
 1 Den. 22 ; see R. v. Asplin, 12 Cox, 391; R. v. Mason, 2 
 C. & K. 622. 
 
 False Extracts from Registers. 
 
 4137. Every one is guilty of an indictable offence and liable to ten years 
 imprisonment, who — 
 
 {a) being a person authorized or required by law to give any certified copy 
 of any entry in any such register as in the laai preceding secticjii mentioned, 
 certifies any writing to be a true copy or extract, knowing it to be false, or 
 knowin^ ly utters any such certificate ; 
 
 (6) unlawfully and for any fraudulent purpose takes any such register or 
 certified copy from its place of deposit or conceals it ; 
 
 (c) being a person having the custody of any such register or certified copy, 
 permits it to be so taken or concealed as aforesaid. R. S. C. c. IG5, s. 44 
 {Amended). 24-25 V. c. 98, s. 37 (Imp.). 
 
i to JouHem 
 
 lie to ten years 
 
 Sees. 438-440] UTTERING FALSE CERTIFICATES. 
 Uttering False Ckutificatks. 
 
 531 
 
 43S. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment, who— 
 
 (ft) being by law required to certify that any entry has been made in any 
 such register as in the two last preceding sections mentioned makes such 
 certificate knowing that such entry has not been made ; or 
 
 [h) being by law required to make a certificate or declaration concerning 
 any particular required for the purjiose of making entries in such register 
 knowingly makes such certificate or declaration containing a falsehood ; or 
 
 (r) being an officer having custody of the records of any court, or being 
 the deputy of any such officer, wilfully utters a false copy or certificate of any 
 record ; or 
 
 ((/) not being such officer or dt']Hity fraudulently signs or certifies any 
 copy or certificate of any record, or any copy of any certificate, as if he were 
 such officer or deputy. R. S. C. c. 105, ss. 35 & 43 (Aimmled). 24-25 V. c. 98, 
 S3, 28 & 36 (Imp.). 
 
 See R V. Powner, VA Cox, 235. 
 
 The words " wilfully " appears onl}' in s-s. {c), and 
 "fraudulently" only in s-s. {d). 
 
 FouGiNG Certificates. 
 
 4!i9. Every one is guilty of an indictable offence and liable to two years' 
 
 imprisonment, who 
 
 (rt) being an officer required or authorized by law to make or issue any 
 certified copy of any document or of any extract from any document wilfully 
 certifies, iis a true copy of any document or of any extract from any such 
 document, any writing which he knows to be untrue in any material 
 ])articiihir ; or 
 
 (h) not being such officer as aforesaid fraudulently signs or certifies any 
 coi)y of any document, or of any extract from any document, as if he were such 
 otticur. R. S. C. c. 105, s. 35 (Amended). 24-25 V. c. !)8, ss. 28 & 2!) (Imp.). 
 
 False Entries in Public Registers. 
 
 440. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who, witii intent to defraud — 
 
 (a) makes any untrue entry or any alteration in any book of account kept 
 by tlie (joveniment of Canada, or of any province of Canada, or by any bank 
 for any such (Jovernment, in which Ixxjks are kept the accounts of the owners 
 of any stock, annuity or other public fund transferable for the time being in 
 any sucli books, or who, in any manner, wilfully falsifies any of the said 
 books ; or 
 
 (')) makes any transfer of any share or interest of or in any stock, annuity 
 or public fund, transferable for the time being at any of the said banks, in 
 the name of any person other than the owner of such share or interest. 
 R. 8. C. c. 10.5, 8. 11 (Amended). 24-25 V. c. fJ8, s. 5 (Imp.). 
 
 my^ 
 
632 
 
 PREPARATION FOR FORGERY, ETC. 
 
 [See. 441 
 
 Indictment for making false entries of stock. — un- 
 lawfully did wilfully alter certain words and figures, that 
 is to say {here set out the words and figures, as they were. 
 hefore the alteration) in a certain book of account kept by 
 , in which said book the accounts of the owners of 
 certain stock, annuities and other public funds, to wit, the 
 (state the stock) which were then transferable at were 
 
 then kept and entered, by (6V'^ out the alteration and the 
 state of the account or item when so altered) with intent 
 thereby then to defraud. 
 
 Indictment for making a transfer of stock in the navie 
 of a person not the owner. — unlawfully did wilfully 
 
 make a transfer of a certain share and interest of and in 
 certain stock and annuities, which were then transferable 
 at the bank of , to wit, the share and interest of 
 
 in the (state the amount and nature of the stock), in 
 
 the name of one C. D., he the said C. D., not being then 
 the true and lawful owner of the said share and interest of 
 and in the said stock and annuities, or any part thereof, 
 with intent thereby then to defraud. 
 
 Where a bank clerk made certain false entries in the 
 bank books under his control, for the purpose of enabling 
 him to obtain the money of the bank improperly. 
 
 Held, that he was not guilty of forgery : R. v. Black- 
 stone, 4 Man. L. E. 296. 
 
 False Dividend Warrants. 
 
 441* Every one is guilty of <an indictable offence and liable to seven 
 years' imprisonment who, being in the employment of the Government of 
 Canada, or of any province of C mda, or of any bank in which any books of 
 account mentioned in the last preceding section are kept, witli intent to 
 defraud, makes out or delivers any dividend warrant, or any warrant for the 
 payment of any annuity, interest or money payable at any of the said banks, 
 for an amount greater or less than that to which the jjerson on whose account 
 such warrant is made out is entitled. R. S. C. c. 105, s. 12. 24-25 V. c. 98, 
 B. 6 (Imp.). 
 
 Indictment. — then being a clerk of and em- 
 
 ployed and intrusted by the said unlawfully did 
 
 knowingly make out and deliver to one J. N. a certain 
 
lll"l' 
 
 Sees. 442, 443] 
 
 TRADE MARKS. 
 
 533 
 
 dividend warrant for a greater amount than the said J. N. 
 was then entitled to, to wit, for the sum of five hundred 
 dollars ; whereas, in truth and in fact, the said J. N. was 
 then entitled to the sum of one hundred dollars only, with 
 intent thereby then to defraud. 
 
 Circulars in Likeness of Notes. 
 
 442- Every one is guilty of an offence and liable, on summary convic- 
 tion before two justices of the peace, to a fine of one hundred dollars or three 
 months' imprisonment, or both, who designs, engraves, prints or in any 
 manner makes, executes, utters, issues, distributes, circulates or uses any 
 business or professional card, notice, placard, circular, hand-bill or advertise- 
 ment in the likeness or similitude of any bank note, or any obligation or 
 security of any Government or any bank. 53 V. c. 31, s. 3. 
 
 Summary conviction. — S. 3 of 63 V. c. 31 cited under 
 this section is the section enacting to what banks the 
 Banking Act applies. S. 63 is the one that ought to have 
 been cited. 
 
 ,t" 
 
 m 
 
 '4i 
 
 U' 
 
 13 
 
 PART XXXIII. 
 
 FORGERY OF TRADE MARKS-FRAUDULENT MARKING OF 
 
 MERCHANDISE. 
 
 443. In this part— 
 
 (a) The txpression " trade mark " means a trade mark or mdustrial design 
 registered in accordance with The Trade Mark and Desiijn Act and the regis- 
 tration whereof is in force under the provisions of the said Act, and includes 
 any trade mark which, either with or without registration, is protected by law 
 in any British possession or foreign state to which the provisions of section one 
 hundred and three of the Act of the United Kingdom, known as The Patents, 
 Designs, ami Trade Marks Act, 1883, are, in accordance with the provisions of 
 the said Act, for the time being applicable ; 
 
 (6) The expression "trade description " means any description, statement, 
 or ether indication, direct or indirect — 
 
 (i) as to the number, quantity, measure, gauge or weight of any 
 
 goods ; 
 
 (ii) as to the place or country in which any goods are made or 
 
 produced ; 
 
 11 ' -h 
 
 ■;;1 i 
 
534 
 
 FORGERY OF TRADE MARKS, ETC. 
 
 [See. 443 
 
 (iii) as to the mode of manufacturing or producing any goods ; 
 (iv) as to the material of which any goods are composed ; 
 
 (v) as to any goods being the subject of an existing patent, privilege 
 or copyright ; 
 
 And the use of any figure, word, or mark which, according to the custom 
 of the trade, is commonly taken to be an indication of any of the above 
 matters, is a trade description within the meaning of this part ; 
 
 (c) The expression "falsa trade description" means a trade description 
 which is false in a material respect as regards the goods to which it is applied, 
 and includes every alteration of a trade description, whether by way of 
 addition, effacement, or otherwise, where that alteration makes the descrip- 
 tion false in a material respect ; and the fact that a trade description is a trade 
 mark, or part of a trade mark, shall not prevent such trade description bein^ 
 a false trade description within the meaning of this part ; 
 
 {(l) The expression " goods " means anything which is merchandise or the 
 subject of trade or n«.. •'ufacture ; 
 
 (e) The expression "covering" includes any stopper, cask, bottle, vsKsel, 
 box, cover, capsule, qase, frame or wrapper ; and the expression "label " 
 includes any band or ticket ; 
 
 (/) The expressions "person, manufacturer, dealer, or trader," and 
 " proprietor" include uuy body of persons corporate or unincorporate ; 
 
 {g) The expression "name " includes any abbreviation of a name. 
 
 2. The provisions of this part respecting the application of a false trade 
 description to goods extend to the application to goods of any such figures, 
 words or marks, or arrangement or combination thereof, wliether including a 
 trade mark or not, as are reasonably calculated to lead persons to believe that 
 the goods are the manufacture or merchandise of some person other than the 
 person whose numufacture or merchandise they really are. 
 
 3. The provisions of this part resiwcting the application of a false trade 
 description to goods, or respecting goods to which a false trade description is 
 applied, extend to the application to g(X)ds of any false name or initials of a 
 person, and to goods with the false name or initials of a person applied, in like 
 manner as if such name or initials wore a trade description, and tlie expression 
 " false name or initials " means, as applied to any goods, any name or initials 
 of a person which — 
 
 (a) are not a trade mark, or part of a trade mark ; 
 
 {h) are identical with, or a colourable imitation of, the name or initials of 
 a person carrying on business in connection with goods of the same description, 
 and not having authorized the use of such name or initials ; 
 
 (c) are either those of a fictitious person or of some person not bona fide 
 carrying on business in connection with such goods. 51 V. c. 41, s. 2. 25-20 V_ 
 c, 88 (Imp.). ♦ 
 
 This part is a re-enactment of 50 & 51 V. c. 28 (Imp.). 
 See Wood v. Burgess, 16 Cox, 729; Starcy v. The Chilworth 
 Mfg. Co., 17 Cox, 55 ; Budd v. Lucas, 17 Cox, 248. Ss. lo, 
 
Sees. 444447] FORGERY OF TRADE MARKS, ETC. 
 
 535 
 
 16. 18, 22, 23 of 51 V. c. 41 (as amended in 1893) are unre- 
 pealed; sebed. 2. Limitation of 3 years for any offence 
 under Part XXXIIL, s. 551 : see s. 710 as to evidence. 
 
 44'4. Where a watch case has thereon any words or markn which 
 constitute, or are by common repute considered as constituting, a description 
 of the country in which the watch was made, and the watch bears no such 
 description, those words or marks shall prima facie be deemed to be a 
 description of that country within the meaning of this part, and the provision 
 of this part with respect to goods to which a false description has been applied, 
 and with respect to selling or exi)03ing, or having in possession, for sale, or any 
 purpose of trade or manufacture, goods with a false trade description, shall 
 apply accordingly; and for the purposes of this section the expression 
 "watch" means all that portion of a watch which is not the watch case. 
 51 V. c. 41, s. 11. 
 
 445. Every one is deemed to forge a trade mark who either — 
 
 (a) without the assent of the proprietor of the trade mark makes that 
 trade mark or a mark so nearly resembling it as to be calculated to deceive ; or 
 
 (b) falsifies any genuine trade mark, whether by alteration, addition, 
 effacement or otherwise. 
 
 2. And any trade mark or mark so made or falsified is, in this part, 
 referred to as a forged trade mark. 51 V. c. 41, s. 3. 
 
 446. Every one is deemed to apply a trade mark, or mark, or trade 
 description to goods who — 
 
 (a) applies it to the goods themselves ; or 
 
 [b] applies it to any covering, label, reel, or other thing in or with which 
 the goods are sold or exposed or had in possession for any purpose of sale, 
 trade or manufacture ; or 
 
 (f) places, incloses or annexes any goods which are sold or exposed or had! 
 in possession for any purpose of sale, trade or manufacture in, with or to any 
 covering, label, reel, or other thing to which a trade mark or trade description 
 hiis been applied ; or 
 
 [d] uses a trade mark or mark or trade description in any manner calcu- 
 lated to lead to the belief that the goods in connection with which it is used are- 
 designated or described by that trade mark or mark or trade description. 
 
 2. A trade mark or mark or tnwle description is deemed to be applied 
 whether it is woven, impressed or otherwise worked into, or annexed or affixed 
 to, the goods, or to any covering, label, reel or other thing. 
 
 3. Every one is deemed to falsely apply to goods a trade mark or mark 
 who, without the assent of the proprietor of the trade mark, applies such trade 
 mark, or a mark so nearly resembling it as to bo calculated to deceive. 
 51 V. c. 41, s. 4. 
 
 447. Every one is guilty of an indictable offence who, with intent to 
 
 defraud- 
 In) forges any trade mark : or 
 
 I 
 
 ■:S 
 
 . ■; f 
 
I 
 
 536 
 
 FORGERY OF TRADE MARKS, ETC. [Sees. 448-450 
 
 (6) falsely applies to any goods any trade mark, or any mark so nearly 
 resembling a trade mark as to be calculated to deceive ; or 
 
 (c) makes any die, block, machine or other instrument, for the purpose of 
 orging) or being used for forging, a trade mark ; or 
 
 (d) applies any false trade description to goods ; or 
 
 (e) disposes of, or has in his possession, any die, block, machine or other 
 nstrument, for the purpose of forging a trade mark ; or 
 
 (/) causes any of such things to be done. 51 V. c. 41, s. 6. 
 
 Punishment, under s. 450. 
 
 Indictment. — that A. B. on with intent 
 
 to defraud unlawfully did forge a certain trade mark, to 
 wit [or unlawfully did falsely apply to certain goods 
 
 to wit) (any goods) a certain trade mark to wit 
 
 {or a mark so nearly resembling a certain trade mark, to 
 wit) as to be calculated to deceive. {Add a count charg- 
 ing " did cause to he forged or, falsely applied)" [m 
 the case may he). 
 
 44:§« Every one is guilty of an indictable offence who sells or exposes, or 
 has in his possf'sion, for sale, or any purpose of trade or manufacture, any 
 goods or things to which any forged trade mark or false trade description is 
 applied, or to which any trade mark, or mark so nearly resembling a trade 
 mark as to be calculated to deceive, is falsely applied, as the case may be, 
 unless he proves— 
 
 (a) that having taken all reasonable precaution against committing such 
 an offence he had, at the time of the commission of the alleged offence, no 
 reason to suspect the genuineness of the trade mark, mark or trade description ; 
 and 
 
 (b) that on demand made by or on behalf of the prosecutor he gave all the 
 information in hi» power with respect to the persons from whom he obtained 
 such goods or things ; and 
 
 (c) that otherwise he had acted innocently. 51 V. c. 41, s, fi. 
 
 Punishment under s. 450. 
 
 440« Every one is guilty of an indictable offence who sells, or exposes 
 or offers for sale, or traffics in, bottles marked with a trade mark, blown or 
 stamped or otherwise permanently affixed thereon, without the assent of the 
 proprietor of such trade mark. 51 V. c. 41, s. 7. 
 
 Punishment under s. 450. 
 
 4<S0« Every one guilty of any offence defined in this partis liable- 
 la) on conviction on indictment to two years' imprisonment, with or with- 
 out hard labour, or to fine, or to both imprisonment and fine ; and 
 
 {b) on summary conviction, to four months' imprisonment, with or 
 without hard labour, or to a fine not exceeding one hundred dollars ; and in 
 
Sees. 451-454] FORGERY OF TRADE MARKS, ETC. 
 
 537 
 
 hine or other 
 
 case of a second or subsequent conviction to six months' imprisonment, wither 
 
 without hard labour, or to a fine not exceeding two hundred and fifty dollars. 
 
 2. In any case every chattel, article, instrument or thing, by means of, or 
 
 in relation to which, the offence has been committed shall be forfeited. 51 V. 
 
 c. 11, s. 8, 
 
 451> Every one is guilty of an offence and liable, on summary conviction, 
 to a penalty not exceeding one hundred dollars who falsely represents that any 
 goods are made by a person holding a royal warrant, or for the service of Her 
 Majesty or any of the royal family, or any Government department of the 
 United Kingdom or of Canada. 51 V. c. 41, s. 21. 
 
 45!3« Every one is guilty of an offence and liable, on summary conviction, 
 to a penalty of not more than five hundred dollars nor less than two hundred 
 dollars who imports or attempts to import any goods which, if sold, would be 
 forfeited under the provisions of this part, or any goods manufactured in any 
 foreign state or country which bear any name or trade mark which is or 
 purports to be the name or trade mark of any manufacturer, dealer or trader 
 in the United Kingdom or in Canada, unless such name or trade mark is 
 accompanied by a definite indication of the foreign state or country in which 
 the goods were made or produced ; and such goods shall be forfeited. 51 V. 
 c. 41, s. 22. 
 
 453< Any one who is charged with making any die, block, machine or 
 other instrument for the purpose of forging, or being used for forging, a trade 
 mark, or with falsely applying to goods any trade mark, or any mark so 
 nearly resembling a trade mark as to be calculated to deceive, or with apply- 
 ing to goods any false trade description, or causing any of the things in this 
 section mentioned to be done, and proves— 
 
 (a) that in the ordinary course of his business he is employed, on behalf 
 of other peisons, to make dies, blocks, machines or other instruments for 
 making or being used in making trade marks, or, as the case may be, to apply 
 marks or descriptions to goods, and that in the case which is the subject of 
 the charge he was so employed by some person resident in Canada, and was 
 not interested in the goods by way of pr jfit or commission dependent on the 
 sale of such goods ; and 
 
 (b) that he took reasonable precaution against committing the offence 
 charged ; and 
 
 (c) that he had, at the time of the commission of the alleged offence, no 
 reason to suspect the genuineness of the trade mark, mark or trade descrip- 
 tion ; and 
 
 (d) that he gave to the prosecutor all the information in his power with 
 respect to the person by or on whose behalf the trade mark, mark or descrip- 
 tion was applied ; — 
 
 Shall be discharged from the prosecution, but is liable to pay the costs 
 incurred by the prosecutor, unless he has given due notice to him that he will 
 rely on the above defence. 51 V. c. 41, s. 5. 
 
 454. No servant of a master, resident in Canada, who bo.ia fide acts in 
 obedience to the instructions of such master, and, on demand made by or on 
 
 w 
 
538 
 
 PERSONATION. 
 
 [Sees. 455-457 
 
 behalf of the prosecutor, gives full information as to his master, is liable to any 
 prosecution or punishment for any offence defined in this part. 61 V. c. 41 
 8. 20. 
 
 49S The provisions of this part with respect to false trade descriptions 
 do not apply to any trade description which, on the 22nd day of May, 1888 
 was lawfully and generally applied to goods of a particular class, or manufac- 
 tured by a particular method, to indicate the particular class or method of 
 manufacture of such goods : Provided, that where such trade description 
 includes the name of a place or country, and is calculated to mislead as to the 
 place or country where 1 he goods to which it is applied were actually made or 
 produced, and the goody are not actually made or prrniuced in that place or 
 country, such provisions shall apply unless there is added to the tradu de- 
 scription, immediately before or after the name of that place or country, in an 
 equally conspicuous manner with that name, the name of the place or country 
 in which the goods were actually made or produced, with a statement that 
 they were made or produced tliere. 51 V. o. 41, s. 19. 
 
 PART XXXIV. 
 
 PERSONATION. {New). 
 
 4S0< Every one is guilty of an indictable offence, and liable to fourteen 
 years' imprisonment who, with intent fraudulently to obtain any proi)erty, 
 personates any person, living or liewt, or administrator, wife, widow, next of 
 kir or relation of any person. 37-38 V. c. 3() (Imp.). 
 
 "Property" defined, a. 3. 
 
 Indictment. — unlawfully, falsely, and deceitfully 
 
 did personate one J. N. with intent fraudulently to obtain 
 
 • • • • 
 
 See 2 Rush. 1011 : R. v. Martin and R. v. Cramp. 
 R. & R. 324, 327. 
 
 Peksonation at Examinations. {New). 
 
 45T. Every one is guilty of an indictable oilcnce, and liable on indict- 
 ment or summary conviction to one year's imprisonment, or to a fine of diie 
 hundred dollars, who falnely, with intent to gain some advantage for himself 
 or some otlier person, jiersonates a candidate at any competitive or fiualifying 
 examination, held under the authority of any law or statute or in connection 
 with any university or Wtllege, or who procures himself or any other iR'rson to 
 be personated at any such examination, or who knowingly avails liiinself of the 
 results of such personation . 
 
 See under next section. 
 
Sec. 458] PERSONATING OWNERS OF STOCK. 
 
 Persohatino Ownbrs op Stock. 
 
 539 
 
 45S« Every one i8 guilty of an indictable offence and liable to fourteen 
 years' imprisonment who falsely and deceitfully personates — 
 
 (a) any owner of any share or interest of or in any stock, annuity, or 
 other public fund transferable in any book of account kept by the Government 
 of Canada or of any province thereof, or by any bank for any such Govern- 
 ment ; or 
 
 (b) any owner of any share or interest of or in the debt of any publio 
 body, or of or in the debt or capital stock of any body corporate, company, or 
 society ; or 
 
 (o) any owner of any dividend, coupon, certificate or money payable in 
 respect of any such share or interest as aforesaid ; or 
 
 (rf) any owner of any share or interest in any claim for a grant of land 
 from the Crown, or for any scrip or other payment or allowance in lieu of such 
 grant of land ; or 
 
 (() any person duly authorized by any power of attorney to transfer any 
 such share, or interest, or to receive any dividend, coupon, certificate or money, 
 on bfhalf of the person entitled thereto — 
 
 and thereby transfers or endeavours to transfer any share or interest 
 belonging to such owner, or thereby obtains or endeavours to obtain, as if ho 
 were the true and lawful owner or were the person so authorized by such power 
 of attorney, any money due to any such owner or payable to the person so 
 authorizwl, or any certificate, couiwn, or share warrant, grant of land, or 
 scrip, or allowance in lieti thereof, or other document which, by any law in 
 forte, or any usage existing at the time, is deliverable to the owner of any 
 such stock or fund, or to the person authorized by any such power of attorney. 
 R, S. C' c. 1G5, ss. & 10 {Ame^uled). 24-25 V. c. 98, ss. 3 & 4 (Imp. ), and 33-84 V. 
 c. 58 (Imp.). 
 
 Indictment. — unlawfully did, falsely and deceit- 
 
 fully personate one J. N., the said J. N. then being the 
 owner of a certain share and interest in certain stock and 
 annuities, which were, then transferable at the bank of 
 , to viit, {state the amount and nature of the stock;) 
 and that the said A. B. thereby did then transfer the said 
 share and interest of the said J. N. in the said stock 
 annuities, as if he, the said A. B., were then the true and 
 lawful owner thereof. 
 
 Upon the trial of any indictment for any oflfence under 
 this section the jury may, if the evidence warrants it,, 
 under s. 711, convict the prisoner of an attempt to commit 
 
 the same. 
 
 ,»'.' 
 
:l{ 
 
 540 
 
 ACKNOWLEDGING INSTRUMENT. 
 
 [Sec. 459 
 
 ACKNOWLEDQINO INSTRUMENT IN FALSE NAME. 
 
 4ft0- Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment w ho, without lawful authority or excuse (the proof of 
 which shall lie on him) acknowledges, in the name of any other person, befuru 
 any court, judge or other person lawfully authorized in that behalf, any 
 recognizance of bail, or any cognovit actionem, or consent for judifiiicnt, or 
 judgment or any deed or other instrument. R. S. C. c. 165, s. 41 (Avunddl], 
 24-25 V. c. 98, s. 34 (Imp. ). 
 
 Indictment. — on did without lawful authority 
 
 or excuse, before {the said then being lawfally 
 
 authorized in that behalf) unlawfully acknowledge fraudu- 
 lently a certain recognizance of bail in the name of 
 in a certain cause then pending in wherein A. B. was 
 
 plaintiff and C. D. defendant. 
 
8ec8. 460, 461] OFFENCES RELATING TO THE COIN. 
 
 541 
 
 PART XXXV. 
 
 OFFENCES RELATING TO THE COIN. 
 
 Sections 26, 29, 30, 31, 32, 33 d: 34 ofc. 167, R. S. C, are unrepealed. Sections 
 092, 718 <fc 721 pott apply to offences against this part, 
 
 400- In this part, unless the context otherwise requires, the following 
 words and expressions are used in the following senses : — 
 
 ((() "Current gold or silver coin," includes any gold or silver coin coined 
 in any of Her Majesty's mints, or gold or silver coin of any foreign prince or 
 state or country, or other coin lawfully current, by virtue of any proclamation 
 or otherwise, in any part of Her Majesty's dominions. 
 
 (li) "Current copixsr coin," includes copper coin coined in any of Her 
 Majesty's mints, or lawfully current, by virtue of any proclamation or other- 
 wise, in any part of Her Majesty's dominions. 
 
 (c) "Copper coin," includes any coin of bronze or mixed metal and every 
 other kind of coin other than gold or silver. 
 
 [d) " Counterfeit " means false, not genume. 
 
 (i) Any genuine coin prepared or altered so as to resemble or pass for 
 any current coin of a higher denomination is a counterfeit coin. 
 
 (ii) A coin fraudulently filed or cut at the edges so as to remove the 
 
 milling, and on which a new milling has been added to restore the 
 
 appearance of the coin, is a counterfeit coin. 
 
 [(■) "Gild" and "silver," as applied to coin, include casing with gold or 
 silver respectively, and washing and colouring by any means whatsoever with 
 any wash or materials capable of producing the appearance of gold or silver 
 respectively. 
 
 (/) "Utter" includes "tender" and "put off." R. S. C. c. 167, s. 1. 
 24-25 V. c. 9'J, 8. 1 (Imp.). 
 
 When Offence Complete. 
 
 461. Every offence of making any counterfeit coin, or of buying, 
 Relling, receiving, paying, tendering, uttering, or putting off, or of offering to 
 buy, sell, receive, pay, utter or put off, any counterfeit coin is deemed to be 
 complete, although the coin so made or counterfeite(^ or bought, sold, received, 
 paid, tendered, uttered or put off, or offered to be bought, sold, received, paid, 
 tendered, uttered or put off, was not in a fit state to be uttered, or the counter- 
 feiting thereof was not finished or perfected. R. S. C. c. 167, 8. 27. 24-25 V. 
 C.99, 8. 30 (Imp.). 
 
 The word in italic is not in the Imperial Act. See R. 
 V. Bradford 2 C. & D. 41. 
 
542 
 
 OFFENCES RELATING TO THE COIN. 
 
 [Hec. 4(J2 
 
 COUNTRRKKITINO CoiNS, EtC. 
 
 469* Every one iu guilty of an indictable offence and liable to iniprisdn. 
 ment for life who — 
 
 (rt) makes or bt^gins to make any counterfeit coin rest'mblinjf, „,. 
 apparently intended to resemble or pass for, any current gold or NiKer 
 coin ; or 
 
 {b) gilds or silvers any coin resembling or apparently intended to resemUc 
 or pass for, any current gold or silver coin ; or 
 
 (c) gilds or silvers any piece of silver or wjpiier, or of coarse gold or coarse 
 silver, or of any metal or mixture of metals respectively, being of a fit hIz,* and 
 figure to be coined, and with intent that the ■lame shall be coined into countir- 
 feit coin resembling, or apparently intended to resemble or pass for, am 
 current gold or silver coin ; or 
 
 ((/) gilds any current silver coin, or files or in any manner alters such coin 
 with intent to make the same resemble or pass for any current gold coin • or 
 
 {e) gilds or silvers any current copper coin, or files or in any manner 
 alters such coin, with intent to make the same resemble or pass for any current 
 gold or silver coin. R. S. C. c. 107, ss. 3 & 4. 24-25 V. c. 'M, ss. 2 & 3 (Im|).i. 
 
 Indictment. — that J. S., on ten pieces of 
 
 false and counterfeit coin, each piece thereof resembliuf 
 and apparently intended to resemble and pass for a piece 
 of current gold coin, called a sovereign, falsely and unlaw- 
 fully did make and counterfeit. 
 
 It is rarely the case that the counterfeiting can be proved 
 directly by positive evidence ; it is usually made out by 
 circumstantial evidence, such as finding the npcessary 
 coining tools in the defendant's house, together with some 
 pieces of the counterfeit money in a finished, some in an 
 unfinished state, or such other circumstances as may fairly 
 warrant the jury in presuming thai the defendant either 
 counterfeited or caused to be counterfeited, or was present 
 aiding and abetting in counterfeiting the coin in question. 
 Before the modern statutes which reduced the offence of 
 coining from treason to felony, if several conspired 'to coun- 
 terfeit the Queen's <coin, and one of them actually did so in 
 pursuance of the conspiracy, it was treason in all, and ther 
 might all have been indicted for counterfeiting the Queen's 
 coin generally : 1 Hale, 214 ; they may, likewise, now all 
 foe indicted as principals under s. 61 ante. 
 
sec. 
 
 »C2] 
 
 COUNTERFEITING COINS, ETC. 
 
 543 
 
 i to iinprisiin- 
 
 2d to resemble 
 
 \ variance between the indictment and the evidence iq 
 the number of the pieces of coin, alleged to be counter- 
 feited, is immaterial; but a variance as to the denomination 
 of such coin, as guineas, sovereigns, shillings, would be 
 fatal, unless amended. By the old law the counterfeit 
 coin produced in evidence must have appeared to have 
 that degree of reijemblance to the real coin that it would be 
 likely to be received as the coin for which it was intended 
 to pass by persons using the caution customary in taking 
 money. In R. v. Varley, 1 East, P. C. 164, the defendant 
 liad counterfeited the semblance of a half-guinea upon a 
 piece of gold previously hammered, but it was not round, 
 nor would it pass in the condition in which it then was, 
 and the judges held that the offence was incomplete. So, 
 in R. V. Harris, 1 Leach, 135, where the defendants were 
 taken in the very act of coining shillings, but the shillings 
 coined by them were taken in an imperfect state, it being 
 requisite that they should undergo another process, namely 
 immersion in diluted aqua fortia, before they could pass as 
 shillings, the judges held that the offence was incomplete ; 
 but now by s. 461 the offence of counterfeiting shall be 
 deemed complete although the coin made or counterfeited 
 shall not be in a fit state to be uttered, or the counterfeit- 
 ing thereof shall not be finished or perfected. 
 
 Any credible witness may prove the coin to be counter- 
 feit, and it is not necessary for this purpose to produce any 
 moneyer or other officer from the mint : s. 692. If it 
 become a question whether the coin, which the counterfeit 
 money was intended to imitate, be current coin, it is not 
 necessary to produce the proclamation to prove its legiiima- 
 tion ; it is a mere question of fact to be left to the jury 
 upon evidence of usage, reputation, etc. : 1 Hale, 196, 212, 
 213. It is not necessary to prove that the counterfeit coin 
 was uttered or attempted to be uttered : R. v. Robinson, 
 10 Cox, 107 ; R. v. Connell, 1 C. & K. 190 ; R. v. Byrne, 
 6 Cox, 475. 
 
 i'l 
 
■>'.',' 
 
 544 
 
 OFFENCES RELATING TO THE COIN. 
 
 [Sec. 463 
 
 By s. 711, if upon the trial it appears that the defendant 
 did not complete the o£fence charged, but was only guilty 
 of an attempt to commit the same, a verdict may be given 
 of guilty of the attempt. 
 
 Dealing in, Impobtino Counterfeit Coin. 
 
 463. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who, without lawful authority or excuse the oroof whereof shall 
 lie on him — 
 
 (a) buys, sells, receives, pays or puts ofiF, or offers to buy, sell, receive, pay 
 or put off, at or for a lower rate or value than the same imports, or was 
 apparently intended to import, any counterfeit coin resembling or apparently 
 intended to resemble or pass for any current gold or silver com ; or 
 
 (6) imports or receives into Canada any counterfeit coin resembling or 
 apparently intended to resemble or pass for, any current gold or silver coin 
 knowing the same to be counterfeit. R. S. C. c. 167, ss. 7 & 8. 24-25 V. 
 c. 99, ss. 6&7(lmp.). 
 
 Indictment under (a). — ten pieces of counterfeit 
 
 coin, each piece thereof resembling a piece of the current 
 gold coin, called a sovereign, falsely, deceitfully and unlaw- 
 fully, and without lawful authority or excuse did put off to 
 one J. N. at and for a lower rate and value than the same 
 did then import. 
 
 Prove that the defendant put off the counterfeit coin as 
 mentioned in the indictment. In E. v. Wooldridge, 1 Leach, 
 807, it was holden that the putting off must be complete 
 and accepted. But the words "offer to buy, sell," etc., 
 in the above clause would now make the acceptation 
 immaterial. 
 
 If the names of the persons to whom the money was 
 put off can be ascertained, they ought to be mentioned and 
 laid severally in the indictment ; but if they cannot be 
 ascertained the same rule will apply which prevails in the 
 case of stealing the property of persons unknown : 1 Russ. 
 136. 
 
 Indictment under (h). — ten thousand pieces of 
 
 counterfeit coin, each piece thereof resembling a piece of 
 the current silver coin called a shilling, falsely, deceitfully 
 and unlawfully, and without lawful authority or excuse, did 
 
Sees. 464-46G] 
 
 COPPER COIN. 
 
 545 
 
 import into Canada, — he the said J. S. at the said time 
 when he so imported the said pieces of counterfeit coin, 
 vvell knowing the uame to be counterfeit. 
 
 The guilty knowledge of the defendant must be averred 
 io the indictment and proved. 
 
 Copper Coin. 
 
 404. Every one who manufactures in Canada any copper coin, or 
 imports into Canada any copper coin, other than current copper coin, with the 
 intention of putting the same into circulation as current copper coin, is Ruilty 
 of an offence and liable, on summary conviction, to a penalty not exceeding 
 twenty dollars for every pound Troy of the weiprht thereof ; and all such 
 copi)er com so manufactured or imported shall be forfeited to Her Majesty. 
 R. S. C. 0. 167, s. 28. 
 
 The repealed section said copper " or brass " coin. 
 
 Exportation. 
 
 M!i, Every one is guilty of an indictable offence and liable to tivo years' 
 imprisonment who, without lawful authority or excuse the proof whereof shall 
 lie on him, exports or puts on board any ship, vessel or boat, or on any railway 
 or mrriaiie or vehicle of any description whatsoever, for the purpose of being 
 exixirted from Canada, any counterfeit coin resembling or apparently intended 
 to resemble or pass for any current coin or for any foreign coin of any prince, 
 countrii or state, knowing the same to be counterfeit. R. S. C. o. 167, s. 9. 
 24-25 V. 0. m), s. 8 (Imp.), 
 
 Fine, s. 958. 
 
 The words in italics are not in the Imperial Act. 
 
 The clause covers the attempt to export in certain cases. 
 Sections 529 & 711 would cover other cases of attempts. 
 
 Indictment. — one hundred pieces of counter- 
 
 feit coin, each piece thereof resembling a piece of the 
 current coin calitd a sovereign, falsely, deceitfully 
 and unlawfully, without lawful authority or excuse, did 
 export from Canada, he the said C. D. at the time when he 
 so exported the said pieces of counterfeit coin, then well 
 knowing the same to be counterfeit. 
 
 Making Instruments for Coining. 
 
 466. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who, without lawful authority or excuse the proof whereof shall 
 lie on him, makes or mends, or bf gins or proceeds to make or mend, or buys or 
 sells, or has in his custotly or possession — 
 CiiiM. Law — 35 
 
 '%: 
 
 
 ,1 , ■ 
 
 !' i' 
 
m. 
 
 \ 
 
 546 
 
 OFFENCES RELATING TO THE COIN. 
 
 [Sec. m 
 
 (a) any puncheon, counter puncheon, matrix, stamp, die, pattern or 
 mould, in or upon which there is made or impressed, or which will make or 
 impress, or which is adapted and intended to make or impress, the figure 
 stamp or apparent resemblance of both or either of the sides of any current 
 gold or silver coin, or of any coin of any foreign prince, state or country, or any 
 part or parts of both or either of such sides ; or 
 
 (6) any edger, edging or other tool, collar, instrument or engine adapted 
 and intended for the marking of coin round the edges with letters, grainings or 
 other marks or figures apparently resembling those on the edges of any such 
 coin, knowing the same to be so adapted and intended ; or 
 
 (c) any press for coinage, or any cutting engine for cutting, by force of a 
 screw or of any other contrivance, round blanks out of gold, silver or other 
 metal or mixture of metals, or any other machine, knowing such press to be a 
 press for coinage, or knowing such engine or machine to have been used or to 
 be intended to be used for or in order to the false making or counterfeiting of 
 any such coin. R. S. C. c. 1C7, s. 24. 24-25 V. c. 99, s. 24 (Imp.). 
 
 Indictment for making a puncheon for coining. — 
 one puncheon, in and upon which there was then made and 
 impressed the figure of one of the sides, that is to say, the 
 head side of a piece of the current silver coin, commonly 
 called a shilling, knowingly, falsely, deceitfully and unlaw- 
 fully, and without lawful authority or excuse, did make. 
 
 Prove that the defendant made a puncheon, as stated in 
 the indictment ; and prove that the instrument in question 
 is a puncheon included in the statute. The words ia the 
 statute " upon which there is made or impressed " apply to 
 the puncheon which being convex bears upon it the figure 
 of the coin ; and the words " which will make or impress" 
 apply to the counter puncheon, which being concave will 
 make and impress. However, although it is more accurate 
 to describe the instruments according to their actual use, 
 they may be described either way : R. v. Lennard, 1 Leach, 
 90. It is not necessary that the instrument should be 
 capable of making an impression of the whole of one side 
 of the coin, for the words *' or any part or parts " are intro- 
 duced into this statute, and, consequently the diflBcultyin 
 R. v. Sutton, 2 Str. 1074, where the instrument was capable 
 of making the sceptre only cannot now occur : see £. v. 
 Heath, R. & R. 184. 
 
'H'i 
 
 Sec. 466] MAKING INSTRUMENTS FOR COINING. 
 
 547 
 
 And on an indictment for making a mould " intended 
 to make and impress the figure and apparent resemblance 
 of the obverse side " of a shilling, it is sufficient to prove 
 that the prisoner made the mould and a part of the 
 impression, though he bad not completed the entire im- 
 pression : E. V. Foster, 7 G. & F. 495. It is not necessary 
 to prove under this branch of the statute the intent of the 
 defendant : the mere similitude is treated by the Legis- 
 lature as evidence of the intent ; neither is it essential to 
 show that money was actually made with the instrument 
 in question : E. v. Eidgeley, 1 East, P. C. 171. The proof 
 of lawful authority or excuse, if any, lies on the defendant. 
 Where the defendant employed a die sinker to make, for a 
 pretended innocent purpose, a die calculated to make 
 shillings; and the die-sinker, suspecting fraud, informed 
 the authorities at the mint, and under their directions 
 made the die for the purpose of detecting prisoner; it was 
 held that the die-sinker was an innocent agent and the 
 defendant was rightly convicted as a principal: E. v. 
 Banuen, 2 Moo. 809. 
 
 The making and procunn*; dies and other materials, with 
 intent to use them in coining Peruvian half-dollars in 
 England, not in order to utter them here, but by way of 
 trying whether the apparatus would answer, before sending 
 it out to Peru, to be there used in making the counterfeit 
 coin for circulation in that country, was held to be an 
 indictable misdemeanour at common law: E. v. Eoberts, 
 Dears. 589; 1 Euss. 100. A galvanic battery is a machine 
 within the section : E. v. Gover, 9 Cox, 282. 
 
 Indictment for having a puncheon in possession. — 
 one puncheon in and upon which there was then made and 
 impressed the figure of one of the sides, that is to say, the 
 bead side of a piece of the current silver coin commonly 
 called a shilling, knowingly, falsely, deceitfully and unlaw- 
 fully, and without lawful authority or excuse, had in his 
 custody and possession. 
 
 'i'v 
 
 .ill:!.' 
 
V 
 
 548 
 
 OFFENCES RELATING TO THE COIN. 
 
 [Sec. m; 
 
 An indictment which charged that the defendant feloni- 
 ously had in his possession a mould " upon which said 
 mould was made and impressed the figure and apparent 
 resemblance " of the obverse side of a sixpence, was held 
 bad on demurrer, as not sufficiently showing that the 
 impression was on the mould at the time when he had it in 
 his possession : E. v. Bichmond, 1 C. & K. 240. 
 
 As to evidence of possession see s. 3, ante; R. v. Rogers 
 2 Moo. 85. The prisoner had occupied a house for about a 
 month before the police entered it, and found two men and 
 two women there, one of whom was the wife of the prisoner. 
 The men attacked the police, and the women threw some- 
 thing into the fire. The police succeeded, however, in 
 preserving part of what the women threw away, which 
 proved to be fragments of a plaster-of- Paris mould of a half- 
 crown. The prisoner came in shortly afterwards, and, on 
 searching the house, a quantity of plaster-of-Paris was 
 found up-stairs. An iron ladle and some fragments of 
 plaster-of-Paris moulds were also found. It was proved 
 that the prisoner, thirteen days before the day in question, 
 had passed a bad half-crown, but there was no evidence that 
 it had been made in the mould found by the police. He was 
 afterwards tried and convicted for uttering the base half- 
 crown. It was held that there was sufficient evidence to 
 justify the conviction, and that, on a trial for felony, other 
 substantive felonies which have a tendency to establish the 
 scienter of the defendant may be proved for that purpose : 
 R. V. Weeks, L. & C. 18. In R. v. Harvey, 11 Cox, 662, it 
 was held: 1. That an indictment under this section is 
 sufficient if it charges possession without lawful excuse, as 
 excuse would include authority; 2. That the words "the 
 proof whereof shall lie on the accused" only shift the 
 burden of proof, and do not alter the character of the 
 o£fencti; 8. That the fact that the Mint authorities, upon 
 informrtion forwarded to them, gave authority to the die 
 maker to make the die, and that the police gave permission 
 
Sees. 467, 468] 
 
 INSTRUMENTS, ETC. 
 
 nm 
 
 to him to give the die to the prisoner, who ordered him to 
 make it, did not constitute lawful authority or excuse for 
 prisoner's possession of the die ; 4. That, to complete the 
 offence, a felonious intent is not necessary ; and, upon a 
 case reserved, the conviction was affirmed. 
 
 Indictfiient for making a collar. — onf collar 
 
 adapted and intended for the marking of coin round the 
 edges with grainings apparently resembling those on the 
 edges of a piece of the current gold coin called a sovereign, 
 falsely, deceitfully and unlawfully, without lawful authority 
 or excuse, did make, he the said J. S. then well knowing 
 the same to be so adapted and intended as aforesaid. 
 
 It must be proved, upon this indictment that the defend- 
 ant knew the instrument to be adapted and intended for 
 the marking of coin round the edges. 
 
 It must be remarked that the said clause expressly 
 applies to tools for marking foreign coin, as well as current 
 
 com. 
 
 BRIXGINQ iNSTRUSrEXTS INTO CANADA. 
 
 467. Every one is guilty of an indictable otfence and liable to imprison- 
 ment cir life who, without lawful authority or excuse the proof whereiif shall 
 lie on him, knowingly conveys out of any of Her Majesty's mints into Canada, 
 any ijuncheon, counter puncheon, matrix, stamp, die, pattern, mould, edger, 
 i.^dging or other tool, collar, instrument, i)ress or engine, usetl or employed in 
 ur about the coining of coin, or any "■^eful part of any of the several articles 
 aforesaid, or any coin, bullion, met..; or mixture of metals. R. S. C. c. 167, 
 s. 25. 24-25 V. c. 99, s. 25 (Imp. ). 
 
 Clipping Current Gold ok Silver Coin. 
 
 408. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who impairs, diminishes ur lightens any current gold or 
 sihercoin with intent that the coin so impaired, diminished, or lightened may 
 pass for current gold or silver coin. R. S. C. c. 167, s. 5. 24-25 V. c. 99, 
 
 s.4(Iiup.). 
 
 Indictmetit. — ten pieces of current gold coin, 
 
 called sovereignK, falsely, deceitfully and unlawfully did 
 impair, with intent that each of the ten pieces so impaired 
 might pass for a piece of current gold coin, called a sove- 
 reign. 
 
 liiii:' 
 
 "I', 
 
 Ml- . 
 
\ 
 
 ^m 
 
 I I 
 
 580 
 
 OFFENCES RELATING TO THE COIN. [Sees. 469, 470 
 
 The act of impairing must be shown, either by direct 
 evidence of persons who saw the prisoner engaged in it, or 
 by presumptive evidence, such as the possession of filings 
 and of impaired coin, or of instruments for filing, etc. The 
 intent to pass off the impaired coin must then appear. This 
 may be done by showing that the prisoner attempted io 
 pass the coin so impaired, or that he carried it about his 
 person, which would raise a presumption that be intended 
 to pass it. And if the coin were not so defaced by the 
 process by impairing, as apparently to affect its currency, 
 J would, under the circumstances, without further evidence, 
 be a question for the jury, whether the diminished coin was 
 intended to be passed : Roscoe on Coining, 19. 
 
 Defacing Current Coin. 
 
 '^<ftO« Every one is guilty of an indictable offence and liable to one year's 
 iii'.ptrisonment who defaces any current gold, silver or copper cuiii by stamping 
 thereon any names or words, whether such coin is or is not thereby diminislie 1 
 or lightened, and afterwards tenders the same. R. S. C. c. 167, s. 17, 
 24-25 V. c. 99, a. 16 (Imp.). 
 
 Fine, s. 958. 
 
 Indictment for defacing coin. — one piece of 
 
 the current silver coin, called a half-crown, unlawfully 
 did deface, by then stamping thereon certain names and 
 words, to wit .... 
 
 Prove that the defendant defaced the coin in question, 
 
 by stamping on it any names or words, or both. It is not 
 
 necessary to prove that the coin was thereby diminished or 
 
 lightened. 
 
 Posse -ss'o C. •pings. Etc. 
 
 470. Every one is guilty of an indictable oiTence and liable to seven 
 years' imprisonment who unl. a fully has in his « .itody or iwssessiou any 
 filings or clippings, or any golu ^r silver bullion, or any gold or silver in dust, 
 solution or otherwise, which have b(*en produced or obtained by impairing, 
 diminishing or lightening any current gold or silver coin, knowing the same 
 to have been .so produced or obtained. R. S. C. c. 167, s. 6. 24-25 V. c. Hit, 
 «. 5 (Imp.). 
 
 " Hav ng in possession " defined, s. 3. 
 Greavts remarks: "This clause is new. It has fre- 
 quently happened that filings and clippings, and gold dust 
 
Sees. 471, 472] POSSESSING COUNTERFEIT COIN. 
 
 551 
 
 have been found under such circumstances as to leave no 
 
 doubt that they were produced by impairing coin but there 
 
 has been no evidence to prove that any particular coin had 
 
 been impaired. This clause is intended to meet such 
 
 cases." 
 
 Possessing Counterfeit Coin. 
 
 47 i* Every one is guilty of an indictable offence and liable to three 
 years' imprisonment who has in his custody or possession, knowing the same 
 to be counterfeit, and with intent to utter the same or any of them — 
 
 (a) any counterfeit coin resembling, or apparently intended to resemble 
 nr pass for, any current gold or silver coin ; or 
 
 (h) three or more pieces of counterfeit coin resembling, or apparently 
 intended to resemble or pass for, any current copper coin. R. S. C. c. 167, 
 ss. 12 & 10. 24-25 V. c. 99, ss. 11 & 15 (Imp. ). 
 
 "Having in possession " defined, s. 3. 
 Fine, s. 958. Search warrant, s. 569. 
 
 The punishment under {h) was only one year by^ the 
 repealed Act. 
 
 Indictment for having in 'possession counterfeit gold or 
 siker coin with intent, etc. unlawfully, falsely and 
 
 deceitfully had in his custody and possession four pieces of 
 counterfeit coin, resembling the current silver coin calleci 
 with intent to, utter the said pieces of counterfeit 
 coiu, he the said J. S. then well knowing the said pieces of 
 counterfeit coin to be counterfeit. 
 
 See R. v. Hermann, 4 Q. B. D. 284, 14 Cox, 279, 
 Warb. Lead. Cas. 77. 
 
 Offences Respectin( Copper Coin. 
 
 'ITS* Every one is guilty of an indictable offence and li.able to three 
 ijfar.i' imprisonment who — 
 
 (a) makes, or begins to make, any counterfeit coin resembling, or 
 .ijiparently intended to resemble or pass for any current copper coin ; or 
 
 (h) without lawful authority or excuse, the proof of which shall lie on 
 him, knowingly — 
 
 (i) makes or mends, or Vegins or proceeds to make or mend, or buys 
 or sells, or has in his custody or iwssession, any instrument, tool or 
 engine adapted and intended for counterfeiting any current copper coin ; 
 
 (ii) buys, sells, receives, pays or puts off, or offers tt) buy, sell, receive, 
 pay or put off, any counterfeit coin resembling, or apparently intended to 
 resemble or pass for, any current copi)er coin, at or for a lower rate of value 
 
 ff 
 
 UM: 'ifm 
 
\ 
 
 552 
 
 OFFENCES RELATING TO THE COIN. [Sees. 473, 474 
 
 than the same imports, or was apparently intended to import. R. S. C 
 c. 107, 8. 15. 24-25 V. c 99, s. 14 (Imp.). 
 
 Fine, s. 958. The punishment was seven years under 
 the repealed Act. See s. 463 ante. 
 
 Foreign Coins. 
 
 478* Every one is gfiiilty of an indictable offence and liable to three 
 years' imprisonment who — 
 
 {a) makes, or begins to make, any counterfeit coin or silver com resemb- 
 ling, or apparently intended to resemble or pass for, any gold or silver coin of 
 any foreigpn prince, state or country, not being current coin ; 
 
 (6) without lawful authority or excuse, the proof of which shall lie on 
 him — 
 
 (i) brings into or receives in Canada any such counterfeit coin, kn ,. 
 ing the same to be coimterfeit ; 
 
 (ii) has in his custody or possession any such counterfeit coin know- 
 ing the same to be counterfeit, and w 1th intent to put off the same ; or 
 (c) utters any such counterfeit coin ; or 
 
 ((/) makes any counterfeit coin resembling, or apparently intended to 
 resemble or pass for, any copiier coin of any foreign prince, state or country 
 not being current coin. R. S. C. c. 167, ss. 19, 20, 21, 22 & 23. 24-25 V. c. 99* 
 8. 18, ct seq. (Imp. ). 
 
 Fine, s. 95S. " Having in possession " definfid, s. 3. 
 See E. V. Tierney, 29 U. C. Q. B. 181. 
 
 Utterino Counterfeit Coin. 
 
 4T4I. Every one is guilty of an indictable offence and liable to fuurtcai 
 years' imprisonment who utters any counterfeit coin resembling, or upiiarently 
 intended to resemble or pass for, .any currt>nt gold or silver coin, knowing the 
 same to be counterfeit. R. S. C. c. 167, s. 10. 24-25 V. c. 99, s. i) Jmp.). 
 
 Under the Imperial Act the imprisonment is one year. 
 
 Indictment. — one piece of counterfeit coin 
 
 resembling a piece of the current gold coin, called ; 
 sovereign, unlawfully, falsely and deceitfully did utter i - 
 one J. N. he the said then well knowing? the same L 
 
 be counterfeit. 
 
 Prove the tendering, utte,ring or putting off the t;over- 
 eign in question, and prove it to be a base and counterfeit 
 sovereign. Where a good shilling was given to a Jew boy 
 for fruit, and he put it into his mouth under pretense of 
 trying whether it were good, and then taking a bad shilling; 
 out of his mouth instead of it, returned it to the prosecutor, 
 
Sec. 474] 
 
 UTTERING COUNTERFEIT COIN. 
 
 553; 
 
 able to three 
 
 saying that it was not good ; this (which is called ringing 
 the changes) was holdeu to be au uttering, indictable as 
 such : R. V. Franks, 2 Leach, 644. The giving of a piece 
 of counterfeit money in charity is not an uttering, although 
 the person may know it to be counterfeit ; as in cases of 
 this kind, there must be some intention to defraud : R. v. 
 Page, 8 G. & P. 122. But this case has been overruled : 
 R. V. Ion, 2 Den. 475; 1 Russ. 126; see R. v. 
 
 1 Cox, 250. 
 
 A prisoner went into a shop, asked for some coffee and 
 sugar, and in payment put down on the counter a counterfeit 
 shilling : the prosecutor said that the shilling was a bad 
 one, whereupon the prisoner quitted the shop, leaving the 
 shilling and also the coffee and sugar : held that this waa 
 an uttering and putting off within the statute : R. v. Welch, 
 
 2 Den. 78. The prisoner and J. were indicted for a misde- 
 meanour in uttering counterfeit coin. The uttering was 
 effected by J. in the absence of the prisoner, but the jury 
 found that they were both engaged on the evening on which 
 the uttering took place in the common purpose of uttering 
 counterfeit shillings, and that in pursuance of that common 
 purpose J. uttered the coin in question : Held, that the 
 prisoner was rightly convicted as a principal, there being no 
 accessories in a misdemeanour : R. v. Greenwood, 2 Den. 453. 
 If two jointly prepare counterfeit coin, and utter it in 
 different shops apart from each other but in concert, 
 intending to share the proceeds, the utterings of each are 
 the joint utterings of both, and they may be convicted 
 jointly : R. v. Hurse, 2 M. & Rob. 360 ; see R. v. Hermann, 
 4Q.B.D.284, Warb. Lead Gas. 7"^. 
 
 Husband and wife were jointly indicted for uttering 
 counterfeit coin : Held, that the wife was entitled to an 
 acquittal, as it appeared that she uttered the money in the 
 presence of her husband : R. v. Price, 8 G. & P. 19 ; see 
 now 8. 13, ante. 
 
 Proof of the guilty knowledge by the defendant must 
 be given. This of course must be done by circumstantial 
 
 •'.' 
 
554 
 
 OFFENCES RELATING TO THE COIN. 
 
 [Sec. 475 
 
 evidence. If, for instance, it be proved that he uttered, 
 either on the same day or at other times, whether before or 
 after the uttering charged, base money, either of the samr- 
 or of a different denomination, to the same or to a differ- 
 end person, or had other pieces of base money about him 
 when he uttered the counterfeit money in question ; this 
 will be evidence from which the jury may presume a guilty 
 knowledge : 1 Euss. 127. 
 
 Uttering Light Coins. 
 
 ft79« E\fTy one is guilty of an indictable offence and liable to thrcf 
 year ' imprisonment who — 
 
 {a) vitters, as being currei t, any gold or silver coin of less than its lawful 
 weight, knowing such coin to have been impaired, diminished or lij^^litencd 
 otheru-'so than by lawful wear ; or 
 
 {h) with intent to defraud utters, as ui for any current gold or silver coin, 
 any coin not being such curnmt gold or silver coin, or any medal, or piece (if 
 metal or mixed metals, resembling, in size, figure and colour, the current coin 
 as or for which the same is so uttered, such coin, medal or piece of metal or 
 mixed metals so uttered being of less value than the current coin as or for 
 which the same is so uttered ; or 
 
 ((') utters any counto'.feit coin resembling or apparently intended to 
 re semblr- or pass for nnj current copper coin, knowing the same to be counter- 
 feit. R. S. C. c V'u, dK. ri, 14 & 16. 24-23 V. c. 99, ss. 10, 13 & 15 (Imp.). 
 
 Fine, l, 958. 
 
 A person was convicted, under the above section, of 
 putting off, as and for a half sovereign, a medal of the same 
 size and colour, which had on the obverse side a head 
 similar to that of the Queen, but surrounded by the inscrip- 
 tion "Victoria, Queen of Great Britain," instead of "Vic- 
 toria Dei Gratia," and a '•ound guerling and not square, 
 and no evidence was givcu. as to the appearance of the 
 reverse side, nor was the coin produced to the jury ; it was 
 held that there was sufficient evidence that the medal 
 resembled, in figure, as well as size and colour, a half 
 sovereign : R. v. Robinson, L. & C. 604; the medal was 
 produced, but, in the course of his evidence, one of the 
 witnesses accidentally dropped it, and it rolled on tbef^oor; 
 strict search was made for it for more than half au hour, 
 but it could not be found. 
 
Sees. 4V0-,478] 
 
 UTTERING DEFACED COIN. 
 
 555 
 
 il|.;i l:i, 
 
 ible to til ret 
 
 intended to 
 
 Utterinh Dkkaoki) Coin. 
 
 4'y6< Every one who utters any coin defaoed by having stami>e<l 
 thereon any n.-vraes or words, is guilty of an offence and liable, on summary 
 conviction before two justices of the iieace, to a i^enalty not exceeding ten 
 dollars. R. S. C. c. 167, s. 18. 
 
 See s. 469, ante. 
 
 No prosacution without the consent of the Attorney - 
 General ; s. 549. 
 
 Uttering Uncurrknt Copper Coin. 
 
 47'J'. Every one who utters, or offers in payment, any copper coin, << r 
 than current copper coin, is guilty of an offence and liable, on sui 
 conviction, to a penalty of double the nominal value thereof, and in 'letauii of 
 iiayment of such penalty to eight days' imprisonment. R. S. C. c. Hm , s. 33. 
 
 Punishment After Previous Conviction. 
 
 478« Every one who, after a previous conviction of any offence relating 
 hike win under this or cuiif other Act, is convicted of any offence specified in 
 thin part is liable to the following punishment : — 
 
 (o) to imprisonment for life, if otherwise fourteen years would have been 
 the longest term of imprisonment to which he would have oe en liable ; 
 
 (b) to fourteen years' imprisonment, if otherwise seven years would have 
 Ijftn the Icjngest term of imprisonment to which he would have V)een liable ; 
 
 (c) to seven years' imprisonment, if otherwise he would not have been 
 liable to seven years' imprisonment. R. S. C. c. 107, s. 13 (Anmided). 24-25 ^^ 
 c. !i!t,s. 12{Imp.). 
 
 The words in italics are new. 
 The punishments are altered. 
 See R. V. thomas, 13 Cox, 52. 
 
 See ss. 628 and 676 as to procedure when a previous 
 otfence is charged, corresponding to s. 116 of the Imperial 
 Larceny Act, and s. 37 of the Imperial Coin Act : R. v. 
 Martin, 11 Cox, 343. 
 
 This enactment is intended to provide for a subsequent 
 iinlictable offence after a previous conviction for an indict- 
 able offence. Unfortunately, the section does not say what 
 it means, and any one convicted, for instance, of uttering 
 defaced coin under s. 476 and fined ten dollars, is liable to 
 secen years imprisonment on a subsequent conviction for 
 any offence spe jified in this part, s. 536. 
 
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 656 ADVERTISING COUNTERFEIT MONEY. [Sees. 479, 480 
 
 PART XXXVI. ^ 
 
 ADVERTISING COUNTERFEIT MONEY. 
 
 479* In this part the expression "counterfeit token of value" means 
 any spurious or counterfeit coin, paper money, inland revenue stamp, postage 
 stamp, or other evidence of value, by whatever technical, trivial or deceptive 
 designation the same may be described. 51 V. c. 40, s. 1. 
 
 4S0« Every one is guilty of an indictable offence and liable to five years' 
 imprisonment who — 
 
 (a) prints, writes, utters, publishes, sells, lends, gives away, circulates or 
 distributes any letter^ writing, circular, paper, pamphlet, handbill or any 
 written or printed matter advertising, or offering or puriwrting to advertise or 
 offer for sale, loan, exchange, gift or distribution, or to furnish, procure or 
 distribute, any counterfeit token of value, or what purports to be a counterfeit 
 token of value, or giving or purporting to give, either directly or indirectly, 
 information where, how, of whom, or by what means any counterfeit token of 
 value, or what purports to be a counterfeit token of value, may be procured or 
 had; or 
 
 (b) purchases, exchanges, accepts, takes possession of or in any way uses, 
 or offers to purchase, exchange, accept, take possession of or in any way use, 
 or negotiates or offers to negotiate with a view of purchasing or obtaining or 
 using any such counterfeit token of value, or what purports so to be ; or 
 
 (c) in executing, operating, promoting or carrying on any scheme or 
 device to defraud, by the use or by means of any papers, writings, letters, 
 circulars or written or printed matters concerning the offering for sale, loan, 
 gift, distribution or exchange of counterfeit tokens of value, uses any ficti- 
 tious, false or assumed name or address, or any name or address other than his 
 own right, proper and lawful name ; or 
 
 (d) in the execution, operating, promoting or carrying on, of any scheme 
 or device offering for sale, loan, gift or distribution, or purporting to offer for 
 sale, loan, gift or distribution, or giving or purporting to give information, 
 directly or indirectly, where, how, of whom or by what means any counterfeit 
 token of value may be obtained or had, knowingly receives or takes from the 
 mails, or from the post office, any letter or package addressed to any such 
 fictitious, false or assumed name or address, or name other than his own right, 
 proper or lawful name. 51 V. c. 40, ss. 2 & 3. 
 
 See 8. 693 as to evidence. 
 
 On indictment for offering to purchase counterfeit 
 tokens of value prisoner cannot be convicted on evidence 
 that notes which he offered to purchase were not counter- 
 feit bat genuine bank notes unsigned, though he offered to 
 purchase in belief that they were counterfeit: R. v. Attwood, 
 20 0. R. 674. 
 
Sec. 481] 
 
 MISCHIEF. 
 
 PART XXXVII. 
 
 557 
 
 # 
 
 MISCHIEF. 
 
 48l« Every one who causes any event by an act which he knew would 
 probably cause it, beinff reckless whether such event happens or not, is deemed 
 to have caused it wilfully for the purposes of this part. 
 
 2. Nothing shall be an offence under any provision contained in this part 
 unless it is done without legal justification or excuse, and without colour of 
 right. 
 
 3, Where the offence consists in an injury to anything in which the 
 offender has an interest, the existence of such interest, if partial, shall not 
 prevent his act being an offence, and if total, shall not prevent his act being an 
 offence, if done with intent to defraud. R. S. C. c. 168, ss. 60 & 61 {Ame7ided). 
 24-25 V. c. 97, ss. 58 & 59 (Imp.). 
 
 •• Part xxxiv. (xxxvii. of this code), is founded on the pro- 
 visions of 24 & 25 V. c. 97 (c. 168, B. S. C), in which the 
 word ' maliciously ' very frequently occurs. Section 381 (481) 
 is meant to give what we believe to be the legal effect of 
 that word. The first portion of the section is intended to meet 
 such state of facts as that in the case of E. v. Child, L. B. 1 
 C. C. R. 807, 12 Cox, 64, Warb. Lead. Cas. 193, where a man, 
 who out of malice to a fellow lodger, made a bonfire of her 
 furniture on the floor of her room, not meaning that his land- 
 lord's house should catch fire, escaped punishment. 
 
 Under the proviso a tenant for years burning his landlord's 
 house commits an offence, though in so doing he burns his own 
 leasehold, and a freeholder burning his own house commits an 
 offence, if he does so with intent to defraud the insurers. The 
 rest of this part re-enacts 24 & 25 Y. c. 97, with little 
 substantial alteration." — Imp. Comm. Bep. 
 
 Greaves says on the section corresponding to s-s.S, 8.481 : 
 " This clause is new and a very important amendment. It 
 extends every clause of the Act not already so extended to 
 persons in possession of the property injured, provided they 
 intend to injure or defraud any other person. It therefore 
 brings tenants within the provisions of the Act, whenever 
 they injure the demised premises, or anything growing on 
 or annexed to them, with intent to injure their landlords." 
 
 il*' 
 
558 
 
 MISCHIEF. 
 
 [Sec. 482 
 
 By s. 613, post, in any indictment, it is sufficient to 
 allege that the person accused did the act with intent to 
 defraud, as the case may be, without alleging an intent to 
 defraud any particular person, and no count shall be deemed 
 objectionable on the ground that it does not contain the 
 name of the person injured, or attempted, or intended to 
 be injured. 
 
 Arson. 
 
 4^2* Every one is guilty of the indictable oifence of arson and liable to 
 imprisonment for life who wilfully sets fire to any building or structure 
 whether such building, erection or structure is completed or not, or to any stack 
 of vegetable produce or of mineral or vegetable fuel, or to any mine or any 
 well of oil or other combustible substance, or to any ship or vessel, whether 
 completed or not, or to any timber or materials placed in any shipyard for 
 building or repairing or fitting out any ship, or to any of Her Majesty's stores 
 or munitions of war. R. S. C. c. 1G8, ss, 2 to 8, 19, 28, 46 & 47 {Amended). 
 24-25 V. c. 97, ss. 1 to 6, 17, 26, 42 & 43 (Imp. ). 
 
 The words in italics settle a mooted point. 
 
 Indictment. — that A. B., on at un- 
 
 lawfully and wilfully, without legal justification or excuse, 
 and without colour of right did set fire to a certain building, 
 to wit, a dwelling-house of C. D. : see K. v. Turner, 1 Moo. 
 239 ; R. V. Lewis, 2 Russ. 1067. 
 
 The definition of arson at common law is as follows : 
 arson is the malicious and wilful burning the house of 
 another, and to constitute the offence there must be m 
 actual burning of some part of the house, though it is not 
 necessary that any flames should appear: 3 Burn, 768. 
 But now the words of the statute are set fire to, merely ; 
 and, therefore, it is not necessary in an indictment to aver 
 that the house was burnt, nor neea '>e proved that the 
 house was actually consumed. But Lxxderthe statute, as 
 well as at common law, there must be an actual burning of 
 some part of the house ; a bare intent or attempt to do it is 
 not sufficient. But the burning or consuming of any part 
 of the house, however trifling, is sufficient, although the 
 fire be afterwards extinguished. Where on an indict^ 
 ment it was proved that the floor of a room was scorched; 
 that it was charred in a trifling way; that it had been at a 
 
Sec. 482] 
 
 ARSON. 
 
 559 
 
 red heat but not in a blaze, this r/as held a sufficient burn- 
 ing to support the indictment. But where a small faggot 
 having been set on fire on the boarded floor of a room, the 
 boards were thereby scorched black but not burnt, and no 
 part of the wood was consumed, this was held not suffi- 
 cient. 
 
 The time stated in the indictment need not be proved 
 as laid ; if the offence be proved to have been committed 
 at any time before or after, provided it be some day before 
 the finding of the indictment by the grand jury, it is 
 sufficient. Where the indictment alleged the offence to 
 have been committed in the night time and it was proved 
 to have been committed in the day time, the judges held 
 the difference to be immaterial. The parish is material, 
 for it is stated as part of the description of the house 
 burnt. Wherefore, if the house be proved to be situate in 
 another parish the defendant must be acquitted, unless the 
 variance be amended : see now ss. 611, 613, post. If a man 
 intending to commit a felony, by accident set fire 'to an- 
 other's house, this, it should seem, would be arson. If 
 intending to set fire to the house of A. he accidentally set 
 fire to that of B., it is felony. Even if a man by wilfully 
 setting fire to his own house, burns also the house of one 
 of bis neighbours it will be felony ; for the law in such a 
 case implies malice, particularly if the party's house were 
 so situate that the probable consequence of its taking fire 
 was that the fire would communicate to the houses in its 
 neighbourhood. And generally if the act be proved to 
 have been done wilfully, it may be inferred to have been 
 done maliciously, unless the contrary be proved : Archbold, 
 625; R. v. Tivey, 1 C. «fc K. 704 ; R. v. Philp, 1 Moo. 263. 
 
 It is seldom that the wilful burning by the defendant 
 can be made out by direct proof ; the jury, in general, 
 have to adjudicate on circumstantial evidence. Where a 
 bouse was robbed and burned, the defendant being found 
 in possession of some of the goods which were in the house 
 
 . i 
 
■V . r J, :.,< . 
 
 *':f 
 
 560 
 
 MISCHIEF. 
 
 [Sec. 482 
 
 at the time it was burnt, was admitted as evidence tcndins 
 to prove him guilty of the arson. So where the question 
 is whether the burning was accidental or wilful, evidence 
 is admissible to show that on another occasion, the defend- 
 ant was in such a situation as to render it probable that 
 he was then engaged in the commission of the like offence 
 against the same property. But on a charge of arson, 
 where the question was as to the identity of the prisoner, 
 evidence that a few days previous to the fire in question, 
 another building of the prosecutor's was on fire and that 
 the prisoner was then standing by with a demeanour which 
 showed indifference or gratification, was rejected. 
 
 Upon an indictment for any offence mentioned in this 
 part the jury may, under s. 711, convict the prisoner of an 
 attempt to commit the same, and thereupon he may be 
 punished in the same manner as if he had been convicted 
 on an indictment for such attempt : ss. 528, 529. 
 
 See R. v. Newboult, 12 Cox, 148, and R. v. Farrington, 
 1 R. & R. 207, as to intent. 
 
 It is immaterial whether the building, house, etc., be 
 that of a third person or of the defendant himself; but in 
 the latter case, the intent to defraud cannot be inferred 
 from the act itself, but it must be alleged and proved by 
 other evidence. In R. v. Kitson, Dears. 187, the prisoner 
 was indicted for arson, in setting fire to his own house 
 with intent to defraud an insurance office. Notice to 
 produce the policy was served too late on the defendant, 
 and it was held that secondary evidence of the policy was 
 not admissible. "But it must not, however, be under- 
 stood, said Jervis, G.J., " that it is absolutely necessary 
 in all cases to produce the policy, but the intent to defraud 
 alleged in the indictment must be proved by proper evi- 
 dence." 
 
 Defendant was charged with having set fire to a build- 
 ing, the property of one J. H., " with intent to defraud." 
 The case opened by the Crown was that the prisoner in- 
 
[Sec. 482 
 
 le tending 
 I question 
 , evidence 
 be defend- 
 bable that 
 ike offence 
 of arson, 
 3 prisoner, 
 a question, 
 :e and that 
 nonr which 
 i. 
 
 )ned in this 
 
 isoner of an 
 
 he may he 
 
 3n convicted 
 
 , Farrington, 
 
 luse, etc., he 
 iself; but in 
 be inferred 
 proved hy 
 Ithe prisoner 
 own house 
 Notice to 
 |e defendant, 
 le policy was 
 ', be under- 
 lly necessary 
 it to defraud 
 proper evi- 
 
 l-e to a huild- 
 
 Ito defraud." 
 
 prisoner in- 
 
 Sec. 482] 
 
 ARSON. 
 
 561 
 
 tended to defraud several insurance companies, but the 
 legal proof of the policies was wanting, and an amendment 
 was allowed by striking out the words "with intent ta 
 defraud." The evidence showed that several persons were 
 interested as mortgagees of the building, a large hotel, and 
 J. H. as owner of the equity of redemption. It was left to 
 the jury to say whether the prisoner intended to injure any 
 of those interested. They found a verdict of guilty. Held, 
 that the amendment was authorized and proper, and th& 
 conviction was warranted by the evidence. The indict- 
 ment in such a case is sufficient without alleging any 
 intent, there being no such averment in the statutory 
 form ; but an intent to injure or defraud must be shown 
 on the trial : R. v. Cronin, 36 U. C. Q. B. 342. 
 
 An indictment for setting fire to a stack of beans, B. 
 
 V. Woodward, 1 Moo. 328 ; or barley, R. v. Swatkins, 4 
 
 G. & P. 548, is good ; for the court will take notice that 
 
 beans are pulse, and barley, corn : s. 487, post. A stack 
 
 composed of the flax-plant with the seed or grain in it, the 
 
 jury finding that the flax-seed is a grain, was held to be a 
 
 stack of grain: R. v. Spencer, Dears. & B. 131. The 
 
 prisoner was indicted for setting fire to a stack of wood^ 
 
 and it appeared that* the wood set fire to consisted of a^ 
 
 score of faggots heaped on each other in a temporary loft- 
 
 over the gateway. Heldt this not to be a stack of wood r 
 
 B. v. Aris, 6 G. & P. 348. Where the defendant set fire 
 
 to a summer-house in a wood, and the fire was thence 
 
 communicated to the wood, he was held to be properly 
 
 convicted on an indictment charging him with setting fire 
 
 to the wood : R. v. Price, 9 G. & P. 729. An indictment 
 
 for setting fire to a cock of hay cannot be sustained under 
 
 a statute making it an offence to set fire to a stack of hay : 
 
 E. V. McKeever, 5 Ir. R. G. L. 86. A quantity of straw » 
 
 packed on a lory, in course of transmission to market, and 
 
 left for the night in the yard of an inn, is not a stack of 
 
 straw within 24 & 25 V.c.97, s. 17 (Imp.), (19 of our repealed 
 
 Crim. Law— 36 
 
 I 1 
 
'M; 
 
 il^'l 
 
 
 i 
 
 IIIBi 
 
 1 
 
 Is 
 
 _„,._ll» 
 
 £62 
 
 MISCHIEF. 
 
 [Sec. 482 
 
 statute), and the setting fire thereto wilfully and maliciously 
 is not felony : R. v. Satchwell, 12 Cox, 449 ; s. 487 post. 
 
 Section 19 of repealed statute did not apply to manu- 
 factured lumber ; B. v. Berthd, 16 C. L. J. 251. 
 
 It is equally an offence within this section to set fire to 
 a mine in the possession of the party himself, provided it 
 is proved to be done with intent to injure or defraud any 
 other person. The mine may be laid as the property of 
 the person in possession of or working it, though only as 
 agent : E. v. Jones, 2 Moo. 293. 
 
 As to setting fire to ships. — A pleasure boat, eighteen 
 feet long, was set fire to and Patteson, J., inclined to think 
 that it was a vessel within the meaning of the Act, but tbe 
 iprisoner was acquitted on the merits, and no decided 
 ^opinion was given : R. v. Bowyer, 4 C. & P. 559. Upon an 
 indictment for firing a barge, Alderson, J., seemed to doubt 
 if a barge was within the meaning of the statute : B. v. 
 Smith, 4 C. & P. 569. The burning of a ship of which the 
 defendant was a part owner is within the statute : B. v. 
 Wallace, 2 Moo. 200. 
 
 In R. V. Philp, 1 Moo. 263, there was no proof of 
 malice against the owners, and the ship was insured for 
 more than its value, but the court thought that the defend- 
 ant must be taken to contemplate the consequences of his 
 act, and held that, as to this point, the conviction was 
 Tight : see R. v. Newill, 1 Moo. 458. The destruction of a 
 vessel by a part-owner shows an intent to prejudice tbe 
 other part-owners, though he has insured the whole ship 
 and promised that the other part-owners should have the 
 benefit thereof : R. v. Philp, 1 Moo. 263. The underwriters 
 on a policy of goods fraudulently made are within the 
 statute, though no goods be put on board : Idem. If tbe 
 intent be laid to prejudice the underwriters then prove 
 the policy, and that the ship sailed on her voyage : B. v. 
 Gilson, R. & R. 138. 
 
at, eighteen 
 led to think 
 ^.ct, but the 
 no decided 
 9. Upon an 
 ned to doubt 
 atute : B. v. 
 jf which the 
 
 Sec. 483] 
 
 ATTEMPT. 
 
 I \ 
 
 663 
 
 A sailor goes on a ship to steal rum. While tapping 
 the casks a lighted match held by him set the rum on fire, 
 and a conflagration ensued which destroyed the vessel. 
 HM, that a conviction for arson of the ship could not be 
 upheld : R. v. Faulkner, 13 Cox, 550. 
 
 Attempt. 
 
 4§tl. Every one is guilty of an indictable offence and liable to fourteen 
 vears' imprisonment who wilfully attempts to set fire to anything mentioned in 
 tlie last preceding section, or who wilfully sets fire to any substance so situated 
 that he knows that anything mentioned in the last precedmg section is likely 
 to catch fire therefrom. R. S, C. o. 168, ss. 9, 10, 20, 29 & 43 (Amended). 
 21-25 V. c. 97, ss. 7, 8, 18, 27 & 44 (Imp.). 
 
 See B. v. Child, Warb. Lead. Cas. 193, and cases there 
 cited. 
 
 " Wilfully attempt " in this section is not a happy ex- 
 pression. Can any one be said to not wilfully attempt ? 
 
 Indictment. — at unlawfully and wilfully 
 
 did attempt, without legal justification or excuse and with- 
 out colour of right, to set fire to a certain dwelling-house 
 (building) of F. N. 
 
 Where the prisoners were indicted for setting fire to 
 letters in a post-office, divers persons being in the house, 
 it was held that there was no evidence of any intent, but it 
 was what is vulgarly called a lark, and even if the house 
 had been burned they would not have been guilty : R. v. 
 Batstone, 10 Cox, 20. '^ . 
 
 A person maliciously sets fire to goods in a house with 
 intent to injure the owner of the goods, but he had no mali- 
 cious intention to burn the house, or to injure the owner of 
 it. The house did not take fire but would have done so if 
 the fire had not been extinguished : Held^ that if the house 
 had thereby caught fire, the setting fire to it would not 
 have been within this section, as, under the circumstances, 
 it would not have amounted to felony : B. v. Nattrass, 15 
 Cox, 73; R. v. Harris, 15 Cox, 75. But see now s. 481. 
 
 It is not necessary in a count in an indictment laid 
 under this section to allege an intent to defraud, and it is 
 
 -» 
 
 ■W 
 
564 
 
 MISCHIEF. 
 
 [Sees. 484, 485 
 
 sufficient to follow the words of the section without sub- 
 stantively setting out the particular circumstances relied 
 on as constituting the offence. Evidence of experiments 
 made subsequently to the fire is admissible in order to 
 show the way in which the building was set fire to : B. v. 
 Heseltine, 12 Cox, 404. 
 
 The words "with intent to injure or defraud" have 
 been left out of these sections. 
 
 Lighting a match by the side of a stack with intent to 
 set fire to it is an attempt to set fire to it, because it is an 
 act immediately and directly tending to the execution of 
 the crime : B. v. Taylor, 1 F. & F. 511. On an indictment 
 against two prisoners for attempting to set fire, one pri- 
 soner had not assisted in the attempt, but had counselled 
 and encouraged the other; both were convicted: B. t. 
 Clayton, 1 C. & K. 128. 
 
 See B. V. Goodman, 22 U. C. C. P. 338. 
 
 Settino Fire to Crops, Trees, Lumber. 
 
 4§4. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who wilfully sets fire to — 
 
 (a) any crop, whether standing or out down, or any wood, forest, coppice 
 or plantation, or any heath,' gorse, furze or fern ; or 
 
 (h) any tree, lumber, timber, logs, or floats, boom, dam or slide, and 
 thereby injures or destroys the same. R. S. C. c. 168, ss. 18 & 12 (Ameiuied). 
 24-25V. o. 97, s. 16(Imp.). 
 
 Indictment under s. 12 of repealed statute quashed, for 
 want of the words ** so as to injure or to destroy ": R. v. 
 Berthe, 16 C. L. J. 251. Such an indictment bad, even 
 after verdict : B. v. Bleau, 7 B. L. 571. 
 
 See form of indictment under s. 482, to which add for 
 an oflfence under s-s. (6) " and thereby injured [or de- 
 stroyed) the same," or ** injured and destroyed the same." 
 
 Attempt. 
 
 48S. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who wilfully attempts to set fire to anything mentioned 
 in the last preceding section, or who wilfully sets fire to any substance so 
 situated that he knows that anything mentioned in the last preceding section 
 
Sees. 486-488] SETTING FIRE TO FORESTS, ETC. 
 
 565 
 
 is likely to catch fire therefrom. R. S. 0. c. 168, b. 20 (Amended). 24-25 V. 
 c. 97, 8. 18 (Imp.). 
 
 See remarks under the last three sections. 
 
 Setting Fire to Forksts, Etc. 
 
 486. Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who, by such negligence as shows him to be reckless or wantonly 
 regardless of consequences, or in violation of a provincial or municipal law of 
 the locality, sets fire to any forest, tree, manufactured lumber, square timber, 
 lugs or floats, boom, dam or slide on the Crown domain, or land leased or law- 
 fully held for the purpose of cutting timber, or on private proiierty, on any 
 creek or river, or roUway, beach or wharf, so that the same is injured or 
 destroyed. 
 
 2. The magistrate investigating any such charge may, in his discretion, if 
 the consequences have not been serious, dispose of the matter summarily, 
 without sending the offender for trial, by imposing a fine not exceeding fifty 
 dollars, and in default of payment by the committul of the offender to prison 
 for any term not exceeding six months, with or without hard labour. R. S. C. 
 c. 168, s. 11. 
 
 Fine, s. 958. 
 
 Indictment. — that A. B. on at acting 
 
 TS'ith reckless negligence and wantonly regardless of con- 
 sequences (or in violation of a provincial *' or " a municipal 
 laiv) did unlawfully set fire to a forest then and there 
 situate on the Grown domain, so that the said forest was 
 injured {or destroyed.) 
 
 Threats to Burn. 
 
 4§T» Every one is guilty of an indictable offence and liable to ten years' 
 imprisonment who sends, delivers or utters, or directly or indirectly causes to 
 be received, knowing the contents thereof, any letter or writing threatening to 
 bum or destroy any building, or ."iny rick or stack of grain, hay or straw or 
 other agricultural produce, or any fcrain, hay or straw or other agricultural 
 produce in or under any building, oi luy ship or vessel. K. S. C. c. 173, s. 8. 
 24-25V. c. 97, 8. 50{Imp.). 
 
 See remarks under ss. 233 & 482, ante. 
 
 A threat to burn standing corn is not within the statute : 
 E. V. Hill, 5 Cox, 233 ; See R. v. Jepson, 2 East, P. C. 1115, 
 note (a), as to what constitutes a threat. See s. 959 post, 
 as to articles of the peace. 
 
 Attempt to Damage by Explosives. 
 
 488. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment who wilfully places or throws any explosive substance 
 
 
 'If 
 
 I 
 
'0 
 
 m 
 
 666 
 
 MISCHIEF. 
 
 [Sea 488 
 
 into or near any building or ship with intent to destroy or damage the iiaiiiu 
 or any machinery, working tools, or chattels whatever, whether or not any 
 explosion takes Iplace. R. S. C. c. 168, ss. 14 & 40. 24-26 V. o. 07, an. 10-45 
 (Imp.). » 
 
 " Explosives " defined, s. 8. 
 
 Indictment for throwing gunpowder into a house with 
 intent^ etc. — at unla\«rfully and wilfully did 
 
 throw into the dwelling-house of J. N., a large 
 
 quantity, to wit, two pounds of a certain explosive sub- 
 stance, that is to say, gunpowder, with intent thereby then 
 to destroy the said dwelling-house. (Add counts varyithj 
 the statement of the act, and also stating the intent to be to 
 damag e the house.) 
 
 Indictment under s. 99 for destroying by explosion part 
 of a dtvelling-house, so as to endanger life. — wilfully 
 
 and unlawfully did, by the explosion of a certain explosive 
 substance, that is to say gunpowder, destroy a certain part 
 of the dwelling-house of J. N., situate one A. N., 
 
 then being in the said dwelling-house, so as to endanger 
 the life of the said A. N. (Add counts for throwing down 
 and damaging part of the dwelling-house,) under s. 488 : 
 See R. V. McGrath, 14 Cox, 698 ; and ss. 99, 100, 247. 248 
 & 499, which also provide for offences by explosives. 
 
 Prove that the defendant by himself or with others 
 destroyed or was present aiding and abetting in the de- 
 struction of some part of the dwelling-house in questioD, by 
 the explosion of gunpowder or other explosive substance 
 mentioned in the indictment : R. v. Howell, 9 C. & P. 437- 
 It has been held that firing a gun loaded with powder 
 through the keyhole of the door of a house, in which were 
 several persons, and by which the lock of the door was 
 blown to pieces, is not within this section : R. v. Brown, 3 
 F. & F. 821. But Greaves is of opinion that this case 
 would bear reconsideration : 2 Russ. 1045 note. Prove 
 that it was the dwelling-house of J. N., and situate as 
 described in the indictment. Prove that the act was done 
 maliciously, that is, wilfully and not by accident. Prove also 
 
Sees. 489.491] 
 
 MISCHIEF ON RAILWAYS. 
 
 567 
 
 upon an indictment as ante under b. 99 that A. N. was in the 
 bouse at the timc> No intent need be laid or proved. Id 
 B. V. Sheppard, 11 Cox, 802, it was held that, in order ta 
 support an indictment under this section, it is not enough 
 to show simply that gunpowder or other explosive sub- 
 stance was thrown against the house, but it must also be 
 shown that the substance was in a condition to explode at 
 the time it was thrown, although no actual explosion did 
 result. 
 
 MiHOHiEK ON Railways. 
 
 4§0. Every one is guilty of an indictable offence and liable to five years' 
 imprisonment who, in manner likely to cause danger to valuable property, with.- 
 o\it endangering life or person— 
 
 (a) places any obstruction upon any railway, or takes up, removes-,. 
 displaces, breaks or injures any rail, sleeper or other matter or thing belonging^ 
 to any railway ; or 
 
 (6) shoots or throws anything at an engine or other ruilway vehicle ; or 
 
 (e) interferes without authority with the points, signals or other appliances 
 upon any railway ; or 
 
 ((/) makes any false signal on or near any railway ; or 
 
 (c) wilfully omits to do any act which it is his duty to do ; or 
 
 (/) does any other unlawful act. 
 
 2. Every one who does any of the acts above mentioned with intent to 
 cause such danger is liable to imprisonment for life. R. S. C. o. 168, si. 37 & 
 38 (Avicmled). 24-25 V. c. 97, s. 35. 
 
 400« Every one is guilty of an indictable offence and liable to two years* 
 imprisonment who, by any act or wilful omission obstructs or interrupts, or 
 causes to be obstructed or interrupted, the construction, maintenance or free 
 use of any railway or any part thereof, or any matter or thing apjiertaiuin^ 
 thereto or connected therewith. R. S. C. o. 168, ss. 38 & 39 (Amended). 
 24-25 V. 0. 97, H. 30 (Imp.). 
 
 491* Every one is guilty of an offence and liable, on summary convic- 
 tion, to II penalty not exceeding twenty dollars over and above the value of the 
 g(xxls or liquors so destroyed or damaged, or to one month's imprisonment, 
 with or without hard labour, or to both, who — 
 
 ((() wilfully destroys or damages anything containing any goods or 
 liquors in or about any railway station or building or any vehicle of any kind 
 on any railway, or in any warehouse, ship or vessel, with intent to steal or 
 otherwise unlawfully to obtain or to injure the contents, or any part thereof ; 
 or 
 
 (b) unlawfully drinks or wilfully spills or allows to run to waste any such 
 liquors, or any part thereof. R. S. C. c. 38, s. 62. 51 V. o. 29, s. 297. 
 
 Section 489 is clumsily worded. 
 
 W I 
 
 "Hi 
 
 ■I 
 
 t 
 
 i 
 
 i 
 i 
 
 I 
 
568 
 
 MISCHIEF. 
 
 [Sec. 491 
 
 See s. 71L as to a verdict of attempt to commit the 
 offence charged in certain cases. 
 
 The prisoners were indicted in several counts for wil- 
 fully and maliciously placing a stone upon the North 
 Woolwich Bailway, with intent to damage, injure, and 
 obstruct the carriages travelling upon it. 
 
 It appeared that the prisoners, who were respectively 
 aged thirteen and fourteen, had placed a stone on the rail- 
 way in such a way as to interfere with the machinery of the 
 points, and prevent them from acting properly, so that if 
 a train had come up while the stone remained as placed 
 by the prisoners it would have been thrown off the line, 
 and a serious accident must have been the consequence. 
 Gutteridge held up the points whilst Upton dropped in the 
 stone. 
 
 Wightman, J., told the jury that in order to convict the 
 prisoners it was necessary, in the first place, to prove that 
 they had wilfully placed the stone in the position stated 
 upon the railway : and secondly, that it was done mali- 
 ciously, and with the purpose of causing mischief. It was 
 bis duty to inform them that it was not necessary that the 
 prisoners should have entertained any feelings of malice 
 against the railway company, or against any person travel- 
 ling upon it ; it was quite enough to support the charge if 
 the act was done with a view to some mij^bievous conse- 
 quence or other, and if that fact was made out the jury 
 would be justified in finding the prisoners guilty, notwith- 
 standing their youth. They were undoubtedly very young, 
 but persons of their age were just as well competent to form 
 au opinion of the consequences of an act of this description 
 as an adult person. Verdict, guilty upon the counts 
 charging an intent to obstruct the engine: E. v. Upton 
 (Greaves Lord CamphelVs Acta, Apjiendix). 
 
 Indictment under «-«. 1. — unlawfully did put and 
 
 place a piece of wood upon a certain railway called 
 in with intent thereby then to obstruct, upset, over- 
 
Sec. 492] 
 
 INJURIES TO TELEGRAPHS. 
 
 569 
 
 throw, and injure a certain engine and certain carriages 
 using the said railway, and in manner likely to cause dan- 
 ger to such engine and carriages. {The intent may be laid 
 ill different icays^ in different counts, if necessary). 
 
 Prove that the defendant placed the piece of wood upon 
 or across the railroad as described in the indictment, or 
 was present aiding and assisting in doing so. The intent 
 may be inferred from circumstances from which the jury 
 may presume it. In general, the act being done wilfully, 
 and its being likely to obstruct or upset the railway train, 
 would be sufficient prima facie evidence of an intent to 
 do so. 
 
 Upon an indictment under s. 489 the defendant may 
 be convicted of the offence under s. 490, if the evidence 
 warrants it : R. v. Bradford, Bell, 268. A line of railway 
 constructed under an Act of Parliament, but not yet opened 
 for public traffic, and used only for the carriage of materials 
 and workmen, is within the statute : Idem. A drunken 
 man got upon tbe railway and altered the signals and 
 thereby caused a luggage train to pull up and proceed at a 
 very slow pace : Held, upon a case reserved, that this was 
 a causing of an engine and a carriage using a railway to 
 be obstructed : R. v. Hadfield, 11 Cox, 574, Warb. Lead. 
 Cas. 87. A person improperly went upon a line of railway 
 and purposely attempted to stop a train approaching by 
 placing himself on the space between two lines of rails, and 
 holding up his arms in the mode adopted by inspectors of 
 the line when desirous of stopping a train : Held, that this 
 amounted to the offence of unlawfully obstructing an en- 
 gine or carriage using a railway : R. v. Hardy, 11 Cox, 656. 
 
 Injuries to Tklkorai'hs. 
 
 493. Every one is guilty of an indictable offence and liable to tivo years' 
 imprisonnif^nt who wilfully — ' 
 
 (a) destroys, removes or damages anything which forms part of, or is used 
 or employed in or about any electric or magnetic telegraph, electric light, 
 telephone or fire-alarm, or in the working thereof, or for the transmission f>f 
 electricity for other lawful purposes ; or 
 
%t4 
 
 'S'* 
 
 570 
 
 MISCHIEF. 
 
 [Sees. 493-495 
 
 i 
 
 \ 
 
 I 
 
 (6) prevents or obstructs the sendini?, conveyance or delivery of any com- 
 munication by any such telegraph, telephone or fire-alarm, or the transmission 
 of electricity for any such electric light or for any such purpose as ^.foresaid. 
 
 2. Every one who wilfully, by any overt act, attempts to commit any such 
 offence is guilty of an offence and liable, on summary conviction, to a penalty 
 not exceeding fifty dollars, or to three months' imprisonment, with or without 
 hard labour. R. S. 0. c. 168, ss. 40 & 41 {Amended). 24-25 V. o. 97, ss. 37 & 
 38 (Imp.). 
 
 Fine, s. 958. A verdict for attempt to commit the 
 
 offence charged may be given upon an indictment under 
 
 (a) & (6) ; s. 711. 
 
 Wbeokino. 
 
 493. Every one is guilty of an indictable offence and liable to imprison- 
 ment for life who wilfully — 
 
 (a) casts away or destroys any ship, whether complete or unfinished ; or 
 
 (b) does any act tending to the immediate loss or destruction of any 
 ship in distresi^ ; or 
 
 (c) interferes with any marine signal, or exhibits any false signal, with 
 intent to bring a ship or boat into danger. R. S. 0. c. 168, ss, 46 & 51 
 (Amended). 24-25 V. c. 97, ss. 42 & 47 (Imp.). 
 
 404. Every one is guilty of an indictable offence and liable to fourteen 
 years' imprisonment, who attempts to cast away or destroy any ship, whether 
 complete or unfinished. R. S. C c. 168, s. 48 (Amended). 
 
 Upon an indictment under s. 493 (a) a verdict may be 
 given for the offence covered by s. 494 ; s. 711. 
 See R. V. Tower, 4 P. & B. (N. B.) 168. 
 
 Indictment for exhibiting false signals. — that 
 
 before and at the time of committing the offence herein- 
 after mentioned, a certain ship, the property of some 
 person or persons to the jurors aforesaid unknown, was 
 sailing on a certain river called near unto 
 
 and that J. S. on well knowing the premises, whilst 
 
 the said ship was so sailing on near unto the said 
 
 parish as aforesaid, wilfully and unlawfully did exhibit a 
 false light, with intent thereby to bring the said ship into 
 danger. 
 
 Marine Signals, Buoys. 
 
 409. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who wilfully alters, removes or conceals, or attempts to 
 alter, remove or conceal, any signal, buoy or other sea mark used for the 
 inirposes of navigation. 
 
Sees. 496, 497] PREVENTING SA 
 
 OF WRECK. 
 
 571 
 
 2. Every one who makes fast any vessel or boat to any such signal, buoy, 
 or sea mark is liable, on summary conviction, to a penalty not exceeding ten 
 dollars, and in default of payment to one month's imprisonment. R. S. C. 
 c. 168, S8. 52 & 53 (Amended). 24-25 V. o. 97, s. 48. 
 
 No intent need be charged in the indictment. This 
 section includes the offence and the attempt to commit the 
 offence. 
 
 Indictment. — that J. S., on upon the 
 
 river called. unlawfully did wilfully remove a certain 
 
 buoy then used for the purposes of navigation. 
 
 Verdict of attempt may be given if the evidence war- 
 rants it ; s. 711. 
 
 Fbeventino Saving of Wreck. 
 
 496. Every one is guilty gf an indictable offence and liable to seven 
 years' imprisonment who wilfully prevents or impedes, or endeavours to pre- 
 vent or impede — 
 
 (a) the saving of any vessel that is wrecked, stranded, abandoned or in 
 distress ; or 
 
 (b) any person in his endeavour to save such vessel. 
 
 2. Every one who wilfully prevents or impedes, or endeavours to prevent 
 or imi)ede, the saving of any wreck is guilty of an indictable oiTence and liable, 
 on conviction on indictment, to two years' imprisonment, and on summary 
 conviction before two justices of the peace, to a fine of four hundred dollars or 
 six months' imprisonment, with or without hard labour. R, S. C. c. 81, 
 ss. 3(i (b) & 37 (c). 
 
 " Wreck " defined, s. 3. 
 
 Injuries to Rafts, Etc. 
 
 497. Every one is guilty of an indictable oflfence and liable to two years' 
 imprisonment who wilfully — 
 
 (a) breaks, injures, outs, loosens, removes or destroys, in whole or in part, 
 any dam, pier, slide, boom or other such work, or any chain or other fastening 
 attached thereto, or .any raft, crib of timber or saw-logs ; or 
 
 (b) impedes or blocks up any channel or passage intended for the trans- 
 mission of timber. R. S. C. c. 1U8, s. 54. 
 
 Fine, s. 958. 
 
 Indictment. — that A. B. on in 
 
 unlawfully and wilfully, without legal justification or excuse 
 and without colour of right, did cut a certain boom then 
 and there lying on the river called the said boom 
 
 being then and there the property of J. S., of 
 
\ 
 
 572 
 
 MISCHIEF. 
 
 [Sec. 498 
 
 , Mischief to Mines. 
 
 408. Every one is ^Ity of an indictable offence and liable to seven 
 years' imprisonment who, with intent to injure a mine or oil well, or obstruct 
 the working thereof— 
 
 (a) causes any water, earth, rubbish or other substance to be conveyed 
 into the mine or oil well or any subterranean channel communicating with 
 such mine or well ; or 
 
 {b) damages any shaft or any passage of the mine or well ; or 
 
 (c) damages, with intent to render useless, any apparatus, building, 
 erection, bridge or road belonging to the mine or well, whether the object 
 damaged be complete or not ; or 
 
 {d) hinders the working of any such apparatus ; or 
 
 (e) damages or unfastens, with intent to render useless, any rope, chain or 
 tackle used in any mine or well or upon any way or work connected therewth. 
 R. S. C. c. 168, ss. 30 & 31 [Amended). 24-25 V. c. 97, ss. 28 & 29 (Imp.). 
 
 Indictment under (a). — unlawfully and without 
 
 legal justification or excuse and without colour of right, 
 did cause a quantity of water to be conveyed into a certain 
 mine of J. N., situate with intent thereby then to 
 
 injure the 8S;,id mine and obstruct the working thereof. 
 
 Acts causing the damages mentioned in this section 
 done in the bona fide exercise of a supposed right and 
 without a wicked mind are not indictable : E. v. Matthews, 
 14 Cox, 5 ; K. V. Jones, 2 Moo. 293 ; R. v. Fisher, Warb. 
 Lead. Gas. 195. 
 
 Indictment under (e). a certain steam engine, the 
 
 property of J. N. for the draining and working of a certain 
 mine of the said J. N. and belonging to the said mine, 
 unlawfully did, without legal justification or excuse, and 
 without colour of right, damage with intent to render it 
 useless and to injure the said mine and obstruct the work- 
 ing thereof. 
 
 See 8. 711 as to a verdict for attempt to commit the 
 offence charged in certain cases. 
 
 Prove that the defendant pulled down or destroyed the 
 engine, as alleged. A scaffold erected at some distance 
 above the bottom of a mine for the purpose of working a 
 vein of coal on a level with the scaffold was holden to be 
 an erection used in conducting the business of the mine, 
 
Sec. 499] 
 
 MISCHIEF. 
 
 573 
 
 withm the meaning of the statute : B. v. Whittingham, 9 
 G.& P. 234. Wrongfully setting a steam-engine in motion, 
 without its proper machinery attached to it, and thereby 
 damaging it and rendering it useless, is within the section : 
 R. V. Norris, 9 C. & P. 241. A trunk of wood used to 
 convey water to wash the earth from the ore was held to 
 be an erection used in conducting the business of a mine 
 within the meaning of the statute : Barwell v. Winterstoke, 
 14Q. B. 704. 
 
 The intent must be alleged in the indictment : B. v. 
 Smith, 4 C. & P. 569. 
 
 Mischief. 
 
 499> Every one is guilty of the indictable offence of mischief who wil- 
 fully destroys or damages any of the property hereinafter mentioned, and is 
 liable to the punishments hereinafter specified : — 
 
 (A) to imprisonment for life if the object damaged be — 
 
 (a) a dwelling-house, ship or boat, and the damage be caused by an 
 explosion, and any person be in such dwelling-house, ship or boat, and the 
 damage causes actual danger to life ; or 
 
 (6) a bank, dyke or wall of the sea, or of any inland water, natural or 
 artificial, or any work in, on, or belonging to any port, harbour, dock or 
 inland water, natural or artifioial, and the damage causes actual danger or 
 inundation; or 
 
 (c) any bridge (whether over any stream of water or not) or any viaduct, 
 or aqueduct, over or under which bridge, viaduct or aqueduct p.ny highway, 
 railway or canal passes, and the damage is done with intent and so as to 
 render such bridge, viaduct or aqueduct, or the highway, railway or canal 
 passing over or under the same, or any part thereof, dangerous and impass- 
 able ; or 
 
 (d) a railway damaged with the intent of rendering and so as to render 
 such railway dangerous or impassable. R. S. C. c. 168, ss. 13, 32 & 49 ; o. 32, 
 8.213. 
 
 (JB) to fourteen years' imprisonment if the object damaged be — 
 
 (a) a ship in distress or wrecked, or any goods, merchandise or articles 
 belonging thereto ; or 
 
 (6) any cattle or the young thereof, and the damage be caused by killing, 
 maiming, poisoning or wounding. 
 
 (CO to seven years' imprisonment if the object damaged be — 
 
 (a) a ship damaged with intent to destroy or render useless such ship ; or 
 
 (h) a signal or mark used for purposes of navigation ; or 
 
 (c) a bank, dyke or wall of the sea or of any inland water or canal, or any 
 
 materials fixed in the ground for securing the same, or any work belonging to 
 
 any port, harbour, dock, or inland water or canal ; or 
 
 .tf'l'j 
 
 m 
 
\ 
 
 574 
 
 MISCHIEF. 
 
 [Sec. 499 
 
 {d) a navigable river or canal damaged by interference with the flood 
 gates or sluices thereof or otherwise, with intent and so as to obstruct the 
 navigation thereof ; or 
 
 (e) the flood gate or sluice of any private water with intent to take or 
 destroy, or so as to cause the loss or destruction of, the fish therein ; or 
 
 (/) a private fishery or salmon river damaged by lime or other noxious 
 material put into the water with intent to destroy fish then being or to be put 
 therein ; or 
 
 {(f) the flood gate of any mill-pond, reservoir or pool out through or 
 destroyed ; or 
 
 (h) goods in process of manufacture damaged with intent to render them 
 useless ; or 
 
 (i) agricultural or manufacturing macliines, or manufacturing imple- 
 ments, damaged with intent to render them useless ; or 
 
 (j) a. hop bind growing in a plantation of hops, or a grape vine growini? 
 ill a vineyard. R. S. C. c. 168, ss. 10, 17, 21, 33, 34, 50 & 52. 
 
 (D) to five years' imprisonment if the object damaged be — 
 
 (a) a tree, shrub or underwood growing in a park, pleasure ground or 
 garden, or in any land adjoining or belonging to a dwelling-house, injured to 
 an extent exceeding in value five, dollars ; or 
 
 (6) a post letter bag or post letter ; or 
 
 (c) any street letter box, pillar box or other receptacle established by 
 authority of the Postmaster-General for the deposit of letters or other niailaWe 
 matter ; or 
 
 (d) any parcel sent by parcel ix)st, any packet or package of patterns or 
 samples of merchandise or goods, or of seeds, cuttings, bulbs, roots, scions or 
 grafts, or any printed vote or proceeding, newspaper, printed i^aiier or book or 
 other mailable matter, not being a |}ost letter, sent by mail ; or 
 
 (c) any property, real or personal, corporeal or incorporeal, for damage to 
 which no special punishment is by law prescribed, damaged b>/ night to the 
 value of twenty dollars. R. S. C. c. 168, ss. 22, 23, S8 & 58 ; c. 35, ss. 79, 91, 
 96 & 107. 53 V. c. 37, s. 17. 
 
 (E) To two years' imprisonment if the object damaged be — 
 
 (a) any property, real or personal, corporeal or incorporeal, for damage to 
 which no si^ecial punishment is by law prescribed, damaged to the value of 
 twenty dollars. R. S. C. c. 168, ss. 36, 42 & 58. 53 V. c. 37, s. 17 (Animdtd). 
 
 The punishments are altered in some of these cases. 
 "Night" and "cattle" defined, s. 3. The words "by 
 night " in (Z)) (e) are new. 
 
 The Imperial Act on malicious injuries is 24 & 25 y.c.97; 
 also, 39 v. c. 13, as to poisoning cattle. 
 
 1 ndictment for damaging a river bank {A) {h). — 
 a certain part of the bank of a certain river, called the 
 river situate unlawfully][and wilfully, 
 
Sec. 4i)9] 
 
 MISCHIEF. 
 
 575 
 
 without legal justification or excuse, and without colour of 
 right, did cut down and break down, by means whereof 
 certain lands were then overflowed and damaged (or were 
 in actual danger of being inundated). As to verdict for an 
 attempt to commit the offenco charged upon an indictment 
 lor the offence itself, in certain cases, see s. 711. 
 
 INJURIES TO BRIDGES, ETC. {A) (o). 
 
 This clause by the words whether over any stream of 
 icater or not does away with the difficulties raised in R. v. 
 Oxfordshire, 1 B. & Ad. 289, and R. v. Derbyshire, 2 
 Q. B. 745. 
 
 Indictment for destroying a bridge. — a certain 
 
 bridge, situate unlawfully and wilfully, without legal 
 
 justification or excuse, and without colour of right, did 
 destroy, with intent, and so as to render the said bridge 
 impassable. 
 
 Indictment for damaging a bridge. — unlawfully 
 
 and wilfully, without legal justification or excuse, and 
 without colour of right, did damage a certain bridge, situ- 
 ate with intent, and so as to thereby render the said 
 bridge dangerous and impassable. 
 
 KILLING OR WOUNDING CATTLE. {B) (6). 
 
 Indictment for killing, or wounding, a horse. — one 
 
 horse of the goods and chattels of J. N. unlawfully and 
 wilfully, without legal justification or excuse, and without 
 colour of right, did kill {or wound). 
 
 A verdict for the attempt, punishable under next sec- 
 tion, may be given if the evidence warrants it, s. 711. 
 
 The particular species of cattle killed, maimed, 
 wounded or poisoned must be specified; an allegation that 
 the prisoner maimed certain cattle is not sufficient : R. v. 
 Chalkley, R. & R. 258. " Cattle " defined, s. 3 ante. 
 
 No malice against the owner is necessary. The words 
 " or injured " as to cattle were in the repealed clause. 
 Other acts of administering poison to cattle are admissible 
 
 m 
 
 
676 
 
 MISCHIEF. 
 
 [Sec. 499 
 
 in evidence to show the intent with which the drug is 
 administered : B. v. Mogg, 4 G. & P. 864. The word loound 
 is contradistinguished from a permanent injury, such as 
 maiming, and a wounding need not be of a permanent 
 nature : R. v. Haywood, 2 East, P. C. 1076, R. & R. 16. 
 
 In R. V. Jeans, 1 G. & E. 539, it was held that where 
 part of the tongue of a horse was torn off there was no 
 offence against the statute, because no instrument was 
 used. But, under the present statute, the same act was 
 held to be a wounding within this section : R. v. Bullock, 
 11 Cox, 126. Upon a case reserved, in R. v. Owens, 1 Moo. 
 206, it was held that pouring acid into the eye of a mare, 
 and thereby blinding her, is a maiming ; setting fire to a 
 building with a cow in it, and thereby burning the cow to 
 death, is a killing within the statute : R. v. Haughton, 5 
 G. & P. 655. 
 
 The prisoner by a reckless and cruel act caused the 
 death of a mare. The jury found that he did not intend 
 to kill, maim or wound the mare, but that he knew that 
 what he did would or might kill, maim or wound the mare, 
 and that he nevertheless did the act recklessly, and not 
 caring whether the mare was injured or not. Heldy that 
 there was sufficient malice to support the conviction : B. v. 
 Welch, 13 Cox, 121. 
 
 Indictment for breaking down the flood-gate of a fish 
 pond (B) (e). — the flood-gate of a certain private 
 
 fish-pond of one J. N., situate unlawfully and wil- 
 
 fully, without legal justification or excuse, and without 
 colour of right, did break down, damage and destroy with 
 intent thereby then to take and destroy the fish in the said 
 pond then being. 
 
 Indictment for putting lime into a salmon river {B) (/).— 
 unlawfully and wilfully, without legal justification or excuse 
 and without colour of right, did by putting a large quantity, 
 to wit, ten bushels of lime into it, damage a certain salmon 
 river, situate with intent thereby then to destroy the 
 
 fish in the said river then being. 
 
[Sec. 499 
 
 Sec. 4091 
 
 MISCHIEF. 
 
 577 
 
 \Wi 
 
 e drug is 
 ord ivound 
 y, such as 
 permanent 
 & R. 16. 
 
 that where 
 )re was no 
 iment was 
 ue act was 
 V. Bullock, 
 ens, 1 Moo. 
 ) of a mare, 
 ng fire to a 
 g the coiv to 
 Saughton, 5 
 
 ; caused the 
 d not intend 
 e knew that 
 
 d the mare, 
 
 ply, and not 
 
 Held, that 
 
 ction : R. v. 
 
 Ue of a fish 
 
 }tain private 
 
 illy and wil- 
 
 i,nd without 
 
 lestroy with 
 
 in the said 
 
 \er {B) (/).- 
 
 Ion or excuse 
 Ige quantity, 
 Itain salmon 
 1 destroy the 
 
 INJURIES TO MANUFACTURING MACHINES, ETC. CO) (i). 
 
 Taking away part of a frame and thereby rendering it 
 
 useless, E. v. Tacey, B. & B. 452, and screwing up parts of 
 
 an engine and reversing the plug of the pump, thereby 
 
 rendering it useless and liable to burst : B. v. Fisher, 10 
 
 Cox, 146, Warb. Lead Cas. 195, are damaging within the 
 
 Act, although no actual permanent injury be done. If a 
 
 threshing machine be taken to pieces and separated by the 
 
 owner the destruction of any part of it is within the 
 
 statute : B. v. Mackerel, 4 G. & P. 448. So is the destruction 
 
 of a water-wheel by which a threshing machine is worked: 
 
 B. T. Fidler, 4 0. & P. 449. So though the sideboards of 
 
 the machine be wanting, without which it will act but not 
 
 perfectly, it is within the statute. But if the machine be 
 
 taken to pieces, and in part destroyed by the owner from 
 
 fear, the remaining parts do not constitute a machine 
 
 within the statute : B. v. West, 2 Buss. 1087. It is not 
 
 necessary that any part of the machine should be broken ; 
 
 a dislocation or disarrangement is sufficient : B. v. Foster, 
 
 6 Cox, 26. 
 
 Indictment under (D) (a). two elm trees, the pro- 
 
 perty of J. N., then growing in a certain park of the saidi 
 J. N., situate in unlawfully and wilfully, without- 
 
 legal justification or excuse and without colour of right, did 
 cut and damage, thereby then doing injury to the said: 
 J.N. to an amount exceeding the sum of five dollars, to 
 wit, the amount of ten dollars. {A count may be added for 
 cutting icith intent to steal the treeSf under «. 336. 
 
 Indictment under (D) (e). ten elm trees, the pro- 
 
 perty of J. N., then growing in a certain close of the said 
 J. N., situate unlawfully and wilfully, without 
 
 legal justification or excuse and without colour of right, 
 did cut and damage by night, thereby then doing injury ta 
 the said J. N. to an amount exceeding the sum of twenty 
 dollars, to wit, the sum of twenty-five dollars. (Add a 
 count under 8. 336.) 
 Crim. Law— 37 
 
 hdh 
 
 w 
 
 ■i 
 
 u 
 
 !.;M9 
 
 
f 
 
 V 
 
 578 
 
 MISCHIEF. 
 
 [Sec. 499 
 
 See 8. 711, as to a verdict for an attempt to commit the 
 offence charged upon an indictment for the offence, in 
 certain cases. A variance in the number of trees is not 
 material. It must be proved, under (D) (a), that the tree 
 was growing in a park, and that the damage done exceeds 
 five dollars. 
 
 Under (D) (e) the damage must not be less than twenty 
 dollars and must have been done b}' night. The 
 amount of injury done means the actual injury done 
 to the trees by the defendant's act ; it is not sufficient to 
 bring the case within the statute that, although the amount 
 of such actual injury is less than twenty dollars, the amount 
 of consequential damage would exceed twenty dollars : £. 
 V. Whiteman Dears. 853 ; see E. v. Lewis, 2 Russ. 1067, 
 as to indictment ; B. v. Williams, 9 Cox, 338 ; B. v. 
 Tboman, 12 Cox, 54. 
 
 Defendant was indicted for unlawfully and maliciously 
 tommitting damage upon a window in the house of the 
 prosecutor. Defendant, who had been fighting with other 
 persons in the street after being turned out of a public 
 house, went across the street, and picked up a stone which 
 he threw at them. The stone missed them, passed over 
 their heads, and broke a window in the house. The jury 
 found that he intended to hit one or more of the persons he 
 bad been fighting with, and did not intend to break the 
 window : Held, that upon this finding the prisoner was 
 not guilty of the charge within this section ; to support a 
 conviction of this nature there must be a wilful and inten- 
 tional doing of an unlawful act in relation to the property ] 
 damaged : B. v. Pembliton, 12 Cox, 607 ; see on this last 
 case B. v. Welsh, 13 Cox, 121; B. v. Faulkner, 13 Cox, 550, 
 and B. v. Latimer, 16 Cox, 70. 
 
 The words " real or personal property " mean actual, 
 tangible property, not a mere legal right: Laws v. Eltring- 
 ham, 15 Cox, 22, 8 Q. B. D. 283. 
 
[Sec. 499 
 
 ommit the 
 )ffence, in 
 rees is not 
 at the tree 
 ne exceeds 
 
 ban twenty 
 ght. The 
 njury done 
 sufficient to 
 
 the amount 
 , the amount 
 
 dollars : B. 
 
 Buss. 1067, 
 338; R. V. 
 
 i maliciously 
 house of the 
 ig with other 
 of a public 
 stone which 
 L passed over 
 e. The jury 
 he persons he 
 to break the 
 [prisoner was 
 to support a 
 ful and inten- 
 the property 
 on this last 
 1, 13 Cox, 550, 
 
 I mean actual, 
 ?8 V. Eltring- 
 
 Sees. 600, 601] 
 
 INJURIES TO ANIMALS. 
 
 579 
 
 Two indictments were preferred against defendants for 
 feloniously destroying the fruit trees respectively of M. and 
 0. The offences charged were proved to have been com- 
 mitted on the same night, and the injury complained of 
 was done in the same manner in both cases. Defendants 
 were put on trial on the charge of destroying the trees of 
 M. and evidence relative to the offence charged in the other 
 indictment was admitted as showing that the offences had 
 been committed by the same persons. 
 
 Held, that such evidence was properly received : R. v. 
 McDonald, 10 0. R. 563. 
 
 Attempts to Kiit, Etc., Cattle. 
 
 500. Every one is guilty of an indictable o£Fence and liable to tioo years' 
 impnsonment who wilfully— 
 
 (a) attempts to kill, maim, wound, poison or injure any cattle, or the 
 younpf thereof ; or 
 
 (b) places poison in such a position as to be easily partaken of by any such 
 animal. R. S. C. c. 168, s. 44. 
 
 " Cattle " defined, s. 3 ; fine, s. 958. See remarks under 
 preceding section. The punishment was not defined in the 
 repealed clause. 
 
 As to attempts generally see remarks under s. 64. This 
 8. 600 has no other effect than to reduce the punishment, 
 which, without it, would be seven years under ss. 499-528. 
 
 Injuries to Other Animals. 
 
 901. Every one is guilty of an offence and liable, on summary convic- 
 tion, to a penalty not exceeding one hundred dollars over and above the 
 amount of injury done, or to three months' imprisonment with or without hard 
 labour, who wilfully kills, maims, wounds, poisons or injures any dog, bird, 
 beast, or other animal, not being cattle, but being either the subject of larceny 
 at common law, or being ordinarily kept in a state of confinement, or kept for 
 any lawful purpose. 
 
 2. Every one who, having been convicted of any suoh offence, afterwards 
 commits any offence under this section, is guilty of an indictable offence, and 
 liable to a fine or imprisonment, or both, in the discretion of the court. 
 53 V. 0. 37, 8. 16. R. S. C. c. 168, s. 46 (Amended). 
 
 The punishment under s-s. 2 is provided for by s. 951. 
 
 Greaves says : " This clause is new, and is a great im- 
 provement of the law, as it will protect domestic animals 
 
•ill" « 
 
 580 
 
 MISCHIEF. 
 
 [Sees. S02, 603 
 
 from malioiouB injuries. It includes any beast or animal, 
 not being cattle, which is the subject of larceny at common 
 law. It also includes birds which are the subject of larceny 
 at common law, such as all kinds of poultry and, under 
 certain circumstances, swans and pigeons. So also it 
 includes any bird, beast or other animal ordinarily kept 
 in a state of confinement, though not the subject of larceny, 
 such as parrots and ferrets ; and it is to be observed that 
 the words ordinarily kept in a state of confinement, are a 
 description of the mode in which the animals are usually 
 kept, and do not render it necessary to prove that the bird 
 or animal was confined at the time when it was injured. 
 Lastly the clause includes any bird or animal kept for any 
 domestic purpose, which clearly embraces cats." 
 
 As to a verdict of attempt to commit the offence charged 
 in certain cases see s. 711. 
 
 The words or kept for any lawful purpose cover all animals 
 kept in a circus, menagerie, etc. 
 
 Threats to Injure Cattle. 
 
 50%> Every one is guilty of an indictable offence and liable to two years' 
 imprisonment who sends, delivers or utters, or directly or indirectly caiises to 
 be received: knowing the contents thereof, any letter or writing threatening to 
 kill, maim, wound, poison, or injure any cattle. R. S. C. o. 173, s. 8. 24-25 V. 
 c. 97, 8. 50 (Imp.). 
 
 See ante, under s. 487. 
 
 Fine, s. 968. " Cattle " defined, s. 3. 
 
 The punishment was ten years by the repealed clause. 
 It is still ten years, under s. 487, for sending a letter 
 threatening to burn any building, stack of grain, etc. 
 Why it should be two years under this section and ten 
 under s. 487 is not clear. 
 
 Injuries to Poll-Books, Etc. 
 
 808. Every one is guilty of an indictable offence and liable to mtn 
 yean' imprisonment who wilfully — 
 
 (a) destroys, injures or obliterates, or causes to be destroyed, injured or 
 obliterated ; or 
 
 (b) makes or causes to be made any erasure, addition of names or inter- 
 lineation of names in or upon — 
 
Seo8. 602, 003 
 
 Sec. 604] 
 
 INJURIES BY TENANTS. 
 
 681 
 
 any writ of election, or any return to a writ of eliotion, or any indenture, 
 jK)ll-book, voters' list, certificate, affidavit or rcjxirt, or any tlcxjiiinent, ballot or 
 j)ftl)er made, prepared or drawn out according to an> law in regard to Doviinion, 
 provincial, municipal or civic elections. R. S. c. IGW, h. 65 {Amended), 
 
 The words " Dominion" and " ballot" are new. They 
 were not required ; s, 102 of c. 8, B. S. G. fully covers them. 
 
 See under s. 551, post, a reference to the above section. 
 
 Indictment. — that A. B. at on 
 
 unlawfully and wilfully, without legal justification or excuse, 
 and without colour of right, did destroy {injure or obliterate) 
 a certain writ of election {describe) prepared and drawn 
 out according to a law of the Dominion of Canada, to wit, 
 the Act (<J« the case may be). 
 
 To destroy any ballot or paper is by the above section 
 punishable by seven years. To destroy any ballot paper, or 
 a ballot box, or a packet of ballot papers is, by s. 100, c. 8, 
 B. S. C, punishable by any term not exceeding six months ! 
 
 Injuries by Tenants. 
 
 S04. Every one is guilty of an indictable offence and liable to^ve yeart' 
 imprisonment who, being possessed of any dwelling-house or other building, 
 or part of any dwelling-house or other building which is built on lands subject 
 to a mortriage or which is held for any term of years or other less term, or at 
 will, or held over after the termination of any tenancy, wilfully and to the pre. 
 judice of the mortgagee or owner — 
 
 (a) pulls down or demolishes, or begins to pull down or demolish the same 
 or any part thereof, or removes or begins to remove the same or any part 
 thereof from the premises on which it is erected ; or 
 
 (b) pulls down or severs from the freehold any fixture fixed in or to such 
 dwelling-house or building, or part of such dwelling-house or building. 
 R. S. C. c. 168, 8. 15 (Extended). 24-25 V. c. 97, s. 13 (Imp.). 
 
 The words in italics are new. 
 
 Fine, s. 958. 
 
 Indictment. — that on 
 
 of a certain dwelling-house, situate 
 as tenant for a term of years then unexpired; and that the 
 said A. B., being so possessed as aforesaid, on the day and 
 year aforesaid, did wilfully, to the prejudice of C. D., the 
 owner, without legal justification or excuse, and without 
 colour of right, pull, down and demolish the said dwelling- 
 
 A. B. was possessed 
 then held by him 
 
 # 
 
 :5 
 
 '■; 'f 
 
 bi 
 
II 
 
 582 
 
 \< 
 
 n 
 
 MISCHIEF. 
 
 [Sees. 505-507 
 
 house {or begin to pull down "or" demolish the said dwelling' 
 house or any part thereof.) 
 
 Injuries to Land Marks. 
 
 505. Every one is guilty of an indictable oifence and liable to seven 
 years' imprisonment who wilfully pulls down, defaces, alters or removes any 
 mound, land mark, post or monument lawfully erected, planted or placed to 
 mark or determine the boundaries of any province, county, city, town, town- 
 ship, parish or other municipal division. R. S. C. c. 168, s. 56. 
 
 506. Every one is guilty of an indictable offence and liable to five years* 
 imprisonment who wilfully defaces, alters or removes any mound, land mark, 
 post or monument lawfully placed by any land surveyor to mark any limit, 
 boundary or angle of any concession, range, lot or parcel of land. 
 
 2. It is not an offence for any land surveyor in his operations to take up 
 such posts or other boundary marks when necessary, if he carefully replace* 
 them as they were before. R. S. C. c. 168, s. 57. 
 
 The words "pulls down" in s. 605 are omitted from 
 s. 506. " So are the words erected or planted." 
 
 The words " by any land surveyors " in s. 506 are not 
 in s. 505. 
 
 The offence mentioned in s. 506 can only be committed 
 in relation to boundaries or land marks which have been 
 Ze^a% placed by a land surveyor: B. v. Austin, 11 Q. L. B. 
 76. 
 
 The punishment for the offence covered by s. 506 was 
 three months' imprisonment, or a fine of one hundred 
 dollars, or both, by the repealed clause. 
 
 Injuries to Fences, Stiles, Etc. 
 
 507. Every one is guilty of an offence and liable, on summary convic- 
 tion, to a penalty not exceeding twenty dollars over and above the amount of 
 the injury done, who wilfully destroys or damages any fence, or any wall, 
 stile or gate, or any part thereof respectively, or any post or stake planted or set 
 upon any land, mamh, swamp or land covered by water, on or as the boundary 
 or part of the boundary line thereof, or in lieu of a fence thereto. 
 
 2, Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is liable, on summary conviction, to three months' 
 imprisonment with hard labour. R. S. C. c. 168, s. 27. 53 V. o. 38, s. 15. 
 24-25V. c. 97, s. 25(lmp.). 
 
 The words in italics are not in the English Act. 
 
 The act must have been done maliciously (wilfully) to 
 be punishable under this clause : E. v. Bradshaw, 88 U. C. 
 Q. B. 564 ; see s. 481, ante. 
 
[Sees. 505-507 
 
 506 are not 
 
 Sees. 507a, 508] 
 
 INJURIES TO HARBOURS. 
 
 Injcries to Harbodbs. 
 
 583 
 
 ((07a* Every one is guilty of an offence, and liable, on summary con* 
 viction, to a penalty not exceeding fifty dollars, who wilfully and without the 
 permisnion of the Minister of Marine and Fisheries (the burden of proving 
 which permission shall lie on the accused) removes any stone, wood, earth or 
 other material, forming a natural bar necessary to the existence of a public 
 harbour, or forming a natural protection to such bar. (Amendment of 1893). 
 
 Injuries to Trees, 25 cents. 
 
 90§* Every one is guilty of an offence and liable, on summary convio^ 
 tion, to a penalty not exceeding twenty-five dollars over and above the amount 
 of injury done, or to ttoo months' imprisonment with or without hard labour^ 
 who wilfully destroys or damages the whole or any part of any tree, sapling or 
 shrub, or any underwood, wheresoever the same is growing, the injury done 
 being to the amount of twenty-five cents, at the least. 
 
 2. Every one who, having been convicted of any such offence, afterwards. 
 commits any such offence is liable, on summary conviction, to a penalty not 
 exceeding fifty dollars over and above the amount of the injury done, or t* 
 four months' imprisonment with hard labour. 
 
 3. Every one who, having been twice convicted of any such offence, after- 
 wards commits any such offence, is guilty of an indictable offence and liable to 
 two years' imprisonment. R. S. 0. o. 168, s. 24. 24-25 V. c. 97, s. 22 (Imp.). 
 
 The punishments are altered. 
 
 If the injury does not amount to twenty-five cents the 
 defendant may be punished under s. 511, post. 
 
 See 8. 907, post, where it has been forgotten that the 
 words " cut, break, root up " of the repealed clause have 
 been left out in s. 508. 
 
 Indictment after two previous convictions for cutting or 
 damaging trees to the value of tiventy-five cents wheresoever 
 groiving. — that J. S., on one elm tree, the pro- 
 
 perty of J. N., then growing on a certain land of the said 
 J. N. in the unlawfully and wilfully, without legal 
 
 justification or excuse, and without colour of right, did 
 destroy and damage, thereby then doing injury to the said 
 J. N., to the amount of forty cents. And the jurors afore- 
 said do say, that heretofore and before the committing of 
 the offence hereinbefore mentioned {stating the two previous 
 convictions and concluding as in form p. 379, ante). See 
 88. 628 and 676 as to indictments and procedure in indict- 
 able offences committed after previous convictions, and for 
 
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 In 
 
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 584 
 
 MISCHIEF. 
 
 [Sees. 509, 510 
 
 which a greater punishment may be inflicted on that 
 account. 
 
 If, in answer to a charge under this section, the defend- 
 ant sets up a bona fide claim of right the justices of the 
 peace have no jurisdiction : E. v. O'Brien, 5 Q. L. E. 161. 
 
 Destroying Vegetables. 
 
 909* Every one is guilty of an offence and liable, on summary conviction, 
 to a penalty not exceeding twenty dollars over and above the amount of the 
 injury done, or to three months' imprisonment with or without hard labour, 
 who wilfully destroys, or damages with intent to destroy, any vegetable pro- 
 duction growing in any garden, orchard, nursery ground, house, hot-house, 
 green-house or conservatory. 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is guilty of an indictable offence, and liable to two 
 years' imprisonment. R. S. C. c. 1G8, s. 25. 24-25 V. c. 97, s. 23 (Imp.). 
 
 SIO* Every one is guilty of an offence and liable, on summary convic- 
 tion, to a penalty not exceeding five dollars over and above the amount of the 
 injury done, or to one month's imprisonment with or without hard labour, who 
 wilfully destroys, or damages with intent to destroy, any cultivated root or 
 plant used for the food of man or beast, or for medicine, or for distilling, or 
 for dyeing, or for or in the course of any manufacture, and growing in any 
 land, open or inclosed, not being a garden, orchard or nursery ground. 
 
 2. Every one who, having been convicted of any such offence, afterwards 
 commits any such offence is liable, on summary conviction, to three months' 
 imprisonment with hard labour. R. S. C. c. 168, s. 26. 24-25 V. c. 97, s. 24 
 (Imp.). 
 
 Indictment under 8. 509 for destroying plants after a 
 previous conviction. — that J. 8., on one 
 
 dozen heads of celery, the property of J. N., in a certain 
 garden of the said J. N., situate then grow- 
 
 ing, unlawfully and wilfully, without legal justification or 
 excuse, and without colour of right, did destroy. And the 
 jurors aforesaid do say that heretofore and before the 
 committing of the ofifence hereinbefore mentioned {state 
 the previous conviction). And so, the jurors aforesaid, do 
 say that the said J. S. on the day and year first aforesaid, 
 one dozen heads of celery, the property of J. N., in a certain 
 garden of the said J. N., situate then growing, 
 
 unlawfully and wilfully, without legal justification or 
 excuse, and without colour of right, did destroy. 
 
Sec. 511] 
 
 OTHER INJURIES. 
 
 585 
 
 Other Injuries. 
 
 5U> Every one who wilfully commits any damajjfe, injury or spoil to or 
 upon any real or jjersonal property cither corporeal or incorporeal, and either of 
 a public or private nature, for yrhich no punishment is hereinbefore provided, l 
 is guilty of an offence and liable, on summary conviction, to a i)enalty not 
 exceeding twenty dollars, and such further sum, not exceeding t'.venty dollars, ' 
 as appears to the justice to be a reasonable compensation for the damage, 
 injury or spoil so committed, — which last mentioned sum of money shall, in 
 the case of private property, be paid to the person aggrieved ; and if such 
 sums of money, together with the costs, if ordered, are not paid, either 
 immediately after the conviction, or within such period as the justice at the 
 time of the conviction appoints, the justice may cause the offender to be 
 imprisoned for any term not exceeding two months, with or without hard 
 labour. 
 
 2. Nothing herein extends to — 
 
 (a) any case where the person acted under a fair and reasonable supposi- 
 tion that he had a right to do the act complained of ; or 
 
 (6) any trespass, not being wilful and malicious, committed in hunting or 
 fishing or in the pursuit of game. R. S. C. c. 168, s. 59. 53 V. c. 37, s. 18. 
 24-25 V. c. 97, 8. 52 (Imp.). 
 
 The words in italics were introduced by the Act of 1890. 
 
 The proviso in s-s. 3 of the repealed clause extending 
 this enactment in express terms to trees, etc., where the 
 damage is less than twenty-five cents has not been re-en- 
 acted : see R. v. Dodson, 9 A. & E. 704, and Charter v. 
 Greame, 13 Q. B. 216. 
 
 The word " herein " is s-s. 2, would apply to the whole 
 Act, and not merely to this section by B. S. C. c. 1, s. 7, s-s 
 5. It is clear, however, that here it applies only to this 
 
 section. 
 
 W. was summoned before the justices under this clause. 
 He was in the employment of D., and by his order he 
 forcibly entered a garden belonging to and in the occupation 
 of F. accompanied by thirteen other men, and cut a small 
 ditch, from forty to fifty yards in length, through the soil. 
 F. and bis predecessors in title had occupied the garden 
 for thirty-six years, and during the whole time there had 
 been no ditch upon the site of part of that cut by D. For 
 the defence D. was called, who stated that, fifteen years 
 before, there had been an open ditch in the land which 
 
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 III, ';];'■ 
 
 ■mm. 
 
 'li- 
 
 I '] ' 1. 
 
\ 
 
 586 
 
 MISCHIEF. 
 
 [Sec. 611 
 
 received tbe][tlrainage from the highway, and that he gave 
 directions for the ditch to be cut by W. in the exercise of 
 what be considered to be a public right. The justices found 
 that W. had no fair and reasonable supposition that he had a 
 right to do the act complained of, and accordingly convicted 
 him: Held, that by the express words of the section and 
 proviso the jurisdiction of the justices was not ousted by 
 the mere bona fide belief of W. that bis act was legal, and 
 that there was evidence on which they might properly find 
 that he did not act under the fair and reasonable supposi- 
 tion required by the statute : White v. Feast, L. B. 7 Q. B. 
 353. 
 
 A conviction by justices under s. 52, c. 97, 24 & 25 V. 
 (s. 511, ante), cannot be brought up by certiorari, on the 
 ground that they had no jurisdiction inasmuch as the 
 defendant had set up a bona fide claim of right, but the 
 exemption is impliedly restricted to cases where the justices 
 are reasonably satisfied of the fair and reasonable character 
 of the claim : E. v. Mussett, 26 L. T. 429. 
 
 See R. v. Prestney, 3 Cox, 505 ; Butler v. Turley, 2 
 C. & P. 585 ; Gardner v. Mansbridge, 16 Cox, 281, 19 
 Q. B. D. 217. 
 
Sees. 612-514] 
 
 CRUELTY TO ANIMALS. 
 
 I I 
 
 587 
 
 PART XXXVIII. 
 
 CRUELTY TO ANIMALS. 
 
 Section 7o/c. 172 R. S. C. i» unrepealed. All proseciUions under this part 
 are subject to three months limitation; s. 551. See remarks under next section. 
 
 SIS- Every one is guilty of an offence and liable, on summary conviction 
 before two justices of the peace, to a penalty not exceeding fifty dollars, or to 
 three months' imprisonment with or without hard labour, or to both, who — 
 
 (a) w.antonly, cruelly or unnecessarily beats, binds, ill-treats, abuses, 
 overdrives or tortures any cattle, poultry, dog, domestic animal or bird ; or 
 
 (i) while driving any cattle or other animal is, by negligence or ill-usage 
 in the driving thereof, the means whereby any mischief, damage or injury is 
 done by any cattle or other animal ; or 
 
 (c) in any manner encourages, aids or assists at the fighting or baiting of 
 any bull, bear, badger, dog, cock, or other kind of animal, whether of domestic 
 or wild nature. R. S. C. o. 172, s. 2. 
 
 The Imperial Act on cruelty to animals is 12 & 13 V. c. 92, 
 amended by 17 & 18 V. c, 60, and 39 «& 40 V. c. 77 : see Elliott 
 V. Osborn, 17 Cox, 346. As to dishorning cattle see Ford 
 V. Wiley, 16 Cox, 683, 23 Q. B. D. 203 ; Callaghan v. The 
 Society, 16 Cox, 101; and R. v. McDonagh, 28 L. R. Ir. 204. 
 
 «(13« Every one is guilty of an offence and liable, on summary conviction 
 before two justices of the peace, to a penalty not exceeding fifty dollars, or to 
 three months' imprisonment, with or without hard labour, or to both, who 
 builds, makes, maintains or keeps a cock-pit on premises belonging to or 
 occupied by him, or allows a cock-pit to be built, made, maintained or kept on 
 premises belonging to or occupied by him. 
 
 2. All cocks found in any such cock-pit, or on the premises wherein such 
 cock-pit is, shall be confiscated and sold for the benefit of the municipality in 
 which such cock-pit is situated. R. S. C. c. 172, s. 3. 
 
 Sections 4 & 5 of c. 172. R. S. C. have not been re- 
 enacted. See s. 552, s-s. 2, as to arrest without warrant 
 for offences against this and the preceding section. 
 
 414. No railway company within Canada whose railway forms any part 
 of a line of road over which cattle are conveyed from one province to another 
 province, or from the United States to or through any province, or from any 
 part of a province to another part of the same, and no owner or master of any 
 vessel carrying or transix>rting cattle from one province to another province, 
 or within any province, or from the United States thiough or to any province. 
 
 m^ 
 
 lii r 
 
 I'. !' 
 
 ''V'. 
 
 
\ 
 
 588 
 
 CRUELTY TO ANIMALS. 
 
 [Sec. 515 
 
 shall confine the same in any car, or vessel of any description, for a longer 
 period than twenty-eight hours without unlading the same for rest, water and 
 feeding for a period of at least tive consecutive hours, unless prevented from 
 so unlading and furnishing water and food by storm or other unavoidable 
 cause, or by necessary delay or detention in the crossing of trams. 
 
 2. In reckoning the period of confinement the time during which the 
 cattle have been confined without such rest, and without the furnishing of 
 food and water, on any connecting railways or vessels from which they are 
 received, whether in the United States or in Canada, shall be included. 
 
 3. The foregoing provisions as to cattle being unladen shall not apply 
 when cattle are carried in any car or vessel in which they have proper space 
 and opportunity for rest, and proper food and water. 
 
 4. Cattle so unloaded shall be properly fed and watered during such rest 
 by the owner or person having the custody thereof or, in case of his default in 
 so doing, by the railway company, or owner or master of the vessel transport- 
 ing the same, at the expense of the owner or person in custody thereof ; and 
 such company, owner or master shall in such case have a lien upon such cattle 
 for food, care and custody furnished and shall not be liable for any detention 
 of such cattle. 
 
 5. Where cattle are unladen from cars for the purpose of receiving food, 
 water and rest, the railway company then having charge of the cars in which 
 they have been transported shall, except during a period of frost, clear the 
 floors of such cars, and litter the same proi^erly with clean saw-dust or sand 
 before reloading them with live stock. 
 
 6. Every railway company, or owner or master of a vessel, having cattle 
 in transit, or the owner or person having the custody of such cattle, as afore- 
 said, who knowingly and wilfully fails to comply with the foregoing provisions 
 of this section, is liable for every such failure on summary conviction to a pen- 
 alty not exceeding one hundred dollars. R. S. C. c. 172, ss. 8, 9, 10 & 11. 
 
 515. Any (leace officer or constable may, at all times, enter any premises 
 where he has reasonable grounds for su])ix)sing that any car, truck or vehicle, 
 in resjiect whereof any company or person has failed to comply with the pro- 
 visions of the next preceding section, is to be found, or enter on board any 
 vessel in respect whet^eof he has reasonable grounds for supposing that any 
 company or person has, on any occasion, so failed. 
 
 2. Every one who refuses admission to such peace officer or constable is 
 guilty of an offence and liable, on summary conviction, to a iienalty not ex- 
 ceeding twenty dollars and not less than five dollars, and costs, and in default 
 of payment to thirty day's imprisonment. R. S. C. c. 171, s. 12. 
 
 Ch. 171 cited under this section is an Act resjiecting Seamen. 
 
Sees. 516-C20] 
 
 CONSPIRAC Y-COMBIN ATIONS. 
 
 589 
 
 PART XXXIX. 
 
 OFFENCES CONNECTED WITH TRADE AND BREACHES OF 
 
 CONTRACT. 
 
 Conspiracy— Combinations. 
 A 16. A conspiracy in restraint of trade is an agreement between two or 
 more persons to do or procure to be done any unlawful act in restraint of 
 
 trade. 
 
 The "Trade Unions' Act" is c. 131, R. S. C. S. 12, s-s. 5 
 of c. 173, R. S. C, and ss. 4 & 5 of 52 V. c. 41 remain unre- . 
 pealed. As to conspiracies generally see post, under s. 527. 
 
 517. The purposes of a trade union are not, by reason merely that they 
 are in restraint of trade, unlawful within the meaning of the next preceding 
 section. R. S. C. c. 131, s. 22. 
 
 For the Imperial Statutes 8ee Archbold, 20th edition, 
 p. 1006. See also R. v. Gibson, 16 0. R. 704. 
 
 518. No prosecution shall be maintainable against any person for con- 
 spiracy in refusing to work with or for any employer or workman, or for doing 
 any act or causing any act to be done for the purpose of a trade combination, 
 unless such act is an offence punishable by statute. 53 V. c. 37, s. 19. 
 
 510. The expression "trade combination" means any combination 
 between masters or workmen or other loersons for regulating or altering the 
 relations between any persons being masters or workmen, or the conduct of any 
 master or workman in or in respect of his business or employment, or contract 
 of employment or service ; and the expression "act " include a default, breach 
 nr omission. R. S. C. c. 173, s. 13. 
 
 320. Every one is guilty of an indictable offence and liable to a penalty 
 not exceeding four thousand dollars and not less than two hundred dollars, or 
 to two years' imprisonment, and if a corporation is liable to a jjenalty not 
 exceeding ten thousand dollars and not less than one thousand dollars, who 
 conspires, combines, agrees or arranges with any other person, or with any rail- 
 way, steamship, steamboat or transiwrtation company, unlawfully— 
 
 (fl) to unduly limit the facilities for transijorting, producing, manufactur- 
 ing, supplying, storing or dealing in any article or commodity which may be 
 a subject of trade or commerce ; or 
 
 (h) to restrain or injure trade or commerce in relation to any such article 
 or commodity ; or 
 
 (c) to unduly prevent, limit or lessen the manufacture or production of 
 any such article or commodity, or to unreasonably enhance the price thereof ; 
 or 
 
 W^ 
 
590 
 
 OFFENCES CONNECTED WITH TRADE. [Sec. 521 
 
 {d) to unduly prevent or lessen competition in the production, manufacture, 
 purchase, barter, sale, transportation or supi)ly of any such article or commodity 
 or in the price of insurance upon person or property. 52 V. c. 41, 8. 1. 
 
 Not triable at quarter sessions; s. 540. 
 
 Criminal Breach op Contract. 
 
 931- Every one is guilty of an indictable offence and liable on indictment, 
 or on summary conviction before two justices of the peace, to a jjenaity not 
 exceeding one hundred dollars or to three months' imprisonment, with or 
 without hard labour, who — 
 
 (a) wilfully breaks any contract made by him knowing, or having 
 reasonable cause to believe, that the probable consequences of his so doing, 
 either alone or in combination with others, will be to endanger human life, or 
 to cause serious bodily injury, or to e.xjxjse valuable property, whether real or 
 j)ersonal, to destruction or serious injury ; or 
 
 (h) being, under any contract ii ade by him with any municipal coriwra- 
 tion or authority, or with any company, bound, agreeing or assuming to supply 
 any city or any other place, or any part thereof, with electric light or power, gas 
 or water, wilfully breaks such contract knowing, or having reasonable cause to 
 believe, that the probable consequences of his so doing, either alone or in 
 combination with others, will be to deprive the inhabitants of that city or 
 I>lace, or part thereof, wholly or to a great extent, of their supply of power, 
 light, gas or water ; or 
 
 (c) being, under any contract made by him with a railway company, bound, 
 agreeing or as.suming to carry Her Majesty's mails, or to carry passengers or 
 freight, or with Her Majestj', or any one on behalf of Her Majesty, in connec- 
 tion with a Government railway on which Her Majesty's mails, or passengers 
 or freight are carried, wilfully breaks such contract knowing, or having reason 
 to believe, that the probable consequences of his so doing, either alone or in 
 combination with others, will be to delay or jirevent the running of any locomo- 
 tive engine, or tender, or freight or passenger train or car, on the railway, 
 
 2. Every municipal corporation or authority or company which, being 
 bound, agreeing or assuming to supply any city, or any other place, or any 
 part thereof, with electric light or power, gas or water, wilfully breaks any 
 contract made by such municipal corporation, authority, or company, knowing 
 or having reason to believe that the probable consequences of its so doing will 
 be to deprive the inhabitants of that city or place or part thereof wholly, or to 
 a great extent, of their supply of electric light or power, gas or water, is liable to 
 a penalty not exceeding one thousand dollars. 
 
 .3. Every railway company which, being bound, agreeing or assuming to 
 carry Her Majesty's mails, or to carry passengers or freight, wilfully breaks 
 any contract made by such railway company, knowing or having reason to 
 believe that the probable consequences of its so doing will be to delay or prevent 
 the running of any locomotive engine or tender, or freight or passenger train 
 or car on the railway is liable to a penalty not exceeding one hundred dollars. 
 
 4. It is not material whether any offence defined in this section is com- 
 mitted from malice conceived against the person, ooriroration, authority or 
 
[Sec. 521 
 
 manufacture, 
 )r commodity, 
 
 L, 8. 1. 
 
 on indictment, 
 I a i)enalty not 
 ment, with or 
 
 ng, or having 
 f his so doing, 
 ' human hfe, or 
 whether real or 
 
 nicipal corpora- 
 iming to supply 
 iht or power, gas 
 sonable cause to 
 ;her alone or in 
 of that city or 
 lupplyof power, 
 
 iompany, bound, 
 •y passengers or 
 
 ^esty, in connec- 
 la, or passengers 
 ir having reason 
 ither alone or in 
 igof anylocomo- 
 |the railway. 
 
 ly which, being 
 ler place, or any 
 |ully breaks any 
 pany, knowing 
 its so doing will 
 •eof wholly, or to 
 k-ater, is liable to 
 
 ■ or assuming to 
 [ wilfully breaks 
 laving reason to 
 [delay or prevent 
 1 passenger train 
 liundred dollars, 
 section is com- 
 L, authority or 
 
 Sees. 522, 523] 
 
 INTIMIDATION. 
 
 591 
 
 company with which the conlVact is made or otherwise. R. S. C. c. 173, 
 88. 15. 16, 17 & 18. 38-39 V. c. 80 (Imp.). 
 
 The words in italics are new. 
 
 582. Every such municipal carporation, authority, or company, shall 
 cause to be posted up at the electrical works, gas works, or water-works, or 
 railway stations, as the case may be, belonging to such corporation, authority 
 or company, a printed copy of this and the preceding section in some 
 conspicuous place, where the same may be conveniently read by the public ; 
 and as often as such copy becomes defaced, obliterated or destroyed shall 
 cause it to be renewed with all reasonable despatch. 
 
 2. Every such municipal corporation, authority or company which makes 
 default in complying with such duty is liable to a penalty not exceeding 
 twenty dollars for every day during which such default continues. 
 
 3. Every ijerson unlawfully injuring, defacing or covering up any such 
 copy BO posted up is liable, on summary conviction, to a penalty not exceeding 
 ten dollars. R. S. C. o. 173, s. 19. 
 
 Intimidation. 
 
 SS8. Every one is guilty of an mdictable offence and liable, on indict- 
 ment or on summary conviction before two justices of the peace, to a fine not 
 exceeding one hundred dollars or to three months' imprisonment with or with- 
 out hard labour who, wrongfully and without lawful authority, with a view to 
 compel any other person to abstain from doing anything which he has a lawful 
 right to do, or to do anything from which he has a lawful right to abstain — 
 
 (a) uses violence to such other person, or his wife or children, or injures 
 his property ; or 
 
 (b) intimidates such other person, or his wife or children, by threats of 
 using violence to him, her or any of them, or of injuring his property ; or 
 
 (e) persi^ . ntly follows such other person about from place to place ; or 
 (d) hides any tools, clothes or other property owned or used by such 
 other person, or deprives him of, or hinders him in, the use thereof ; or 
 
 (c) with one or more other persons follows such other person, in a 
 disorderly manner, in or through any street or road ; or 
 
 (/) besets or watches the house or other place where such other person 
 resides or works, or carries on business or hapi)ens to be. R. S. C. c. 173, s. 12. 
 
 Sub-section 5 of a. 12, c. 173, E. S. C. is unrepealed, 
 
 This is a re-enactment of 88 & 39 V. c. 86, s. 7, (Imp.). 
 See Smith v. Thomasson, 16 Cox, 740, Warb. Lead. Cas. 
 205, and cases there cited, and Connor v. Kent, 17 Cox, 
 854. 
 
 Indictment for picketting. — that A. B., C. D., and 
 
 E. F., unlawfully and wickedly, and unjustly devising, 
 contriving, and intending to injure and aggrieve one G. H. 
 
 I.; 
 
 ^ "■'! 
 
 •■«',n 
 
 !f , ^1 
 
 ■i ir 
 
 
 ^:-i. ; 
 
 ^; ! 
 
Ill 
 
 592 
 
 OFFENCES CONNECTED WITH TRADE. 
 
 [Sec. 523 
 
 and I. J., carrying on business as (stating the busineaa) and 
 obstruct them in the business of their lawful calling and 
 business, did on the day of conspire to molest 
 
 and obstruct the said G. H. and I. J., then being such 
 (8tating the biiainesa), in their lawful calling, by watching 
 and besetting the house where the said G. H. and I. J. car- 
 ried on their said business, situate as aforesaid, with a view 
 to cause them to dismiss and cease to employ divers work- 
 men, to wit {naming them). 
 
 Second count. . . that the said A. B., C. D., and E. R, 
 unlawfully contriving and intending to injure and aggrieve 
 the workmen then being employed by the said G. H. an.' 
 I. J., and obstruct them in the pursuit of their lawful cal- 
 ling, unlawfully did on the day and at the place aforesaid 
 conspire to molest and obstruct K. L. and other workmen 
 in their lawful calling, by watching and besetting the 
 house and place of business situate as aforesaid wherein 
 the said G. H. and I. J. then carried on their said business, 
 wherein the said K. L. and other workmen hi>.npened to be, 
 with a view to coerce the said K. L. and other workmen, 
 and induce them to quit their said employment. 
 
 INTIMIDATION OF WORKMEN. 
 
 Indictment. — that heretofore, before and at the 
 
 time of committing the offence hereinafter in this count 
 mentioned, A. B. carried on trade and business as a {stating 
 his trade) at in the county of , and that C. D. 
 
 and E. F. were workmen, and were hired and employed by 
 and worked as workmen for the said A. B. in his said trade 
 and business. And the jurors aforesaid do further present 
 that {naming all the defendants) on the day of 
 
 did unlawfully by threats and intimidation endeavour to 
 force one C. D. and E. F., then being workmen hired and 
 employed by and working for the said A. B. in his said 
 trade and business as aforesaid, to depart from their 
 hiring, employment and work. 
 
Sec. 624] 
 
 INTIMIDATION-ASSAULT. 
 
 593 
 
 leas) and 
 lling and 
 to molest 
 iing such 
 watching 
 , I. J. car- 
 ith a vievr 
 i^ers work- 
 
 andE.F., 
 ,d aggrieve 
 G. H. anJ 
 lawful cal- 
 e aforesaid 
 ir workmen 
 setting the 
 lid wherein 
 id business, 
 )ened to be, 
 workmen, 
 
 Second count. . . and the jurors aforesaid, do further 
 present that heretofore and at the time of the commit- 
 ting the offence hereinafter in this count mentioned the 
 8aid A. B. carried on bis said trade and business {state hi» 
 trade) aforesaid, in the county aforesaid, and that the said 
 C. P. and E. F. were workmen, and were hired and em- 
 ployed by and worked as workmen for the said A. B. in his. 
 said trade and business as aforesaid. And the jurors afore- 
 said, do further present that the said {natning the defend-^ 
 ants) on the day and year aforesaid, did by unlawfully 
 molesting and obstructing the said C. D. and E. F., endea- 
 vour to force the said C. D. and E. F., so being such work- 
 men hired and employed by and working for the said A. B.> 
 in his said trade and business as aforesaid, to depart from 
 their said hiring, employment, and work. 
 
 In a conviction for following in a disorderly manner 
 with a view to compel any other person to abstain from 
 doing any act which he has a legal right to do, the acts 
 which the defendant attempted to obstruct must be specified :. 
 E. V. McKenzie, [1892] 2 Q. B. 519, 17 Cox, 542. 
 
 Intimidation— Assault. 
 
 534. Every one is guilty of an indictable offence and liable to tico years 
 imprisonment who, in pursuance of any unlawful combination or conspiracy to 
 raise the rate of wages, or of any unlawful combination or conspiracy respect- 
 ing any trade, business or manufacture, or respecting any person concerned or 
 employed therein, unlawfully assaults any jjerson, or, in pursuance of any suck 
 combination or conspiracy, uses any violence or threat of violence to any person, 
 xcith a vieto to hinder him from working or being employed at such trade, business 
 orvmnufacture. R. S. C. c. 173, s. 9. 
 
 Fine, s. 958. 
 
 The words in italics are not in the English Act, 24 & 26 V. 
 c. 100, s. 41, from which the enactment was first re-produced 
 in Canada. They cover any violence or threat of violence 
 with a view to hinder any person from working or being 
 employed at a trade, business or manufacture, in pursu- 
 ance of a combination or conspiracy respecting such trade, 
 business or manufacture. 
 
 Ckim. Law— 38 
 
 
 I it 
 
 
 
694 
 
 OFFENCES CONNECTED WITH TRADE. 
 
 [Sec. 524 
 
 Indictment for an assault in pursuance of a conspiract/ to 
 raise ivages. — that J. S., J. W., and E. W., on 
 
 did amongst themselves conspire, combine, confederate, 
 and agree together to raise the rate of wages then usually 
 paid to workmen and labourers in the art, mystery and 
 business of cotton spinners ; and that the said 
 {defendants) in pursuance of the said conspiracy, on the 
 day and year aforesaid, in and upon one J. N., unlawfully 
 did make an assault, and him the said J. N., did then beat 
 wound and ill-treat, and other wrongs to the said J. N., 
 did, to the great damage of the said J. N. {Add a count 
 ■stating that the defendants assaulted J. N., "in pursuance of 
 a certain conspiracy before then entered into by the said 
 (defendants) to raise the rate of wages of workmen and 
 labourers in the art, mystery and business of cotton-spinners ;" 
 ^Iso a count for a common assault.) 
 
 For a number of workmen to combine to go in a body 
 lo a master and say that they will leave the works, if he 
 does not discharge two fellow workmen in his employ, was 
 an unlawful combination by threats to force the prosecutor 
 to limit the description of his workmen : Walsby v. Anley, 
 8 E. & E. 516. And a combination to endeavour to force 
 workmen to depart from their work by such a threat as 
 that they would be considered as blacks, and that other 
 workmen would strike against them all over London, was 
 unlawful : In re Perham, 5 H. & N. 30. So also was a 
 combination with a similar object to threaten a workman 
 by saying to him that he must either leave his . master's 
 employ, or lose the benefit of belonging to a particular 
 club and have his name sent round all over the countrj: 
 O'Neill V. Longman, 4 B. & S. 376. But those cases are uot 
 now law. An indictment or commitment allegiog the 
 offence to be a conspiracy to force )^orkmen to depart from 
 their work by threats need not set out the threats : In re 
 Perham, supra', see ss. 611, 613, post. 
 
 See R. V. Rowlands, 2 Den. 364. 
 
S»C8. 526, B26] 
 
 INTIMIDATION. ETC. 
 
 595 
 
 racy to 
 1 
 
 derate, 
 usually 
 try and 
 I 
 
 on the 
 lawfully 
 len beat, 
 id J. N., 
 , a count 
 
 :men and 
 pinners;" 
 
 in a body 
 prks, if be 
 iploy, was 
 prosecutor 
 f V. Anley, 
 ir to force 
 threat as 
 ihat otber 
 >ndou, was 
 blso \va8 a 
 workman 
 ^8. master's 
 particular 
 country. 
 Lses are not 
 [leging the 
 iepart from 
 ;at8 : In '"« 
 
 Intimidation, Etc., Othkr Casks. 
 
 •ISS. Every one is Ruilty of an indictable offence and liable, on indictment 
 or on summary conviction b»»f()re two justices of the iM-ace, to a fine not exceed- 
 itifi one hundred dollars, or to thi e months' imprisonment with or without hard 
 labour, who— 
 
 (a) beats or uses any violence or threat of violence to any person with 
 intent to deter or hinder him from buying, selling or otherwise disptising of 
 any wheat or other grain, flour, moal, malt or potatoes or other produce or 
 good'*, in any market or other place ; or 
 
 (h) beats or uses any such violence or threat to any jierson having the 
 charge or care of any wheat or other grain, flour, meal, malt or potatoes, while 
 on the way to or from any city, market, town or other place with intent to 
 stop the conveyance of the same ; or 
 
 (c) by force or threats of violence, or by any form of intimidation whatio- 
 ti'er, hinders or prevents or attempts to hinder or prevent any seaman, stevedore, 
 ship carpenter, ship labourer or other ixsrson e»nployed to work at or on board 
 my Mp or vessel or to do any work connected with the leading or unloading there- 
 of, from working at or exercising any lawful trade, business, calling or 
 occupation in or for which he is so employed ; or tvith intent so to hinder or 
 prevent, besets or watches such ship, vessel or emjdoyee ; or 
 
 (({) beats or uses any violence to, or makes any threat of violence against, 
 any such person with intent to hinder or prevent him from working at or exer- 
 cising the same, or on account of his having worked at or exercised the savu. 
 R. S. 0. c. 173, 8. 10. 50-51 V. c. 49. 
 
 526. Every person is guilty of an indictable offence and liable to a fine 
 not exceeding four hundred dollars, or to two years' imprisonment, or to both, 
 who, before or at the time of the public sale of any Indian lands, or public 
 lands of Canada, or of any province of Canada, by intimidation, or illegal 
 combination, hinders or prevents, or attempts to hinder or prevent, any person 
 from bidding upon or purchasing any lands so offered for sale. R. S. C. 
 c.l73,s.l4. 
 
 The words in italics in s. 525 are partly additions made 
 to the Revised Statute c. 173, s. 11 by the Act, 50 & 51 V. 
 0.49. The words "or unfair management " were in the sec- 
 I tioD for which s. 526 is substituted. 
 
 «-;;',^*l 
 
 Ivlif 
 
 
596 
 
 ATTEMPTS-CONSPIRACIES- ACCESSORIES. [Sec. 527 
 
 PART XL. 
 
 ATTEMPTS-CONSPIRACIES-ACCESSORIES. 
 
 Conspiracies. (Ifeto). 
 
 537. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, in any case not hereinbefore provided for, conspires 
 with any person to commit any indictable offence. 
 
 See E. V. Eowlands, 3 Den. 364, and R. v. Whitchurch, 
 16 Cox, 743, for forms of indictment. 
 
 Treasonable conspiracies are provided for by as. 66 & 
 69; conspiracies to intimidate a legislature, by s. 70; 
 seditious conspiracies, by s. 123; conspiracies to bring 
 false accusations, by s. 152 ; conspiracies to defile women, 
 by s. 188 ; conspiracies to murder, by s. 234 ; conspiracies 
 tu defraud, by s. 394 ; conspiracies in restraint of trade 
 with assault or threats of violence, by s. 524. 
 
 Conspiracies to commit any of the offences which are 
 not triable at quarter sessions are themselves not triable 
 at quarter sessions ; s. 540. 
 
 The result of this enactment of s. 527 is that, in a 
 number of instances, the conspiracy to commit an offence, 
 whether that offence was committed or not, is more severely 
 punished than the offence itself would be. To obtain 
 passage on a railway by a false ticket for instance, is pun- 
 ishable by six months' (s. 362), but the conspiracy by two 
 or more persons to do so is punishable by seve^i yem' 
 imprisonment. 
 
 Conspiracy is a combination of two or more persons to 
 accomplish some unlawful purpose, or a lawful purpose by 
 unlav.rul means. This is the definition of conspiracy as 
 given by Lord Denman in R. v. Seward, 1 A. & E. 706; 
 and though questioned by the learned judge himself in 
 R. V. Peck, 9 A. & E. 686, as an antithetical definition, 
 and in R. v. King, 7 Q. B. 782, as not sufficiently compre- 
 
Sec 627] 
 
 CONSPIRACIES. 
 
 597 
 
 hensive, it seems to be so far adopted as the most correct 
 definition of this offence : R. v. Jones, 4 B. & Ad. 345 ; 3 
 Russ. 116. Bishop 2 Cr. L. 171, has in clear and con- 
 cise terms said " Conspiracy is the corrupt agreeing 
 together of two or more persons to do, by concerted action, 
 something unlawful, either as a means or an end." See also 
 B. V. Bunn, 12 Cox, 316 ; E. v. Fellowes, 19 U. C. Q. B. 
 48; Mogul S. S. Co. v. McGregor, 23 Q. B. D. 598; 
 Connor v. Kent, 17 Cox, 354, and R. v. de Kromme, 17 
 Cox, 492 ; R. v. McGreevy, 17 Q. L. R. 196. 
 
 But the word " unlawful " used in these definitions of 
 conspiracy does not mean " indictable " or " criminal " 
 only. The combining to injure another by fraud, or to do 
 a civil wrong or injury to another, is an indictable con- 
 spiracy. So in a case where the prisoner and L. were in 
 partnership, and there being notice of dissolution prisoner 
 conspired with W. & P. in order to cheat L. on a division 
 of assets at the dissolution, by making it appear by entries 
 in the books that P. was a creditor of the firm, and by 
 reason thereof partnership property was to be abstracted 
 for the alleged object of satisfying P., it was held that 
 this was an indictable conspiracy : R. v. Warburtou, 11 Cox, 
 584 ; see R. v. Aspinall, 13 Cox, 231 and 563 ; R. v. Orman, 
 U Cox, 381, Warb. Lead. Cas. 81. 
 
 Mr. Justice Drummond, in R. v. Roy, 11 L. C. J. 89, 
 bas given the following definition of conspiracy : " A con- 
 spiracy is an agreement by two persons (not being husband 
 and wife), or more, to do or cause to be done an act 
 prohibited by penal law, or to prevent the doing of an act 
 ordered under legal sanction by any means whatsoever, or 
 to do or cause to be done an act whether lawful or not by 
 means prohibited by penal law:" R. v. Boulton, 12 Cox, 
 87 ; R. V. Parnell, 14 Cox, 508 ; R. v. Taylor, 15 Cox, 265, 
 268. 
 
 On an indictment for conspiracy to defraud by obtain- 
 ing goods on false pretenses the false pretenses need not 
 
 Mill 
 
 
 
 
 
 1* 
 
 in 
 "H 
 
 I t^J... 
 
 \fii 
 
 If 
 
 II 
 
 w^ 
 
598 
 
 ATTEMPTS-CONSPIRACIES, ETC. [Sees. 528-530 
 
 be set up : K. v. Gill, 2 B. & Aid. 204 ; Thayer v. R., 
 5L. N. 162; see s. 616. 
 
 An indictment for conspiracy with intent to defraud, — 
 declared insufficient : E. v. Sternberg, 8 L. N. 122. 
 
 What are the necessary allegations in an indictment for 
 conspiracy : R. v. Downie, 13 R. L. 429 ; see also Defoy v. 
 E., Ramsay's App. Cas. 193. 
 
 Acts done to coerce others to quit their employment in 
 pursuance of a conspiracy are indictable : R. v. Hibbert, 
 13 Cox, 82 ; R. v. Bauld, 13 Cox, 282. 
 
 Where two persons are indicted for conspiring together, 
 and they are tried together, both must be iacquitted or both 
 convicted : R. v. Manning, 12 Q. B. D. 241, Warb. Lead. 
 Cas. 84. 
 
 Attempts to Commit Oppkncks. {New). 
 
 98S. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who attempts, in any case not hereinbefore provider! for, 
 to commit any indictable offence for which the punishment is imprisonment for 
 life, or for fourteen years, or for any term longer than fourteen years. 
 
 S20. Every one who attempts to commit any indictable offence for com- 
 mitting which the longest term to which the offender can be sentenced is less 
 than fourteen years, and no express provision is made by law for the punish- 
 ment of such attempt, is guilty of an indictable offence and liable to imprison- 
 ment for a term equal to one-half of the longest term to which a person com- 
 mitting the indictable offence attempted to be committed may be sentenced. 
 
 S30. Every one is guilty of an indictable offence and liable to one year's 
 imprisonment who attempts to commit any offence under any statute for the 
 time being in force and not inconsistent with this Act, or incites or attempts to 
 incite any person to commit any such offence, and for the punishment of which 
 no express provision is made by such statute. 
 
 See 8. 64, ante, and ss. 711 and 712, post, and notes there- 
 under. 
 
 As to a fine in certain cases see a. 958. 
 
 Attempts to commit offences punishable under the code 
 by summary convictions are not covered by these sections. 
 Neither is the inciting to commit any indictable offeace. 
 Section 530 makes it an indictable offence to attem^!: to 
 commit, or to incite, or attempt to incite any one to com- 
 
Sec. 530] 
 
 ATTEMPTS TO COMMIT OFFENCES. 
 
 599 
 
 mit an ofifence punishable under summary conviction under 
 any other statute: s. 536. i 
 
 When an o£fence is not triable at quarter sessions the 
 attempt to commit that o£fence is likewise not triable at 
 quarter sessions : s. 540. 
 
 Indictment at common law for inciting to commit an 
 offence. — that A. B. on falsely, wickedly 
 
 and unlawfully did solicit and incite one C. D. unlawfully 
 to steal of the goods and chattels of E. F. 
 
 See R. V. Gregory, 10 Cox, 459, and R, v. itfansford, IS 
 Cox, 9, and cases there cited. The punishment falls under 
 s. 951, post. 
 
 Inciting to murder is covered by s. 234, and inciting to 
 mutiny by s. 72. 
 
 " What is an attempt to commit an oifence ? This is a 
 question much easier to ask than to answer, and, as far as 1 am 
 competent to judge, no general rule can be laid down upon the 
 subject, but each case muse depend upon its own particular 
 circumstances. As the means by which, and the modes in 
 which crimes may be committed are innumerable, so the modes 
 in which attempts to commit crimes may be made must be 
 innumerable also; and not only so, but the nature of one attempt 
 to commit a crime may totally vary from the nature of another 
 attempt to commit the same crime. Thus, a murder may be 
 committed by a single stab, and so an attempt to murder may 
 be made by a single stab ; whilst, on the other hand, a murder 
 may be committed by administering small doses of poison at 
 intervals during a considerable space of time, in such a manner 
 that the death is the result of the combined effects of all the 
 poisonings, and would not have been caused by one or even the 
 greater part of them. In such a case, if death has not ensued » 
 although the poisoner might well be convicted of an administra- 
 tion of poison with intent to murder, by proof even of one 
 administration of poison, yet a single administration could not> 
 perhaps, be considered a proof of an attempt to murder, both 
 because the murder was not intended to be committed by it, and 
 because it could not be committed by it. 
 
 •>" 
 
 pi, 
 It. 
 
 'X: 
 
 § 
 
 i/i 
 
 lis 
 
 ii? i* 
 
 
600 
 
 ATTEMPTS, CONSPIRACIES, ETC. [Sees. 531, 5.32 
 
 ** These supposed cases may serve to show under what varied 
 circumstances attempts to commit o£fences may have to be 
 considered, and yet these cases are confined to acts which would 
 have actually been the means of committing the crime if it bad 
 been effected. It seems, however, to be clear that whenever tbe 
 act, or acts, done are such that, if they produced their intended 
 effect, the crime would have been completed, an attempt to 
 commit that crime is proved ; and consequently, upon every 
 charge of an attempt to commit an offence, the primary consider- 
 ation would seem to be, whether the acts done by the prisoner 
 could have effected the crime intended." Greaves' attempts to 
 commit crimes. 
 
 Accessories Abter the Fact. (New). 
 
 931. Every one is guilty of an indictable offence and liable to seven 
 years' imprisonment who, in any case where no express provision is made by 
 this Act for the punishment of an accessory, is accessory after the fact to any 
 indictable offence for which the punishment is, on a first conviction, imprison- 
 ment for life, or for fourteen years, or for any term longer than fourteen years. 
 
 S32. Every one who is accessory after the fact to any indictable offence 
 for committing which the longest term to which the offender can be sentenced 
 is less than fourteen years, and no express provision is made for the punishment 
 of such accessory, is guilty of an indictable offence and liable to imprisonment 
 for a term equal to one-half of the longest term to which a person committing 
 the indictable offence to which he is accessory may be sentenced. 
 
 As to a fine in certain eases : s. 958. 
 
 When a^ offence is not triable at quarter sessions the 
 offence of being an accessory after the fact to that offence 
 is likewise not triable at quarter sessions : s. 540. See s. 63, 
 ante, for definition: as to indictments, s. 627, post. 
 
 Indictment against an accessory after the fact with the 
 principal. After stating the offence of the principal. — 
 And the jurors aforesaid do further present that C. D. well 
 knowing the said A. B. to have done and committed the said 
 offence in form aforesaid, afterwards to wit, on the day and 
 year aforesaid, him the said A. B. unlawfully did receive, 
 harbour, comfort and assist in order to enable him tbe said 
 A. B. to escape. 
 
 Indictment against an accessory after the fact, the jninci- 
 pal being convicted. After stating the offence of the principal 
 
[Sees. 531, 532 
 
 Sec. 532] 
 
 ACCESSORIES AFTER THE FACT. 
 
 601 
 
 and the conviction, charge the accessory thus. — And 
 
 the iuiors aforesaid do further present that C. D. well 
 knowing the said A. B. to have done and committed the said 
 oti'ence after the same was committed as aforesaid, to 
 wit, on the day and year aforesaid, him the said A. B. did 
 unlawfully receive, harbour, comfort and assist in order to 
 enable him the said A. B. to escape. 
 
 Against an accessory after the fact ichen the principal is 
 unknown. 
 
 The jurors present that some person or persons to 
 the jurors aforesaid unknown, on unlawfully did 
 
 steal of the goods and chattels of E. F. And the 
 
 jurors aforesaid do further present that C. D. well knowing 
 the said person to have done and committed the said 
 offence, afterwards did unlawfully receive, harbour, com- 
 fort and assist the said person in order to enable him to 
 escape. 
 
 See E. V. Blackson, 8 C. & P. 48 ; E. v. Pulham, 9 C. 
 & P. 280. 
 
 When the principal is, as allowed by ss. 711 & 713, 
 found guilty of another offence than the one directly 
 charged, the accessories after the fact jointly tried with him 
 may also be found guilty of being accessories to the offence 
 80 found against the principal : E. v. Eichards, 13 Cox, 611. 
 On an indictment charging a man as a principal offender 
 only he cannot be convicted of being an accessory after the 
 fact: E. V. Fallon, L. & C. 217 ; the two offences are sepa- 
 rate and distinct : E. v. Brannon, 14 Cox, 394. 
 
 The accessory may always controvert the guilt of the 
 principal : 1 Euss. 75. But when the principal has been 
 convicted the record of the conviction throws upon the 
 defendant the burden of proving the principal's innocence : 
 1 Chit. Cr. L. 273 ; 2 Bish. Cr. Proc. c. 12 ; B. v. Turner 
 1 Moo. 847. 
 
 f' 
 
 it 
 
 
 n 
 
 m^ 
 
 
 'm 
 
 \:r A 
 
'm^i 
 
 602 
 
 PROCEDURE. 
 
 [Sees. 533, 534' 
 
 ' ;^'i 
 
 TITLE VH. 
 PROCEDURE. 
 
 PART XLI. 
 
 GENERAL PROVISIONS. 
 
 PowBR TO Make Rulbs. 
 
 833. Every superior court of criminal jurisdict/ion may at any time, 
 with the concurrence of a majority of the judges thereof present at any meet- 
 ing held for the purpose, make rules of court, not inconsistent with any 
 statute of Canada, which shall apply to all proceedings relating to any prose- 
 cution, proceeding or action instituted in relation to any matter of a criminat 
 nature, or resulting from or incidental to any such matter, and in particular 
 for all or any of the purposes following : — 
 
 (rt) For regulating the sittings ot the court or of any division thereof, or 
 of any judge of the court sitting in chambers, except in so far as the same aro 
 already regulated by law. 
 
 {b) For regulating in criminal matters the pleading, practice and procedure 
 in the court, including the subjects of mandamus, certiorari, habeas corpus, 
 prohibition, quo tvarranto, bail and costs, and the proceedings under section 
 nine hundred of this Act. 
 
 (c) Generally for regulating the duties of the officers of the court and 
 every other matter deemed expedient for better attaining the ends of justice 
 and carrying the provisions of the law into effect. 
 
 2. Copies of all rules made under the authority of this section shall be laid 
 before both houses of Parliament at the session next after the making thereof, 
 and shall also be published in the Canada Gazette. 52 V. c. 40. 
 
 Civil Rkmkdy— Effect of Criminal Offence on. 
 
 334. After the commencement of this Act no civil remedy for any act or 
 omission shall be susjiended or affected by reason that such act or omission 
 amounts to a criminal offence. 
 
 '* This seems to be the existing law." — Imp. Comm. Rep. 
 
 See Wells v. Abrahams, L. K. 7 Q. B. 554, Warb. Lead. 
 Cas. 261 ; Osborn v. Gillett, L. R. 8 Ex. 88 ; S. v. S. 16 
 Cox, 566 ; Schohl v. Kay, 5 Allen (N.B.), 244 ; Livingstone 
 V. Massey, 23 U. C. Q. B. 156 ; Appleby v. Franklin, 17 Q.B.D. 
 93 ; Taylor v. McCullough, 8 0. R. 300 ; Tremblay v. Der- 
 nier, 21 S. C. R. 309. 
 
Sees. 335-537] 
 
 PROCEDURE. 
 
 603 
 
 ;ice and procedure 
 ;n, habeas corpus, 
 igs under section 
 
 Abolition of Distinction Between Felony and Misdemeanour. {New). 
 
 93S. After the commencement of this Act the distinction between 
 felony and misdemeanipur shall be abolished, and proceedings in respect of all 
 indictable offences (except so far as they are herein varied) shall be conducted 
 in the Hame manner. 
 
 " The distinction between felony and misdemeanour was, in 
 early times, nearly though not absolutely identical with the 
 distinction between crimes punishable with death and crimes 
 uot so punishable. 
 
 " For a long time past this has ceased to be the case. Most 
 felonies are no longer punishable with death ; and many mis- 
 demeanours are now punished more severely than many felonies. 
 The great changes which have taken place in our criminal law 
 have made the distmction nearly, if not altogether, unmeaning. 
 > It is impossible to say on what principle embezzlement should 
 be a felony, and the fraudulent appropriation of money by an 
 agent, or the obtaining of goods by false pretenses, a misdemean- 
 our; why bigamy should be a felony, and perjury a misdemean- 
 our; why child-stealing should be a felony, and abduction a 
 misdemeanour. The result of this arbitrary classification is, that 
 the right to be bailed, the liability to be arrested without 
 warrant, and, to a certain extent, the right of the court to order 
 the payment of the costs of prosecutions, vary in a manner 
 equally arbitrary and unreasonable." — Imp. Comm. Rep. 
 
 Construction op Acts. (Xew). 
 
 53C>' Every Act shall l)e hereafter read and construed as if any offence 
 for which the offender may be prosecuted by indictment (howsoever such 
 offence may bo therein described or referred to), were described or referred to 
 as ivn "indictable offence"; and as if any offence punishable on summary 
 conviction were described or referred to as an "offence " ; and all provisions of 
 this Act relating to " indictable offences " or "offences " (as the case may be) 
 shall apply to every such offence. 
 
 2. Every commission, proclamation, warrant or other document relating 
 to criminal procedure, in which offences which are indictable offences or 
 offences (as the case may be) as defined by this Act are described or referred to 
 by any names whatsoever, shall be hereafter read and construed as if such 
 offences were therein described and referred to as indictable offences or 
 offences (as the case may be). 
 
 Construction op Certain Other Acts. (A'eio), 
 
 53T. In any Act in which reference is made to The Speedy Trials Act the 
 same shall be construed, unless the context requires otherwise, as if such 
 
 
 It 
 
 Hi 
 
*» 
 
 604 
 
 PROCEDURE. 
 
 [Sees. B38-540 
 
 reference were to Part LIV. of this Act ; any Act referrinf? to The Summary 
 Trials Act shall be construed, unless the context forbids it, as if such reference 
 were to Part LV. of this Act ; and every Act referrinff to The Suinmnri/ Om. 
 victkmn Act shall be construed, unless the context forbids it, as if such refer- 
 ence were to Part LVIII. of this Act. 
 
 PART XLII. 
 
 JURISDICTION. 
 
 Superior Courts. 
 
 339. Every Superior Court of criminal jurisdiction and every judge of 
 such court sitting as a court for the trial of criminal causes, and every Court 
 of Oyer and Terminer and General Gaol Delivery has power to try any 
 indictable offence. R. S. C. c. 174, s, 3. 
 
 " Superior Courts " defined, s. 3. 
 
 Sessions op the Peace and Other Courts. 
 
 939. Every Court of General or Quarter Sessions of the Peace, when 
 presided over by a 3ui)erior Court judge, or a County or District Court judge, 
 or in the cities of Montreal and Quebec by a recorder or judcre of the Sessions 
 of the Peace ; and in the province of New Brunswick every County Court 
 judge has power to try any indictable offence except as hereinafter provided. 
 R. S. C. c. 174, 8. 4 {Amendei:l). 
 
 See remarks under next section. 
 
 Offences in the Exclusive Jurisdiction op Superior Courts. 
 
 (Amended) 
 540. No such court as mentioned in the next preceding section has 
 power to try any offence urtder the following sections, that is to say : 
 
 Part IV. — sections sixty-five, treason ; sixty-seven, accessories after thp 
 fact to treason ; sixty-eight, sixty-nine and seventy, treasonable offences; 
 seventy-cne, assault on the Queen ; seventy-two, inciting to mutiny ; seventy- 
 seven, unlawfully obtaining and communicating official information ; seventy- 
 eight, communicating information acquired by holding office. 
 
 Part VII. — Sections one hundred and twenty, administering, taking or 
 procuring the taking of oaths to commit certain crimes ; one hundred and 
 twenty-one, administering, taking or procuring the taking of other unlawful 
 oaths ; one hundred and twenty-four, seditious offences ; one hundred and 
 twenty-five, libels on foreign sovereigns ; one hundred and twenty-si.v, spread- 
 ing false news. 
 
 Part VIII.— Piracy ; any of the sections in this part. 
 
RioR Courts. 
 
 Sec. 541] 
 
 POWERS OF TWO JUSTICES. 
 
 605 
 
 Part IX.— Sections one hundred and thirty-one. indicial corruption ; one 
 hundred and thirty-two, corruption of oflBcer'- .aployed in prosecuting 
 offenders ; one hundred and thirty-three, frauds upon the Government ; one 
 hundred and thirty-five, breach of trust by a public officer ; one hundred and 
 thirty-six, corrupt practices in municipal affairs; one hundred and thirty-seven 
 ((t), selling and purchasing offices. 
 
 Part XI. — Escapes and rescues ; any of the sections in this part. 
 
 Part XVIII.— Sections two hundred and thirty -one, murder ; two hundred 
 and thirty-two, attempts to murder ; two hundred and thirty-three, threats to 
 murder ; two hundred and thirty-four, conspiracy to murder ; two hundred 
 and thirty -five, accessory after the fact to murder. 
 
 Part XXI.— Sections two hundred and sixty-seven, rape ; two hundred 
 and sixty-eight, attempt to commit rape. 
 
 Part XXIII. — Defamatory libel ; any of the sections in this part. 
 
 Part XXXIX.— Section five hundred and twenty, combinations in re- 
 straint of trade. 
 
 Piirt XL.— Conspiring or attempting to commit, or being accessory after 
 the fact to any of the foregoing offences. 
 
 Are not triable at quarter sessions, the offences under 
 38. 65, 67, 68, 69, 70, 71, 72, 77, 78, 120, 121, 124, 
 125, 126, 127, 128, 129, 130, 131,132, 133, 185, 136, 137a, 
 159 to 169, both inclusive, 231, 232, 233, 234, 235, 267, 
 268, 285, to 302, both inclusive, 520, and conspiracies, 
 attempts or being accessory after the. fact to any of the 
 foregoing offences. The principal change in this section, 
 coupled with s. 539, are the additions to the courts of 
 quarter sessions' jurisdiction of manslaughter, perjury, 
 subornation of perjury, forgery, counterfeiting coin, offen- 
 ces under ss. 247, 248, and of blasphemous libel. 
 
 The terms of s. 589 are so wide that s. il6 of c. 8, R' 
 S. C, stands virtually repealed, and that consequently brib- 
 ery at elections is now triable at quart2r sessions. Every 
 offence whatever is now so triable, except those specially 
 mentioned in s. 540. This may have been an oversight 
 of the law-giver, but in the law-giver alone lies the right to 
 remedy its consequences : Lane v. Bennett, 1 M. & W. 70. 
 
 Exercising Powers of two Justices. 
 
 541. The judge of the Sessions of the Peace for the city of Quebec, the 
 judge of the Sessions of the Peace for the city of Montreal, and every recorder, 
 police magistra,te, district magist/ate or stipendiary magistrate appointed for 
 
606 
 
 PROCEDURE. 
 
 [Sec. 542 
 
 any territorial division, and every magistrate authorized by the law of the 
 province in which he acts to perform acts usually required to be done by two 
 or more justices of the peace, may do alone whatever is authorized by this 
 Act to be done by any two or more justices of the peace, and the several fonns 
 in this Act contained may bo varied so far as necessary to lender them appli- 
 cable to such case. R. S. C. c. 174, s. 7. 
 
 The word recorder is new. 
 
 PART XLIII. 
 
 PROCEDURE IN PARTICULAR CASES. 
 
 Okkexces Within the Juhisuiction op the Admiralty, {yew). 
 543. Proceedings for the trial and punishment of a person who is not a 
 mbject of Her Majesty, and who is charged with any offence committed within 
 the jurisdiction of the Admiralty of England shall not be instituted in any 
 court in Canada except with the leave of the Governor General and on his 
 certificate that it is expedient that such proceedings should be instituted. 
 
 See 8. 560 as to warrant of arrest. 
 
 The courts of. Canada have no jurisdiction over a 
 foreigner who commits an offence on a foreign ship on the 
 high seas outside of one marine league from the coast : E. 
 V. Serva, 1 Den. 104 , R. v. Lewis, Dears. & B. 182 ; E. v. 
 Keyn, 13 Cox, 403 ; R. v. Kinsman, James (N.S.), 62. But if 
 such an offence is committed within one marine league of 
 the coast then they have jurisdiction in virtue of the 
 Territorial Waters Jurisdiction Act of 1878, 41 & 42 V.c.73 
 (Imp.), by which it is enacted that an offence committed by a 
 person, whether he is or is not a subject of Her Majesty, on 
 the open sea, within the territorial waters of Her Majesty's 
 dominions, that is within one marine league from the 
 shore, is an offence within the jurisdiction of the admiral, 
 although it may have been committed on board or by 
 means of a foreign ship, and the person who committed 
 such offence may be arrested, tried and punished accord- 
 ingly. 
 
tiee. 542] 
 
 JURISDICTION OF THE ADMIRALTY. 
 
 607 
 
 It is further enacted by that Act that, in Canada, (in 
 any of Her Majesty's dominions) proceedings for the trial 
 of a foreigner for a crime committed on board a foreign 
 ship, within one marine league of the coast shall not be 
 instituted except with thti leave of the Governor-General 
 (or officer for the time being administering the government, 
 '52 & 63 V. c. 63 Imp.) in which such proceedings are to be 
 instituted, and on his certificate that it is expedient that 
 such proceedings should be instituted, and that, on the 
 trial, it shall not be necessary to aver, in any indictment 
 or information, that such consent or certificate of the 
 Governor-General has been given, and the fact of the same 
 having been given shall be presumed unless disputed by 
 the defendant at the trial, and the certificate of the Gover- 
 nor shall be sufficient evidence of such consent, as required 
 by the said Act. It is also enacted that proceedings before 
 the magistrate to bring the offender to trial may be had 
 before the consent of the Governor-General is given. 
 
 The 12 & 13 V. c. 96, s. 1 (Imp.), enacts that all offences 
 commi'tted upon the sea, or within the jurisdiction of the 
 Admiralty shall, in any colony where the prisoner is 
 charged with the offence or brought there for trial, be dealt 
 with as if the offence had been committed upon any water 
 situate within the limits of the colon^ and within the limits 
 of the local jurisdiction of the courts of criminal jurisdic- 
 tion of such colony. 
 
 And 8. 3 of the same Act enacts that : when any person 
 shall die in any colony of any stroke, poisoning or hurt, 
 such person having been feloniously stricken, poisoned or 
 hurt upon the sea or within the limits of the admiralty, 
 €r at any place out of the colony, every offence committed in 
 respect of any such case may be dealt with, inquired of 
 tried, determined and punished in such colony in the same 
 manner in all respects as if such offence had been wholly 
 committed in that colony, and if any person in any colony, 
 ehall be charged with any such offence as aforesaid in 
 
 
 
 1 . 
 
 ■■„■.«'.' 
 
 1^ 
 
 m^ -v- 
 
Iiliii 
 
 I 
 
 608 
 
 PROCEDURE. 
 
 [Sec. 542 
 
 respect of the death of any person who having been feloni- 
 ously stricken, poisoned or hurt, shall have died of such 
 stroke, poisoning or hurt upon the sea, or any where within 
 the limits of the Admiralty, such offence shall be held for 
 the purposes of the Act to have been wholly committed upon 
 the sea. 
 
 The 17 & 18 V. c. 104, s. 267, Imp., enacts that all 
 offences against property or person committed in, or at any 
 place, either achore or afloat, out of Her Majesty's domin- 
 ions by any master, seaman, or apprentice who at the time 
 when the offence is committed is or within three months 
 previously has been, employed in any British ship are 
 deemed to be offences of the same nature respectively, and 
 are liable to the same punishments respectively, and may 
 be inquired of, heard, tried, and determined and adjudged 
 in the same manner, and by the same courts in the same 
 places, as if such offences had been committed within the 
 jurisdiction of the Admiralty of England; see E. v. Dudley, 
 14 Q. B. D. 273. 
 
 The 18 & 19 V. c. 91, s. 21, Imp., enacts that if any per- 
 son, being a British subject, charged with having committed 
 any crime or offence on board any British ship on the high 
 seas, or in any foreign port or harbour, or, if any person, 
 not being a British subject, charged with having committed 
 any crime or offence on board any British ship on the high 
 seas, is found within the jurisdiction of any court of justice 
 in Her Majesty's dominions which would have had cog- 
 nizance of such crime or offence if committed within the 
 limits of its ordinary jurisdiction, such court shall have 
 jurisdiction to hear and try the case as if such crime or 
 offence had been committed within such limits. Then, it 
 is enacted that nothing contained in that section shall 
 affect the 12 & 13 V. c. 96, {ubi supra). 
 
 By the Imperial Merchant Shippiyig Amendment Act, 
 30 & 31 V. c. 124, 8. 11, it is enacted that: 
 
[Sec. 542 
 
 Sec. 542] 
 
 JURISDICTION OF THE ADMIRALTY. 
 
 60» 
 
 been feloni- 
 ied of Buch 
 here within 
 be held for 
 mitted upon 
 
 t 
 
 bCts that all 
 in, or at any 
 sty's domin- 
 ) at the time 
 bree months 
 ish ship are 
 actively, and 
 sly, and may 
 md adjudged 
 I in the same 
 id within the 
 R. V. Dudley, 
 
 it if any per- 
 ig committed 
 on the high 
 any person, 
 ig committed 
 on the high 
 part of justice 
 ive had cog- 
 Id within the 
 [i shall have 
 ich crime or 
 Its. Then, it 
 Isection shall 
 
 indment Act, 
 
 " If any British subject commits any crime or o£fence od 
 board any British ship, or on board any foreign ship to 
 which he does not belong, any court of justice in Her 
 Majesty's Dominions, which would have had cognizance of 
 such crime or offence if committed on board a British ship 
 within the limits of the ordinary jurisdiction of such court 
 shall have jurisdiction to hear and determine the case as if 
 the said crime or offence had been committed as last 
 aforesaid." 
 
 See R. v. Armstrong, 18 Cox, 184. 
 
 A crime committed by a British subject on board a 
 foreign ship to which he belongs, does not fall under this 
 clause. 
 
 By 28 & 29 V. c. 63 (Imp.), any colonial law repugnant to 
 an Act of the Imperial Parliament is, to the extent of such 
 repugnancy, void. And by the Courts {Colonial) Jurisdic- 
 tion Act, 1874, 37 V. c. 27 (Imp.), it is provided for the 
 punishment of offences tried in a colony but committed. 
 elsewhere. 
 
 The words used in statutes " dealt with " apply tcr 
 justices of the peace; "inquired of" to the grand jury; 
 "tried " to the petit jury and " determined and punished " 
 to the court ; by Lord Wensleydale in R. v. Ruck, note {y)y 
 1 Rass. 757. 
 
 A prisoner is "found," within the meaning of s. 21, of 
 18& 19 V. c. 91, iihi supra, wherever he is actually present,. 
 and the court, where he is present, under that Act, has^ 
 jurisdiction to try him, even if he has been brought there 
 by force as a prisoner: R. v. Lopez, R. v. Sattler, Dears. 
 & B. 525. 
 
 On jurisdiction as to offences committed within the 
 limits of the Admiralty see Archbold, 33; 1 Russ. 762; 
 1 Burn, 42, and R. v. Keyn, 13 Cox, 403 ; R. v. Carr, 15 Cox» 
 129; R. V. Anderson, 11 Cox, 198. 
 
 '^'if^ 
 
 lit , .' 
 I 
 
 >i, . k 
 
 CwM. Law— 39 
 
•i" ■' 
 
 
 '^ J3£MV?!3XSB*'€F%:i 
 
 .^- 
 
 610 
 
 PROCEDURE. 
 
 [Sec. 542 
 
 By 41 & 42 V. c. 7S (Imp.), The Territorud Waters Juris- 
 diction Act of 1878, above mentioned, the decision in E. v. 
 Keyn, uhi supra, is not now to be followed. The large 
 inland lakes of Ontario are within the jurisdiction of the 
 Admiralty: E. v. Sharp, 6 P. R. Ont. 135. 
 
 Where a person dies in this Province from ill-treatment 
 received on board a British ship at sea, the trial for man- 
 alaughter against the person who ill-treated him must take 
 place in the district where the man died, not where he was 
 a,pprehended : R. v. Moore, 2 Dor. Q. B. R. 52 ; but see now 
 €. 640, post. On an indictment for an offence committed on 
 board a British ship upon the high seas, it is not necessary 
 in order to prove the nationality of the ship to produce its 
 register, but the fact that she sailed under the British flag 
 is sufficient : R. v. Moore, 2 Dor. Q. B. R. 52 ; see R. v. 
 Bjornsen, 10 Cox, 74, and R. v. Sven Seberg, 11 Cox, 520. 
 
 In an indictment for a larceny committed on board a 
 British vessel, it is sufficient to say upon the sea, without 
 saying upon the high seas : R. v. Sprungli, 4 Q. L. R. 110. 
 
 As to offences committed by British subjects in foreign 
 countries, " the laws of Great Britain affect her own sub- 
 jects everywhere," says Dr. Lushington, in the Zollverein, 
 1 Sw. Adm. Rep, 96 ; and " an offence may be cognizable 
 triable and justiciable in two places, e.g., a murder by a 
 British subject in a foreign country. A British subject 
 ^ho commits a murder in the United States of America 
 may be tried and punished here by our municipal law, 
 which is made to extend to its citizens in every part of the 
 world." Per Cuckburn, C.J., Re Tivnan, 5 B. & S. 679. 
 
 Special statutory authority, however, is required to 
 empower any court to exercise jurisdiction over such 
 offences as; without such special authority, a court baa 
 jurifidiotion only over offences committed within the limits 
 of its territorial jurisdiction. By s. 9, 24 & 45 Y. c. 100, 
 for instance, it is expressly enacted that any murder or 
 
Sec. 542] 
 
 OFFENCES COMMITTED ABROAD. 
 
 611 
 
 manslaughter committed any cohere on land out of the 
 kingdom, whether within the Queen's dominions or not, 
 and whether the person killed were a subject of Her 
 Majesty or not, may be tried in any county in England in 
 which the offender shall be apprehended. It would conse- 
 quently appear, singular though it be, that a murder com- 
 mitted in the United States by a Canadian is triable in 
 England if the offender can be apprehended there, but 
 that it is not triable in Canada. It follows probably from 
 the decision of the Privy Council in the case of Macleod v. 
 Attorney-General, 17 Cox, 341 [1891] , A. C. 455, that a 
 colonial legislature has not the same right in this respect 
 as the Imperial Parliament has. "For," said Turner, 
 L.J., in Low V. Eoutledge, 1 Ch. App. 47, L. R. 3 H. L. 
 100, the law of a colony cannot extend beyond its 
 territorial limits." However, the Parliament of Canada 
 has never, it would seem, without special authority from 
 the Imperial Parliament, legislated over crimes committed 
 abroad ; (see, however, ss. 127, 128, ante). On the contrary, 
 apparently to keep within its territorial limits, it has 
 restricted the exercise of its jurisdiction over bigamy, com- 
 mitted out of Canada, by s-s. 4, of s. 275 of this Code, as it 
 had by its previous legislation, over British subjects resident 
 in Canada leaving Canada with intent to commit bigamy: B. 
 V. Brierly, 14 0. R. 525. And the Imperial Act, 23 & 24 V. 
 c. 122, which empowers the colonial legislatures to pass an 
 enactment similar to the one that was contained in s. 9 of 
 the Procedure Act c. 174, R. S. C. {now repealed) for the 
 trial in the colony of a murder committed abroad, when the 
 person murdered died in the colony, and vice versa^ was 
 passed, as said in the preamble, because doubts had been 
 entertained of the power of a colonial legislature to pass 
 such a law. 
 
 For statutes, commentaries and cases on the question, 
 m R. V. Sawyer, R. & R. 294 ; R. v. Azzopardi, 2 Moo. 
 288 ; 5 Geo. IV. c. 114, s. 10 ; 6 «& 7 V. c. 94 (Imp.) ; 24 & 25 V. 
 
 ^:-*> 
 
 !Hi 
 
612 
 
 PROCEDURE. 
 
 [Sees. 543-54» 
 
 c. 100, SB. 9, 67 (Imp.) ; 33 & 84 V. c. 90, s. 4 ; The Apollon, 
 9 Wheat. 360; 1 Bishop's Cr. L. 109, 115, 123, Stat. Cr! 
 141, 687 ; Hutchinson's Case, note, 1 Leach, 136 ; "Wheaton 
 Intern. Law, 3rd English Edit., page 178 ; R. v. Zulueta, 
 1 C. & K. 216 ; 22 American Jur. 381, " on the extent of the 
 Criminal Law " ; Jefferys v. Boosey, 4 H. L. Cas. 816 ; Story, 
 Conflict of Laws, par. 620; Fcelix, dr. intern, priv/, par. 548. 
 
 Pekviocs consent op Attorney-Gknehal or Minister of Marine 
 required for prosecutions under certain sections. 
 
 543* Xo person shall be prosecuted for the offence of unlawfully obtain- 
 ing and communicating official information, as defined in sections seventy- 
 seven and seventy-eight, without the consent of the Attorney-General or of 
 the Attorney-General of Canada. 23 V. c. 10, s, 4. 
 
 15441. No one holding any judicial office shall be prosecuted for the offence 
 of judicial corruption, as defined in section one hundred and thirty-one, with- 
 out the leave of the Attorney -General of Canada. 
 
 54 c(. If any person is charged before a justice of the peace with the 
 offence of making or having explosive substances, as defined in section one 
 hundred, no further proceeding shall be taken against such person without the 
 consent of the Attorney-General except such as the justice of the peace thinks 
 necessary, by remand or otherwise, to secure the safe custody of such person. 
 R. S. C. c. 150, 8. 5. 
 
 546. No person shall be prosecuted for any offence under section two 
 hundred and fifty six or two hundred and fifty-seven, without the consent of 
 the Minister of Marine and Fisheries. 52 V. c. 22 s. 3, {as amoided in 1893), 
 
 547". No proceeding or prosecution against a trustee for a criminal 
 breach of trust, as defined in section three hundred and sixty-three, shall be 
 commenced without the sanction of the Attorney -General. R. S. C. c. lt)4, 
 8.65. 
 
 548. No prosecution for concealing deeds and encumbrances, as defined 
 m section three hundred and seventy, shall be commenced without the consent 
 of the Attorney General, given after previous notice to the person intended to 
 be prosecuted of the application to the Attorney-General for leave to prosecute. 
 R. S. C. c. 164, 8. 91. 
 
 940. No proceeding or prosecution for the offence of uttering defaced 
 com, as defined in section four hundred and seventy-six, shall be taken without 
 the consent of the Attorney-General. R. S. C. c. 167, s. 18. 
 
 The words "Attorney-General" mean the Attorney- 
 General or the Solicitor-General of the Province, s. 8. 
 
 Where the previous consent of the Attorney-General 
 or some other officer is required for a prosecution, that 
 
II 
 
 Sees. 550-551] TRIALS OF OFFENDERS UNDER 16. 
 
 613 
 
 applies to the preliminary proceedings before the magis- 
 trate. , ' 
 
 See R. V. Allison, 16 Cox, 559 ; Knowlden v. R., 9 Cox, 
 483 ; Boaler v. R., 16 Cox, 488 ; R. v. Barnett, 17 0. R. 649. 
 By s. 613, as amended in 1893, it is not necessary to aver 
 such consent in the indictment. 
 
 Section 549 requires the consent of the Attorney-Gen- 
 eral for a prosecution under the summary convictions 
 clauses. 
 
 The power to give the consent in question in these 
 sections cannot be delegated : Abrahams v. The Queen, 6 
 S. C. R. 10. 
 
 Trials of Offenders under 16. {yeio). 
 
 SliO. The tr"" • of all persons apparently under the age of sixteen years 
 shall, so far as it . • " expedient and practicable, take place without publi- 
 city, and separatt ■..6 apart from that of other accused persons and at 
 suitable times to ht, aesiu^ated and appointed for that purpose. 
 
 This is a directory enactment, and entirely left to the 
 discretion of the court. It is not to be found in the Imperial 
 draft Code of 1879. 
 
 Limitation op Time. {Aviended). 
 
 85 1- No prosecution for an offence agamst this Act, or action for 
 penalties or forfeiture, shall be commenced — 
 
 (a) After the expiration of three years from the time of its commission if 
 such offence be — 
 
 (i) treason, except treason by killing Her Majesty or where the 
 overt act alleged is an attempt to injure the person of Her Majesty 
 (Part IV., section sixty-five) ; 
 
 (ii) treasonable offences (Part IV., section sixty -nine) ; 
 
 (iii) any offence against Part XXXIII., relating to the fraudulent 
 marking of merchandise ; nor 
 
 (b) After the expiration of two years from its commission if such offence 
 
 be- 
 
 (i) a fraud upon the Government (Part IX., section one hundred and 
 tliirty-three) ; 
 
 (ii) a corrupt practice in municipal affairs (Part IX., section one 
 hundrtd and thirty -six) ; 
 
 (iii) unlawfully solemnizing marriage (Part XXIL, section two 
 hundred and seventy-nine) ; nor 
 
 (c) After the expiration of one year from its commission if such offence 
 
 be- 
 
 1% 
 
 Fr-' 
 
''^'-. ' ■ .i^ 
 
 \ 
 
 614 
 
 PROCEDURE. 
 
 [Sec. 551 
 
 i < 
 
 
 (i) opposing reading of Riot Act and assembling after proclamation 
 (Part v., section eighty-three) ; 
 
 (ii) refusing to deliver weapon to justice (Part VI., section one 
 hundred and thirteen) ; 
 
 (iii) coming armed near public meeting (section one hundred and 
 fourteen) j 
 
 (iv) lying in wait near public meeting (section one hundred and 
 fifteen) ; 
 
 (v) seduction of girl under sixteen (Part XIII,, section one hundred 
 and eighty-one) ; 
 
 (vi) seduction under promise of marriage (section one hundred and 
 eighty-two) ; 
 
 (vii) seduction of a ward, etc. (section one hundred and eighty, 
 three) ; 
 
 (viii) unlawfully defiling women (section one hundred and eighty- 
 five) ; 
 
 (ix) parent or guardian procuring defilement of girl (section one 
 hundred and eighty-six) ; 
 
 (x) householders permitting defilement of girla on their premises 
 (section one hundred and eighty -seven) ; nor 
 
 {d) After the expiration of six months from its commission if the offence 
 be— 
 
 (i) unlawful drilling (Part V., section eighty-seven) ; 
 
 (ii) being unlawfully drilled (section eighty-eight) ; 
 
 (iii) having possession of arms for purposes dangerous to the public 
 peace (Part VI., section one hundred and two) ; 
 
 (iv) proprietor of newspaper publishing advertisement offering reward 
 for recovery of stolen property (Part X., section one hundred and fifty- 
 seven, paragraph d) ; nor 
 
 (e) After the expiration of three months from its commission if the offence 
 be cruelty to animals under sections five hundred and twelve and five hundred 
 and thirteen, Part XXXVIII. ; nor 
 
 (ii) railways violating provisions relating to conveyance of cattle 
 (Part XXXIX., section five hundred and fourteen) ; 
 
 (iii) refusing peace officer admission to car, etc. (section five hundred 
 and fifteen) : 
 
 ( /) After the expiration of one month from its commission if the offence 
 be- 
 
 (i) improper use of offensive weapons (Part VI., sections one hundred 
 and three, and one hundred and five to one hundred and eleven inclusive). 
 
 2. No person shall be prosecuted, under the provisions of section sixty-five 
 or section sixty-nine of this Act, for any overt act of treason expressed or 
 declared by open and advised speaking unless information of such overt act, 
 and of the words by which the same was expressed or declared, is given upon 
 oath to a justice within six days after the words are spoken and a warrant for 
 the apprehension of the offender is issued within ten days after such informa- 
 tion is given. 
 
[Sec. 551 
 proclamation 
 
 aeotion one 
 
 [lundred and 
 
 liundred and 
 
 1 one hundred 
 
 hundred and 
 
 and eighty- 
 
 1 and eighty- 
 
 I (section one 
 
 bheir premises 
 
 1 if the oSence 
 
 |s to the public 
 
 )flfering reward 
 [dred and fif ty- 
 
 |n if the offence 
 id five hundred 
 
 [vnce of cattle 
 
 five hundred 
 
 if the offence 
 
 L one hundred 
 tven inclusive), 
 ction sixty-live 
 expressed or 
 Isuoh overt act, 
 is given upon 
 , a warrant for 
 ■ such informa- 
 
 Sec. 561] 
 
 LIMITATION OP TIME. 
 
 615 
 
 The laying of the information and snbsequent proceed- 
 ings are the commencement of the prosecution. So, if a 
 statute enacts that an offence must be prosecuted within a 
 certain time, the information must be within that time,. 
 but not necessarily the indictment : B. v. Barret, 1 Salk. 
 383 ; B. V. Austin, 1 C. & K. 621 ; B. v. Kerr, 26 U. C. C. 
 P. 214, and casas there cited : B. v. Gasbolt, 11 Cox, 885 ; 
 B. V. Brooks, 1 Den. 217 ; B. v. Smith, L. & C. 131 ; see 
 R. V. Carbray, 14 Q. L. B. 223. 
 
 In criminal cases it is not necessary for a defendant 
 relying on a statute of limitation to plead it in bar : sec. 681 
 It devolves upon the prosecuting power to show by legal 
 evidence that the prosecution was commenced within the 
 statutory period, if the indictment appears to have beea 
 found after the expiration of that period ; Bish. Stat. Cr» 
 par. 264; B. v. Phillips, B. & B. 369; 1 Chit. 283, 885; even 
 where the enactment limiting the time is contained in a 
 clause separate from the clause creating the offence. 
 
 In a case of The People v. Santvoord, 9 Co wen 655, the 
 Supreme Court of New York held that though the crime 
 appears by the indictment itself to be barred by the statute 
 of limitation, this is no ground for arresting judgment. 
 That decision cannot be supported where the statute is 
 absolute and without restrictions. 
 
 Section 117 of c. 8 B. S. C. which limits to one year the 
 time to prosecute any ijidictablc offence under that Act 
 does not affect prosecutions under sa. 829 «fe 603 ante, 
 though they are mere re-enactments of s. 102 of said c. 8. 
 Under s. 933 jwst, the prosecution may be brought under 
 either of these Acts. So that if brought under c. 8, the 
 limitation is one year. If under the Code, there is no 
 limitation. The punishment is also not the same in s. 329 
 as it is 8. 102 of c. 8. See remarks under s. 503. 
 
 The same for battery committed on a polling day, s-s (e), 
 s. 263, ante, and s. 77 of c. 8, B. S. C. If indicted under 
 the latter the punishment is five years, s. 951, post, and 
 
 tm' 
 
 !i|. 
 
 
 ■ r 
 ■J • 
 
 
 w 
 
 
 
\ 
 
 616 
 
 PROCEDURE. 
 
 [See. 652 
 
 limitation of time, one year ; if under the former, the pun- 
 ishment is two years, and there is no limitation of time. 
 
 Arrbst Without Warrant. {Ajnended). 
 
 SS8. Any one found committing any of the offences mentioned in the 
 following sections, may be arrested without warrant by any one, that is to 
 say : 
 
 Part IV. — Sections sixty-five, treason ; sixty-seven, accessories after the 
 Ljit to treason ; sixty -eight, sixty -nine and seventy, treasonable offences • 
 seventy-one, assaults on the Queen ; seventy-two, inciting to mutiny. 
 
 Part V. — Sections eighty-three, offences respecting the reading of the Riot 
 Act ; eighty-five, riotous destruction of buildings ; eighty-six, riotous damage 
 to buildings. 
 
 Part VII. — Sections one hundred and twenty, administering, takmg or 
 procuring the taking of oaths to commit certain crimes ; one hundred and 
 twenty-one, administering, taking or procuring the taking of other unlawful 
 oaths. 
 
 Part VIII.— Sections one hundred and twenty-seven, piracy ; one hundred 
 and twenty-eight, piratical acts ; one hundred and twenty-nine, piracy with 
 violence. 
 
 Part XI. — Sections one hundred and fifty-nine, being at large while under 
 sentence of imprisonment ; one hundred and sixty -one, break'.ng prison ; one 
 hundred and sixty-three, escape from custody or from prison ; one hundred 
 and sixty-four, escape from lawful custody. 
 
 Part XIII, — Section one hundred and seventy-four, unnatural offence. 
 
 Part XVIII. — Sections two hundred and thirty -one, murder ; two hundred 
 and thirty-two; attempt to murder ; two hundred and thirty-five, beinj? acces- 
 sory after the fact to murder ; two hundred and thirty-six, manslaughter ; two 
 hundred and thirty-eight, attempt to commit suicide. 
 
 Part XIX. — Sections two hundred and forty one, wounding with intent to 
 ■do bodily harm ; two hundred and forty-two, wounding ; two hundred and 
 forty-four, stupefying in order to commit an indictable offence ; two hundred 
 and forty-seven and two hundred and .forty-eight, injuring or attempting to 
 injure by explosive substances ; two hundred and fifty, intentionally endanger- 
 ing persons on railways ; two hundred and fifty-one, wantonly endangering 
 persons on railways ; two hundred and fifty-four, preventing escape from 
 wreck. 
 
 Part XXI. — Sections two hundred and sixty-seven, rape ; two hundred 
 and sixty-eight, attempt to commit rape ; two hundred and sixty -nine, defilifig 
 children under fourteen. 
 
 Part XXII. — Section two hundred and eighty-one, abduction of a woman. 
 Part XXV. — Section three hundred and fourteen, receiving proi^rty 
 dishonestly obtained. 
 
 Part XXVI. — Sections three hundred and twenty, theft by agent, etc. ; 
 ithree hundred and fifty-five, bringing into Canada things stolen. 
 
 Part XXIX.— Sections three hundred and ninety-eight, aggravated rob- 
 fcery ; three hundred and ninety-nine, robbery ; four hundred, assault with 
 intent to rob ; four hundred and one, stopping the mail ; four hundn^l and 
 
[Seo. 552 
 
 Sec. 552] 
 
 ARREST WITHOUT WARRANT. 
 
 617 
 
 r, the pun- 
 L of time. 
 
 entioned in the 
 one, that is to 
 
 3ories after the 
 lable offences ; 
 nutiny. 
 
 ding of the Riot 
 riotous damage 
 
 sring, taking or 
 
 le hundred and 
 
 other unlawful 
 
 )y ; one hundred 
 ine, piracy with 
 
 arge while under 
 k'.ng prison ; one 
 jn ; one hundred 
 
 tural offence. 
 
 er ; two hundred 
 
 ve, being acces- 
 
 .nslaughter ; two 
 
 ig with intent to 
 
 70 hundred and 
 {e ; two hundred 
 ^r attempting to 
 
 jnally endanger- 
 jily endangering 
 
 ig escape from 
 
 ; two hundred 
 Ity-nine, defiliftg 
 
 lion of a woman. 
 Living proiwrty 
 
 I by agent, etc. j 
 In. 
 
 Aggravated rob- 
 
 , assault with 
 
 Ur hundred and 
 
 two, compelling execution of documents by force ; four hundred and three, 
 sending letter demanding with menaces ; four hundred and four, demanding 
 with intent to steal ; four hundred and five, extortion by certain threats. 
 
 Part XXX. — Sections four hundred and eight, breaking place of worship 
 and committing an indictable offence ; four hundred and nine, breaking place 
 of worship with intent to commit an indictable offence ; four hundred and 
 ten, burglary ; four hundred and eleven, housebreaking and committing ai 
 indictable offence ; four hundred and twelve, housebreaking with intent to 
 commit an indictable offence : four >'md' nd thirteen, breaking at" "i 
 <;ommitting an indictable offence . ir h^l d and fourteen, breakiii, ..op 
 with intent to commit an indictable oifence ; .o jr hundred and fifteen, being 
 found in a dwelling house by night ; four hundred and sixteen, being armed, 
 with intent to break a dwelling house ; four hundred and seventeen, being 
 disguised or in possession of housebreaking instruments. 
 
 Part XXXI. — Sections four hundred and twenty-three, forgery ; four 
 hundred and twenty-four, uttering forged documents ; four hundred and 
 twenty-five, counterfeiting seals ; four hundred and thirty, possessing forged 
 bank notes ; four hundred and thirty-two, using probate obtained by forgery 
 or perjury. 
 
 Part XXXII. — Sections four hundred and thirty -four, making, having or 
 using instrument for forgery or uttering forged bond or undertakmg ; four 
 hundred and thirty-five, counterfeiting stamps ; four hundred and thirty-six, 
 falsifying registers. 
 
 Part XXXIV.— Section four hundred and fifty-eight, personation of 
 certain persons. 
 
 Part XXXV. — Sections four hundred and sixty-two, counterfeiting gold 
 and silver coin ; four hundred and sixty-six, making instruments for coining ; 
 four hundred and sixty -eight, clipping current coin; four hundred and 
 seventy, possessing clipping of current coin ; four hundred and seventy-two, 
 counterfeiting copper coin ; four hundred and seventy-three, counterfeiting 
 foreign gold and silver coin; four hundred and seventy-seven, uttering counter- 
 feit current coin. 
 
 Part XXXVII. — Sections four hundred and eighty -two, arson ; four 
 hundred and eighty-three, attempt to commit arson ; four hundred and eighty- 
 four, setting fire to crops ; four hundred and eighty-five, attempting to set fire 
 to crops : four hundred and eighty-eight, attempt to damage by explosives ; 
 four hundred and eighty-nine, mischief on railways ; four hundred and 
 ninety-two, injuries to electric telegraphs, etc. , four hundred and ninety- 
 three, wrecking ; four hundred and ninety-four, attempting to wreck ; four 
 hundred and ninety-five, interfering with marine signals ; four hundred and 
 ninety-eight, mischief to mines ; four hundred and ninety -nine, mischief. 
 
 2. Any one found committing any of the offences mentioned in the follow- 
 ing sections, may be arrested without warrant by a i)eace oflicer : 
 
 Part XXVII. — Sections three hundred and fifty-nine, obtaining by false 
 pretense ; three hundred and sixty, obtaining execution of valuable securities 
 by false pretense. 
 
 Part XXXV.— Sections four hundred and sixty -five, exporting counterfeit 
 coin ; four hundred and seventy-one, possessing counterfeit current coin ; four 
 
 ! '(■; 
 
 f i 
 

 \ 
 
 618 
 
 PROCEDURE. 
 
 [Sec. 552- 
 
 hundred and seventy-three, paragraph (6), possessing counterfeit foreign gold 
 or silver coin ; four hundred and seventy-three, paragraph (d), counterfeiting 
 foreign copper coin. 
 
 Part XXXVII. — Sections four hundred and ninety-seven, cutting booms, 
 or breaking loose rafts or cribs of timber or saw- logs ; five hundred, attempt- 
 ing to injure or poison cattle. 
 
 Part XXXVIII. — Sections five hundred and twelve, cruelty to animals ; 
 five hundred and thirteen, keeping cock-pit. 
 
 3. A peace officer may arrest, without warrant, any one whom he iinds 
 committing any offence against this Act, and any person may arrest, without 
 wanant, any one whom he finds by night committing any ofiFence against this 
 Act. R. S. C. c. 174, 8. 27. 
 
 4. Any one may arrest, without warrant, a person whom he, on reasonable 
 and probable grounds, believes to have committed an offence and to be escap- 
 ing from, and to be freshly pursued by, those whom the person arresting, on 
 reasonable and probable grounds, believes to have lawful authority to arrest 
 such person. 
 
 5. The owner of any property on or in respect to which any person is 
 found committing an offence against this Act, or any person authorized by 
 such owner, may arrest without warrant the person so found, who shall forth- 
 with be taken before a justice of the peace to be dealt with according to law, 
 R. S. C. 0. 174, 8. 24. 
 
 6. Any officer in Her Majesty's service, any warrant or petty officer in.the 
 navy, and any non-commissioned officer of marines may arrest without wamnt 
 any person found committing any of the offences mentioned in section one 
 hundred and nineteen of this Act. 
 
 7. Any peace officer may, without a warrant, take into custody any person 
 whom he finds lying or loitering in any highway, yard or other place during 
 the night, and whom he has good cause to suspect of having committed, or 
 being about to commit, any indictable offence, and may detain such person 
 until he can be brought before a justice of the peace, to be dealt with accord- 
 ing to law ; 
 
 (a) No person who has been so apprehended shall be detained after noon 
 of the following day without being brought before a justice of the peace. 
 R. S. C. c. 174. s. 28. 
 
 Section 26, K. S. C. c. 174, has not been re-enacted. It 
 authorized any one to arrest any person offering stolen pro- 
 perty for sale. The insertion of the words '* against this 
 Act " in s-ss. 3 & 5 is a gross error. S-s. 2 is a redundant 
 enactment ; it is covered by s-s. 3. This Code is silent as 
 to the cases where a peace officer, or any one, is bound to 
 arrest an offender. 
 
 Sections 16 to 4i,ante, are enactments concerning arrests 
 generally. " Night " and " peace officer " defined, s. 3. 
 
 '4 
 
[Sec. 55? 
 
 it foreign gold 
 , counterfeiting 
 
 cutting booms, 
 ndred, attempt- 
 
 elty to animals ; 
 
 e •whom he finds 
 y arreat, without 
 fence against this 
 
 he, on reasonable 
 e and to be escap- 
 irson arresting, on 
 authority to arrest 
 
 nich any person is 
 rson authorized by 
 id, who shall forth- 
 h according to law. 
 
 r petty officer in, the 
 «st without warrant 
 med in section one 
 
 custody any person 
 other place during 
 iving committed, or 
 detain such person 
 dealt with accord- 
 detained after noon 
 astice of the peace. 
 
 Ire-enacted. It 
 Jring stolen pio- 
 •* against this 
 is a redundant 
 tode is silent as 
 )ne, is hound to 
 
 icerning arrests 
 lefined, s. 3. 
 
 ARREST WITHOUT WARRANT. 
 
 ew 
 
 Prisoner arrested and detained upon a telegram from 
 persons in France and England: Kolliga, in re, 6 E. L. 213; 
 see R. V. McHolme, 8 P. E. (Ont.) 452. 
 
 " At common law, if a constable or peace o£Scer sees any 
 person committing a felony, he not only may, but he must 
 and is hound to apprehend the offender. And not only & 
 constable or peace officer, but " all persona who are present 
 when a felony is committed, or a dangerous wound given, 
 are bound to apprehend the offender, on pain of being fined 
 and imprisoned for their neglect, unless they were under 
 age at the time: (2 Hawk. 115) ; and it is the duty of all 
 persons to arrest without warrant any person attempting to 
 comiuit a felony; (E. v. Hunt, 1 Moo. 93; R. v. Howarth, 
 1 Moo. 207). So any person may arrest another for the 
 purpose of putting a stop to a breach of the peace com- 
 mitted in his presence : 2 Hawk. P. C. 115 ; 1 Burn, 295, 
 299). A peace officer may arrest any person without 
 warrant, on a reasonable suspicion of felony, though that 
 doctrine does not extend to misdemeanours. And even a 
 private person has that right. But there is a distinction 
 between a private person and a constable as to the power 
 to arrest any one upon suspicion of having committed a 
 felony, which is thus stated by Lord Tenterden, C.J., in 
 Beckwith v. Philby, 6 B. & C. 635." 
 
 "lu order to justify a private person in causing the 
 imprisonment of a person, he must not only make out a 
 reasonable ground of suspicion, but he must prove that a 
 felony has been actually committed : {see Ashley v. Dundas, 
 5 0. S. (Ont.) 749) ; whereas a constable, having reasonable 
 ground to suspect that a felony has been committed, i» 
 I authorized to detain the party suspected until inquiry can 
 be made by the proper authorities : {see McKenzie v. Gibson, 
 8U. G. Q. B. 100.) This distinction is perfectly settled. 
 The rule as to private persons was so stated by Genney, in 
 the Year Book, 9 Edw. IV. already mentioned, and has been 
 fully settled ever since the case of Led with v. Gatchpole,, 
 
 £■ 
 
 '^p 
 
 %. 
 
 iu I 
 
 'I-, 
 
 : ( 
 
 i. t 
 
 ■■';-i 
 
 ■y 
 
 
 
 :if 
 
1^^' 
 
 620 
 
 PROCEDURE. 
 
 (Cald. 291, A. D. 1783);" Greaves, on arrest without war- 
 rant : see Murphy v. Eills, 2 Han. (N. B.) 347. 
 
 It has been contended that at contimon law any private 
 person may also arrest a person found committing a misde- 
 meanour. This doctrine having been denied, in England, by 
 a correspondent of the Times, Mr. Greaves published, on the 
 question, an article, {Appendix to Greaves* Crim. Acts) too 
 long for insertion here, but from which the following 
 extracts give fully the author's views on the question : — 
 
 '* On these authorities it seems to be perfectly clear that 
 any private person may lawfully apprehend any person 
 whom he may catch in the attempt to commit any felony, 
 and take him before a justice to be dealt with according to 
 law." 
 
 " I have now adduced abundantly sufficient authorities 
 to prove that the general assertion in the paper (in the 
 Times), that ' a private individual is not justified in arrest- 
 ing without a warrant a person found committing a misde- 
 meanour' cannot be supported. On the contrary, those 
 authorities very strongly tend to show that any private 
 individual may arrest any person whom he catches com- 
 mitting any misdemeanour. It is quite true that I have 
 been unable to find any express authority which goes to 
 that extent ; but it must be remembered that where the 
 question turns on some common law rule, there never can 
 have been any authority to lay down any general rule; 
 each case must necessarily be a single instance of a par* 
 ticular class ; and, as in larceny, notwithstanding the vast 
 -number of cases which have been decided, no complete 
 definition of the offence has ever yet been given by ?.ay 
 binding authority, so in the pr 3sent case we must not be 
 surprised if we find no general rule established." 
 
 " But when we find that all misdemeanours are of the 
 same class; that it is impossible to distinguish in any 
 satisfactory way between one and another, and that in the 
 only case (Fox v. Gaunt) where such a distinction was 
 
'^.' 
 
 ARREST WITHOUT WARRANT. 
 
 621 
 
 attempted, the court at once repudiated it ; and when, on 
 the question whether a party indicted for a misdemeanour 
 was entitled to be discharged on habeas corpus, Lord Tent- 
 erden, C.J., said, in delivering the judgment of the court, 
 <I do not know how for this purpose, to distinguish between 
 one class of crimes and another. It has been urged that the 
 same principle will warrant an arrest in the case of a com- 
 mon assault. That certainly will follow: Ex parte Scott, 
 9 B. & G. 446. And when, above all, the same broad prin- 
 ciple that it is for the common good that all offenders should 
 be arrested, applies to every misdemeanour, and that prin- 
 ciple has been the foundation of the decision from the 
 earliest times, and was the ground on which Timothy y. 
 Simpson was decided ; the only reasonable conclusion 
 seems to be that the power to arrest applies to all luisde- 
 meanours alike, wherever the defendant is caught in the 
 act." 
 
 It has been held that where a statute gives a power to 
 arrest a person found committing an offence, he must be 
 taken in the act, or in such continuous pursuit that from 
 the finding until the apprehension, the circumstances con- 
 stitute one transaction : B. v. Howarth, 1 Moo. 207 ; Roberts 
 V. Orchard, 2 H. & C. 769 ; and therefore, if he was found 
 in the next field with property in his possession suspected 
 to be stolen out of the adjoining one, it is not sufficient : 
 B. v. Curran, 3 C. & P. 397 ; but if seen committing the 
 offence it is enough, if the apprehension is on quick pur- 
 suit: Hanway v. Boultbee, 4 0. & P. 350. The person 
 must be immediately apprehended; therefore, probably, the 
 next day would not be soon enough, though the lapse of 
 time necessary to send for assistance would be allowable : 
 Morris v. Wise, 2 F. & F. 61 ; but an interval of three 
 hours between the commission of the offence and the dis- 
 covery and commencement of pursuit is too long to justify 
 an arrest without warrant under these statutes : Downing 
 V. Capel, 36 L. J. M. C. 97. 
 
 
 mp 
 
622 
 
 PROCEDURE. 
 
 The person must be forthwith taken before a neigh- 
 bouring justice, and, therefore, it is not complying with the 
 statute to take him to the prosecutor's house first, though 
 only half a mile out of the way : Morris v. Wise, 2 F. & 
 F. 51 ; unless, indeed, it were in the night time, and then 
 he might probably be kept in such a place until the morn- 
 ing : R. V. Hunt, 1 Moo. 93. 
 
 But no person can, in general, be apprehended without 
 warrant for a mere misdemeanour not attended with a 
 breach of the peace, as perjury or libel : King v. Poe, 30 
 J. P. 178 ; and a private individual cannot arrest another, 
 without warrant, on the ground of suspicion of his having 
 been guilty of a misdemeanour ; nor can, in this case, con- 
 stables and peace officers : Mathews v. Biddulph, 4 Scott, 
 N. R. 64 ; Fox v. Gaunt, 3 B. & Ad. 798 ; Griffin v. Cole- 
 man, 4 H. & N. 265. Neither can any person, not even a 
 constable, arrest a persvon without a warrant on a charge of 
 misdemeanour ; R. v. Curvan, 1 Moo. 132 ; R. v. Phelps, 
 Car. & M. 180 • R. v. Chapman, 12 Cox, 4 ; Codd v. Cabe, 
 13 Cox, 202 ; except when such person is found committing 
 the offence by the person making the arrest in the cases, 
 as antey where the statute specially authorizes him to do 
 BO. And .though any person can make an arrest to prevent 
 a brerich of the peace, or put down a riot or an affray, yet, 
 after the offence is over, even a constable cannot apprehend 
 any person guilty of it, unless there is danger of its renew- 
 al : Price v. Seeley, 10 C. & F. 28 ; Baynes v. Brewster, 2 
 Q. B. 375 ; Derecourt v. Corbishley, 5 E. & B. 188; Tim- 
 othy V. Simpson, 1 C. M. & R. 757 : R. v. Walker, Dears. 
 358. In R. V. Light, Dears. & B. 332, it appeared that the 
 constable, while standing outside the defendant's house, 
 saw him take up a shovel and hold it in a threatening 
 attitude over his wife's head, and heard him at the time 
 gay, "If it was not for the policeman outside I would split 
 your head open ; " that in about twenty minutes afterwards 
 the defendant left his house, after saying that he would 
 
ARREST WITHOUT WARRANT. 
 
 C23 
 
 leave bis wife altogether, and was taken into custody by 
 the constable, who had no warrant, when he had proceeded 
 a short distance in the direction of his father's residence ; 
 the prisoner resisted and assaulted the constable, for which 
 be was tried and found guilty, and, upon a case reserved, 
 the judges held that the conviction was right, and that the 
 constable had the right to apprehend the defendant. " A 
 constable, as conservator of the peace," said Williams, J., 
 «' has authority, equally with all the rest of Her Majnty's 
 subjects, to apprehend a man where there is reasonable 
 ground to believe that a breach of the peace will be com- 
 mitted ; and it is quite settled that where he has witnes<^ed 
 an assault he may apprehend as soon after as he conve- 
 niently can. He had a right to apprehend the prisoner 
 and detain him until he was taken before justices, to be 
 dealt with according to law. He had a right to take him, 
 not only to prevent a further breach of the peace, but also 
 that he might be dealt with according to law in respect of 
 the assault which he had so recently seen him commit." 
 
 Arrest, without warrant, for contempt of court. — Judges 
 of courts of record have power to commit to the custody of 
 their officer, aedentc curia, by oral command, without any 
 warrant made at the time : Kemp v. Neville, 10 C. B. N. S. 
 528. This proceeds upon the ground that there is in con- 
 templation of law a record of such commitment which 
 record may be drawn up when necessary : Watson v. i* >;lell, 
 14 M. & W. 57 ; 1 Burn, 293 ; for the like reason no war- 
 rant is required for the execution of sentence of death : 2 
 Hale, 408. If a contempt be committed in the face of a 
 court, as by rude and contumelious behaviour, by obstinacy, 
 perverseness, or prevarication, by breach of the peace or 
 any \rilful disturbance whatever, the judge may order the 
 ofifender to be instantly, without any warrant, apprehended 
 and imprisoned, at his, the judge's, discretion, without any 
 further proof or examination : 2 Hawk. 221 ; Cropper v. 
 Horton, 8 D. & E. 166 ; R. v. James, 1 D. & B. 559 ; 
 
 %'!,*f 
 
 I'l' 
 
 % 
 
 I ■• '■•:, 
 
624 
 
 PROCEDURE. 
 
 but the commitment must be for a time certain, and if 
 by a justice of the peace, for a contempt of himself in 
 his office, it must be by warrant in writing : Mayhew v. 
 Locke, 2 Marsh. 377, 7 Taun. 63; and the jurisdiction 
 with regard to contempt, which belongs to inferior courts, 
 and in particular to the county court, is confined to con- 
 tempts committed in the court itself : Ex parte Jolifife, 42 
 L. J. Q. B. 121. This last case rests principally on the 
 9 & 10 V. c. 96 (Imp.), which gives to county courts power to 
 comrait for contempt committed in face of the court, but 
 is silent as to contempt committed out of court : see 4 
 Stephens' Com. 341 ; R. v. Lefroy, L. R. 8 Q. B. 134. 
 
 Time, place and manner of arrest. — A person charged 
 on a criminal account may be apprehended at any time 
 in the day or night. The 29 Car. 2, c. 7, s. 6, prohibited 
 arrests on Sundays, except in cases of treasons, felonies and 
 breaches of the peace, but now warrant of arrest for any in- 
 dictable offence may be executed on a Sunday : see s. 564, 
 post. No place affords protection to offenders against the 
 criminal law, and they may be arrested anywhere, and 
 wherever they may be : Bacon's Abr. Verb. Trespass. 
 
 As to the manner of arresting without warrant by a 
 private person, he is bound, previously to the arrest, to 
 notify to the party the cause for which he arrests, and to 
 require him to submit ; but such notification is not neces- 
 sary where the party is in the actual comtnibsion of the 
 offence, or where fresh pursuit is made after any such 
 offender, who, being disturbed, makes his escape ; so a 
 constable arresting without warrant is bound to notify his 
 authority for such arrest, unless the offender be otherwise 
 acquainted with it, except, as in the case of private 
 individuals, where the offender is arrested in the actual 
 commission of the offence, or on fresh pursuit: E. v. 
 Howarth, 1 Moo. 207. 
 
 If a felony be committed, or a felon fly from justice, or 
 a dangerous wound be given, it is the duty of every man 
 
t 
 
 GENERAL REMARKS. ggS 
 
 9tteWM« overtaken, the homioL • • T-l*''^ *" '""^t >•« 
 is not confined to thoseX t ' ' f""'' ^'''' ""'' 
 ocular proof of the fact or L .u '"T"' '° »» '» We 
 knowledge of it, for ifta tL """"^ '""' «"' «ome to the 
 the persons wh^ jl i "ai^orthr Tl ^"™" "» -«'^ 
 .re under the same prote^fen „f ,t''?° ""«*" *« P"™'' 
 be taken in any cJr^T , '"' '"''• ^ut if he mav 
 ".-daughter i^ 'ZT^Z^Zt!-'' ''' *' '^^ 
 inquure whether it were done of 1^ •. ^"^ °"8ht to 
 P- C. 298; bat this is norexLnde/f ^ " ""' = ' ^O'*' 
 meanour or arrest in civil n,ll?- '? "*'«« »' '»«de- 
 riot or affray, if a person inter:!''"^':""'"^'' » " «»« of 
 i">ts, giving noticel then, of rr^'l* '^ '^' "o""-"- 
 be assaulted by them or eTthi 'f ^^^ ^ '""""°°' *''°'<» 
 -bould happen to kill thif w;n 1 "" ""^ ''" ""« ''™«gle 
 F»»'- 272. However „L "" •'"'"*'"''« ''<«»icide : 
 
 actually committed,;,;. nX'The" '''"'" '» ""^ "»«» 
 pursued, the law does not afford f.."'""" ""'^"'^^ »■>« 
 snch as of their own accnM ^* '»""' indemnity to- 
 
 that a felony had Tercorn'm^tT" "'''""'^" '"'"""'"o- 
 bow probable soever the sSl„ T " ""^ P^^ity 
 «ti"« on reasonable suspS of .^ ' "»' """''ables 
 P'oraeding to such extreSe„ „1? '""^ ^'^ J"««fi'<l io 
 "«' he; but the constable must 1" ''"™"' ^^""'""''y 
 reasonable ground for suspeoUnT ,K 7' "'' "' '™»' ha™ 
 '"fitted; foraconstabi?was tn "I '''""^ "■" ''»''° 
 "», with intent to do h m som? " "' '""^""K "' » 
 *m he saw carrying woo^our^,^"™"" '""'''yha™. 
 keen employed to watch,7nd who > * """f ''"'='' •"« had 
 ave escaped if he had no. fitd f"^ '"T « "'"y- ^°"''' 
 k*™ f "'""Sly summarily onvir,rr' '"' """" •""» 
 •had not committed a felonv ' 'hM ^u' '*"^ »ff«°«» 
 "previously convicted the c».ru ""«'' *•' ''"^ been 
 '^■"1 the conviction was affi?^ ^J' """ "<" ^''a'-e of it 
 ««e. reserved. "We ', t^7lt ^^ ""^ ■=<"•" <" orown 
 o.«. L„-^ "'^ »" "unl lie conviction right " sa^d 
 
 vf 
 
 :•! 
 
 i; I : 
 
 .V I ! 
 
 
 I -u 
 
 .V; 
 
r? '■ '!. 
 
 626 
 
 PROCEDURE. 
 
 Pollock, C.B., " the prisoner was not justified in firing at 
 Waters, because the fact that Waters was committing a 
 felony was not known to the prisoner at the time : E. v. 
 Dadson, 2 Den. 35. 
 
 What was an " immediate arrest " under ss. 24 & 25 
 of the repealed statute, was a question for the jury : Griffith 
 V. Taylor, 2 C. P. D. 194. 
 
 On the clause corresponding to s. 26, of the repealed 
 statute. Greaves says : 
 
 " As to what constitutes a reasonable cause, in such 
 oases, depends very much on the particular facts and cir- 
 cumstances in each instance ; the general rule being that 
 (the grounds must be such that any reasonable person, 
 acting without passion or prejudice, would fairly have sus- 
 pected the party arrested of being the person who com- 
 mitted the offence, though the words of the statute seem to 
 authorize the apprehension of the person offering, whether 
 he be suspected or not : Allen v. Wright, 8 C. & P. 522. 
 A bare surmise or suspicion is plainly insufficient : Leete 
 V. Hart, 37 L. J. C. P. 157 ; Davis v. Eussell, 6 Bing. 
 354." 
 
 These cases apply to s-s. 4 of s. 552. 
 
Sec. 553J 
 
 ed in firing at 
 
 committing a 
 
 ae time : E. v. 
 
 er ss. 24 & 25 
 jury: Griffith 
 
 F the repealed 
 
 jause, in such 
 facts and cir- 
 ule being that 
 inable person, 
 lirly have sus- 
 son who com- 
 itatute seem to 
 ering, whether 
 C. & P. 522. 
 fficient : Leete 
 iBsell, 6 Bing. 
 
 PRELIMINARY INQUIRY 
 
 627 
 
 PART XLIV. 
 <?««« T^ -ficcLSED Before Justior t a 
 
 magisterial Juri^dictioIroVlirn";"^"! -^ *^« boundary of two "„ 
 any such boundary, or is C^ *'^^'«*^"^« -^ five kundredZrlTZ 
 completed within another sS 7 " °"^ magisterial jurisdfoH ^ 
 — t. in any one .2^^^^^ ^| Tltf"^^^^^^^^^^^ ^^ 
 
 convSi:^':^ i^^i—t^ --"^-;::t:^;..^„ 
 
 person, or in respect of any pro^r""'" °'' ^^^'^ing sent by post or o^"°° 
 journey, or on board any vessef^Jf'/" °f "P°° ^^^ vehicfe e^wT '""^ 
 other inland naviiratirm "^ '^®^^®' employed on any nav.VaK "^^*"* '" * 
 mitted such oS la'nv :,P^T -^""^^^ «^^» ^ oZlt^ 'T' ."^^^^ - 
 or vessel passed i^^hr^ '^'"'^"^^ ^""^diction through lu 7^^ 
 offence wa^ dm L. ^^'''l °^ *''" -""""^"^y ^^ vovaL H '"'^ ""'^^^^^ 
 
 navigable riverTranlfc^r'fK^'''''^''^^'^"*'-- or olhl^^^^^^ ^^'^^ *he 
 
 ->-l passed in' t'lllf ^ 'f "' "^^^^^*-« ''onrwhich t^^^^^ 
 
 -H.jc.:-?r^--e^t^itin^^r^:s:-^^ 
 
 buate,3,^,d, J^^^^.J[«' with the.substitutionof five 
 That distance is fn k^ 
 
 'b' border, aud Vt t ti'^Z^f '" " '"^"^ «- from 
 Jur. 235. ^ "" "™'^«8« road : B. v. Wood, 5 
 
 IV««rf iry it in either K V if Vt' °"'"' ■"" ""'y '» 
 «i»o on this clause • R v T .'°^"' ^ «• B- 686. See 
 
 Bears. 642. ' ^^ '• "'<"'^«' ^ »«"• 551 ; R. v. Leech 
 
 tm 
 

 628 
 
 PROCEDURE. 
 
 [Sec. 553 
 
 t 
 
 which it was committed. It appears, however, to have 
 been a matter of doubt at the common law whether, when 
 a man died in one county of a stroke received in another, 
 the offence could be considered as having been completely 
 committed in either county; but by the 2 & 3 Edw. YI. c. 24, 
 8. 2, it was enacted that the trial should be in the county 
 where the death happened. 
 
 Under the said s-s. (6), where the blow is given in one 
 county, and the death takes place in another, the trial may 
 be in either of these counties : 1 Euss. 753. This applies 
 to coroners, when a felony has been committed, but not 
 wL-'u the death is the result of an accident : B. v. Great 
 Western Kailway Company, 3 Q. B. 333 and note by 
 Greaves^ 1 Russ. 754 ; R. v. Grand Junction E. Co., 11 
 A. & E. 128. 
 
 Sab-section (c) is taken from the 7 Geo. IV. c. 64, 
 8. 13, of the Imperial Statutes. 
 
 This enactment is not confined in its operation to the 
 carriages of common carriers or to public conveyances, but 
 if property is stolen from any carriage employed on any 
 journey the offendei' may, by virtue of the above section, 
 be tried in any county through any part whereof such car- 
 riage shall have passed in the course of the journey during 
 which such offence shall have been committed: R. v. Sharps, 
 Dears. 415. 
 
 As to the effect of the words " in or upon " in this sec- 
 tion, see E. V. Sharpe, 2 Lewin 233. 
 
 Where the evidence is consistent with the fact of an 
 article having been abstracted from a railway carriage, 
 either in the course of the journey through the county of 
 A., or after its arrival at its ultimate destination in the 
 county of B., and the prisoner is indicted under the above 
 flection, the case must go to the jury, who are to say whe*;her 
 they are satisfied that the larceny was committed in the 
 course of the journey or afterwards : R. v. Pierce, 6 Cox, 
 117. 
 
[Sec. 553 
 
 , to have 
 iher, when 
 a another, 
 completely 
 r.VI.c.24, 
 the county 
 
 iven in one 
 ,e trial may 
 Phis applies 
 ted, but not 
 R. V. Great 
 knd note by 
 . R. Co., 11 
 
 . IV. c. 64, 
 
 ^ration to the 
 reyances, but 
 loyed on any 
 
 >ove section, 
 [eof such car- 
 |urney during 
 
 R. V. Sharps, 
 
 I" in thissec- 
 
 ^e fact of an 
 jvay carriage, 
 
 the county of 
 riation in the 
 
 ber the above 
 
 lo say whether 
 nitted in the 
 Pierce, 6 Cox, 
 
 Sees. 554, 565] PRELIMINARY INQUIRY. 
 
 When Justice Mat Compel Appearance. 
 
 629 
 
 954. Every justice may issue a warrant or summons as hereinafter 
 mentioned to compel the attendance of an accused person before him, for the 
 purpose of preliminary inquiry in any of the following cases : 
 
 (a) If such person is accused of having committed in any ]ilace whatever an 
 indictable offence triable in the province in which such justice resides, and is, 
 or is suspected to be, within the limits over which such justice has jurisdiction, 
 or resides or is suspected to reside within such limits ; 
 
 (h) If such person, wherever he may be, is accused of having committed an 
 indictable offence within such limits ; 
 
 (c) If such person is alleged to have anywhere unlawfully received property 
 which was unlawfully obtained within such limits ; 
 
 (d) If such person has in his possession, within such limits, any stolen projyerty. 
 
 What are the offences committed out of a province that 
 are triable in that province ? This Code does not say. 
 
 Offences in Certain Parts of Ontario. 
 
 955. All offences committed in any of the unorganized tracts of country 
 in the province of Ontario, including lakes, rivers and other waters therein, 
 not embraced within the limits of any organized county, or within any provi- 
 sional judicial distiict, may be laid and charged to have been committed and 
 may be inquired of, tried and punished within any county of such province ; 
 and such offences shall be within the jurisdiction of any court having jurisdic- 
 tion over offences of the like nature committed within the limits of such 
 county, before which court such offences may be prosecuted ; and such court 
 shall proceed therein to trial, judgment and execution or other punishment 
 for such offence, in the same manner as if such offence had been committed 
 within the county where such trial is had. 
 
 2. When any provisional judicial district or new county is formed and 
 established in any of such unorganized tracts, all offences committed within 
 the limits of such provisional judicial district or new county, shall be inquired 
 of, tried and punished within the same, in like manner as such offences would 
 have been inquired of, tried and punished if this section had not been passed. 
 
 3. Any person accused or convicted of any offence in any such provisional 
 district may be committed to any common gaol in the province of Ontario ; 
 and the constable or other officer having charge of such person and intrusted 
 with his conveyance to any such common gaol, may pass through any county 
 in such province with such person in his custody ; and the keeper of the 
 common gaol of any county in such province in which it is found necessary to 
 lodge for safe keeping any such person so being conveyed through such county 
 in custody, shall receive such (lerson and safely keep and detain him in such 
 common gaol for such period as is reasonable or necessary ; and the keeper of 
 any common gaol in such province, to which any such person is committed as 
 aforesaid, shall receive such person and safely keep and detain him in such 
 common gaol under his custody until discharged indue course of law, or bailed 
 in cases in which bail may by law be taken. R. S. C. c. 174, s. 14. 
 
 
 
 i! 
 
 
:ta 
 
 630 
 
 PROCEDURE. 
 
 [Sees. 550, 557 
 
 it' m-W> 
 
 I 
 
 . 1^' 
 
 Offences in Gaspe. 
 
 SiSO. Whenever any offence is committed in the district of Gaspe, the 
 offender, if committed to gaol before trial, may be committed to the common 
 gaol of the county in which the offence was committed, or may, in law, be 
 deemed to have been committed, and if tried before the Court of Queen's 
 Bench, he shall be so tried at the sitting of such court held in the county to the 
 gaol of which he has been committed, and if imprisoned in the common gaol 
 after trial he shall be so imprisoned in the common gaol of the county in which 
 he has been tried. R. S. C. o. 174, s. 15. 
 
 Offences Committed out of Jurisdiction. [Amended). 
 
 cS«S7« The preliminary inquiry may be held either by one justice or by 
 more justices than one ; Provided that if the accused person is brought before 
 any justice charged with an offence committed out of the limits of the juris. 
 diction of such justice, such justice may, after hearing both sides, order the 
 accused at any stage of the inquiry to ba taken by a constable before some 
 justice having jurisdiction in the place where the offence was committed. The 
 justice so ordering shall give a warrant for that purpose to a constable, which 
 may be in the form A in schedule one hereto, or to the like effect, and 
 shall deliver to such constable the information, depositions and recognizances 
 if any taken under the provisions of this Act, to be delivered to the justice 
 before whom the accused person is to be taken, and such depositions and 
 . :;cognizance8 shall be treated to all intents as if they had been taken by the 
 last-mentioned justice. 
 
 2. Upon the constable delivering to the justice the warrant, information, 
 if any, depositions and recognizances, and proving on oath or affirmation, the 
 handwriting of the justice who has subscribed the same, such justice, before 
 whom the accused is produced, shall thereupon furnish such constable witii a 
 receipt or certificate in the form B in schedule one hereto, of his having 
 received from him the body of the accused, together with the warrant, infur- 
 mation, if any, depositions and recognizances, and of his havmg proved to 
 him, upon oath or affirmation, the handwriting of the justice who issued the 
 warrant. 
 
 4. If such justice does not commit the accused for trial, or hold him to 
 bail, the recognizances taken before the first mentioned justice shall be void. 
 
 A. {Section 557.) 
 
 WARRANT TO CONVEY BEFORE A JUSTICE OF ANOTHER 
 
 COUNTY. 
 
 Canada, ] 
 
 Province of , r 
 
 County of .) 
 
 Whereas information upon oath was this day made before 
 
 the undersigned that A. B. of , on the day of 
 
 , in the year , at , in the county of 
 {state the chmuje.) 
 
Sec. 657] 
 
 PRELIMINARY INQUIRY. 
 
 631 
 
 OF ANOTHER 
 
 And whereas I have taken the deposition of X. Y. as to the 
 said offence. i, 
 
 And whereas the charge is of an offence committed in the 
 county of 
 
 This is to command you to convey the said {name of accused), 
 of , hefore some justice of the last-mentioned county^ 
 
 near the ahove place, and to deliver to him this warrant and the 
 said deposition. 
 
 Dated at , in the said county of , this 
 
 day of , in the year 
 
 J. S., 
 
 J. P., {Name of county,) 
 To of 
 
 :) 
 
 B,— (Section 557.) 
 
 RECEIPT TO BE GIVEN TO THE CONSTABLE BY THE JUSTICE 
 FOR THE COUNTY IN WHICH THE OFFENCE WAS 
 COMMITTED. 
 Canada, 
 Province of 
 County of 
 
 I, J. L., a justice of the peace in and for the county of 
 , hereby certify that W. T., peace officer of the county 
 of , has, on this day of , in the year 
 
 , by virtue of and in obedience to a warrant of J. S., 
 Esquire, a justice of the peace in and for the county of y 
 
 produced before me one A. B., charged before the said J. S. with 
 having {etc., stating shortly theofence), and delivered him into the 
 custody of . by my direction, to answer to the said 
 
 charge, and further to be dealt with according to law, and has 
 also delivered unto me the said warrant, together with the infor- 
 mation [if any) in that behalf, and the deposition (s) of C. D. 
 [and of ), in said warrant mentioned, and that he has 
 
 also proved to me, upon oath, the handwritiug of the said J. S. 
 subscribed to the same. 
 
 Dated the day and year first above mentioned, at , 
 
 in the said county of 
 
 J. L., 
 
 J. P., {Xame of county.) 
 
632 
 
 PROCEDURE. 
 
 [Sees. 558-560 
 
 Information. 
 
 558 • Any one who, upon reasonable or probable grounds, believes that 
 any person has committed an indictable offence against this Act may make a 
 complaint or lay an information in writinpf and under oath before any magis- 
 trate or justice of the peace having jurisdiction to issue a warrant or summons 
 against such accused person in respect of such offence. 
 
 2. Such complaint or information may be in the form C. in schedule one 
 hereto, or to the like effect. 
 
 The words " against this Act " are a grave iiiistake. 
 As to a warrant see s. 563. 
 
 C— {Section 558.) 
 
 INFORMATION AND COMPLAINT FOR AN INDICTABLE 
 
 OFFENCE. 
 
 Canada, | 
 
 Province of , > 
 
 County of . ) 
 
 The information and complaint of C. D. of , [i.eo- 
 
 man), taken this day of , in the year 
 
 before the undersigned {one) of Her Majesty's justices of 
 the peace in and for the said county of , who saitb that 
 
 (etc., stating the offence). 
 
 Sworn before {me), the day and year first above men- 
 tioned, at 
 
 J. S., 
 
 J. P., {Name of coiintij). 
 
 Hearing on Information. 
 550. Upon receiving any such complaint or information the justice 
 shall hear and consider the allegations of the complainant, and if of opinion 
 that a case for so doing is made out he shall issue i summons, or warrant, as 
 the case may be, in manner hereinafter mentioned ; and suck justice shall not 
 reifmt to issue such summons or warrant only because the alleged offence is one 
 for which an offender may he arrested without warrant. R. S. C. c. 174, s. 30. 
 
 Offbncbs Committed on the Hioh Seas. 
 
 SOO* Whenever any indictable offence is committed on the high seas, or 
 in any creek, harbour, haven or other place in which the Admiralty of Engf- 
 land have or claim to have jurisdiction, and whenever any offence is committed 
 on land beyond the seas for which an indictment may be preferred or the 
 offender may be arrested in Canada, any justice for any territorial division in 
 which any person charged with, or suspected of, having committed any such 
 offenoe is or is suspected to be, may issue his warrant, in the form D in 
 schedule one hereto, or to the like effect to apprehend such person, to be dealt 
 with as herein and hereby directed. R. S. C. o. 174, s. 32. 
 
[Sees. 668-560 
 
 ids, believes that 
 Act may make a 
 ?fore any magis- 
 Tant or summons 
 
 /. in schedule one 
 
 rave iiiistake. 
 
 [NDICTABLE 
 
 Sec. 561] 
 
 PRELIMINARY INQUIRY, 
 
 633 
 
 I the year 
 isty's justices of 
 , who saitb that 
 
 it above men- 
 
 ne of county). 
 
 aation the justice 
 I, and if of opinion 
 pns, or warrant, as 
 tch justice shall not 
 \lleged offence is one 
 C. 0. 174, 8. 30. 
 
 |n the high seas, or 
 admiralty of Eng- 
 fence is committed 
 preferred or the 
 ktorial division in 
 imitted any such 
 \n the form D in 
 person, to be dealt 
 
 " Beyond the seas " in England, means outside of the 
 realm. The words have been recopied here from the Eng- 
 lish Act to mean outside of Canada, it must be assumed. 
 It may be that the United States are beyond the seas in 
 the construction of this enactment : Lane v. Bennet, 1 M. 
 & W. 70; Kuckmaboye v. LuUoobhoy Mottichund, 8 Moo. 
 P. C. 4 ; Davie v. Briggs, 97 U. S. 628. But it would have 
 been better to say " outside of Canada." 
 
 This enactment assumes that there are offences com- 
 mitted on land beyond the seas that are indictable in Canada. 
 What these offences are, and under what circumstances 
 they are indictable in Canada, is not to be found in the 
 Code. Likewise for offences committed within the jurisdic- 
 tion of the Admiralty, the Code is silent as to Canada's 
 jurisdiction. Sections 8 & 9 of c. 174, R. S. C. are re- 
 pealed, and probably intended to be covered by s. 640 : sed 
 quare ? 
 
 J).— {Section 560.) 
 
 WARRANT TO APPREHEND A PERSON CHARGED WITH AN 
 INDICTABLE OFFENCE ON THE HIGH SEAS 
 OR ABROAD. 
 
 For offences committed on the high seas the tcarrant may be the 
 same as in ordinary cases, but describiny the offence to have been com- 
 mitted "on the high seas, out of the body of any district or 
 county of Canada and within the jurisdiction of the Admiralty 
 of England." 
 
 For offences committed abroad, for which the parties may be 
 indicted in Canada, the warrant also matj be the same as in ordinary 
 cases, but describing theoff'ence to have been committed •* on land out 
 of Canada, to wit : at in the Kingdom of , or, 
 
 at , in the Island of , in the West Indies, or 
 
 at , ill the East Indies," or as the case may be. 
 
 Arukst op SuspKCTKn Deserters. 
 501* Every one who is reasonably suspected of being a deserter from 
 Her Majesty's service may be apprehended and brought for examination 
 before any justice of the peace, and if it api)ear3 that he is a deserter he shall 
 be confined in gaol until claimed by the military or naval authorities, or pro- 
 ceeded against according to law. R. S. C. c. IG'J, s. 0. 
 
 ff 
 
 •t* 
 
 t' 
 
 
 i^y; 
 
 '^'' 
 
 ;:*"; 
 
634 
 
 PROCEDURE. 
 
 [Sec. 562 
 
 2. No one shall break open any building to search for a destrter unless he 
 has obtained a warrant for that purpose from a justice of the peace,— such 
 warrai't to be founded on affidavit that there is reason to believe that the 
 deserter is concealed in such building, and that admittance has been demanded 
 and refused ; and every one who resists the execution of any such warrant 
 shall incur a [wnalty of eighty dollars, recoverable on summary conviction in 
 like manner as other penalties under this Act. R. S. C. c. 1G9, s. 7. 
 
 Section 9 of c. 169, R. S. C. is unrepealed. 
 
 Summons. 
 
 50fS- Every summons issued by a justice under this Act shall be directed 
 to the accused, and shall require him to appear at a time and place to be 
 therein mentioned. Such summons may be in the form E in schedule one 
 hereto, or to the like effect. No summons shall be signed in blank. 
 
 2. Every such summons shall be served by a constable or other peace 
 officer upon the person to whom it is di'-ected, either by delivering it to him 
 personally or, if such Person cannot conveniently be met with, by leaving it 
 for him at his last or Jt usual place of abode with some inmate thereof appar- 
 ently not under sixteen years of age. 
 
 3. The service of any such summons may be proved by the oral testimony 
 of the person effecting the same or by the affidavit of such person purportiiiij to 
 be made be/ore a justice. R. S. C. c. 174, ss. 40, 41 & 42. 
 
 E.— {Section 562.) 
 
 SUMMONS TO A PERSON CHARGED WITH AN INDICTABLE 
 
 OFFENCE. 
 Canada, \ 
 
 Province of , V 
 
 County of J 
 
 To A. B. of , {labourer) : 
 
 Whereas you have this day been charged before the under- 
 signed , a justice of the peace in and for the said 
 county of , for that you on , at , 
 {stathvi shortly the ojf'cnci') : These are therefore to command you, 
 in Her Majesty's name, to be and appear before {me) on 
 at o'clock in the (fore) noon, at , or before such 
 other justice or justices of the peace for the same county of , 
 as shall then be there, to answer to the said charge, and to be 
 further dealt with according to law. Herein fail not. 
 
 Given under {my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 J. P., {Name of county.) 
 
Sec. 5G3] 
 
 PRELIMINARY INQUIRY. 
 
 635 
 
 N INDICTABLE 
 
 Warrant of Apprkhbnbion. 
 
 503> The warrant issued by a justice for the apprehension of the person 
 against whom an information or complaint has been laid, as provided in section 
 five hundnid and fifty-eight, may be in the form F in schedule one hereto, or to 
 the like effect. No such warrant shall be siyned in blank. 
 
 2. Every such warrant shall be under the hand and seal of the justice 
 iRsuing the same, and may be directed, either to any constable by name, or to 
 such constable and all other constables within the territorial juri^ iction of the 
 justice issuing it, or generally to all constables within such jurisdiction. 
 
 3. The warrant shall state shortly the offence for which it is issued, and 
 shall name or otherwise describe the offender, and it shall order the officer or 
 officers to whom it ia directed to apprehend the offender and bring him before 
 the justice or justices issuing the warrant, or before some other justice or 
 justices to answer to the charge contained in the said information or com- 
 plaint, and to be further dealt with according to law. It shall not be necessary 
 to make such warrant returnable at any particular time, but the same shall 
 remain in force until it is executed. 
 
 4. The fact that a summons has been issued shall not prevent any justice 
 from issuing such warrant at any time before or after the time mentioned in 
 the summons for the appearance of the accused ; and where the service of the 
 summons has been proved and the accused does not appear, or when it appears 
 that the summons cannot be served, the warrant (form G) may issue. R. S. C. 
 c. 174, ss. 31, 43, 44 & 4G. 
 
 Y.— {Section 563.) 
 
 WARRANT IN THE FIRST INSTANCE TO APPREHEND A PER- 
 SON CHARGED WITH AN INDICTABLE OFFENCE. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the 
 said county of 
 
 Whereas A. B. of , {labourer), has this day been 
 
 charged upon oath before the undersigned , a justice of 
 
 the peace in and for the said county of , for that he, 
 
 on , at , did {etc., stating shortli/ the offencf) : 
 
 These are therefore to command you, in Her Majesty's name, 
 forthwith to apprehend the said A. B., and to bring him before 
 [me) (or some other justice of the peace in and for the said 
 county of ), to answer unto the said charge, and to be 
 
 further dealt with according to law. 
 
 Given under {my) hand and seal, this day of , 
 
 ;} 
 
 in the year 
 
 at 
 
 , in the county aforesaid. 
 J. S., [Seal.] 
 
 J. P„ {Xame of County.) 
 
 :rk j 
 
 ■:ii':|:{ 
 
V 
 
 .)& 
 
 €36 
 
 PROCEDURE. 
 
 [Sec. 604 
 
 Q.—{Si'ctian 568.) 
 
 WARRANT WHEN THE SUMMONS IS DISOBEYED. 
 
 Canada, | 
 
 Province of , ,- 
 
 County of . ) 
 
 To all or any of the constables and other peace officers in the 
 said county of 
 Whereas on the day of , (instant or last 
 
 past) A. B., of , was charged before {me or «s,) the 
 
 undersigned (or luime the justice orjmtices, or as the case man M> 
 {a) justice of the peace in and for the said county of , 
 
 for that {etc., as in the summons) ; and whereas I {or he the said 
 justice of the peace, or we or they the said justices of the peace 
 did then issue (my, our, his or their) summons to the said A. B., 
 commanding him, in Her Majesty's name, to be and appear 
 before (me) on at o'clock in the (fore) noon, 
 
 at , or before such other justice or justices of the 
 
 peace as should then be there, to answer to the said charge and 
 to be further dealt with according to law ; and whereas the said 
 A. B. has neglected to be or appear at the time and place 
 appointed in and by the said summons, although it has now 
 been proved to (mt") upon oath that the said summons was duly 
 served upon the said A. B. ; These are therefore to command 
 you in Her Majesty's name, forthwith to apprehend the said 
 A. B., and to bring him before (me) or some other justice of the 
 peace in and for the said county of , to answer the said 
 
 charge, and to be further dealt with according to law. 
 
 Given under (my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. ' 
 
 J. S., [seal.] 
 
 J. P., (Xame of counUj.) 
 
 ExRccTioN OF Warrant. 
 
 864* Every such warrant may be executed by arresting the accused 
 wherever he is found in the territorial jurisdiction of the justice by whom it is 
 issued, or in the case of fresh pursuit, at any place in an adjoining territorial 
 division within seven miles of the border of the first-mentioned division. 
 R. S. C. c. 174, 88. 47 & 48. 
 
 2. Every such warrant may be executed by any constable named therein, 
 or by any one of the constables to whom it is directed, whether or not the 
 
[Sec. m\ 
 
 Sec. 566] 
 
 PRELIMINARY INQUIRY. 
 
 637 
 
 lEYED. 
 
 officers in the 
 
 instant or last 
 me or us,) the 
 lie cane man he), 
 ity of , 
 
 [ [or he the said 
 ices of the leace 
 the said A. B., 
 be and appear 
 le (fore) noon, 
 justices of the 
 said charge and 
 vhereas the said 
 time and place 
 ,gh it has now 
 mons was duly 
 ore to command 
 ^rehend the said 
 [er justice of the 
 answer the said 
 law. 
 
 day of . 
 
 aforesaid. 
 
 \me of cmntij.) 
 
 resting the accused 
 
 ^stice by whom it ia 
 
 ijoining territorial 
 
 leiitioned division. 
 
 Iible named therein, 
 irhether or not the 
 
 place in whioh it is to be exec^. ed is within the place for which he is a 
 constable. 
 
 3. Every warrant authorized by this Act may be issued and executed on a 
 Sunday oi statutory holiday. R. S. C. o. 174, ss. 37, 47 & 48. 
 
 The words " oy this Act " are wrong ; they constitute & 
 limitation that clearly was not intended. 
 
 Frooesdino When Acouhed is out of the Jurisdiction. 
 
 HQS* If the person against whom any warrant has been issued cannot be 
 found within the jurisdiction of the justice by whom the same was issued, but 
 is or is suspected to be in any other part of Canada, any justice within whose 
 jurisdiction he is or is suspected to be, upon proof being made on oath or 
 affirmation of the handwriting of the justice who issued the same, shall make 
 an endorsement on the warrant, signed with his name, authorizing the execu- 
 tion thereof within his jurisdiction ; and such endorsement shall be sufficient 
 authority to the person bringing such warrant, and to all other persons to 
 whom the same was originally directed, and also to all constables of the 
 territorial division whore the warrant has been so endorsed, to execute the 
 same therein and to carry the person against whom the warrant issued, when 
 apprehended, before the justice who issued the warrant, or before some other 
 justice for the same territorial division. Such endorsement may be in the form 
 H. in schedule one hereto. R. S. C. o. 174, s, 49. « 
 
 H.— [Section 565.) 
 
 ENDORSEMENT IN BACKING A WARRANT. 
 
 Canada, 
 Province of 
 County of 
 
 Whereas proof upon oath has this day been made before 
 lue , a justice of the peace in and for the said county of 
 
 , that the name of J. S. to the within warrant sub- 
 scribed, is of the handwriting of the justice of the peace within 
 mentioned : I do therefore hereby authorize W. T. who brings 
 to me this warrant and all other persons to ^vluom tlis warrant 
 was origmally directed, or by whom it may be lawfully exe- 
 cuted, and also all peace officers of the said county of , 
 to execute the same within the said last mentioned county. 
 
 Given under my hand, this day of , in the 
 
 year, at , in the county aforesaid. 
 
 J. L.. 
 
 J. P., {Name of county.) 
 
 
 s 
 
 
i 
 
 638 
 
 PROCEDURE. 
 
 [Sees. 566-5G9 
 
 '^1 
 
 Si' 
 
 Disposal of Person so Arrested. 
 
 S00> If the prosecutor or any of the witnesses for the prosecution are in 
 the territorial division where such person has been apprehended upon a war- 
 rant endorsed as provided in the last preceding section the constable or other 
 Ijerson or persons who have apprehended him may, if so directed by the justice 
 endorsing the warrant, take him before such justice, or before some other 
 justice for the same territorial division ; and the said justice may thereupon 
 take the examination of such prosecutor or witnesses, and proceed in every 
 respect as if he had himself issued the wannat. R. S. C. c. 174, s. 50. 
 
 Disposal op Person Apprehended. {Xetv). 
 
 567> When any person is arrested upon a warrant he shall, except in 
 the case provided for in the next preceding section, be brought as soon as is 
 practicable before the justice who issued it or some other justice for the same 
 territorial division, and such justice shall either proceed with the inquiry or 
 postpone it to a future time, in which latter case he shall either commit the 
 accused person to proper custody or admit him to bail or permit him to be at 
 large on his own recognizance according to the provisions hereinafter con- 
 tained. 
 
 Coroner's Inquisition. (Xeiv). 
 
 56S> Every coroner, upon any inquisition taken before him whereby 
 any person is charged with manslaughter or murder, shall (if the person or 
 persons, or either of them, affected by such verdict or finding be not already 
 charged with the said offence before a magistrate or justice), by warrant 
 under his hand, direct that such person be taken into custo ly and be conveyed, 
 with all convenient speed, before a magistrate or justice ; or such coroner 
 may direct such person to enter into a recognizance before him, with or with- 
 out a surety or sureties, to appear before a magistrate or justice. In either 
 case, it shall be the duty of the coroner to transmit to such magistrate or 
 justice the depositions taken before him in the matter. Upon any such person 
 being brought or api^earing before any such magistrate or justice, lie shall 
 proceed in all respects as though such i)erson had been brought or had 
 appeared before him ux^on a warrant or summons. 
 
 This virtually gives an appeal from the coroner's jury 
 to a single magistrate, who consequently, though hereto- 
 fore he had not even the right to bail any one charged by 
 a verdict of the coroner's jury, will now have the right to 
 set him free altogether. 
 
 Search Warrants. 
 
 560. Any justice who is satisfied by information upon oath in the fonn 
 J in schedule one hereto, that thero is reasonable ground for believing that 
 there is in any building, receptacle, or place — 
 
 (rt) anything uiwn or in respect of which any offence against this Act has 
 been or is susjieoted to have been committed ; or 
 
 (b) anything which there is reasonable ground to believe will afford evi- 
 dence as to the commission of any such offence ; or 
 
Sec. 569] 
 
 SEARCH WARRANTS. 
 
 639 
 
 (c) anything which there is reasonable ground to believe is intended to be 
 used for the purpose of committing any offence against the person for which 
 the offender may be arrested without warrant — 
 
 may at any time issue a warrant under his hand authorizing some 
 constable or other person named therein to search such building, receptacle or 
 place, for any such thing, and to seize and carry it before the justice issuing 
 the warrant, or some other justice for the same territorial division to be by 
 him dealt with according to law. R, S. 0. c. 174, ss. 51 & 52. 
 
 2. Every search warrant shall bo executed by day, unless the justice shall 
 h'l the warrant authorize the constable or other person to execute it at nifjht. 
 
 3. Every search warrant may be in the form I in schedule one hereto, or to 
 the like effect. 
 
 I. When any such thing is seized and brought before such justice he may 
 detain it, taking reasonable care to preserve it till the conclusion of the 
 investigation ; and, if any one is committed for trial, he may order it further 
 to be detained for the ptirpose of evidence on the trial. If no one is committed, 
 the juslrice shall direct such thing to be restored to the person from whom it 
 was taken, except in the cases next hereinafter mentioned, unless he is author- 
 ized or required by law to dispose of it otherwise. In case any improved arm 
 or ammunition in respect to which any offence under section one hundred and 
 sixteen has been committed has been seized, it shall be forfeited to the Crown. 
 R, S. C. c. 50, s. 101. 
 
 5. If under any such warrant there is brought before any justice any 
 forged bank note, bank note-paper, instrument or other thing, the iiossession 
 wliereof in the absence of lawful excuse is an offence under any provision of 
 this or any other Act, the court to which any such person is committed for 
 trial or, if there is nf) commitment for trial, such justice may cause such thing 
 to be defaced or destroyed. R. S. 0. c. 174, s. 55. 
 
 6. If under any juch wari'ant there is brought before any justice, any 
 counterfeit coin or other thing the possession of which with knowledge of its 
 nature and without lawful excuse is an indictable offence under any provision 
 of Part XXXV. of this Act (s. 460), every such thing as soon as it has been 
 produced in evidence, or as soon aM it appears that it will no<- be required to be 
 ^■1 produced, sliall forthwith be defaced or otherwise disposed of as the justice 
 or tuc 'iQurt directs. R. S. C. c. 174, s. 56. 
 
 7. Every person acting in tlie execution of any such warrant may seize 
 any px])li)8ive substance which he has good cause to suspect is intended to be 
 used for any unlawful object, — and shall, with all convenient speed, after the 
 seizure, remove tlie same to such i>roper place as he thinks fit, and detain the 
 same until ordered by a judge of a superior court to restore it to the person 
 who claims the same. R. S. C. c. 150, s. 11. 
 
 8. Any explosive substance so seized shall, in the event of the person in 
 whose possession the same is found, or of the owner thereof, being convicted of 
 any offence under Part VI. of this Act (s. 9i)), be forfeited ; and the same 
 shall be destroyed or sold imder the direction of the court before which such 
 person is convi.;ted, and, in the case of sale, the proceeds arising therefrom 
 shall be paid to the Minister of Finance and Rt'ceiver General, for the public 
 uses of Canada. R. S. C. c. 150, s. 12. 
 
 -I; 
 
 lit; 
 ■1. 
 
 ''^. 
 

 I'H^Sl 
 
 
 
 640 
 
 PROCEDURE. 
 
 [Sec. m 
 
 9. If ofiFenaive weapons believed to be dangerous to the public peace are 
 seized under a search warrant the same shall be kept in safe custody in such 
 place as the justice directs, unless the owner thereof proves, to the satisfaction 
 of such justice, that such offensive weapons were not kept for any purpose 
 dangerous to the public peace ; and any person from whom any such offensive 
 weapons are so taken may, if the justice of the peace upon whose warrant the 
 same are taken, upon application made for that purpose, refuses to restore the 
 same, apply to a judge of a superior or county court for the restitution of such 
 offensive weapons, upon giving ten days' previous notice of such application to 
 such justice ; and such judge shall make such order for the restitution or safe 
 custody of such offensive weapons as upon such application appears to him to 
 be proper. R. S. C. o. 149, ss. 2 & 3. 
 
 10. If goods or things by means of which it is suspected that an oifence 
 has been committed under Part XXXIII. (ss. 443 et seq.) are seized under a 
 search warrant, and brought before a justice, such justice and one or more other 
 justice or justices shall determine summarily whether the same are or are not 
 forfeited under the said Part XXXIII.; and if the owner of any goods or 
 things which, if the owner thereof had been convicted, would be forfeited 
 under this Ant, is unknown or cannot be found, an information or complaint 
 may be laid for the purpose only of enforcing such forfeiture, and the said 
 justice may cause notice to be advertised stating that unless cause is shown to 
 the contrary at the time and place named in the notice, such goods or things 
 will be declared forfeited ; and at such time and place the justice, unless tlie 
 owner, or any person on his behalf, or other person interested in the goods or 
 things, shows cause to the contrary, may declare such goods or things, or any 
 of them, forfeited. 51 V. c. 41, s. 14. 
 
 J.— (Section 569.) 
 INFORMATION TO OBTAIN A SEARCH WARRANT. 
 
 Canada, 
 Province of 
 County of 
 
 The information of A. B., of , in the said county 
 
 (yeoman) taken this day of , in the year , 
 
 before me, J. S., Esquire, a justice of the peace, in and for 
 the county (describe things to be searched for and offence in respect 
 of which search is made), of , who says that 
 
 and that he has just and reasonable cause to suspect, and sus- 
 pects, tliat the said goods and chattels, or some part of them are 
 concealed in the (dwelliny-hoiise, dc.) of C. D., of , in the 
 
 said county, (here add the causes of smpicion, ivluitever they man 
 be) : Wherefore (he) prays that a search warrant may be granted 
 to him to search the (dwelling-home, dc), of the said C. D., as 
 
[Sec. 56a 
 
 Sec. 570] 
 
 SEARCH FOR PUBLIC STORES. 
 
 641 
 
 jublic peace are 
 custody in such 
 ) the satisfaction 
 for any purpose 
 ly such offensive 
 hose warrant the 
 ses to restore the 
 istitution of such 
 ich application to 
 ■estitution or safe 
 appears to him to 
 
 ad that an offence 
 ire seized under a 
 one or more other 
 ime are or are not 
 : of any goods or 
 vould be forfeited 
 ation or complaint 
 ture, and the said 
 1 cause is shown to 
 loh goods or things 
 justice, unless the 
 ited in the gooda or 
 is or things, or any 
 
 IRRANT. 
 
 aforesaid, for the said goods and chattels so feloniously stolen, 
 taken and carried away as aforesaid. 
 
 Sworn (or affirmed) before me the day and year first above 
 mentioned, at , in the said county of . 
 
 J. S., 
 
 J. P., (Name of county.) 
 
 I.— {Section 569.) 
 
 WARRANT TO SEARCH. 
 Canada, 
 Province of , - 
 
 County of 
 
 Wherefls it appears on the oath of A. B. of , that 
 
 there is reason to suspect that {describe things to be searched for 
 and qfence in respect of ivhich search is made) are concealed in 
 at 
 
 This is, therefore, to authorize and require you to enter 
 between the hours of {as the justice sliall direct) into the said 
 premises, and to search for the said things, and to bring the 
 same before me or some other justice. 
 
 Dated at , in the said county of , this 
 
 day of , in the year 
 
 J. S., 
 J. P., {Xame of county). 
 To of . 
 
 liho said county 
 
 le year , 
 
 Lee, in and for 
 
 IffeMe in respect 
 
 (spect, and sua- 
 
 irt of them are 
 
 , in the 
 
 \tever they maij 
 
 lay be granted 
 
 [said CD., as 
 
 Sk.\ROH for Pl'BLIO ST0UK8. 
 
 570t Any constable or other peace officer, if deputed by any public 
 department, may, within the limits for which he is such constable or peace 
 officer, stop, detain and search any person reasonably suspected of having or 
 conveying in any manner any public stores, defined in section throe hundred 
 and eighty-three, stolen or unlawfully obtained, or any vessel, boat or vehicle 
 in or on which there is reason to suspect that any public stores stolen or 
 unlawfully obtained may be found. , 
 
 2. A constable or other peace officer shall be deemed to be deputo<i within 
 tlie meaning of this section if he is deputed by any writing signed by the 
 person who is the head of such department, or who is authorized to sign docu< 
 meats on behalf of such department. 50-51 V. c. 45, s. 10. 
 Crim. Law— 41 
 
 
 'n 
 
#; 
 
 ■#,- 
 
 .'J,.* 
 
 642 
 
 PROCEDURE. 
 
 Skaroh Warrant for Gold. 
 
 [Sec8. 571-574 
 
 571> On complaint in writing^ made to any justice of the county, district 
 or place, by any person interested in any mining claim, that mined gold or 
 gold-bearing quartz, or mined or unmanufactured silver or silver ore, is unlaw- 
 fully deposited in any place, or held by any person contrary to law, a general 
 search warrant may be issued by such justice, as in the case of stolen goods, 
 including any number of places or persons named in such complaint ; and if 
 upon such search, any such gold or gold-bearing quartz, or silver or silver ore, 
 is found to be unlawfully deposited or held, the justice shall make such order 
 for the restoration thereof to the lawful owner as he considers right. 
 
 2. The decision of the justice in such case is subject to appeal as in ordinary 
 cases coming within the provisions of Part LVIII (s. 839, post). R. S. C. 
 c. 174, s. 53. 
 
 A proviso as to security to be given on such appeal is 
 now to be found in s. 880 post. 
 
 Search for Timber. 
 
 57S. If any constable or other peace officer has reasonable cause to sus- 
 pect that any timber, mast, spar, saw-log or other description of lumber, 
 belonging to any lumberman or owner of lumber, and bearing the registered 
 trade mark of such lumberman or owner of lumber, is kept or detained in any 
 saw-mill, mill-yard, boom or raft, without the knowledge or consent of the 
 owner, such constable or other peace officer may enter into or upon the same, 
 and search or examine, for the purpose of ascertaining whether such timber, 
 mast, spar, saw-log or other description of lumber is detained therein without 
 such knowledge and consent. R. S. C. c. 174, s. 54. 
 
 Search for Liquors near Her Majesty's Vessels. 
 
 S73. Any officer in Her Majesty's service, any warrant or petty officer 
 of the navy, or any non-commissioned officer of marines, with or v.ithout 
 seamen or persons under his command, may search any boat or vessel which 
 hovers about or approaches, or which has hovered about or approached, any of 
 Her Majesty's ships or vessels mentioned in section one hundred and nineteen, 
 "Part VI. of this Act, and may seize any intoxicating liquor found on board 
 such boat or vessel ; and the liquor so found shall be forfeited to the Crown. 
 50-51 V. c. 46, s. 3. 
 
 Search in Houses of Ill-Fame. 
 
 S74> Whenever there is reason to believe that any woman or girl 
 mentioned Ii; section one hundred and eighty-five. Part XIII., has been 
 inveigled or enticed to a house of ill-fame or assignation, then uix)n complaint 
 thereof being mode under oath by the parent, husfxind, master or guardian uf 
 such woman or girl, or in the event of such woman or girl having no known 
 parent, hushand, master nor p^iardian in the pUice in which the offence i- 
 alleged to have been committed, by any other i^erson, to any justice of the 
 peace, or to a judge of any court authorized to issue warrants in cases of 
 alleged offences against the criminal law, such justice of the jjeace or judffeof 
 the court may issue a warrant to enter, by day or night, such house of ill-fame 
 or assignation, ami if necessary use force for t/ie imrpose of effecting sucli eiitii/ 
 
[Sees. 571-574 
 
 county, district 
 ,t mined gold or 
 fev ore, is unlaw- 
 to law, a general 
 of stolen goods, 
 >mplaint ; and if, 
 Iver or silver ore, 
 
 make such ordir 
 3 right. 
 
 jeal as in ordinary 
 , post), R. S. C. 
 
 uch appeal is 
 
 jnable cause to sus- 
 ription of lumber, 
 ring the registered 
 ; or detained in any 
 B or consent of the 
 ,0 or upon the same, 
 lether such timber, 
 led therein without 
 
 Iesskls. 
 
 :ant or petty officer 
 !8. with or vathciut 
 jat or vessel which 
 approached, any of 
 adred and nineteen, 
 [uor found on board 
 eited to the Crown. 
 
 Iny woman or (firl 
 )rt XIII.. has been 
 hen uiKjn complaint 
 ister or guardian uf 
 Irl having no known 
 Ihich the offence is 
 h any justice of the 
 farrants in cases uf 
 Voijeaceor judgeof 
 
 Ich house of ill-fa""^' 
 I effecting siidientnj 
 
 Sec. 5753 
 
 SEARCH IN GAMING HOUSE. 
 
 643 
 
 whether by uteaking open doors or otherwise, and to search for such woman or 
 girl, and bring her, and the person or persons in whose keeping and possession 
 she is, before such justice of the peace, or judge of the court, who may, on 
 examination, order her to be delivered to her parent, husband, master or 
 guardian, or to be discharged, as law and justice require. R. S. C. c. 157, 8. 7. 
 48-49 V. 0. 69, s. 10 (Imp.). 
 
 The word " province " instead of \ place " was in the 
 repealed clause, in the eighth line. 
 
 Under the repealed clause, this provision applied only to 
 ^vomen under 21 years of age. The words in italics are 
 new: see Lea v. Charrington, 16 Cox, 704,23 Q. B, D. 45, 
 
 Search in Gamino-Hoube. 
 
 575' If the chief constable or deputy chief constable of any city or 
 town, or other officer authorized to act in his absence, reiwrts in writing to 
 any of the commissioners of police or mayor of such city or town, or to the 
 pohce magistrate of any town, that there are good grounds for believing, and 
 that he does believe, that any house, room or place within the said city or town 
 is kept or used an a common gaming or betting-house as defined in Part XIV., 
 sections one hundred and ninety-six, and one hundred and ninety-seven, or is 
 used for the 2^>i'rpose ofcarrijing on a lottery, or for the sale of lottery tickets, con- 
 trari/ to the ]}rovisions nf Part XV., section two hundred and five, whether 
 admission thereto is limited to those possessed of entrance keys or otherwise, 
 the said commissioners or commissioner, or mayor, or the said police magis- 
 trate, may, by order in writing, authorize the chief constable, deputy chief 
 constable, or other officer as aforesaid, to enter any such house, room or place, 
 with such constables as are deemed requisite by the chief constable, deputy 
 chief constable or other officer, — and, if necessary, to use force for the purpose 
 (if effecting such entry, whether by breaking open doors or otherwise, — and to 
 take into custody a1' iJersons who are found therein, and to seize, as the cate 
 may be (1) all tatlt ; and instruments of gaming, and all moneys and securities 
 for money, or (2) (dl instruments or devices for the carrying on of such lottery, 
 and all lottery tickets found in such house or premises. R. S. C. C. 158, s. 2. 
 
 2. The chief constable, deputy chief constable or other officer making such 
 tutry, in obedience to any suoli order, may, with the assistance of one or uiore 
 constables, search all parts of the house, rixmi or place which he has so 
 entered, where he suspects that tables or instruments of gaining or betting, or 
 any instnimeiits or devices for the carrying on of sucli k)ttery or any lottery 
 tickets, are concealed, and all persons whom he finds in such house or preniises, 
 and seize all tables and instruments of gaming, or any such instruments or 
 ikviccs nr lottery tickets as aforesaid, which he so finds. R. S. C. c. 15S, s. 3. 
 
 3. The police magistrate or other justice of the i)eace before vvhoiu any 
 (lerson is taken by virtue of an order or warrant under this section, may direct 
 any cards dice, balls, counters, tables or other instruments of gaming, used in 
 playing any game, and seized imder this Act in any place used as a comniuii 
 piniing-iuHise, or any such instruments or devices for the carrying on of a 
 lolkry, or any such lottery tickets «3 aforesaid, to be forthwith destroyed, and 
 
 M^P 
 
 ? ' " 
 
 . ' -■ 71 
 
 V" 
 
 
 '•%',- 
 
644 
 
 PROCEDURE ON APPEARANCE. 
 
 [Sees. 576-579 
 
 any money or securities seized under this section shall be forfeited to the 
 Crown for the public uses of Canada. R. S. C. c. 168, s. 6. 
 
 4. The expression " chief constable " includes chief of police, city marshal 
 or other head of the police force of any city, town or place. R. S. C. c. 158, 
 
 8.1. 
 
 5. The expression "deputy chief constable" includes deputy chief of 
 police, deputy or assistant city marshal or other deputy heat! of the ix)lice 
 force of any city, town or place, aTid the expression "police magistrate" vncludcs 
 stipendiary magistrates. 
 
 Search for Vagrant. 
 
 5T6« Any stipendiary or police magistrate, mayor or warden, or any two 
 justices of the peace, upon information before them made, that any person 
 described in Part XV. (s. 207), as a loose, idle or discdwrly person, or vagrant, 
 is or is reasonably suspected to be harboured or concealed iu any disorderly 
 house, bawdy-house, house of ill-fame, tavern ur boarding-house, may, by 
 v'arrant, authorize any constable or other person to enter at any time sucli 
 house or tavern, and to apprehend and bring before them or any other justices 
 of the peace, every person found therein so suspected as aforesaid. R. S. C. 
 c. 157, 8. 8. 
 
 PART XLV. 
 
 Procedurk on Appearance of Accused. 
 
 5 YV» When any person accused of an indictable offence is before a juh- 
 tice, whether voluntarily or upon summons, or after being apprehended with 
 or without warrant, or while in custody for the same or any other offence, tlie 
 justice shall proceed to inquire into the matters charged against such iierson 
 in the manner hereinafter defined. 
 
 This applies to all indictable offences, not only to those 
 
 under this Act. 
 
 No Formal O;' action. 
 
 378. No irregVi'.uity or defect in the substance or form of the summons 
 or warrant, and no variance between the charge contained in the summons or 
 warrant and the charge contained in the information, or between either 
 and the evidence adduced on the part of the prosecution at the inquiry, shall 
 affect the validity of any proceeding at or subsequent to the hearing. K. S. C. 
 c. 174, 8. 58. 
 
 Justice May Postpone Hearing. 
 
 il79* If it appears to the justice that the person charged has been 
 deceived or misled by any such variance iu any summons or warrant, he may 
 
Sec. 580] 
 
 ATTENDANCE OF WITNESSES. 
 
 645 
 
 adjourn the hearing of the case to some future day, and in the meantime may 
 remand such person, or admit him to bail as hereinafter mentioned. R. S. 0. 
 c. 174, 8. 59. 
 
 PROcnRiNo Attendanck of Witnesses. 
 
 980. If it appears to tho justice that any person being or residing with- 
 in the province is likely to give material evidence either for the prosecution or 
 for the accused on such inquiry he may issue a summons under his hand, 
 requiring such person to appear before him at a time and place mentioned 
 therein to give evidence respecting the charge, and to bring loith him any 
 documents in his possession or under his control reUUing thereto. 
 
 2. Such summons may be in the form K. in schedule one hereto, or to the 
 like effect. R. S. C. o. 174, s. 60. 
 
 The words " the province " are substituted for the word 
 •* Canada " : see s. 584. The other words in italics are exten- 
 sions of the enactment. The repealed clause required that 
 the witness be made to appear material by oath or affirma- 
 tion. That is now required only for a warrant : s. 582. 
 
 i!|^:'' 
 
 ¥..— {Section 580.) 
 
 SUMMONS TO A WITNESS. 
 
 :} 
 
 Canada 
 Province of 
 Connty of 
 
 To E. F., of .(labourer) : 
 
 Whereas information has been laid before the undersigned 
 , a justice of the peace in and for the said county of 
 , that A. B. {dc, as in the summons or warrant against 
 the accused), and it has been made to appear to me upon (oath), 
 that you are likely to give material evidence for (the prosecution) ; 
 These are therefore to require you to be and to appear before me 
 on next, at o'clock in the (fore) noon, at , 
 
 or before such other justice or justices of the peace of the same 
 county of , as shall then be there, to testify what you 
 
 know concerning i'le said charge so made against the said A. 6. 
 as aforesaid. Herein fail not. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S [seal.] 
 
 J. P., (Xauie of county.) 
 
 U\ 
 
■ff 
 
 646 
 
 PROCEDURE. 
 
 [Sees. 581, 582 
 
 Service on Witness. (Amended). 
 
 SSI* Every suoh summons shall be served bt/ a constable or other peace 
 officer upon the person to whom it is directed either personally, or, if suoh 
 person cannot conveniently be met with, by leaving it for him at hia last or 
 most usual place of abode with some inmate thereof apparently not under six- 
 teen years of age. R. S. C. o. 174, s. 61. 
 
 Warrant Against a WiTNKsa. (Amended). 
 
 S32* If any one to whom such last-mentioned summons is directed does 
 not appear at the time and place appointed thereby, and no just excuse is 
 offered for such non-appearance, then (after proof upon oath that such sum- 
 mons has been served as aforesaid, or that the person to whom the sumvions in 
 directed is keeping out of the way to avoid service) the justice before whom sucli 
 person ought to have appeared, being satisfied by proof on oath that he is UMij 
 to give material evidence may issue a warrant under his hand t( bring such per- 
 son at a time and place to be therein mentioned before him or ai. other justice 
 m order to testify as aforesaid. 
 
 2. The warrant may be in the form L. in schedule one hereto, or to the 
 like effect. Such warrant may be executed anywhere within the territorial 
 jurisdiction of the justice by whom it is issued, or, if necessary, endorsed as 
 provided in section five hundred and sixty-five, and executed anywhere in the 
 province but out of such jurisdiction. R. S. C. c. 174, s. 61. 
 
 3. If a person summoned as a witness under the provisions of this part is 
 brought before a justice on a warrant issued in consequence of refusal to obey 
 the summons such person may be detained on such warrant befure the justice 
 who issued the summons, or before any other justico in and for the same terri- 
 torial division who shall then be there, or in the comu^on gaol, or any other 
 place of confinement, or in the custody of the person having him in charffe, 
 with a view to secure his presence as a witness on the day fixed for the trial; 
 or in the discretion of the justice such person may be released on recognizance, 
 with or without sureties, conditioned for his apjiearance to give evidence a> 
 therein mentioned, and to answer for his default in not attending upon thi 
 said summons as for contempt ; and the justice may, in a summary manner. 
 examine into and dispose of the charge of contempt against such person, uhn, 
 if found guilty thereof, ttiay he Jineti or iviprisoticd, or both, »uch _ti>it mM t', 
 exceed twenty dollars, and such imprisonment to he in the com7ni>,, tjaol, tnthnir 
 hard labour, and not to exceed the term of one viomth, and may ulsn lie urdereti 
 to pay the costs incident to the service and execation of the said summons an(i 
 warrant and of his detention in custody. 51 V. c. 45, s. 1. 
 
 (The conviction under this section may be in the form PP in schedule one 
 hereto.) See under s. 7S1. 
 
[Sees. 581, 682 
 
 le or other peace 
 ally, or, if such 
 im at his last or 
 y not under six- 
 
 a is directed does 
 10 just excuse is 
 h that such sum- 
 ri the summons in 
 yeiore whom sucli 
 h that he is likclii 
 ;o bring such per- 
 any other justice 
 
 5 hereto, or to the 
 lin the territorial 
 Bsary, endorsed as 
 d anywhere in the 
 
 ons of this part is 
 
 of refusal to obey 
 
 before the justice 
 
 for the same terri- 
 
 aol, or any other 
 
 g him in charffe, 
 
 xed ft)r the trial; 
 
 on recognizance. 
 
 give evidence a> 
 
 tending upim th< 
 
 lUmmary manner, 
 
 |8uch i)er8on, wbn. 
 
 , sHch Jim niif ' ' 
 
 vii'i' <jnol, viiiimr 
 
 y also be ordered 
 
 ai*5 summons ami 
 
 lp in schedule one 
 
 .Sec. 583] 
 
 WARRANT FOR WITNESS. 
 
 647 
 
 L. {Section 582.) 
 
 WARRANT WHEN A WITNESS HAS NOT OBEYED THE 
 
 SUMMONS. 
 
 Canada, ' \ 
 
 Province of , > 
 
 County of . ) 
 
 To all or any of the constables and other peace officers in the 
 said county of 
 
 Whereas information haring been laid before , a 
 
 justice of the pt.'tace, in and for the said county of , that 
 
 A. B. {iic., as in the summons) ; and it having been made to appear 
 to {me) upon oath that E. F. of , {labourer), was likely 
 
 to give material evidence for {the prosecution), {I) duly issued {my) 
 summons to the said E. F., requiring him to be and appear 
 before {me) on , at , or before such other justice 
 
 or justices of the peace for the same county, as should then be 
 there to testify what he knows respecting the said charge so 
 made against the said A. B., as aforesaid ; and whereas proof 
 has this day been made upon oath before {me) of such summons 
 having been duly served upon the said E. F. ; and whereas the 
 said E. F. has neglected to appear at the time and place appointed 
 by the said summons, and no just excuse has been offered for 
 such neglect : These are therefore to command you to bring 
 and have the said E. F. before {)iie) on at 
 
 o'clock in the (fore) noon, at , or before such other 
 
 justice or justices for the same county, as shall then be there, to 
 testify what he knows concerning the said charge so made against 
 the said A. B. as aforesaid. 
 
 Given under {my) hand and seal, this day of , 
 
 in tiie year , at , in the county aforesaid. 
 
 J. S. [seal. J 
 
 J. P., {Name of county.) 
 
 *;;:',f^' 
 
 i^'"** :'. : ■ 
 
 Warrant for Witness in First Instance. 
 
 5H3< If the justice is satisfied by evidence ujwn oath that any person 
 u-ithin the province, likely to give material evidence either for the prosecution 
 or for tlie accused, will not attend to give evidence without lieing compelled so 
 to do, then instead of issuing a summons, he may issue a warrant in the first 
 instance. Such warrant may be in the form M. in schedule one hereto, or to 
 
 -i. 
 

 '■ m v; 
 ill 
 
 648 
 
 PROCEDURK 
 
 [Sec. 584 
 
 the like effect, and may be executed anywhere within the juriudiotion of such 
 juBtice, or, if necessary, endorsed as provided in section five hundred and 
 sixty-five, and executed anywhere in the province but out oi sr.oli jurisdiction. 
 R. S. C. o. 174, a. 62. 
 
 M.— (Section 583.) 
 
 WARRANT FOR A WITNESS IN THE FIRST INSTANCE. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the 
 said countv of 
 
 « 
 
 Whereas information has been laid before the undersigned 
 , a justice of the peace, in and for the said county of 
 , that (dt'c, as in the sttmmom) ; and it having been 
 made to appear to {mr) upon oath, that E. F. of 
 {labourer); is likely to give material evidence for the prosecution, 
 and that it is lu'obable that the said E. F. will not attend to give 
 evidence unless compelled to do so : These are therefore to 
 command you to br^ng and have the said E. F. before (we) on 
 , ut o'clock in the (fore) noon, at , or 
 
 l>efore such othei justice or justices of the peace for the same 
 county aa .^haU then be there, to testify what he knows concern- 
 ing the said charge so made against the said A. B. as aforesaid. 
 Given under my hand and seal, this day of , 
 
 in tlie year , at , in the county aforesaid. 
 
 J. S., [SE.U.] 
 
 J. P., {Xante ofcmintii.) 
 
 Wn?; 'Es OvT op thb Province. (New). 
 
 584* If there is reason to ht?lieve that any person residing anywhere in 
 Canada out of the province and not being within the province, is likely to give 
 material evidence either for the prosecution or for the accused, any jiuige of a 
 Sui)erior Court or a County Court, on application therefor by the infurniant 
 or complainant, or the Attorney-General, or by the accused person or his 
 solicitor or some ijerson authorized by the accused, may cause a writ of subiuviia 
 to be issued under the seal of the court of which he is a judge, requiring such 
 person to appear before the justice before whom the inquiry is being held or is 
 intended to be held at a time and place mentioned therein to give evidencfr 
 respecting the charge and to bring with him any documents in his possession 
 or under his control relating thereto. 
 
[Sec. 584 
 
 diction of such 
 ■fl hundred and 
 u»h jurisdiction. 
 
 STANCE. 
 
 officers in the 
 
 le undersigned 
 said county of 
 t having been 
 ^ of 
 
 le prosecution, 
 b attend to give 
 re therefore to 
 before (»'<■) on 
 at . or 
 
 for the same 
 nows concern- 
 
 . as aforesaicl. 
 
 ly of 
 iforesaid. 
 
 \te ofnnintn.) 
 
 Iding anywhere in 
 
 |e, is likely to give 
 
 j'd, any judge of a 
 
 (by the intormant 
 
 led person or bis 
 
 |a writ of subiuvna 
 
 ^e, requiring such 
 
 |s being held or is 
 
 to give evideiictv 
 
 1 in his posfsession 
 
 Sec. 584] 
 
 WITNESSES OUT OF THE PROVINCE. 
 
 649' 
 
 2. Such subpoena shall be served i)ersonally upon the person to whom it is 
 directed and an affidavit of such service by a person effecting the same 
 j.nrporting to be made before a justice of the peace, shall be sufficient pro f 
 thereof. 
 
 3. If the jierson served with a subpoena as provided by this section, does - 
 not .ippear at the time and place sjiecified therein, and no just excuse is offered 
 for his non-apiiearance, the justice holding the inquiry, after proof upon oath 
 that the subixena has been served, may issue a warrant und^'- his hand directed 
 to any constable or i)eace officer of the district, covmty ' lace where such 
 i)erson is, or to all constables or peace officers in such di t. mmty or place, 
 directing them or any of them to arrest such person am » >>(? hii/i before the 
 said justice or any other justice at a time and place meirint -i such warrant 
 in order to testify as aforesaid. 
 
 4. The warrant may be in the form N in schcduh ne hereto or i . . the like 
 effect. If necessary, it may be endorsed in the manner provided by section 
 five hundred and si-xty-five, and executed in a district, county or place other 
 than the one therein mentioned. 
 
 N.— (Sfcfion 584.) 
 
 WARRANT WHEN A WITNESS HAS NOT OBEYED THE 
 
 SUBPCENA. 
 
 Canada, 
 Province of 
 County of 
 To all or any of the constables and other peace officers in the 
 
 said county of 
 
 Whereas information having been laid before , a 
 
 justice of the peace, in and for the said county, that A. B. {ett\ 
 as in the summona) ; and there being reason to believe that E. F., 
 of , in the province of (labojirer), 
 
 was likely to give material evidence for (the prosecution), a writ 
 of subpoena was issued by order of , judge of 
 
 {name of court) to the said E. F., requiring him to be and appear 
 before {nw) on at or before 
 
 such other justice or justices of the peace for the ?ame county 
 as should then be there, to testify what he knows respecting 
 the said charge so made against the said A. B., as aforesaid ; 
 and whereas proof has this day been made upon oath before {me) 
 of such writ of subpoena having been duly served upon the said 
 E, F., and whereas the said E. F. has neglected to appear at 
 the time and place appointed by the said writ of subpoena, and 
 no just excuse has been offered for such neglect : These are- 
 
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 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WEST MAIN STREET 
 
 WEBSTER, N.Y. 14580 
 
 (716) 873-4503 
 
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 >7^^ 
 
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650 
 
 PROCEDURE. 
 
 [Sec. 585 
 
 ■if: 
 
 therefore to command you to bring and have the said E. F. 
 before {me) on at o'clock in the (fore) 
 
 noon), at , or before such other justice or justices 
 
 for the same county as shall then be there, to testify what he 
 knows concerning the said charge so made against the said 
 A. B. as aforesaid. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at ' ' in the county aforesaid. 
 
 J. S., [seal] 
 
 J. P., (Name of county). 
 
 Witness Refusing to be Examined. 
 
 88Q>* Whenever any person appearing, either in obedience to a summons 
 or subpoena, or by virtue of a warrant, or being present and being verbally 
 required by the justice to give evidence, refuses to be sworn, or having been 
 sworn, refuses to answer such questiont as are put to him, or refuses or negkcH 
 to produce any dooumenls which he it required to produce, or refuses to ai{in his 
 depositions without in any such case offering any just exuuse for such refusal, 
 such justice may adjourn the proceedings for any period not exceeding eight 
 clear days, and may in the meantime by warrant in form O in schedule one 
 hereto, or to the like effect, commit the person so refusing to gaol, unless he 
 sooner consents to do what is required of him. If such pirson upon heiwj 
 irought up upon such adjourned hearing, again refuses to do what is so required 
 •of him, the justice, if he sees fit, may again adjourn the proceedings, and commit 
 him for the like period, and so again from time to time until such person consents 
 to do what is required of him. 
 
 2. Nothing in this section shall prevent such justice from sending any 
 «uch case for trial, or otherwise disposing of the same in the meantime, 
 according to any other sufficient evidence taken by him. R. S. C. c. 174, 
 s. 03. 
 
 0.— {Section 585.) 
 
 WARRANT OF COMMITMENT OF A WITNESS FOR REFUSING 
 TO BE SWORN OR TO GIVE EVIDENCE. 
 
 Canada, 
 Province of i 
 
 Oounty of 
 
 To all or any of the constables and other peace officers in the 
 
 county of , and to the keeper of the common 
 
 gaol at , in the said county of 
 
 Whereas A. B. was lately charged before , a justice 
 
 of the peace in and for the said county of , for that 
 
n 
 
 Sec. 586] 
 
 DISCRETIONARY POWERS. 
 
 651 
 
 (etc., as in the aummoru) ; and it having been made to appear to 
 (me) upon oath that E. F. of , was likely to g^ve 
 
 material evidence for the prosecution (/) duly issued (my) 
 summons to the said E. F., requiring him to be and appear 
 before me on , at , or before such other justice 
 
 or justices of the peace for the same county as should then 
 be there, to testify what he knows concerning the said charge 
 j90 made against the said A. B. as aforesaid ; and the said E. F. 
 now appearing before (me) {or being brought before (me) by virtue 
 of a warrant in that behalf), to testify as aforesaid, and being 
 required to make oath or affirmation as a witness in that behalf, 
 now refuses so to do {or being duly sworn as a witness now 
 refuses to answer certain questions concerning the premises 
 ivhich are now here put to him, and more particularly the 
 iollowing ) without o£fering any just excuse for such 
 
 refusal : These are therefore to command you, the said con- 
 stables or peace officers, or any one of you, to take the said E. F. 
 and him safely to convey to the common gaol at , in 
 
 the county aforesaid, and there to deliver him to the keeper 
 thereof, together with this precept : And (/) do hereby command 
 you, the said keeper of the said common gaol to receive the said 
 E. F. into your custody in the said common gaol, and him there 
 safely keep for the space of days, for his said contempt, 
 
 unless in the meantime he consents to be examined, and to 
 answer concerning the premises ; and for your so doinc^ ihis 
 ^hall be your sufficient warrant. 
 
 Given under {my) hand and seal, this day of 
 
 in the year, , at , in the county aforesaid. 
 
 . J. S., [seal.] 
 
 J. P., {Name of county.) 
 
 DisoRBTioNABY POWERS OF THE JcBTiOB. {Amended). 
 
 586* A justice holding the preliminary inquiry may in his discretion — 
 
 (a) permit or refuse permission to the prosecutor, his counsel or attorney 
 
 to address him in support of the change, either by way of opening or summing 
 
 up the case, or by way of reply upon any evidence which may be produced by 
 
 the person accused ; • 
 
 (6) receive further evidence on the part of the prosecutor after hearing 
 any evidence given on behalf of the accused ; 
 
 
652 
 
 PROCEDURE. 
 
 [Sec. 686 
 
 (o) adjourn the hearing of the matter from time to time, and change the 
 place of hearing, if from the absence of witnesses, the inability of a witness 
 who is ill to attend at the place where the justice usually sits, or from any 
 other reasonable cause, it appears desirable to do so, and may remand the 
 accused if required by warrant in the form P in schedule one hereto : Pro- 
 vided that no such remand shall be for more than eight clear days, the day 
 following that on which the remand is made being counted as the first day ; 
 and further provided, that if the remand is for a time not exceeding three clear 
 days, the justice may verbally order the constable or other person in whose 
 custody the accused then is or any other constable or person named by 
 the justice in that behalf, to keep the accused person in his custody and to 
 bring him before the same or such other justice as shall be there acting at the 
 time appointed for continuing the examination ; R. S. C. c. 174, ss. 64, 65. 
 
 (d) order that no person other than the prosecutor and accused, their 
 counsel and Bolieitor shall have access to or remain in the room or building in 
 which the inquiry is held (which shall not be an open court), if it appears to 
 him that the ends of justice will be best answered by so doing : R. S. G. c. 174, 
 8.67. 
 
 (e) regulate the course of the inquiry in any way which may appear to 
 him desirable, and which is not inconsistent with the provisions of this Act, 
 
 '^ 
 
 ■p.— (Section 686.) 
 
 WARRANT REMANDING A PRISONER. 
 
 Canada, 'j 
 
 Province oi , \- 
 
 County of ,J 
 
 To all or any of the constables and other peace officers in the 
 said county of , and to the keeper of the common 
 
 gaol at , in the said county. 
 
 Whereas A. B. was this day charged before the undersigned 
 , a justice of the peace in and for the said county of 
 , for that {dc, as in the warrant to apprehend), and it 
 appears to [urn) to be : ^sary to remand the said A. B. : These 
 are therefore to com., d you, the said constables and peace 
 officers, or any of you, in Her Majesty's name, forthwith to con- 
 vey the said A. B. to the common gaol at , in the said 
 county, and there to deliver him to the keeper thereof, together 
 with this precept : And I hereby command you the said keeper 
 to receive the said A. B. into your custody in the said common 
 gaol, and there.safely keep him until the day of 
 {instant), when I hereby command you to have him at , at 
 o'clock in the (fore) noon of the same day before (w) 
 
ne, and change the 
 ability of a witness 
 lly Bits, or from any 
 id may remand the 
 le one hereto : Pro- 
 ; clear days, the day 
 ed aa the first day, 
 exceeding three clear 
 iher person in whose 
 OT person named by 
 .n his cvi-tody and to 
 be there acting at the 
 c. 174, ss. 64, 65. 
 )r and accused, their 
 e room or building in 
 court), if it appears to 
 ioing : R. S. 0. c. 174, 
 
 Sec. 587] 
 
 BAIL ON REMAND. 
 
 653 
 
 or before such other jnstioe or justices of the peace for the said 
 county as shall then he there, to answer further to the said 
 charge, and to he further dealt with according to law, unless you 
 shall be otherwise ordered in the meantime. 
 
 Given under my hand and seal, this day of , 
 
 in the year 
 
 at 
 
 , in the county aforesaid. 
 J. S., [seal.] 
 
 J. P., {Name of county.) 
 
 Bail on Remand. 
 
 587. If the accused is remanded under the next preceding section the 
 iuBtice may discharge him, upon his entering into a recognizance in the form 
 Q in schedule one hereto, with or without sureties in the discretion of the 
 justice, conditioned for his appearance at the time and place appointed for the 
 continuance of the examination. R. S. C. c. 174, s. 67. 
 
 ■i 
 
 Q.— {Section 587.) 
 
 RECOGNIZANCE OF BAIL INSTEAD OF REMAND ON AN 
 ADJOURNMENT OF EXAMINATION. 
 
 Canada, ') 
 
 Province of 
 County of 
 
 Be it remembered that on the day of in the 
 
 year , A. B., of , {labourer), L. M., of , 
 
 ((jrocer), and N. 0., of , {butcher), personally came before 
 
 me , a justice of the peace for the said county, and 
 
 severally acknowledged themselves to owe to our Sovereign Lady 
 the Queen, her heirs and successors, the several sums following, 
 that is to say : the said A. B. the sum of , and t'ne said 
 
 L. M., and N. 0., the sum of , each, of good and lawful 
 
 current money of Canada, to be made and levied of their several 
 goods and chattels, lands and tenements respectively, to the use 
 of our said Lady the Queen, her heirs and successors, if he, 
 the said A. B., fails in the condition endorsed {or hereunder 
 written). 
 
 Taken and acknowledged the day and year first above men- 
 tioned, at before me. 
 
 J. S., 
 • J. P., {Natne of county). 
 
 1?,r> 
 
654 
 
 PROCEDURE. 
 
 [Sees. 588, 58» 
 
 CONDITION. 
 
 The condition of the within {or above) written recognizance 
 is such that whereas the within boimden A. B. was this day {or 
 on last past) charged before me for that {dc, a» in the 
 
 umrant) ; and whereas the examination of the witnesses for the 
 prosecation in this behalf is adjourned until the day of 
 
 (instant) : If, therefore, the said A. B. appears before 
 me on the said day of (instant), at 
 
 o'clock in the (fore) noon, or before such other justice or justices 
 of the peace for the said county as shall then be there, to 
 answer (further) to the said charge, and to be further dealt with 
 according to law, the said recognizance to be void, otherwise to 
 stand in full force and virtue. 
 
 , Hearing Mat Procbbd Before Remand is Over. 
 
 988. The justice may order the accused person to be brought before 
 him, or before any other justice for the same territorial division, at any time 
 before the expiration of the time for which such person has been remanded, and 
 the gaoler or officer in whose custody he then is shall duly obey such order, 
 R. S. 0. c. 174, 8. 66. 
 
 Breach of Recognizance. 
 
 580. If the accused person does not afterwards appear at the time and 
 place mentioned in the recognizance the said justice, or any other justice who 
 is then and there present, having certified upon the back of the recognizance 
 the non-appearance of such accused person, in the form R in schedule one 
 hereto, may transmit the recognizance to the clerk of the court where tlie 
 accused person is to be tried, or other proper officer appointed by law, to be 
 proceeded upon in like manner as other recognizances ; and such certificate 
 shall be prima facie evidence of the non-appearance of the accused person. 
 R. S. C. c. 174, s. 68. 
 
 B..— (Section 689.) 
 
 CERTIFICATE OP NON-APPEARANCE TO BE ENDORSED 0.\ 
 
 THE RECOGNIZANCE. 
 
 I hereby certify that the said A. B. has not appeared at the 
 time and place in the above condition mentioned, but therein 
 has made a default, by reason whereof the within written 
 recognizance is forfeited. 
 
 J. S., 
 
 J. P., (Name of countij,) 
 
[SeoB. 588, 58» 
 
 Sec. 690] 
 
 EVIDENCE FOR THE PROSECUTION. 
 
 655 
 
 ten recognizance 
 was this day (or 
 lat {Sc, as in the 
 witnesses for the 
 le day of 
 
 B. appears before 
 mt), at 
 
 justice or justices 
 ihen be there, to 
 further dealt witb 
 void, otherwise to 
 
 IS Over. 
 
 to be brought before 
 1 division, at any time 
 las been remanded, and 
 
 duly obey such order. 
 
 appeal' at the time and 
 any other justice who 
 sk of the recognizance 
 
 inn R in schedule one 
 
 if the court where the 
 
 ipointed by law, to be 
 
 ; and such certificate 
 
 if the accused person. 
 
 Ie endorsed on 
 
 Lot appeared at the 
 
 fcioned, but therein 
 
 le within writtec 
 
 Lvrtme of county,) 
 
 Evidence fob the Probecutiok. {Amended). 
 800. When the accused is before a justice holding an inquiry, such 
 justice shall take the evidence of the witnesses called on the part of the 
 prosecution. 
 
 2. The evidence of the said witnesses shall be given upon oath and in the 
 presence of the accused; and the accused, his counsel or solicitor, shall be 
 entitled to cross-examine them. 
 
 3. The evidence of each witness shall be taken down in writing in the 
 form of a deposition, which may be in the form S in schedule one hereto, or to 
 the like eflfect. 
 
 4. Such deposition shall, at some time before the accused is called on for 
 his defence, be read over to and signed by the witness and the justice, the 
 accused, the vntness and justice being all present together at the time pf such 
 reading and signing. 
 
 5. The signature of the justice may either he at the end of the depositimi of 
 each mtness, o)' at the end of several or of aU the depositions in such a form as to 
 show that the signature is meant to autJienticate each separate deposition, 
 
 6. Every justice Iwlding a preliminary inquiry is hereby required to cause 
 the depositions to be written in a legible hand and on one side only of each sheet of 
 paper on which they are written. R. S. C. c. 174, s. 69. 
 
 7. Provided tJutt the evidence upon sttch inquiry or any part of the same may 
 be taken in shorthand by a stenographer who may be appointed by the justice, and 
 tvho before acting shall make oath that he shall truly and faithfully report the 
 evidence ; and where evidence is so taken, it shall not be necessary that such evi- 
 dence be read over to or signed by the witness, but it shall be sufficient if the tran- 
 script be signed by the justice and be accompanied by an affidavit of the stenographer 
 that tl is a true report of the evidence. 
 
 WP 
 
 ^.—{Section 590.) 
 
 DEPOSITION OF A WITNESS. 
 Canada, 
 Province of 
 County of 
 
 The deposition of X. Y. of , taken before the under- 
 
 signed, a justice of the peace for the said county of » 
 
 this day of , in the year , at 
 
 [or after notice to C. D. who stands committed for in) 
 
 the presence and hearing of G. D. who stands charged that {state 
 the charge). The said deponent saith on his {oath or affirmation^ 
 as follows : {Insert deposition as nearly as possible in words of 
 witness.) 
 
 {If depositions of several witnesses are taken at the same time, thetj 
 may be taken and signed as follotcs :) 
 
 *■ 
 
 m 
 
 lis 
 
566 
 
 PROCEDURE. 
 
 [Sec. 691 
 
 The depositions of X. of , Y. of Z. of 
 
 ~&c., taken in the presence and hearing of C. D., who stands 
 charged that 
 
 The deponent X. {on his oath or affirmation) says as follows : 
 
 The deponent Y. {on his oath or affirmation) says as follows ; 
 
 The deponent Z. {on his oath, dc, dc.) 
 '{The signature of the justice may be appended as follows:) 
 
 The depositions of X., Y., Z., &c., written on the several 
 sheets of paper, to the last of which my signature is annexed, 
 were taken in the presence and hearing of G. D. and signed by 
 the said X., Y., Z., respectively in his presence. In witness 
 whereof I have in the presence of the said C. D. signed my 
 
 name. 
 
 J» S.| 
 
 ( ' 
 
 J. P., {Name of cotinty.) 
 
 Etioenor to bb Riad to the AooncED. (Amended), 
 
 591> After the examination of the witnesses produced on the part of the 
 prosecution has been completed, and after the depoaitiona have been tigwd at 
 aforesaid, the justice, unless he discharges the accused person, shall ask hm 
 whether he wishes the deposituytis to he read again, and unless the accused dk- 
 penses therewith shall read or cause them to be read again. When the depositions 
 have been again read, or the reading dispensed with, the accused shall be 
 addressed by the justice in thttse words, or to the like effect : 
 
 '* Having heard the evidence, do you wish to say anything in answer to 
 the charge ? You are not bound to say anything, but whatever you do say 
 will be taken down in writing and may be given in evidence against you at 
 your trial. You must clearly understand that you have nothing to hope from 
 any promise of favour and nothing to fear from any threat which may have 
 been held out to you to induce you to make any admission or confession of 
 gfuilt, but whatever you now say may be given in evidence against you upon 
 your trial notwithstanding such promise or threat." 
 
 2. Whatever the accused then says in answer thereto shall be taken down 
 in writing in the form T in schedule one hereto, or to the like effect, and shall 
 be signed by the justice and kept with the depositions of the witnesses and 
 -dealt with as hereinafter mentioned. R. S. C. c. 174, ss. 70 & 71. 
 
 See s. 689, post. 
 
est 
 
 ^■'^m ADMISSIOIW ST ACCUSED. 
 
 T.-^{8eotion 691.) 
 
 ^STATEMEOTOPTHEAOCWM,. 
 
 Province of 
 County of 
 
 on , at /^- . , ' ™' *^' *I»e said A tt 
 
 «.d the said eh„g, be4''Z'';^r'^/^**^''«'^)I 
 witae^e, for the iLeeutiLTn '/r^ "^^ »- '»'' «"» 
 mmmed in hie presence, the said A B ; " '*'''« ™T«aUy 
 as follows : " Having heiri th, • j " "'"' addressed bj me 
 m<Mng in answer ' Zt,^" 7^^' "• y>- ^ J^ 
 «.ything unless you desire todTso . S^iT ""' '"'"'^ 'o "^ 
 be taken down in writing, and ma, ie^tel ? 77°" ™^ "^ 
 yoa at your trial. You must oleariv l^J! I f"*™'" "Sainst. 
 "othing to hope from any promis '„/f ""'* ""' y»» >»»<► 
 ftom «,y threat which m" Ce C C";' "f ""'"''S to fear 
 -e any admission or conSo^,';tat°l^ "^T ^»" '» 
 now say may be given in evidence «„•• » ' whatever yon 
 
 notwithstanding such pro^^^Ttl^™' T "^» '»««»>. 
 A. B. says as follows : (Her. «„ J^T," ^'""PO" the said 
 
 «;t7/). 
 
 Taken before me, at 
 mentioned. 
 
 A. B. 
 ' *^® ^*y ^^ year first above. 
 
 '^^ S., fSMAL.] 
 
 '^'^•*{^am Of county.)) 
 
 «»8. After .. ^''''''''' '°" ™" ^"'«^*«- (J^«^) 
 CWM. Law-42 *'''*^ "^ ^^ ^«heB to caU any witnesBel 
 
 il-- 
 

 
 
 t 
 
 r,l-''/ 
 
 
 \ 
 
 658 
 
 PROCEDURE. 
 
 [Sees. 694, 595 
 
 2. Every witness called by the accused who testifies to any fact relevant 
 to the case shall be heard, and his deposition shall be taken in the sanie manner 
 as the depositions of the witnesses for the prosecution. 
 
 \ 
 
 DiSOHAROR or AOOUBBD. 
 
 (104. When all the witnesses on the part of the prosecution and the 
 aceiued have been heard the justice shall, if upon the whole of the evidence he 
 is of opinion that no sufficient case is made out to put the accused upon his 
 trial, discharge him ; and in such case any recognizances taken in respect of 
 the charge shall become void, unless some person is bound over to prosecute 
 under the provisions next hereinafter contained. R. S. C. c. 174, s. 73. 
 
 AoccsBR HAY HAVE HiMSELF BouND OvBR. (Amended). 
 
 905* If the justice discharges the accused, and the person preferring the 
 charge desires to prefer an indictment respecting the said charge, he may 
 require the justice to bind him over to prefer and prosecute suoh an indict- 
 ment and thereupon the justice shall take his recognizance to prefer and 
 prosecute an indictment against the accused before the court by which such 
 accused' would be tried if such justice had committed him, and the justice 
 shall deal with the recognizance, information and depositions in the same way 
 as if he had committed the accused for trial. 
 
 2. Such reoogpiizance may be in the form U in schedule one hereto, or to 
 the like effect. 
 
 S. If the prosecutor so bound over at his own request does not prefer and 
 prosecute such an indictment, or if the grand jury do not find a true bill, or iftht 
 accused is not convicted upon the indictment so pr^erred, the prosecutor shall, if 
 the court so direct, pay to the accused person his costs, including the costs of his 
 appearance on the preliminary inquiry. 
 
 4. The court before which the indictment is to be tried or a judge thereof may 
 4h its or his discretion order that the prosecutor shall not be permitted to prefer 
 •any such indictment until he hat given security for such costs to the satisfactm 
 <if8uch court or judge. R. S. C. c. 174, s. 80. 
 
 Bub-section 1 is an extension to all offences whatever of 
 an enactment that applied only to the offences falling under 
 the vexatious indictments clause : B. S. G. c. 174, s. 140. 
 
 \}.— {Section 695.) 
 
 FORM OF RECOGNIZANCE WHERE THE PROSECUTOR RE 
 QUIRES THE JUSTICE TO BIND HIM OVER TO PROSECUTE 
 AFTER THE CHARGE IS DISMISSED. 
 
 Canada, 
 
 » r 
 
 Province of 
 County of 
 
 Whereas C. D. was charged before me upon the information 
 of E. F. that C. D. {stxtte the charge), and upon the hearing of the 
 
[Seo8. 694, 595 
 
 ny fact relevant 
 the Ba'ue manner 
 
 )8ecution and the 
 ){ the evidence ho 
 aooueed upon his 
 »ken in respect of 
 i over to prosecute 
 1. 174, 8. 73. 
 
 fiitnded). 
 tBon preferring the 
 id charge, he may 
 iute suoh an indict- 
 anoe to prefer and 
 )urt by vhich such 
 im, and the justice 
 DHB in the same way 
 
 lule one hereto, or to 
 
 t does not prefer and 
 idatruef>i^horiftht 
 he prosecutor shall, if 
 ludine tf^« <="*'* "-^ ''** 
 
 , a judge thereof my 
 be permitted to prefer 
 osta to the latisfadm 
 
 nces whatever of 
 ces falling under 
 
 c. 174, 8. UO. 
 
 lOSECUTOR RE- 
 
 [to prosecute 
 
 iSED. 
 
 an the information 
 the hearing of the 
 
 Sec. 696] 
 
 COMMITTAL FOR TRIAL. 
 
 659 
 
 said charge I discharged the said C. D., and the said E. F. 
 desires to prefer an indictment against the said 0. D. respecting 
 the said charge, and has required me to bind him over to prefer 
 suoh an indictment at {here descnbe the next practicable sitting of 
 the court by which tlie person discharged would be tried if committed). 
 The undersigned E. F. hereby binds himself to perform the 
 following obligation, that is to say, that he will prefer and prose- 
 cute an indictment respecting the said charge against the said 
 G. D. at {as above). And the said E. F. acknowledges himself 
 
 bound to forfeit to the Crown the sum of $ 
 fails to perform the said obligation. 
 
 Taken before me. 
 J. S., 
 
 J. P. {Name of countji.) 
 
 , incase he 
 
 E. F. 
 
 Committal for Trial. 
 
 590* If a justice holding a preliminary inquiry thinks that the evidence 
 is sufficient to put the accused on his trial, he shall commit him for trial by a 
 warrant of commitment, which may be in the form V in schedule one hereto, 
 or to the like effect. R. S. C. o. 174, a. 73. 
 
 \.— {Section 596.) 
 
 WARRANT OF COMMITMENT. 
 
 Canada, | 
 
 Province of , > 
 
 County of . ) 
 
 To the constable of , and to the keeper of the{common gaol) 
 
 at , in the said county of 
 
 Whereas A. B. was this day charged before me, J. S., one of 
 Her Majesty's justices of the peace in and for the said county of 
 , on the oath of C. D. of {farmer), and others 
 
 for that {(ic, stating shortly the offence) : These are therefore to 
 command you the said constable to take the said A. B„ and him 
 safely to convey to the {common gaol) at aforesaid, and 
 
 there to deliver him to the keeper thereof, together with this 
 precept : And I do hereby command you the said keeper of the 
 said {common gaol) to receive the said A. B. into your custody in 
 
 W 
 
 
i 
 
 660 
 
 PROCEDURE. 
 
 [Seoiu 007, 098 
 
 »wfl 
 
 the said {common ffaol), and there safely keep him until he shall 
 be thence delivered by due course of law. 
 
 Given under my hand and seal, this day of ^ 
 
 in the year .at .in the county aforesaid. 
 
 J. S., fBBAL.] 
 
 J. P., {Name of county.) 
 
 COFT OV DIFO8ITION8. 
 
 59T^ Every one who has been committed for trial, whether he is bailed 
 or not, may be entitled at any time, before the trial to have copies of the 
 depositions, and of his own statement, if any, from the officer who has custody 
 thereof, on payment of a reasonable sum not exceeding five cents for each folio 
 of one hundred words. B. S. C. c. 174, s. 74. 
 
 Recookizanoes to Prosecute on Give Evidence. {Amended). 
 
 598>' When any one is committed for trial the justice holding the 
 preliminary inquiry may bind over to prosecute some person willing to be so 
 bound, and bind over every witness whose deposition has been taken, and 
 whose evidence in his opinion is material, to give evidence at the court before 
 which the accused is to be indicted. 
 
 2. Every recognizance so entered into shall specify the name and surname 
 of the person entering into it, his occupation or profession if any, the place of 
 his residence and the name and Jiumber if any of any itreet in lokieh it may be, 
 and whether he is owner or tenant thereof or a lodger therein. 
 
 3. Such recognizance may be either at the foot of the deposition or 
 separate therefrom, and may be in the form W, X or Y in schedule one hereto, 
 or to the like effect, and shall be acknowledged by the person entering into the 
 same, and be subscribed by the justice or one of the justices before whom it ia 
 acknowledged, 
 
 4. Every such recognizance shall bind the person entering into it to 
 prosecute or give evidence (both or either as the case may be), before the court 
 by which the accused shall be tried. 
 
 5. All such recognizances and all other recognizances taken under this Act 
 shall be liable to be estreated in the same manner as any forfeited recognizance 
 to appear is by law liable to be estreated by the court before which the principal 
 party thereto was bound to appear. R. S. G. c. 174, ss. 76 & 76. 
 
 6. Whenever any person is bound by recognizance to give evidence before 
 a justice of the peace, or any criminal court, in respect of any offence urder 
 this Act, any justice of the peace, if he sees fit, upon information being made 
 in writing and on oath, that such person is about to abscond, or has absconded, 
 may issue his warrant for the arrest of such person ; and if such person is 
 arrested any justice of the peace, upon being satisfied that the ends of justice 
 would otherwise be defeated, may commit such person to prison imtil the time 
 at which he is bound by such recognizance to gfive evidence, unless in the 
 meantime he produces sufficient sureties ; but any person so arrested fhall be 
 
[Sew. W7, 698 
 
 niil be shall 
 
 ay of » 
 
 tretwid. 
 
 ! 0/ county.) 
 
 ether he is buled 
 »ve copies of the 
 ■ who hfts custody 
 ants for each folio 
 
 (Amended). 
 
 iBtice holding the 
 on willing to be so 
 I been taken, and 
 at the court before 
 
 name and surname 
 { any, the place of 
 in which it may be, 
 
 the deposition or 
 
 ihedule one hereto, 
 
 n entering into the 
 
 before whom it is 
 
 ntering into it to 
 }), before the court 
 
 ken under this Act 
 
 fceited recognizance 
 
 vhich the principal 
 
 ;76. 
 
 Ive evidence before 
 1 any offence under 
 Lation being made 
 for has absconded, 
 H if such person is 
 [the ends of justice 
 liBon until the time 
 ^nce, unless in the 
 , arrested *aJl ^ 
 
 Sec. 098] 
 
 COPY OP DEPOSITIONS. 
 
 661 
 
 entitled on demand to receive a copy of the information upon which the 
 warrant for his arrest was issued. 48-49 V. 0. 7, s. 9. 
 
 A notice to the person bound is not now required. The 
 exception as to married women and infants has been left 
 out : 8-8' 6 applied heretofore to the Explosive SnbstanceB 
 Act. 
 
 Vf.— {Section 698.) 
 
 RECOGNIZANCE TO PROSECUTE. 
 
 Canada, ^ 
 
 Province of , - 
 
 County of , j 
 
 Be it reiAembered that on the day of , 
 
 in the year , C. D. of , in 
 
 the of , in the said 
 
 county of > {/amier), personally came before 
 
 me • a justice of the peace in and for the said 
 
 county of . and acknowledged himself to owe to 
 
 our Sovereign Lady the Queen, her heirs and successors, the 
 sum of I of good and lawful current money of 
 
 Canada, to be made and levied of his goods and chattels, lands 
 and tenements, to the use of our said Sovereign Lady the Queen, 
 her heirs and successors, if the said C. D. fails in the condition 
 endorsed {or hereunder written). 
 
 Taken and acknowledged the day and year first above men- 
 tioned at . , before me. 
 
 J. S., 
 
 J. P., {Name of county). 
 
 CONDITION TO PROSECUTE. 
 The condition of the within {or above) written recognizance 
 is such that whereas one A. B. was this day charged before me, 
 J. S., a justice of the peace within mentioned, for that {etc., as 
 in the caption of the depositions) ; if, therefore, he the said C. D. 
 appears at the court by which the said A. B. is or shall be 
 tried* and there duly prosecutes such charge then the said 
 recognizance to be void, otherwise to stand in full force and 
 virtue. 
 
 m 
 
 
 m 
 
\ 
 
 662 
 
 PROCEDURE. 
 
 [Sec. 59» 
 
 X.— {Section 598.) 
 RECOGNIZANCE TO PROSECUTE AND GIVE EVIDENCE. 
 {Same as the last form, to the asterisk,* and then thus) : — And 
 there duly prosecutes such charge against the said A. 6. for the 
 offence aforesaid, and gives evidence thereon, as well to the 
 jurors who shall then inquire into the said offence, as also to 
 them who shall pass upon the trial of the said A. B., then the 
 said recognizance to be void, or else to stand in full force and 
 virtue. 
 
 Y.— {Section 598.) 
 
 RECOGNIZANCE TO GIVE EVIDENCE. 
 {Same as the Utst form but one, to the asterisk,* and then this) : 
 — And there gives such evidence as he knows upon the charge 
 to be then and there preferred against the said A. B. for the 
 offence aforesaid, then the said recognizance to be void, other- 
 wise to remain in full force and virtue. 
 
 Witnesses Rkfdsino to bk Bound Over. 
 
 590. Any witness who refuses to enter into or acknowledge any such 
 recognizance as aforesaid may be committed by the justice holding the inquiry 
 by a warrant in the form Z in schedule one hereto, or to the like effect, to the 
 prison for the place where the trial is to be had, there to be kopt until after 
 the trial, or until the witness enters into such a recognizance as aforesaid 
 before a justice of the peace having jurisdiction in the place where the prison 
 is situated : Provided th&t if the accused is afterwards discharged any justice 
 having such jurisdiction may order any such witness to be discharged by an 
 order which may be in the form AA in the said schedule, or to the like effect. 
 R. S. C. c. 174, Bs. 78 & 79. 
 
 Z.— {Section 599.) 
 
 COMMITMENT OF A WITNESS FOR REFUSING TO ENTER 
 INTO THE RECOGNIZANCE. 
 
 Canada, 
 
 Province of ' 
 
 County of 
 
 To all or any of the peace officers in the said county of , 
 
 and to the keeper of the common gaol of the said county 
 of , at , in the said county of 
 
Sec. 599] 
 
 REFUSING TO BE BOUND OVER. 
 
 663 
 
 5 TO ENTER 
 
 Whereas A. B. was lately charged before the undersigned 
 {name of the justice of the peace), a justice of the peace in and for 
 the said county of , for that (tic., as in the summons to 
 
 the witness), and it having been made to appear to (me) upon oath 
 that E. F., of , was likely to give material evidence for 
 
 the prosecution, (i) duly issued (/n»/) summons to the said E. F.» 
 requiring him to be and appear before (me) on , at 
 
 or before such other justice or justices of the peace as should 
 then be there, to testify what he knows concerning the said 
 charge so made against the said A. B. as aforesaid; and the 
 said E. F. now appearing before {me) (or being brought before 
 {me) by virtue of a warrant in that behalf to testify as aforesaid), 
 has been now examined before {me) touching the premises, bub 
 being by {me) required to enter into a recognizance conditioned 
 to give evidence against the said A. B., now refuses so to do : 
 These are therefore to command you the said peace officers, or 
 any one of you, to take the said E. F. and him safely convey to 
 the common gaol at , in the county aforesaid, and there 
 
 deliver him to the said keeper thereof, together with this 
 precept : And I do hereby command you, the said keeper of the 
 said common gaol, to receive the said E. F. into your custody in 
 the said common gaol, there to imprison and safely keep him 
 until after the trial of the said A. B. for the offence aforesaid, 
 unless in the meantime the said E. F. duly enters into such 
 recognizance as aforesaid, in the sum of before some 
 
 one justice of the peace Tor the said county, conditioned in the 
 usual form to appear at the court by which the said A. B. is or 
 shall bo tried, and there to give evidence upon the charge which 
 shall then and there be preferred against the said A. B. for the 
 offence aforesaid. 
 
 Given under ray hand and seal this day of , in 
 
 the year , at , in the county aforesaid. 
 
 J. S., 
 
 J. P., {Name of county.) 
 
 II 
 
 %.-^ S>> ; 
 
l 
 
 \ 
 
 *'^ 
 
 664 
 
 PROCEDURE. 
 
 [Sec. 600 
 
 , in the county 
 day of 
 
 AX,~-'{Section 599.) 
 
 SUBSEQUENT ORDER TO DISCHARGE THE WITNESS. 
 Canada, 
 Province of 
 County of 
 
 To the keeper of the common gaol at 
 of , aforesaid. 
 
 Whereas by {my) order dated the 
 (instant) reciting that A. B. was lately ' before then charged 
 before (me) for a certain offence therein mentioned, and that 
 E. F. having appeared before {me) and being examined as a 
 witness for the prosecution on that behalf, refused to enter into 
 recognizance to give evidence against the said A. B., and I 
 therefore thereby committed the said E. F. to your custody, and 
 required you safely to keep him until after the trial of the said 
 A. B. for the offence aforesaid, unless in the meantime he should 
 enter into such recognizance as aforesaid; and whereas for want 
 of sufficient evidence against the said A. B., the said A. B. has 
 not been committed or holden to bail for the said offence, but on 
 the contrary thereof has been since discharged, and it is there- 
 fore not necessary that the said E. F. should be detained longer 
 in your custody : These are therefore to order and direct you the 
 said keeper to discharge the said E. F. out of your custody, as 
 to the said commitment, and suffer him to go at large. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P., {Name of county.) 
 
 Transmission of Documknts. (Amended). 
 
 000* The foUowinff documents shall, as soon as may be after the com- 
 mittal of the accused, be transmitted to the clerk or other proper officer of the 
 court by which the accused is to be tried, that is to say, the information if any, 
 the depositions of the witnesses, the exhibitt thereto, the statement of the accused, 
 and all recognizances entered into, and also any depositions taken before a 
 coroner if any such have been sent to the justice. 
 
 2. When any order changing the place of trial is made the person obtain- 
 ing it shall serve it, or an office copy of it, upon the person then in possession 
 of the said documents, who shall thereupon transmit them and the indictment, 
 
[Sec. 600 
 
 Sec. 601] 
 
 RULE AS TO BAIL. 
 
 665 
 
 VITNESS. 
 
 in the county 
 
 y of 
 
 then charged 
 med, and that 
 examined as a 
 jd to enter into 
 A. B., and I 
 ur custody, and 
 irial of the said 
 itime he should 
 /hereas for want 
 B said A. B. has 
 offence, but on 
 and it is there- 
 detained longer 
 ^d direct you the 
 our custody, as 
 large. 
 
 ay of . 
 
 aforesaid. 
 
 \e of county.) 
 
 J be after the com- 
 broper officer of the 
 linformation if any, 
 lientof the accused, 
 Ions taken before a 
 
 J the person obtain- 
 [then in possession 
 Ind the indictment, 
 
 if found, to the officer of the court before which the trial is to take place. 
 B. S. C. c. 174, 88. 77, 102. ' 
 
 Reus AS TO Bail. 
 
 601* When any person appears before any justice charged with an indict- 
 able offence punithable by imprisonment for more than five pears other than 
 treason or an offence punishable with death, or an offence under Part IV. of 
 this Act (s. 66), and the evidence adduced is, in the opinion of such justice, 
 sufficient to put the accused on his trial, but does not furnish such a strong 
 presumption of guilt as to warrant his committal for trial, the justice, jointly 
 with some other justice, may admit the accused to bail upon his procuring and 
 producing such surety or sureties as, in the opinion of the two justices, will be 
 sufficient to ensure his appearance at the time and place when and where he 
 ought to be tried for the offence ; and thereui)on the two justices shall take 
 the recognizances of the accused and his sureties, conditioned for his appear- 
 ance at the time and place of trial, and that he will then surrender and take 
 his trial and not depart the court without leave ; and in any case in which the 
 offence committed or suspected to have been committed is an offence punish' 
 cMeby imprisomnent for a term lets than five years any one justice before whom 
 the accused appears may admit to bail in manner aforesaid, and such justice 
 or justices may, in his or their discretion, require suoh bail to justify upon oath 
 AS to their sufficiency, which oath the said justice or justices may administer ; 
 and in default of such person procuring sufficient bail, such justice or justices 
 may commit him to prison, there to be kept until delivered according to law. 
 
 2. The recognizance mentioned in this section shall be in the form BB in 
 schedule one to this Act. R. S. C. c. 174, s. 81. 
 
 BB.— (Section 601). 
 
 RECOGNIZANCE OF BAIL. 
 
 Canada, | 
 
 Province of , > 
 
 County of . ) 
 
 Be it remembered that on the day of , in 
 
 the year , A, B. of , (labourer), L. M. of 
 
 , (grocer), and N. 0. of , (butcJier), personally came 
 
 before (us) the undersigned, (two) justices of the peace for the 
 county of , and severally acknowledged themselves to 
 
 owe to our Sovereign Lady the Queen, her heirs and successors, 
 the several sums following, that is to say :, the said A. B. the 
 sum of , and the said L. M. and N. 0. the sum of 
 
 , each, of good and lawful current money of Canada, to be 
 made and levied of their several goods and chattels, lands and 
 tenements respectively, to the use of our said Sovereign Lady 
 the Queen, her heirs and successors, if he, the said A. B., fails 
 in the condition endorsed (or hereunder written). 
 
 I 
 
 I 
 I 
 I 
 
 
 ■ 1 i 
 
 
 ' I 
 
 1 
 
 1 
 
 "1 
 
 
 "T 
 
 >"; 
 
\ 
 
 666 
 
 PROCEDURE. 
 
 [Sec. 60? 
 
 Taken and acknowledged the day and year first above men- 
 tioned, at before us. 
 
 J. S.» * ■ 
 
 J. N., 
 
 J. P., (Name of county.) 
 
 CONDITION. 
 
 The condition of the within (or above) written recognizance, 
 is such that whereas the said A. B. was this day charged before 
 (us), the justices within mentioned for that {etc., as in the warrant) ; 
 if, therefore, the said A. B. appears at the next court of oyer 
 and terminer {or general gaol delivery or court of General or 
 Quarter Sessions of the Peace) to be holden in and for the 
 county of , and there surrenders himself into the cus- 
 
 tody of the keeper of the common gaol {or lock-up house) there, 
 and pleads to such indictment as may be found against him by 
 the grand jury, for and in respect to the charge aforesaid, and 
 lakes his trial upon the same, and does not depart the said 
 court without leave, then the said recognizance to be void, other- 
 wise to stand in full force and virtue. 
 
 Bail After Cohhittal. 
 008. In case of any offence other than treason or an offence punishable 
 with death, or an offence under Part IV. of this Act, (s. 65), where the 
 accused has been finally committed as herein provided, any judge of any 
 superior or county court, having jurisdiction in the district or county within 
 the limits of which the accused is confined, may, in his discretion, on applica- 
 tion made to him for that purpose, order the accused to be admitted to bail on 
 entering into recognizance with sufiioient sureties before two justices, in such 
 amount as the judge directs, and thereupon the justices shall issue a warrant 
 of deliverance as hereinafter provided, and shall attach thereto the order of 
 the judge directing the admitting of the accused to bail. 
 
 2. Such warrant of deliverance shall be in the form CC in schedule one to 
 this Act. R. S. C. c. 174, s. 82. 
 
 CC— {Section 602.) 
 
 WARRANT OF DELIVERANCE OF BAIL BEING GIVEN FOR 
 PRISONER ALREADY COMMITTED. 
 
 Canada, 
 Province of 
 County of 
 To the keeper of the common gaol of the county of 
 
 at , in the said county. 
 
 S' 
 
I . 
 
 [Seo.60? 
 
 ist above men- 
 
 ne of county.) 
 
 0. recognizance, 
 ■ charged before 
 in the warrant) ; 
 xt court of oyer 
 :t of General or 
 in and for the 
 self into the cus- 
 up house) there, 
 i against him by 
 ge aforesaid, and 
 depart the said 
 to be void, other- 
 
 in offence punishable 
 ;, (s. 65), where the 
 I, any judge of any 
 •ict or county within 
 liscretion, on applica- 
 e admitted to bail on 
 
 two justices, in such 
 ' shall issue a warrant 
 
 thereto the order of 
 
 BC in schedule one to 
 
 IG GIVEN FOR 
 5D. 
 
 Sees. 603, 604] 
 
 BAIL BY SUPERIOR COURT. 
 
 667 
 
 lity of 
 
 Whereas A. B. late of , {labow-er) has before {us) 
 
 (tico) justices of the peace in and for the said county of , 
 
 entered into his own recognizance, and found eufificient sureties 
 {or his appearance at the next court of oyer and terminer or 
 general gaol delivery {or court of General or Quarter Sessions of 
 the Peace), to be holden in and for the county of , to 
 
 answer our Sovereign Lady the Queen, for that (etc., a in the 
 commitment), for which he was taken and committed to your said 
 common gaol : These are therefore to command you, in Her 
 Majesty's name, that if the said A. B. remains in your custody 
 in the snM rommon gaol for the said cause, and for no other, 
 you shall forthwith, suffer him to go at large. 
 
 Given under our hands and seals, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 J. N., [seal.] 
 
 •7. P., {Name of county.) 
 
 Bail by Superior Court. 
 
 603. No judge of a county court or justices shall admit any person to 
 bail accused of treason or an offence punishable with death, or an offence under 
 Part IV. of this Act, a. 65, nor shall any such person be admitted to bail, 
 except by order of a superior court of criminal jurisdiction for the province in 
 which the accused stands committed, or of one of the judges thereof, or, in the 
 province of Quebec, by order of a judge of the Court of Queen's Bench or 
 Superior Court. R. S. C. c. 174, s. 83. 
 
 Application for Bail After Committal. 
 
 604. When any person has been committed for trial by any justice the 
 prisoner, his counsel, solicitor or agent may notify the committing justice, 
 that he will, as soon aa coxmsel can be heard, move before a superior court of 
 the province in which such person stands committed, or one of the judges. 
 thereof, or the judge of the county court, if it is intended to apply to such 
 judge, under section six hundred and two, for an order to the justice to admit 
 such pris mer to bail, — whereupon such committing justice shall, as soon a» 
 may be, transmit to the clerk of the Crown, or the chief clerk of the court, or 
 the clerk of the county court or other proper officer, as the case may be, 
 endorsed under his hand and seal, a certified copy of all informations, exami- 
 nations and other evidence, touching the offen ce wherewith the prisoner has 
 been charged, together with a copy of the warrant of commitment, and the 
 packet containing the same shall be handed to the person applying therefor, 
 for transmission, and it shall be certified on the outside thereof to contain the 
 information concerning the case in question. R. S. C. c. 174, s. 93. 
 
 t'l- 
 
 IE 
 
\ 
 
 668 
 
 PROCEDXTRE. 
 
 [Sees. 605.607 
 
 2. Upon such application to any such court or judge the same order con- 
 cerning the prisoner being bailed or continued in custody, shall be made as if 
 the prisoner was brought up upon a habeas eorput. R. S. C. c. 174, s. 94. 
 
 3. If any justice neglects or offends in anything contrary to the true 
 intent and meaning of any of the provisions of this section, the court to whose 
 officer any such examination, information, evidence, bailment or recognizance 
 ought to have been delivered, shall, upon examination and proof of the offence, 
 in a summary manner, impose such fine upon every such justice as the court 
 thinks fit. R. S. C. c. 174, s. 95. 
 
 Wabrant of Deliteranoe. 
 
 60S< Whenever any justice or justices admit to bail any person who is 
 then in any prison charged with the offence for which he is so admitted to bail, 
 such justice or justices shall send to or cause to be lodged with the keeper of 
 such prison, a warrant of deliverance under his or their hands and seala, 
 requiring the said keeper to discharge the person so admitted to bail if he U 
 detained Tor no other offence, and upon such warrant of deliverance being 
 delivered to or lodged with such keeper he shall forthwith obey the same, 
 R. S. C. c. 174, B. 84. 
 
 Wahrant for Arrest of Person about to Abscond. (New). 
 
 600< Whenever a person charged with any offence has been bailed in 
 manner aforesaid, it shall be lawful for any justice, if he sees fit, upon the 
 application of the surety or of either of the sureties of such person and upon 
 information being made in writing and on oath by such surety, or by some 
 person on his behalf, that there is reason to believe that the person so bailed is 
 about to abscond for the purpose of evading justice, to issue his warrant for the 
 arrest of the person so bailed, and afterwards, upon being satisfied that the 
 ends of justice would otherwise be defeated, to commit such person when so 
 arrested to gaol until his trial or until he produces another sufficient surety or 
 other sufficient sureties, as the case may be, in like manner as before. 14-15 V, 
 c. 93, s. 17 (Imp.). 
 
 Delivkrt of Accused to Prison. 
 
 60 Y> The constable or any of the constables, or other person to whom any 
 warrant of commitment authorized by this or any other Act or law is directed, 
 shall convey the accused person therein named or described to the gaol or other 
 prison mentioned in such warrant, and there deliver him, together with the 
 warrant, to the keeper of such gaol or prison, who shall thereupon give the 
 constable or other person delivering the prisoner into his custody, a receipt for 
 the prisoner, setting forth the state and condition of the prisoner when 
 delivered into his custody. 
 
 2. Such receipt shall be in the form DD in schedule one hereto. 
 c. 174, s. 85. 
 
 R. S, C. 
 
1 1 
 
 \.B8C0ND. (New). 
 
 Sec 607] 
 
 DELIVERY OP ACCUSED TO PRISON. 
 
 66d 
 
 DI). —{Section 607.) 
 
 GAOLER'S RECEIPT TO THE CONSTABLE FOR THE 
 
 PRISONER. 
 
 I hereby' certify that I have received from W. T., constable^ 
 
 of the county of , the body of A. B., together with a 
 
 warrant under the hand and seal of J. S., Esquire, justice of the 
 
 peace for the said county of , and that the said A. B. 
 
 was sober, {or as the caae may be), at the time he was delivered 
 
 into my custody. 
 
 P. K., 
 
 Keeper of the common gaol of the said county. 
 
 le one hereto. R. §• C- 
 
670 
 
 PROCEDURE. 
 
 [Sec. 608 
 
 PART XLVI. 
 
 Indictments. 
 
 608. It shall not be necessary for any indictment or any record or docu- 
 ment relative to any criminal case to be written on parchment. R. S. G. c. 174 
 8. 103. 
 
 By the interpretation clause, s. 3, ante, the word indict- 
 ment includes information, presentment, plea, record, etc. 
 
 By the 4 Geo. II. c. 26, and 6 Geo. II. c. 14, "all indict- 
 ments, informations, inquisitions and presentments shall 
 be ih English, and be written in a common legible band, 
 and not court hand, on pain of £50 to him that shall sue in 
 three months." 
 
 No part of the indictment must contain any abbreviation, 
 or express any number or date by figures, but these as m\\ 
 as every other term used, must be expressed in words at 
 length, except where a fac-simile of an instrument is set 
 out: 3 Burn, 35 ; 1 Chit. 175. 
 
 Formerly, like all other proceedings, they were in Latin, 
 and though Lord Hale thinks this language more appro- 
 priate, as not exposed to so many changes and alterations, 
 " it was thought in modern times to be of very greater use 
 and importance," says his annotator Emlyn, ** that they 
 should be in a language capable of being known and under- 
 stood by the parties concerned, whose lives and liberties 
 were to be affected thereby." 
 
 Before confederation in Ontario and Qaebes, the indict- 
 ment in cases of high treason only had to be writt en on 
 parchment : C. S. C. c. 99, s. 20. 
 
 By s. 133 of the British North Amenca Act, the French 
 language may be used in any of the courts of Qaebe c and 
 in any court in Canada established under that Act. 
 
Sec. 609] 
 
 STATEMENT OF VENUE. 
 
 671 
 
 Statement of Venue. 
 
 600. It shall not be necessary to state any venue in the body of any 
 indictment, and the district, county or place named in the margin thereof, 
 shall be the venue for all the facts stated in the body of the indictment ; but if 
 local description is required such local description shall be given in the body 
 thereof. R. S. 0. o. 174, s. 104. 
 
 This section is taken from s. 23, 14 & 15 Y. c. 100, of the 
 
 Imperial statutes, upon which Greaves says : " This section 
 
 was framed with the intention of placing the statement of 
 
 veuue upon the same footing in criminal cases upon which 
 
 it was placed in civil proceedings by Reg. Gen., H. T., 4 
 
 Wm. lY. By this section, in all cases, except where some 
 
 local description is necessary, no place need be stated in the 
 
 body of the indictment ; thus in larceny, robbery, forgery, 
 
 false pretenses, etc., no venue need be stated in the body 
 
 of the indictment. In such cases, before the passing of 
 
 this Act, although it was considered necessary to state 
 
 some parish or place, it was quite immaterial whether the 
 
 offence was committed there or at any other parish in the 
 
 county. On the other hand, in burglary, sacrilege, stealing 
 
 in a dwelling house, etc., the place where the offence was 
 
 committed must be stated in the indictment. It was 
 
 necessary so to state it before the Act, and to prove the 
 
 statement as alleged, and so it is still, subject ever to the 
 
 power of amendment given by the first section." {See 
 
 now, 88. 611, 613, post.) 
 
 " The venue, that is, the county in which the indictment 
 is preferred, is stated in the margin thus " Middlesex," or 
 "Middlesex, to wit," but the latter method is the most 
 usaal. In the body of the indictment a special venue used 
 to be laid, that is, the facts were in general stated to have 
 arisen in the county in which the indictment was pre- 
 ferred." 3 Burn, 21. 
 
 " The place (or special venue, as it is technically termed) 
 must be such as in strictness the jury who are to try the 
 cause should come from. At common law, the jury, in 
 strictness, should have come from the town, ha.olet, or 
 
 ■■ '>91 " 
 
 

 672 
 
 PROCEDURE. 
 
 [Sec. 6W 
 
 parish, or from the manor, castle, or forest, or other 
 kuown place ont of a town, where the offence was com- 
 mitted, and for this reason, besides the county, or the city, 
 borough, or other part of the county to which the jaris- 
 diction of the court is limited, it was formerly necessary 
 to allege that every material act mentioned in the indict- 
 ment was committed in such a place. 
 
 Under ss. 611, 618, no indictment will now probably 
 be quashed for want of a sufficient description. 
 
 The cases in which a local description has been held to 
 be necessary in the body of the indictment, are : 
 
 Burglary, 2 Buss. 47 ,* house-breaking, B. v. Bullock, 
 1 Moo. 824, note (a) ; stealing in a dwelling-house, under 
 section corresponding to s. 845 ante : B. v. Napper, 1 Moo. 
 44 ,' being found, by night, armed, with intent to break 
 into a dwelling-house, under section corresponding to s. 
 417, ante, and all offences under part XXX., ante : B. y. 
 Jarrald L. & C. 801 ; riotously demolishing churches, 
 houses, machinery, etc., or injuring them, under sections 
 corresponding to ss. 85, 86, ante : B. v, Bichards, 1 M. & 
 Bob. 177 ; maliciously firing a dwelling-house, perhaps an 
 out-house, and probably all offences that fell under ss. 2, 
 3, 4, 5, 6, 7, 8, 9, 10, 13 & 14 of the repealed Act, as to 
 malicious injuries to property, but not the offences under 
 ss. 18, 19, 20, 21, of the same Act : B. v. Woodward, 1 
 Moo. 823 ; forcible entry, Archbold, 50 ; nuisances to high- 
 ways : B. V. Steventon, 1 G. & E. 55 ; malicious injuries 
 to sea-banks, milldams, or other local property, Taylor, 
 Ev., 1 vol., par. 227 ; not repairing a highway, in which 
 even a more accurate description is necessary, as the 
 situation of the road within the parish, etc.; indecent 
 exposure in a public place, B. v. Harris, 11 Cox, 659. 
 
 But in most cases of want of local description, where 
 necessary, or of variance between the proof and the allega- 
 tions in the indictment respecting the place, local descrip- 
 
SeCM. 610, Oil] 
 
 HEADING OF INDICTMENTS. 
 
 673 
 
 tion, etc., the courts wonld no^v allow an amendment, or 
 order particulars. 
 
 It is well remarked in Taylor Ev., vol. l,par. 228 : 
 " It would be extremely difficult to advance any sensible 
 argument in favour of this distinction which the law recog- 
 uizes between local and transitory offences. On an indict- 
 ment, indeed, against a parish for not repairing a highway, 
 it may be convenient to allege, as it will be necessary to 
 prove, that the spot out of repair is within the parish 
 charged, . . . but why a burglar should be entitled to 
 more accurate information respecting the house he is 
 charged with having entered, than the highway robber can 
 claim as to the spot where bis o£fence is stated to have 
 been committed, it is impossible to say : either full infor- 
 mation should be given in all cases or in none." 
 
 HEADiNa OF Indictments. (Xeio). 
 
 010. It uhall not be necessary to state in any indictment that the jurors 
 present upon oath or affirmation. 
 
 2. It shall be sufficient if an indictment begins in one of the forma EE in 
 schedule one hereto, or to the like effect. 
 
 3. Any mistake in the heading shall upon being discovered be forthwith 
 amended, and whether amended or not shall be immaterial. 
 
 E. E. {Sectiann 610, 626.) 
 
 In the {niniii' of the court in which the indictment is found). 
 The jurors for our Lady the Queen present that 
 (Where there are more counts than one, add at the befjinniny of 
 each cunnt) : 
 
 '• The said jurors further present that ."' 
 
 See, as to forms, generally, s. 982, post. 
 
 Form and Contents op Counts. (Nao). 
 
 611. Every count of an indictment shall contain, and shall be sufficient 
 if it contains, in substance a statement that the accused has committed some 
 indictable offence therein sjx'cified. 
 
 2. Such statement may be made in popular language wthout any 
 technical averments or any allegations of matter not essential to be proved. 
 
 3. Such statement may be in the words of the enactment describing the 
 utfence or declaring the matter charged to be an indictable offence or in any 
 
 Crim. Law— 43 
 
 # 
 
 ! 1 1' 
 
 i.'l! 
 
 
674 
 
 PROCEDURE. 
 
 [Sec. (ill 
 
 / 
 
 words Bufflcient to give the accused notice of the offence with which he in 
 charged. 
 
 4. Every count shall contain so much detail of the circuniHtnnceH of the 
 alleged offence an is sufficient to give the accused reasonable information nx to 
 the act or omission to be proved against him, and to identify the traUHaction 
 referred to : Provided that the absence or insufficiency of such details shall imt 
 vitiate the count. 
 
 6. A count may refer to any section or sub-section of any statute creatiii)f 
 the offence charged therein, and in estimating the sufficiency of such coimt tlie 
 court shall have regard to such reference. 
 
 0. Every count shall in general apply only to a single transaction. 
 
 EXAMPLES OF THE MANNER OF STATING OFFENCES. 
 F. P. {Section 611.) 
 
 {a) A. murdered 6. at , on (s. 231). 
 
 ({b) A. stole a sack of flour from a ship called the nt 
 
 i , on (s. 849). 
 
 '(c) A. obtained by false pretenses from B., a horse, a cnvt 
 and the harness of a horse at , on (s. 859). 
 
 ((/) A. committed perjury with intent to procure the con\ic- 
 tion of B. for an offence punishable tvith jtennl servitude, namely 
 robbery, by swearing on the trial of B. for the robbery of C. nt 
 the Court of Quarter Sessions for the county of Carleton, held at 
 Ottawa, on the day of , 1879; first that he, A. 
 
 saw B. at Ottawa, on the day of ; secondly, 
 
 that B. asked A. to lend B. money on a watch belonging to C. ; 
 thirdly, etc. (S. 146, s-s. 2) ; or 
 
 (c) The said A. committed perjury on the trial of B. at a 
 Court of Quarter Sessions held at Ottawa on for an 
 
 assault alleged to have been committed by the said B, on C. at 
 Ottawa, on the day of by swearing to the effect 
 
 that the said B. could not have been at Ottawa, at the time of 
 the alleged assault, inasmuch as the said A. had seen him at that 
 time in Kingston, (s. 146, s-s. 1). 
 
 (/) A. with intent to maim, disfigure, disable or do grievous 
 bodily harm to B. or with intent to resist the lawful apprehension 
 or detainer of A. {or C), did actual {grievous /) bodily harm to 
 B. {or D.) (S. 241). 
 
 {g) A. with intent to injure or endanger the safety of persons 
 on the Canadian Pacific Hallway, did an act calculated to inter- 
 
[S«c. (HI 
 ith which hi" in 
 
 iiuntftJicei* of till' 
 nformatiim nx to 
 r the transact iim 
 , detftils Bhall ixit 
 
 ^ statute creatint? 
 of such count the 
 
 insftction. 
 OFFENCES. 
 
 Hcc. «11] 
 
 INDICTMENTS.- FOB M OF. 
 
 675 
 
 (8. 231). 
 I the 
 
 at 
 
 a horse, a cavt 
 
 (3.359). 
 jcure the con\'ic- 
 wrrihtde, namely 
 rohbery of C. nt 
 larleton, held at 
 first that he, A. 
 ; secondly, 
 |belongmg to C. ; 
 
 tvial of B. at a 
 for an 
 
 said B. on C. at 
 Iring to the effect 
 |a, at the time of 
 
 1 seen him at that 
 
 L or do grievous 
 If ul apprehension 
 I) bodily harm to 
 
 .safety of persona 
 Llculated to inter- 
 
 fere with an engine, a tf'nder, and certain carriages on the said 
 railway on at by {deiicrUH- with so vnich detail as 
 
 in sufficient to ijive the itcnised redsumililc information as to the acts 
 iiv ominsions relied on ar/ainst him, and to identify the transaction). 
 (Ss. 250, 489). 
 
 (/() A. published a defamatory libel on B. in a certain news- 
 paper, called the , on the day of A.D. 
 , which libel was contained in an article headed or 
 commencing (drscrihe with so much detail as is sufficient to give the 
 aciHxed reasonable information as to tlie part of tlw publication to 
 III' relied on anaivsthim), and which libel was written in the sense 
 of imputing that the said B. was {as tlie case may be). (S. 802.) 
 
 The first sub-section of this s. 611 cannot, probably 
 bear the construction that the wording of it taken literally 
 would, at first, suggest. The whole Act taken together does 
 not seem to allow of such a construction. Section 614, for 
 instance, as to treason, is directly against it. An indict- 
 in en for obtaining by false pretenses is, perhaps, the only 
 one that can be laid, without an averment of the intent, 
 where the intent is necessary to constitute the offence, and 
 this, because the form FF given in schedule one does not 
 aver the intent : s. 982 post ; see R. v. Pierce, 16 Cox, 
 213. But the same form, in all the other cases, where the 
 intent is an ingredient of the offence as enacted by statute, 
 does contain an averment of such intent. If it were suffi- 
 cient, in any indictment, to simply aver in all cases that 
 the defendant has committed an indictable offence therein 
 specified, the Act would not contain s. 618, for instance, 
 which specially decrees that in an indictment under s. 361, 
 it shall not be necessary to allege or to prove that the act 
 was done with intent to defraud, though s. 361 has no 
 mention whatever of an intent to defraud, and ss. 618, 
 619, 620, 621, 622, 623, 624, 625 would be superfluous. 
 Section 733 also provides for the case where the indictment 
 does not state any indictable offence, and s. 723, s-s. 2, 
 likewise assumes that indictments are not always to be so 
 carelessly drawn as 8.611 would, at first sight, seem to allow. 
 
 
 '(A 
 
 i\ 
 
 \, 
 
 ' . I 
 

 676 
 
 PROCEDURE. 
 
 [See. 611 
 
 '( i 
 
 Sub-section 2 of this s. 611 may perhaps dispense of, 
 for instance, the word ** burglariously " in indictments for 
 burglary, but leaves it necessary to aver all matter neces- 
 sary to he proved. S-s. 3 will, probably, not receive 
 a wider construction than the same enactment, as repro- 
 duced in s. 734, as to indictments for any offence against 
 this Act has heretofore received. See post, under that 
 section. 
 
 Sub-sections 4 & 6 are no additions to the law. S-s. 5 may 
 help an indictment in certain cases. See remarks, post, 
 under s. 629. 
 
 " The rule is, that, with certain exceptions, all the cir- 
 cumstances necessary to constitute the offence charged 
 should be stated with certainty and precision, to the end 
 that the defendant may be enabled to form a judgment 
 whether or not they constitute an indictable offence, and so 
 demur or plead accordingly ; or that he may be enabled to 
 plead autrefois acquit, or convict or a pardon, in bar of a 
 subsequent prosecution for the same offence ; and in order 
 also that the court may know what judgment may legally 
 be passed in the event of a conviction. The courts, how- 
 ever, will construe the words of an indictment according to 
 their ordinary and usual acceptation; and as regards 
 technical expressions — these they will construe according 
 to their technical meaning, and if the sense of a word be 
 ambiguous in its ordinary acceptation it will be construed 
 according as the context and subject matter may require, 
 in order to render the whole consistent and sensible ; and 
 iu doing so, the courts will disregard ungrammatical 
 language if the real meaning be sufficiently expressed : R. 
 V. Stevens, 5 East, 244; E. v. Stokes, 1 Den. 307. 
 But although the coarts will thus construe the averments 
 of an indictment so as to give effect to them, they will not 
 supply the omission of anything which is essential. If, 
 therefore, auy necessary averment is omitted no intendment 
 will be made in its favour — the rule upon the subject being 
 that the courts will presume the negative of everything 
 
Sec. 611] 
 
 INDICTMENTS-FORM OF. 
 
 677 
 
 that has not been expressly affirmed, and the affirmative 
 of everything which has not been expressly negatived": 
 Saunders. 
 
 If there be any exception contained in the same clause 
 of the Act which creates the offence the indictment must 
 show negatively that the defendant does not come within 
 the exception : B. v. Earnshaw, 15 East 456; B. v. Baxter, 
 
 5 T. E. 83 ; E. v. Pearce, B. & B. 174. If, however, the 
 exception or proviso be in a subsequent clause or statute, 
 or, although in the same section, yet if it be not incor- 
 porated with the enacting clause by any words of teference, 
 it is matter of defence, and need not be negatived in the 
 indictment : B. v. Hall, 1 T. B. 320 ; Steel v. Smith, 1 B. 
 
 6 Aid. 94 ; B. v. White, 21 U. C. C. P. 354 ; B. v. Strachan, 
 20 U. C. C. P. 182 ; B. v. MacKenzie, 6 0. B. 165. 
 
 In an indictment under s. 431 of this Code, for instance, 
 it must be averred that the defendant made the document 
 ivith intent to defraud and without lawful authority. or excuse. 
 An indictment, however, which would negative only " law- 
 ful excuse " and not " lawful authority" would be sufficient : 
 E. V. Harvey, L. B. 1 C. C. E. 284. As to the rules of 
 evidence in such cases, see Taylor, Ev. par. 344, et seq. 
 
 An indictment for indecent assault by a male on 
 another male {see s. 260 ante) is defective, even after ver- 
 dict, if it does not aver that defendant is a male : B. v. 
 Montminy, Quebec, Q. B. May, 1893. 
 
 Such are the rules that have heretofore been recognized 
 in the framing of indictments. How far this Code alters 
 them remains to be settled by the jurisprudence. But it 
 must not be lost sight of that it is technical objections only 
 that the Imp. Commissioners report as being put an end 
 to by the Code. That every indictment must charge 
 an offence, and that every accused person is entitled 
 to know what he is accused of, still remains the law, it 
 must be assumed : E. v. Clement, 26 U. C. Q. B. 297 ; see 
 case of E. v. Cummings under s. 933 post. Parliament has 
 undoubtedly the right to decree that such shall not be the 
 
 :|:if 
 m 
 
 if 
 
 h 
 
 •t 
 

 
 S :1 
 
 678 
 
 PROCEDURE. 
 
 [Sees. 612, 613 
 
 law any longer, but when they come to that determination 
 the courts of the country will probably require that such 
 determination be expressed in clear and unequivocal terms. 
 S-B. 2 of this 8. 611 assumes negatively that all matter 
 of fact necessary to be proved must be alleged in the 
 indictment. It still remains the rule that an indictment 
 which does not substantially set down all the elements 
 of the offence is void : see 1 Bishop, Cr. Proc. 98. 
 
 Offences May be Charged in the Alternative. (New). 
 
 CIS- A count shall not be deemed objectionable on the ground that it 
 charges in the alternative several different matters, acts or omissions which are 
 stated in the alternative in the enactment describing any indictable offence or 
 declaring the matters, acts or omissions charged to be an indictable offence, or 
 on the ground that it is double or multifarious : Provided that the accused may 
 at any stafee of the trial apply to the court to amend or divide any such count 
 on the ground that it is so framed as to embarrass him in his defence. 
 
 2. The court, if satisfied that the ends of justice require it, may order any 
 count to be amended or divided into two or more counts, and on such order being 
 made such count shall be so divided or amended, and tliereupon a formal com- 
 mencement may he inserted before each of the counts into tohich it is divided. 
 
 Though the statute is in the disjunctive the offence 
 may be charged in the conjunctive. An indictment under 
 s. 436 for instance, which charges that the defendant did 
 destroy, deface and injure a register is not bad for duplicity 
 or multifariousness, though the section says "destroy, 
 deface or injure " ; E. v. Bowen, 1 Den. 22, and cases 
 there cited ; also E. v. Patterson, 27 U. C. Q. B. 142. The 
 above section permits of an alternative charge only where 
 the statute itself describes the offence in the alternative. 
 A charge made in the alternative as a general rule is no 
 charge at all ; the defendant either did one thing or the 
 other ; per Gurney, B., in E. v. Bowen, ubi supra. An 
 indictment that would charge an offence in the disjunctive 
 would be bad, if not amended, though the defect would be 
 cured by verdict under s. 734. 
 
 See E. V. Baby, 12 U. C. Q. B. 346, and Cotterill v. 
 Lempriere, 17 Cox, 97. 
 
 Certain OBJECTiONa not Fatal. {New). 
 618* {As amended in 18'JS), No count shall be deemed objectionable or 
 insufficient on any of the following grounds ; that is to say : 
 
[Sees. 612, 613 
 
 Sees. 614, 615] 
 
 lid Cotterill v. 
 
 ned objectionable or 
 
 INDICTMENTS-SPECIAL CASES. 
 
 679 
 
 («) that it does not contain f ho * 
 
 ct.Z T " '°- "'" "' »"' "^ <!-"».« which „., t. „, . ,. 
 
 [<-) that It does not >u^t „„* *u 
 iect of the charge ; or ''"^ *'^ ^^°-^« "^^^ -here words usedare the sub- 
 
 (/) that it does not specify the 
 ™..ed , or O^'y «>o .,,.„, b, „y„t ,^, ^j^_^^ ^_^ ^ 
 
 «:• o"' "^"-^ no. n».eo,...h, „.h ,^,„„ „, _, ^^^; 
 
 e.™&.:rtr.:r„:::Lr.K-'^ 
 
 «. P "ereTertnTT^''^-'^ »' various dausea of 
 1«0- S-s. W assumes bitu fs nJ ''' "^' "*" "6' "7, 
 »"ege an intent to defraud ^ ''"'^ '" '"""^ ""^^^ '» 
 
 «- where particulars hat bet S^eT'" ^^ '"' "" '"« 
 aw Eve • ^ "■■™™'-™ ™« HmH T,M,o» 
 
 net stated. " ^^^^"v.se relevant as tendinrf^^ ^"^ ""^^'^ 
 
 Th ^""""^^o prove gome overt 
 
 i^lllS Shou d aonlv nnl., . *''® wdictment. 
 
 ■"«^e to app, ^^'^XHfl^l ,^: '-^ — .. 
 
 «I5 No ^■"''''""^■^'^-^'''s f-OR Libel. 
 
 » opecitjmg tiiat sense with- 
 
 :m'^ 
 
 I^Ji 
 
 ii. 
 
 t 
 

 
 
 680 
 
 PROCEDURE. 
 
 [Seca. 610, 017 
 
 out any prefatory averment showing how that matter was written in that 
 sense. And on the trial it shall be sufficient to prove that the matter pub- 
 lished was criminal either with or without such innuendo. 
 
 See form of indictment for a defamatory libel under 
 8. 611, ante. 
 
 Indictments for Pkrjurt and Other Offences, {Neto). 
 
 010. No count charging perjury, the making of a false oath or of a false 
 statement, fabricating evidence or subornation, or procuring the commission cif 
 any of these offences, shall be deemed insufficient on the ground that it dots 
 not state the nature of the authority of the tribunal before which the oath or 
 statement was taken or made, or the subject of the inquiry, or the words used 
 or the evidence fabricated, or on the ground that it does not expressly negative 
 the truth of the words used : Provided that the court may, if satisfied that it 
 is necessary for a fair trial, order that the prosecutor shall furnish a particular 
 of what is relied on in support of the charge. 
 
 2. ;No count which charges any false pretense, or any fraud, or any 
 attempt or conspiracy by fraudulent means, shall be deemed insufficient 
 because it does not set out in detail in what tlie false pretenses or the fraud or 
 fraudulent means consisted : Provided that the court may, if satisfied as afore- 
 said, order that the prosecutor shall furnish a particular of the above matters 
 or any of them. 
 
 3. No provision hereinbefore contained in this part as to matters which are 
 not to render any count objectionable or insufficient shall be construed as 
 restricting or limiting in any way the general provisions of section six hundred 
 and eleven. R, S. C. c. 174, ss. 107, 108. 14-15 V. c. 100, ss. 20, 21 (Imp.). 
 
 See R. V. Dunning, 11 Cox, 651; and E. v. Hare, 13 Cox, 
 174 See forms of indictments for false pretenses and for 
 perjury in form FP of schedule 1, under s. 611, ante. 
 The sedtions on perjury are 145, et seq. on false pretenses, 
 858, et 8eq.; for conspiracies see under s. 527; Howard v. E., 
 10 Cox, 54, cannot now be followed. 
 
 Particulars. {New). 
 
 017- When any such particular as aforesaid is delivered a copy slialllie 
 given without charge to the accused or his solicitor, and it shall be entered 
 in the record and the trial shall proceed in all respects as if the indictnwit had 
 been ametided in conformity with such particular. 
 
 2. In determining whether a particular is required or not, and wlietlier a 
 defect in the indictment is material to the substantial justice of the case or not, 
 the court may have regard to the depositions. 
 
 See R. V. Hamilton, 3 Russ. 173, and Greaves' note 
 where particulars were ordered by the court : R. v. Stapyl- 
 ton. 8 Cox, 69; R. v. Hodgson, 3 C. i& P. 422 ; R. v. Bootymau, 
 
Sees. 618, 619] INDICTMENTS-SPECIAL CASES. 
 
 681 
 
 5 C. & P. 800. Any bill of particulars may itself be 
 amended at the trial under s. 723. An application for 
 particulars should be made before the trial, but the court 
 has full discretionary powers in the matter: s-s. 3, s. 723. 
 
 Indictment under Section 361. 
 
 OIS It shall not be necessary to allege, in any indictment against any 
 person for wrongfully and wilfully pretending or alleging that he inclosed and 
 sent, or caused to be inclosed and sent, in any post letter, any money, valuable 
 security or chattel, or to prove on the trial, that the act was done with intent 
 to defraud. R. S. C. c. 174, s. 113. 
 
 This enactment is useless. It was in the original statute 
 of 1869, because there the offence was made one of obtain- 
 ing money under false pretenses. But now s. 361 does not 
 contain such an enactment, and does not require an intent 
 to defraud. 
 
 Indictments in Certain Cases. (Ajuended). 
 
 619. An indictment shall be deemed sufficient in the cases following : 
 
 (a) If it be necessary to name the joint owners of any real or personal 
 property, whether the same be partners, joint tenants, parceners, tenants in 
 common, joint stock companies or trustees, and it is alleged that the property 
 belongs to one who is named, and another or others as the case may be ; 
 
 (6) If it is necessary for any purpose to mention such persons and one only 
 is named ; 
 
 (c) If the property in a turnpike road is laid in the trustees or commis- 
 sioners thereof without specifying the names of such trustees or commissioners ; 
 
 (d) If the offence is committed in respect to any property in the occupation 
 or under the management of any public officer or commissioner, and the 
 property is alleged to belong to such officer or commissioner without naming 
 him; 
 
 {e) If, for an offence under section three hundred and thirty-four, the 
 oyster bed, laying or fishery is described by name or otherwise, without stating 
 the same to be in any particular county or place. R. S. C. c. 174, ss. 118, 11!), 
 120, 121 & 123. 
 
 Sub-sections (a) & (6) are taken from the Imperial Act, 
 7 Geo. IV. c. 64, s. 14. Formerly, where goods stolen were 
 the property of partners, or joint -owners, all the partners 
 or joint owners must have been correctly named in the 
 indictment, otherwise the defendant would have been 
 acquitted. 
 
 The word " parceners " refers to a tenancy which arises 
 ^hen an inheritable estate descends from the ancestor to 
 
 if 
 
 ■^*> 
 
 .. ■ i\ 
 
 til 
 
682 
 
 PROCEDURE. 
 
 [Sec. m 
 
 several persons possessing an equal title to it: Wharton, 
 Law Lexicon. 
 
 It must be remembered that the words in s. 619, s-s. (a) 
 are, *^ another or others;" and if an indictment allege pro- 
 perty to belong to A. B. and others, and it appears that 
 A. B. has only one partner, it is a variance. 
 
 The prisoner was indicted for stealing the property of 
 G. Eyre " and others," and it was proved that G. Eyre had 
 only one partner; it was held, per Denman, Com. Serj., that 
 the prisoner must be acquitted : Hampton's Case. 2 Euss. 
 303. So where a count for forgery laid the intent to be to 
 defraud S. Jones " and others," and it appeared that Jones 
 had only one partner, it was held that the count was not 
 supported : E. v. Wright, 1 Lewin, 268. 
 
 In E. v. Kealey, 2 Den. 68, the defendant was indicted 
 for the common law misdemeanour of having attempted, by 
 false pretenses made to J. Baggally and others, to obtain 
 from the said J. Baggally and others one thousand yards 
 of silk, the property of the said J. Baggally and others, 
 with intent to cheat the said J. Baggally and others of the 
 same. J. Baggally and others were partners in trade, and 
 the pretenses were made to J. Baggally; but none of the 
 partners were present when the pretenses were made, nor 
 did the pretenses ever reach the ear of any of them. It was 
 objected that there was a variance, as the evidence did not 
 show that the pretenses were made to J. Baggally and 
 others; but the objection was overruled by Eussell Gurney, 
 Esq., Q.C., and, upon a case reserved, the conviction was 
 held right. 
 
 Greaves, in note (a), 2 Euss. 304, says on this case : "It 
 is clear that the 7 Geo. IV. c. 64, s. 14 (s. ^10 ante) alone 
 authorizes the use of the words ' and otlieis ; ' for, except 
 for that clause, the persons must have been named. There 
 the question really was, whether that clause authorized 
 the use of it in this allegation. The words are, * whenever 
 it shall be necessary to mention, /or any purpose whatsoever, 
 
[Sec. 61» 
 
 to it: Wharton, 
 
 in 8. 619, 8-8. (a) 
 nent allege pro- 
 it appears that 
 e. 
 
 the property of 
 that G. Eyre had 
 , Com. Serj., that 
 n'8 Case. 2 Euss. 
 le intent to be to 
 eared that Jooes 
 e count was not 
 
 ant was indicted 
 ng attempted, by 
 others, to obtain 
 
 thousand yards 
 jally and others, 
 ,nd others of the 
 ers in trade, and 
 but none of the 
 
 were made, nor 
 of them. It was 
 evidence did not 
 J. Baggally and 
 
 Eussell Gurney, 
 e conviction was 
 
 n this case : " It 
 .610 ante) alone 
 trs ; ' for, except 
 a named. There 
 lause authorized 
 
 Sec. 619J 
 
 INDICTMENTS-SPECIAL CASES. 
 
 i are, 
 
 whenever 
 
 683 
 
 rpose wh'ttsoeEcr, 
 
 any partners, etc.,' cu u i,. ** 
 
 ™n.ion,' etc., s. 619. «L) CT ^"^ "»? ^'^°'« to 
 pmoaer had applied to B««b«iiJT " '» P'»» ">at the 
 tte firm, and the infeenTfrom°r'":''" ""^ ^^^^ of 
 mdretment is that he hid LZ^ """ ='»'«■»»' « the 
 their pnrchase. and, if that eontt't I?, " '"""«^' '<" 
 must have been alleged as , ZT . ^ ''*™ a"«8ed. it 
 ™s cleari, oo„eot to^ ^7' ^f '"e fima.'ana ll 
 as made to the firm also." P' '° "'»i« a contract 
 
 ffri^ht'tses! J«:;:: zt'":^ ^ ^^-^p'o-'^ ^d 
 
 3 Burn, 20; see s. 723 IT^nd R ^' t^'' ""■"^dedi 
 M; B. T. Vincent, 2 Den 46^ E , J" f"'^'""'^' ^- & C. 
 
 It - not necessary tha a !;;r f''' " ^°^' ««7- 
 •«;at: Where C. & D^^ ZtetonZ "'"•"'"'"> »"•■"'» 
 .jd he widow of C. upon his death ITn'^r'''*"'''?' 
 aJmrnistrafion. acted as partner and ,^^, **''"« ■"" 
 «rds divided between her and fL '^! »'"* "as after- 
 Wore the division, part If ? i ! T'""* P"""". but 
 'o'to that the goorwelLoperW? "'k"""^"' " "- 
 «■ and the widow : K. v.S;'e 17^78" "^ «"'"'» 
 
 And where a fathAr .„ i ™- 
 
 '»-; the son ZiinZZT'^'j" ''"'--»»» 
 ™tm»ed the business for thl V !" "''''''' ">« ^'her 
 4«aon-s ne.t of iin ■ 8„ ' fJ"'"' ''-^"^fit of himself and 
 "■f.'o be the prope;,;Tf the ,1''"^ T''"' "-" "»« 
 ---allthe..d,L,J^.f5trK^.l^;C^^ 
 
 'M-t!j^rh:i::,::'t 
 
 .Wpertyof John Bennett and n I ®°'"'' ^^--^'^Mas the 
 fe^ettwas one of the stie", ttTV ""'''"''' «"" 
 "K J., held that the prter^v ""' ""''*'=''''?«' •• 
 
 I«'"«:E.,.BonUon,5cTp^.„r ^''"^^"y laid in 
 
 , '"^•'••Pritehard.L&Cs/'f 
 
 '---^-in^co-partneSS-rrr/sZ- 
 
 ^ ii 
 
i I 
 
 684 
 
 PROCEDURE. 
 
 [Stc. 020 
 
 property of one of the partners specially named and others, 
 under the clause in question. See s. 620, post, as to 
 bodies corporate, and the property under their control: 
 R. V. Beacall, 1 Moo. 15. 
 
 On s-s. (c), it has been held that if a person employed by 
 a trustee of turnpike tolls to collect them lives in the toll 
 house rent free, the property in the house, in an indictment 
 for burglary, may be laid in the person so employed by the 
 lessee, he having the exclusive possession, and the toll 
 house not being parcel of any premises occupied by his 
 lemployer : R. v. Camfield, 1 Moo. 42. 
 
 PROPKnTY OF Body Cokporate. 
 
 OSO. All pri perty, real and personal, whereof any body corporate has, 
 by law, the management, control or custody, shall, for the purpose of any 
 indictment or proceeding against any other person for any offence committed 
 on or m respect thereof, be deemed to be the property of such body coriwrate. 
 R. S. C. c. 174, s. 122. 
 
 This clause is not in the English statutes. It was held 
 in England, without this clause, that when goods of a cor- 
 poration are stolen they must be laid to be the property 
 of the corporation in their corporate name and not in the 
 names of the individuals who comprise it : R. v. Patrick 
 and Pepper, 1 Leach, 253. — So in R. v. Freeman, 2 Russ. 
 801, the prisoner was indicted for stealing a parcel, the 
 property of the London and North Western Railway Com- 
 pany. The parcel was stolen from the Lichfield Station, 
 which had been in the possession of the company for three 
 or four years, by means of their servants, but no statute 
 was produced which authorized the company to purchase 
 the Trent Valley Line ; an Act incorporating the company 
 was, however, produced. It was held that, as a corporation 
 is liable in trover, trespass and ejectment, they might have 
 :au actual possession though it might be wrongful, Tvhieii 
 V'ould support the indictment. 
 
 In R. V. Frankland, L.& G. 276, it was held: 1st. That 
 the incorporation of a private company must be proved by 
 legal and documentary evidence ; 2ud. That partuers in a 
 
Sols. 021-023] 
 
 IN DICTMENTS-SPECI AL CASES. 
 
 685 
 
 Lined and others. 
 5-20, post, as to 
 r their control; 
 
 son employed by 
 lives in the toll 
 in an indictment 
 employed by the 
 
 m, and the toll 
 occupied by his 
 
 iny body corporate has, 
 tor the purpose of any 
 r any offence committed 
 • of such body coriwrate. 
 
 utes. It was held 
 len goods of a cor- 
 be the property 
 me and not iu the 
 it: E. V. Patrick 
 Freeman, 2 Russ. 
 ling a parcel, the 
 ern Railway Com- 
 Lichfield Station, 
 company for three 
 ts, but no statute 
 pany to purchase 
 iting the company 
 [it, as a corporatiou 
 ,t, they might have 
 le wrongful, \7hich 
 
 company not incorporated might be proved to be such by 
 parol evidence ; 3rd. That Thomas Bolland and others, 
 who were described in the indictment as the owners of tbe 
 property embezzled, being partners in a company not 
 incorporated, the indictment was supported by proof that 
 the money was the property of the company. 
 
 By s. 613, ante, no count is objectionable on the ground 
 that it does not contain the name of the person injured, 
 or defrauded, or that it does not state the owner of any 
 property therein described, or that it does not name any 
 one with precision. 
 
 Indictjiknts for Stealing Ores, Etc. 
 
 631' In an indictment for any offence mentioned in section three 
 Imndred a :d forty-three or three hundred and seventy-five of this Act, it shall 
 lie siitficient to lay the projierty in Her Majesty, or in any person or corpora- 
 rim, in different counts in such indictment ; and any variance in the latter 
 case, between the statement in the indictment and the evidence adduced, 
 may Ise amended at the trial ; and if no owner is proved the indictment 
 may be amended by laying the property in Her Majesty. R. S. C. c. 174, 
 s. 124. 
 
 See under ss. 3-13 & 875, ante. 
 
 Offences as to Postage Stamps, Etc. 
 
 OSS. In any indictment for any offence committed in respect of any 
 (iustal card, jiostage stamp or other stamp issued or prepared for issue by the 
 authority of the Parliament of Canada, or of tlie legislature of any province of 
 Canada, or by, or by the authority of any corjMirate body for the payment of 
 any fee, rate or duty whatsoever, the projjerty therein may be laid in the 
 person in whose possession, as tiie owner thereof, it was when the oflfence was 
 cmnraitted, or in Her Majesty if it was then unissued or in the possession of 
 any officer or agent of the Government of Canada or of the Province by 
 authority of the legislature whereof it was issued or prepared for issue. R. S. C. 
 c. 174, 8. 125. 
 
 See interpretation clause, s. 3. 
 
 Indictments Under Sections 319-321. 
 
 633. In every case of theft or fraudulent application or disposition of 
 any chattel, money or valuable security under sections three hundred and 
 nineteen (c) and three hundretl and twenty-one of this Act, tlie proiK^rty in 
 any such chattel, money or valuable security may, in any warr.ant by the 
 justice of the peace before whom the offender is charged, and in the indictment 
 preferred against such offender, be laid in Her Majesty, or in the municipality, 
 as the case may be. R. S. C. c. 174, s. 120. 
 
 M 
 
 -.'j i 
 
 "U 
 
686 
 
 PROCEDURE. 
 Indictments as to Mail Bags, Etc. 
 
 [Sees. n24-r)2G 
 
 084. When an offence is committed in respect of a i)OBt letter bag, or a 
 IX)st letter, or other mailable matter, chattel, moi.ey or valuable security Heiit 
 by post, the projierty of such jwat letter bag, jxjst letter, or other mailable 
 matter, chattel, money or valuable security ftiay, in the indictment preferred 
 against the offender, be laid in the Postmaster-General ; and it shall not be 
 necessary to allege in the indictment, or to prove upon the trial or otherwisp, 
 that the post letter bag, post letter or other mailable matter, chattel m 
 valuable security was of any vah'.e. 
 
 2. The property of any chattel or thing used or emi)l()yed in the service of 
 the post office, or of moneys arising from duties of postaare, shall, exce])t in 
 the oases aforesaid, be laid in Her Majesty, if the same is the projierty of Her 
 Majesty, or if the loss thereof would be borne by Her Majesty, and not h\ 
 any person in his private capacity, 
 
 3. In any indictment against any person emi>loyed in the jiost office of 
 Canada for any offence against this Act, or against any person for an offence 
 committed in respect of any person so employed, it shall be sufficient to allege 
 that »uch offender or such other person was employed in the pj.st office of 
 Canada at the time of the commission of such offence, without stating further 
 the nature or particulars of his employment. R. S. C. o. 35, s. 111. 
 
 See SB. 3 and 4, ante, for interpretation of terms. 
 
 Stbaling by Tenant oh Lodger. 
 
 093. An indictment may be preferrt.l against any person who stealn any 
 chattel let to be used by him in or with ai..> house or lodging, or who steal- 
 any fixture so let to be used, in the same form as if the offender was not a 
 tenant or Imlger, and in either case the property may be laid in the owner r 
 person letting to hire. R. S. C. c. 174, s. 127. 24-25 V. c. 9G, s. 74 (Imi>.). 
 
 See s. 822, ante. 
 
 Joinder of Counts. (New). 
 
 G20. Any number of counts for any offences whatever may be joined in 
 the same indictment, and shall be distinguished in the manner shown in tiii 
 form EE in schedule one hereto, or to the like effect : Provided that to a count 
 charffing murder no count charr/inii ani/ offaicc other than murder shall 'x 
 joine d. 
 
 2. When there are more counts than one in an indictment each count may 
 be treated as a sej^arate indictment. 
 
 3. If the court thinks it conducive to the ends of justice to do so, it may 
 direct that the accused shall be tried ui)on any one or more of sunh counts 
 separately. Such order may be made eitlier before or in the course of tlie trial, 
 and if it is made in the course of the trial the juiy shall be (Uschurged fruin 
 giving a verdict on the counts on which the trial is not to proceed. Tiie 
 counts in the indictment which are not then tried shall be proceeded upon in 
 all respects as if they had been found in a separate indictment. 
 
 4. Provided that, unless there be special reasons, no order shall Ije made 
 preventing the trial at the same time of any number of distinct charges of 
 
Sec. 620] 
 
 JOINDER OF COUNTS. 
 
 687 
 
 ktment eacli count mx 
 
 theft not exceeding three, alleged to have been committed within six montim 
 from the first to the last of Huch oflFences, whether (njainst themme person or not. 
 5. If one sentaice is passed upon any verdict of gviltyon more eounfi than 
 me, the sentence shall be good if any of such counts would have justified it. 
 
 The proviso in s-s. 1 is new as statutory law, though 
 in practice no count for any other offence was joined 
 to a count for muicler : aee Theal v. K., 7 S. C. R. 397. 
 The last words of s-s. 4 are also new law. Suh-section 5 
 extends to all offences a rule that applied exclusively to 
 misdemeanours. 
 
 See form EE under s. 610, p. 673, ante. 
 In R. V. Jones, 2 Camp. 131, Lord Ellenborough said : 
 '• In point of law there is no objection to a man being tried 
 on one indictment for several offences of the same sort. 
 It is usual, in felonies, for the judge, in his discretion, to 
 call upon the counsel for the prosecution to select one 
 felony, and to confine themselves to that ; but this practice 
 has never been extended to misdemeanours." 
 
 In R. v. Benfield, 2 Burr. 980, an information against 
 five for riot and libel had been filed, on which three of them 
 were acquitted of the whole charge, and Benfield and Saun- 
 ders found guilty of the libel. It was objected that several 
 distinct defendants charged with several and distinct 
 offences cannot be joined together in the same indictment 
 or information, because the offence of one is not the offence 
 of the others. But it was determined that several offences 
 may be joined in one and the same indictment or informa- 
 tion, if the offence wholly arises from such a joint act as is 
 criminal in itself, without any regard to any particular 
 default of the defendant which is peculiar to himself ; as, 
 for instance, it may be joint for keeping a gaming house, 
 or for singing together a libellous song, but not for exercis- 
 ing a trade without having served an apprenticeship, 
 because each trader's guilt must arise from a defect peculiar 
 to himself, and 2 Hawk. 140 was said to be clear and 
 express in this distinction. 
 
 In Young's case, 1 Leach, 511, Buller, J., said: "In 
 misdemeanours the case in Burrow, R. v. Benfield, 2 Burr. 
 
 .i*> 
 
I 
 
 688 
 
 PROCEDURE. 
 
 [S«c. (i2« 
 
 980, shews that it is no objection to au indictment that it 
 contains several charges. The case of felonies admits of 
 a different consideration ; but even in such cases, it is no 
 objection in this stage of the prosecution (writ of error). 
 On the face of an indictment every count imports to be for 
 a different offence, and is charged as at different times ; 
 and it does not appear on the record whether the offences 
 are or are not distinct. But, if it appear before the defend- 
 tmt has pleaded or the jury are charged, that he is to be 
 tried for separate offences, it has been the practice of the 
 judges to quash the indictment, lest it should confound the 
 prisoner in his defence, or prejudice him in the challenge 
 of the jury ; for ho might object to a juryman trying one 
 of the offences, though be might have no reason to do so in 
 the other. But these are only matters of prudence and 
 discretion. If the judge who tries the prisoner does not 
 discover it in time, I think he may put the prosecutor to 
 make his election on which charge he will proceed. I did 
 it at the last sessions at the Old Bailey, and hope that, in 
 exercising that discretion, I did not infringe on any rule of 
 law or justice. But, if the case has gone to the length of a 
 verdict, it is no objection in arrest of judgment. If it were 
 it would overturn every indictment which contains several 
 counts." 
 
 In the case of R. v. Hey wood, L. & C. 451, this decision 
 in Young's case was followed by the court of crown cases 
 reserved, and it was held, that, although it is no objection 
 in point of law to au indictment that it charges the prisoner 
 with several different felonies in different counts, yet, as 
 matter of practice, a prisoner ought not, in general, to be 
 charged with different felonies in different counts of an 
 indictment ; as, for instance, a murder in one count, and 
 a I)urglary in another, or a burglary in the house of A. in 
 one count, and a " distinct " burglary in the house of B. in 
 another, or a larceny of the goods of A. in one count, and 
 a " distinct " larceny of the goods of B. at a different time 
 in another, because such a course of proceeding is caicu- 
 
 * 
 
Seo. 026] 
 
 JOIXDER OF COUNTS. 
 
 689 
 
 lated to embnrrnBo *u^ • 
 
 ment on th«t ground before th. '" ""^ '»'"'='• 
 
 the jury are charged, the j dgl //iTr' '."' P''"''^'' « 
 ftemdictment. or put the p?Le"utor /"f °" '""^ 'J"''''' 
 no objection in arrest of iud«me„? 1 """• ^'" » i* 
 S« 3. 784 po.t. Thus, where rL T " ""' "' ^"»f- 
 p™o„er in three severkl cou^a wi ht"" '^""^'^ '"e 
 in sending three separate thrj/^'? ''"■«™' f^'onie* 
 couai^lled the mselnZlT^TZl'Tt: ^''^' '- 
 would proceed.- E. v. Ward, 10 c™ 42 A f • """"' •>« 
 ent judgments are requi-V ;. „ "' f/ , ^"^ "»« differ- 
 count for a felony „i,2 anotL t for? "] *"" '''"^^'^ "^ "^ 
 be holden to be bad upon d 'l' '""''^"'^'"'°». would 
 verdict, upon motion in Irrest o^rr '"' ^"" » •''««™' 
 PI- ^3; 1 Stephen's HiTum'l'T"'''- ' «"'"^'^. C^- 
 ««fe, that is not so. "' '""' "n''«r s. 626, 
 
 So in R. V. Ferguson, Dears 427 .. 
 bavmg been indicted for a flL •/'""'* *^' P"soaer 
 'wodiiferent counts of one nZr'." '"""'■"eanour in 
 
 "rest of judgment, against the J5' ■' f "°""'' """"ed in 
 J" ge reserved the decWo„ and l'?;°' ■""■"'«• '"e 
 .Ielner.„gthejudgmentofthe'courtofr ^"""P"'^"' C-J- 
 »«1^ "There is really no difficu, ! ;^T ™'^"'^^'^'' 
 
 «e,a„dImnstsaythatIreg;etZt" >' '""■'" '" "''^ 
 for whom I have a great respecVsb u r™''''^'='>''*''- 
 lecesaary to reserve it 111' *°"''' '""^ 'bought i , 
 ;*.men, was bad on lou 't of\!tr '1' "''^«'» «- 
 'o«nta. The prisoner was convild „ I* '"i^iomder of 
 "■"y. and it is the same th ng af^^"" '^^T"' '" ''^"•'y 
 "mm indictment containte- /!- '*'','"'^^'"=»"«'e4 
 fowod that there was aTund"': ^"!f <=<»■"' ; and it 
 ■«' conviction. There is not 1? '"f,'""" '° """""t 
 f « objection, that the indictmeM ,""''' P"'»«^ ^r 
 '"'-demeanour, and it dt Tof^.tu 7'"'"^" " --' 
 Cm, i,„_« ""' "' ""y argument." 
 
 «'.;•■ 
 
 
 
 ...)' 
 
690 
 
 PROCEDURE. 
 
 [Sec. 62G 
 
 So in E. V. Holman, L. & C. 177, where the prisoner 
 was charged in an indictment by one count for embezzle- 
 ment and the other for larceny as a bailee. At the close of 
 the case for the prosecution it was objected that the indict- 
 ment was bad for misjoinder of counts, and that the objec- 
 tion was fatal, although not, taken till after plea pleaded 
 and the jury had been charged ; and, upon the court pro- 
 posing to direct the counsel for the prosecution to elect on 
 which count he would proceed, the prisoner's counsel 
 further contended that the indictment was so absolutely 
 .bad that the election of counts was inadmissible. 
 
 The court directed the counsel for the prosecution to 
 <«lect on which count he would proceed, reserving, at the 
 request of the prisoner's counsel, the points raised by him 
 as above stated for the consideration of the court for Crown 
 cases reserved. The counsel for the prosecution elected to 
 proceed on the second count, and upon that count the 
 prisoner was convicted, and the conviction affirmed. 
 
 Where the defendant was indicted, in several counts, 
 for stabbing with intent to murder, with intent to maim 
 and disable, and with intent to do some grievous bodily 
 barm, it was holden that the prosecutor was not bound to 
 elect upon which count he would proceed, notwithstanding 
 the judgment is by the statute different, being on the first 
 count capital, and on the others transportation : R. v. 
 Strange, 8 C. & P. 172 ; Archbold, 70. 
 
 When the enactment contained in s. 713, post, was in 
 force in England, 7 Wm. IV. and 1 V. c. 85, s. 11, a 
 prisoner was charged in one indictment with feloniously 
 stabbing with intent— first, to murder; second to maim; 
 third, to disfigure; fourth, to do some grievous bodily 
 harm ; to which was added a count for a common assault. 
 The case was far advanced before the learned judge was 
 aware of this, and at first he thought of stopping it; but 
 as it was rather a serious one he left the case, without 
 noticing the last count, to the jury, who (properly as the 
 
[Sec. 62G 
 
 Sec. C2()] 
 
 JOINDER OF COUNTS. 
 
 691 
 
 tie prisoner 
 
 : embezzle- 
 tiie close of 
 
 t the indict- 
 
 it the objec- 
 
 plea pleaded 
 
 le court pro- 
 
 ,n to elect on 
 
 ler's counsel 
 
 JO absolutely 
 
 jle. 
 
 irosecution to 
 
 rving, at the 
 
 raised by him 
 
 )urt for Crown 
 
 tion elected to 
 
 hat count tbe 
 
 ffirmed. 
 
 several counts, 
 
 ntent to maim 
 grievous bodily 
 ,8 not bound to 
 lotwithstauding 
 [ing on the first 
 irtation : ^^ ^'• 
 
 L3, post, was in 
 Ic. 85, B. 11, a 
 vith feloniously 
 [cond to maim; 
 j grievous bodily 
 lommon assault- 
 Irned judge vfas 
 fstoppiPgit; but 
 le case, v?itbout 
 ] (properly as tbe 
 
 learned judge thought upon the facts) convicted the prisoner; 
 and the counsel for the prosecution then, being aware of th6 
 objection of misjoinder, requested that the verdict might 
 be taken on the last count for felony, which was done 
 accordingly; and this was held right by all the judges: 
 E. V. Jones, 2 Moo. 94. 
 
 Here, in Canada, now, there is no iobjection to a count 
 for a common assault, in an indictment for any offence 
 where, under s. 713, the jury may find a verdict for the 
 assault. But, of course, such a count is not necessary, as 
 the jury may, in that case, convict of the 'assault without 
 its being alleged in the indictment: see 1 Bishop's Cr. 
 Proc. 446. 
 
 In any case not falling under s. 713 the prosecutor 
 
 may be ordered to proceed on one of the counts only. If 
 
 the defendant does not take the objection and allows the 
 
 trial to proceed the conviction will be legal, if a verdict is 
 
 taken distinctly on one of the counts. If a verdict is given 
 
 of guilty generally, without specifying on which of the 
 
 counts, the conviction will be held bad on motion in arrest 
 
 of judgment, or in error. For how could the court know 
 
 what sentence to give if it ia not clear^what offence the 
 
 jury have found the prisoner guilty of. But s-s. 5 of s. 626 
 
 would seem to alter the law in this respect : see 1 Starkie, 
 
 Cr. PI. 43 ; E. v. Jones, 2 Moo. 94 ; K. v. Ferguson, Dears. 
 
 427; O'Connell v. K, 11 CI. & F. 155. 
 
 Though in law the right to charge different felonies in 
 one indictment cannot be denied, yet, in practice the 
 court, in such a case, will always oblige the prosecutor to 
 elect and proceed on one of the charges only : Dickinson's 
 Quarter Sessions, 190. 
 
 But the same offence may be charged in different ways, 
 in different counts of the same indictment, to meet the 
 several aspects which it is apprehended the case may 
 assume in evidence, or in which it may be seen in point of 
 law, and it is said in Archbold, p. 72 : " Although a prose- 
 
 WP 
 
 'M 
 
 
 
 .j. 
 
 
692 
 
 PROCEDURE. 
 
 [Sec. G2() 
 
 iv 
 
 
 <-': 
 %■ 
 
 it; 
 I 
 
 cutor is not, in general, permitted to charcre a defendant 
 with different felonies in different counts, yet he may charge 
 the same felony in different ways in several counts in order 
 to meet the facts of the case; as, for instance, if there be a 
 doubt whether the goods stolen, or the house in which a 
 burglary or larceny was committed, be the goods or house 
 of A. or B., they may be stated in one count as the goods or 
 house of A., and in another as the goods or house of B. : see 
 E. V. Egginton, 2 B. & P. 508 ; E. v. Austin, 7 C. & P. 796. 
 And the verdict may be taken generally on the whole indict- 
 ment : E. V. Downing, 1 Den. 52. But, inasmuch as the 
 word 'felony' is not nomen colUctivum (as 'misdemeanour' 
 is: see Eyalls v. R, 11 Q. B. 781, 795), if the verdict and 
 judgment, in such case, be against the defendant for * the 
 felony aforesaid,' it will be bad unless the verdict and judg- 
 ment be warranted by each count of the indictment": 
 Campbell v. E., 11 Q. B. 799, 814; see 1 Bishop's Gr. Proc. 
 449. 
 
 In E. V. Sterne, 1 Leach, 473, 2 East P. C. 701, the defend. 
 ant was charged in two counts with two distinct felonies on 
 the same facts, and found guilty of a third one that was 
 included in those charged. In E. v. Audley (Lord), 3 St. 
 Tr. 401, the prisoner was tried at the same time upon three 
 indictments for three different felonies : see also E. v. Ker- 
 shaw, 1 Lewin, 218 ; E. v. School, 26 U. C. Q. B. 212. 
 
 Indictments for misdemeanours may contain several 
 counts for different offences, and, as it seems, though the 
 judgments upon each be different: Young v. E., 3 T. Pi. 98, 
 105, 106 ; E. V. Towle, 2 Marsh. 466 ; E. v. Johnson, 3 M. 
 k S. 539 ; E. v. Kingston, 8 East, 41 ; and see E. v. Ben- 
 field, 2 Burr. 980 ; E. v. Jones, 2 Camp. 131 ; Dickinson's 
 Q. S. 190 ; Starkie's Cr. PI. 43 ; E. v. Davies, 5 Cox, 328, 
 Even where several different persons were chaiged in differ- 
 ent counts with offences of the same nature, the court held 
 that it was no ground for a demurrer, though it might be 
 for an application to the discretion of the court to quash the 
 
[Sec. 6'2() 
 
 a defendant 
 may charge 
 ints in order 
 if there be a 
 e in which a 
 ods or house 
 \ the goods or 
 luse of B. ; see 
 rC.&P. 796. 
 whole indict- 
 smuch as the 
 lisdemeanour' 
 le verdict and 
 idant for ' the 
 •diet and judg- 
 indictment " : 
 ihop's Cr. Proc. 
 
 '01,thedefeml- 
 
 iinct felonies on 
 one that was 
 
 ly (Lord), 3 St. 
 
 ime upon three 
 also H. V. Ker- 
 Q. B. 212. 
 lontain several 
 18, though the 
 B.,3T.E.98, 
 Johnson, 3 M. 
 . see B. V. Ben- 
 ,1; Dickinson's 
 ies, 6 Cox, 328. 
 Uiged indlffer- 
 , the court held 
 U it might be 
 [u't to quash the 
 
 Sec. 626] 
 
 JOINDER OF COUNTS. 
 
 693 
 
 indictment : E. v. Kingston, 8 East, 41. Where two 
 defendants were indicted for a conspiracy and a libel, and 
 at the close of the case for the prosecution, there was 
 evidence against both as to the conspiracy but against one 
 only as to the libel, the judge then put the prosecutor to 
 elect which charge he would proceed upon : R. v. Murphy, 
 8 C. & P. 297. On an indictment for conspiracy to defraud 
 by making false lists of goods destroyed by fire, one set of 
 counts related to a fire in June, 1864, and another to a fire 
 in Noveruber, 1864. The prosecution was compelled to elect 
 which charge of conspiracy should be first tried, and to 
 confine the evidence wholly to that in the first instance : 
 E. V. Barry, 4 F. & F. 389. And on an indictment against 
 the manager and secretary of a joint- stock bank, containing 
 many counts, some charging that the defendants concurred 
 in publishing false statements of the afifairs of the bank, 
 and others that they conspired together to do so, the pro- 
 secutors were put to elect on which set of counts they 
 would rely : R. v. Burch, 4 F. & F. 407. 
 
 If there be several offenders that commit the same 
 offence, as if several commit a robbery, or burglary, or 
 murder, they may be joined in one indictment. And for 
 separate offences of the same nature several persons may 
 be indicted in the same indictment if they are indicted 
 separaliter, severally, so that twenty persons may be 
 indicted for keeping twenty different disorderly houses ; 2 
 Hale, 173. In fact, formerly, in the criminal courts, there 
 was only one indictment against all the prisoners ; the 
 jury at the end of the day retired and considered all the 
 cases they had heard during the day, and then gave all the 
 verdicts in the different cases together ; i>er Denman, C.J., 
 m R. V. Newton, 3 Cox, 492 ; and per Alderson, B., in R. 
 V. Downing, 1 Den. 52. 
 
 Counts for different misdemeanours on which the judg- 
 ment is of the same nature may be joined in the same 
 iudictment, and on such counts judgment may, and indeed 
 
 .^'B 
 
 I 
 
694 
 
 PROCEDURE. 
 
 [Sec. 626 
 
 
 't i? 
 
 i^ii 
 
 ought to be, separately entered : R. v. Orton, 14 Cox, 436, 
 546; E. V. Brndlangh, 15 Cox, 217. 
 
 Counts for different misdemeanours of the same class 
 may be joined in the same indictment : E. v. Abrahams, 
 24 L. C. J. 325. 
 
 Although, in general, it is not permitted to include two 
 different felonies under different counts of an indictment, 
 yet the same offence may be charged in different ways in 
 different counts of the same indictment. Thus, in. the first 
 count the accused may be charged with having stolen 
 wood belonging to A., and in a'lother with having stolen 
 wood belonging to B.: E. v. Falkner, 7 E. L. 544. 
 
 If an assault is on two or more persons, or if by one act 
 any one steals various articles, whether belonging to the 
 same person or the property of two or more persons, or 
 kills or wounds more than one, the offence may be charged 
 as one in the indictment, in the same count : E. v. Ben- 
 field, 2 Burr. 980 ; form in 3 Chit. 823. Though it may 
 also, perhaps, be charged in different indictments ; see cases 
 under s. 632 post. See E. v. Devett, 8 C. & P. 689 ; E. v. 
 Giddins, Car. & M. 634; E. v. Fuller, 1 B. & P. 180; 
 Lh jham v. E., 9 Cox, 516. 
 
 Sub-section 4 of s. 626 is a reproduction of ss. Ill & 
 134, c. 174, E. S. C. 24 & 25 V. c. 96, ss. 6, 71 (Imp.). 
 
 The word "month " therein means a calendar month: 
 Interpretation Act, c. 1, Eev. Stat. 
 
 Section 202, c. 174, E. S. C. has not been re-enacted, 
 so that the indictment, now, must charge three acts of 
 stealing. That s. 202 allowed the proof of three acts of 
 stealing where the indictment charged only one. 
 
 The effect of this legislation is to restrain the power of 
 the court with respect to the doctrine of election. The court 
 cannot, unless there be special reasons, put the prosecntor 
 to his election where the indictment charges three acts of 
 larceny within six months. But on the other hand, the 
 
Sec. 026] 
 
 JOINDER OF COUNTS. 
 
 695 
 
 court ia not bound to put the prosecutor to his election in 
 other cases, but is left to its discretion, according to the 
 old practice. 
 
 By means of a secret junction pipe with the main of a 
 gas company, a mill was supplied with gas, which did not 
 pass through the gas meter, and which was consumed 
 without being paid for. This continued to be done for 
 some years. Held, on an indictment for stealing 1,000 
 cubic feet of gas on a particular day, the entire evidence 
 might be given, as there was one continuous act of stealing 
 all the time, and that s. 6 of the Imperial Lavceny Act, 
 s. 202, of c. 174, R. C. S. as to the prosecutor electing on 
 three separate takings within six months, did not apply : 
 R. V. Firth, 11 Cox, 234. 
 
 An indictment charged an assistant to a photographer 
 with stealing on a certain day divers articles belonging to 
 his employer. It did not appear when the articles were 
 taken, whether at one or moro times, but only that they 
 were found in the prisoner's possession on the 17th of 
 January, 1870, and that one particular article could not 
 have been taken before March, 1868, but the prosecution 
 abandoned the case as to this article : Held, that this was 
 not a case in which the prosecutor should be put to elect 
 upon which taking to proceed: R. v. Henwood, 11 Cox^ 
 526. 
 
 When it appears by the evidence that the felonious 
 receiving was one continuous act during a certain period 
 of time, extending over two years, the court will not compel 
 the prosecutor to elect, even if it be proved that some of 
 the articles received by the accused were so received at 
 divers fixed dates extending over more than six montlip, 
 and on more than three occasions : R. v. Suprani, 13 R. L. 
 577, 6 L. N. 269. 
 
 It seems that, where three acts of larceny are charged 
 in separate counts there may also be three counts for 
 
 ,> V 
 
 n 
 
 Hi: 
 
 iM! 
 
 
696 
 
 PROCEDURE. 
 
 [Sec. 020 
 
 receiving : E. v. Heywoocl, L. & C. 451. There is no doubt 
 of that under this Code. 
 
 Greaves says : " It frequently happened before this 
 statute passed, that a servant or clerk stole sundry articles 
 of small value from his master at different times, and iu 
 Buch a case it was necessary to prefer separate indictments 
 for each distinct act of stealing, and on the trial it not sel- 
 dom happened that the jury, having their attention con- 
 fined to the theft of a single article of small value, im- 
 properly acquitted the prisoner on one or more indictments. 
 The present section remedies these inconveniences, and 
 places several larcenies from the same person in the same 
 position as several embezzlements of the property of the 
 same person, so that the prosecutor may now include three 
 larcenies of his property committed within the space of six 
 calendar months in the same indictmeit " : Lord Camp- 
 bell's Acts, by Greaves, 19. 
 
 The indictment need not charge that the subsequent 
 larcenies were committed within six months after the com- 
 mission of the first : R. v. Heywood. L. & C. 451. And it 
 is not necessary, now, that the three acts of stealing should 
 be from the same person. 
 
 JOINDER OF DEFENDANTS-SEPARATE TRIALS. 
 
 Two parties accused of the same offence on the same 
 indictment are not entitled as of right to a separate defence 
 either in felonies or misdemeanours : R. v. McCouoby, 5 
 E. L. 746. 
 
 In R. V. Littlechild, L. R. 6 Q. B. 293, it was held that 
 it is in the discretion of the court to grant a separate trial 
 or not. 
 
 In E. V. Gravel {Montreal, Q. B. March, ISr^,) for sub- 
 ornation of perjury, separate trials were refused, Ramsay, 
 J. In R. V. Bradlaugh, 15 Cox, 217, for libels, separate 
 trials were granted. Where several persons are jointly 
 indicted the judge will not allow a separate trial on the 
 
 s 
 
Sec?. G27, 62S] 
 
 SPECIAL INDICTMENTS. 
 
 697 
 
 ground that the dopositious disclose statements and con- 
 fessions made by one prisoner implicating another which 
 are calculated to prejudice the jury, and that there is no 
 legal evidence disclosed against the other prisoner : R. v. 
 Blackburn, 6 Cox, 333. 
 
 The prosecution has always a right to a separate trial : 
 1 Bishop, Cr. Pioc. 1034 ; 2 Hawk. c. 41, par. 8. 
 
 See, on the question, 1 Chit. C. L. 535 ; 1 Starkie, Cr. 
 PI. 36 ; 1 Bishop, Cr. Proc. 463, 1018 : 1 Wharton, 433 ; 
 R. V. Payne, 12 Cox, 118; O'Connell v. E., 11 CI. & F. 
 155. 
 
 For conspiracy and riot there can be no severance of 
 trial : 1 Wharton, 434 ; Starkie's Cr. PI. 26, et seq. 
 
 Each count must by itself disclose an oflfence, and the 
 allegations in one count cannot help the other counts : R. 
 V. Samuels. 16 R. L. 576. 
 
 Accessories After the Fact and Receivers. (Amended). 
 
 0St7. Every one charged with being an accessory after the *'act to an 
 (iffeiice, or with receiving any i)roperty knowing it to have been stolen, may be 
 iudictecl, whether the principal offender or other party to the offence or person 
 by whom such property was so obtained has or has not been indicted or 
 convicted, or is or is not amenable to justice, and such accessory may be 
 indicted either alone as for a substantive offence or jointly with such principal 
 or other offender or person. 
 
 2. When any property has been stolen any number of receivers at different 
 tinu'.s of such projierty, or of any part or parts thereof, may be charged with 
 substanti *e offences in the same indictment, and may be tried together, 
 wliether the i)erson by whom the property was so obtained is or is not indicted 
 with th( ni, or is or is not in custody or amenable to justice. R. S. C. c. 174, 
 «. 133, 13G & 138. 24-25 V. c. 90, ss. 6, 1)1 & 1)3 (Imp.). 
 
 See ss 63, 314, 531, & 532, ante ; also, ss. 715, 716, 
 & 717, post, as to trial of receivers. This enactment 
 does not seem to apply to the receiving of property obtained 
 by false pretenses. 
 
 After a Previovs Conviction. 
 
 628. In any indictment for any indictable offence, committed after a 
 rrevious conviction or convictions for any indictable offence or offences or for 
 any offence or offences (and for which a greater punishment may be inflicted 
 on that account), it shall be sufficient, after charging the subsequent offence, to 
 
 P). 
 
 11 
 
 n 
 
698 
 
 PROCEDURE. 
 
 [Sr-o. 628 
 
 k 
 
 C 
 
 *' 
 
 state that the offemler was at a certain time and place, or at certain times and 
 places, convicted of an indictable offence, or of aji offence or offences, as the 
 case may be, and to Mate (he niib/'ti'ncc and effect on!;/, nmitting the formal fan 
 itf the indictment and convict! ';i, or of the sumiwirii ennviction, an the case mii'i 
 he, for the previous offence, without otherwise describing the previous offence or 
 offences. R. S. C. c. 174, s. V.V.) 
 
 See a. 676, })ost, as to trial, and s. 694 as to proof. 
 
 This clause is taken from s. 116 of the English Larceny 
 Act, 24 &2o V. c. 96, s. 37 of the English Coin Act, 24 & 25\. 
 c. 99, and of s. 9, 34 & 35 V. c. 112. The words in italics are 
 not in s. 116 of the English Larceny Act but are in s. 37 
 of the Coin Act. They clearly take away the necessity, 
 before existing, of setting out at length the previous 
 indictment, etc., and of giving in evidence a cojiy of that 
 indictment. 
 
 " The proceedings on the arraignment and trial are to be 
 as follows ; {see s. 676, j^ost) : 
 
 " The defendant is first to be arraigned on that pait 
 only of the indictment which charges the subsequent 
 offence ; that is to say, he is to be asked whether he be 
 guilty or not guilty of that offence. If he plead not guilty, 
 or if the court order a plea of not guilty to be entered for 
 him, then the' jury are to be charged in the first instance to 
 try the subsequent offence only. If they acquit of that 
 offence the case is at an end ; but if they find him guilty 
 of the subsequent offence, or if he plead guilty to it on 
 arraignment, then the defendant is to be asked whether he 
 has been previously convicted as alleged, and if he admit 
 that he has he may be sentenced accordingly ; but if he 
 deny it, or stand mute of malice, or will not answer directly 
 to such question, then the jury are to be charged to try 
 whether he has been so previously convicted, and this may 
 be done without swearing them again, and then the previous 
 conviction is to be proved in the same manner as before 
 this Act passed." 
 
 " The proviso as to giving evidence of the previous con- 
 viction if the prisoner gives evidence of his good character 
 remains unaltered " : Greaven' notr: 
 
 i 
 
[Sc-o. 628 
 
 Sec. 628] 
 
 SPECIAL INDICTMENTS. 
 
 699 
 
 at certain times and 
 ;e tir otfences, as the 
 ttinrj the formal f (IK 
 tion, as the casn im>i 
 le previous otfence or 
 
 i to proof, 
 jinglish Larceny 
 aAct,24&'J5V. 
 )rd8 in italics are 
 but are in s. 37 
 y the necessity, 
 ih the previous 
 B a copy of that 
 
 ud trial are to be 
 
 ;ned on that part 
 , the subsequent 
 \ whether he be 
 plead not guilty, 
 to be enteretl for 
 e first instance to 
 ly acquit of that 
 ^ find him guilty 
 d guilty to it on 
 asked whether be 
 
 and if he admit 
 fJingly ; but if he 
 
 it answer directly 
 le charged to try 
 |ted, and this may 
 
 then the previous 
 Imanner as before 
 
 I the previous cou- 
 lis good character 
 
 See R. V. Martin, 11 Coy ^3; R. v. Thomas, 13 Cox, 
 52; R. V. Harley, 8 L. C. J. 280 ; form of indictment under 
 8. 837, p. 379 ante, and Greaves' note, in 2nd edit, of this 
 work, p. 754. 
 
 In R. V. Clark, Dears. 198, it was held that any number 
 of previous convictions may be alleged in the same indict- 
 ment, and, if necessary, proved against the prisoner; by the 
 aforesaid section this is undoubtedly also allowed. 
 
 In R. V. Fox, 10 Cox, 502, upon a writ of error by the 
 Crown to increase the sentence, the Irish court of criminal 
 appeal perceived that it appeared from the record that the 
 provisions of s. 116 of the Larceny Act, under which the 
 indictment had been tried, as to the arraigning of the 
 prisoner, etc., had been neglected, and, thereupon, quashed 
 the conviction. 
 
 In R. v. Spencer, 1 C. & K. 159, it was held that the 
 indictment need not state the judgment, but the introduc- 
 tion of the words given in italics supra, in clause 628, seems 
 to require the statement of the judgment. It will certainly 
 be more prudent to allege it. 
 
 The certificate, s. 694, must state that judgment was 
 f;iven for the previous otfence and not merely that the 
 prisoner was convicted : R. v. Ackroyd, 1 C. & K. 158 ; R. v. 
 Stonnell, 1 Cox, 142; for the judgment might have been 
 arrested, and the statute says the certificate is to contain 
 the substance and efect of the indictment and conviction 
 for the previous offence ; until the sentence there is no 
 perfect conviction. 
 
 At common law a subsequent offence is not punishable 
 more severely than a first otfence ; it is only when a statute 
 declares that a punishment may be greater after a previous 
 conviction that this clause 628 applies. So in an indict- 
 ment for a misdemeanour, as for obtaining money by false 
 pretenses,a previous conviction for felony cannot be charged: 
 Pi. V. Garland, 11 (]ox, 224. And then this clause does not 
 prevent the prosecution from disregarding, if it chooses, the 
 
 .»v 
 
 
 >1[ 
 
If 
 
 w 
 
 700 
 
 PROCEDURE. 
 
 [Sec. fi2S 
 
 fact of a previous conviction and from proceeding as for a 
 first offence. But the court cannot take any notice of a 
 previous conviction, unless it were alleged in the indictmelit 
 and duly proved on the trial, for giving a greater punish- 
 ment than allowed by law for the first offence : E. v. 
 Summers, 11 Cox, 2i8; R. v. Willis, 12 Cox, 192. 
 
 To complete the proof required on a previous conviction 
 charged in the indictment, when the prisoner does not 
 admit it, it must be proved that he is the same person that 
 is mentioned in the certificate produced, but it is not 
 necessary for this to call any witness that was present at 
 the former trial ; it is sufficient to prove that the defendant 
 18 the person who underwent the sentence mentioned in the 
 certificate : E. v. Crofts, 9 C. & P. 219 ; 2 Russ. 322. 
 
 By s. 676, 2^081, it is enacted that if upon such a trial 
 for a subsequent offence, the defendant gives evidence of 
 his good character, it shall be lawful for the prosecutor to 
 give in reply evidence of the previoua conviction before the 
 verdict on the subsequent offence is returned, and then the 
 previous conviction forms part of the case for the jury ou 
 the subsequent offence. 
 
 It has been held on this proviso that if the prisoner 
 cross-examines the prosecution's witnesses, to show that he 
 has a good character, the previous conviction may be 
 proved in reply : R. v. Gadbury, 8 C. & P. 676. 
 
 This doctrine was confirmed in R. v. Shrimpton, 2 Den, 
 819, where Lord Campbell, C.J., delivering the judgment 
 of the court, said: "It seems to me to be the natural and 
 necessary interpretation to be put upon the words of the 
 proviso in the statute, that if, whether by himself or by 
 his counsel, the prisoner attempts to prove a good character, 
 either directly, by calling witnesses, or indirectly, by cross- 
 examining the witnesses for the Crown, it is lawful for the 
 prosecutor to give the previous conviction in evidence for 
 the consideration of the jury." In the course of the argu- 
 ment Lord Campbell said that, however, he would not admit 
 
[Sec. 028 
 
 ceding as for a 
 tny notice of a 
 the intlictmeht 
 greater luinisb- 
 offence : Pv. v. 
 »x, 192. 
 
 vious conviction 
 isoner does not 
 lame person that 
 i, but it is not 
 it was present at 
 lat the defendant 
 mentioned in the 
 Russ. 322. 
 ipon such a ti-ial 
 gives evidence of 
 the prosecutor to 
 iviction before the 
 |aed, and then the 
 le for the jury ou 
 
 it if the prisoner 
 B8, to show that he 
 [nviction may be 
 
 676. 
 Rhrimpton, 2 Den. 
 Ing the judgment 
 the natural and 
 the words of the 
 |by himself or by 
 . a good character, 
 [directly, by cross- 
 It is lawful for the 
 |n in evidence for 
 jurse of the argu- 
 [e would not admit 
 
 Sec. G29] INDICTMENT-PRKLIMINARY OBJECTIONS. 
 
 701 
 
 evidence of a previous conviction if a witness for the pro- 
 secution, being asked by the prisoner's counsel some ques- 
 tion which has no reference to character, should happen to 
 say something favourable to the prisoner's character. 
 
 It is said in 2 Euss. 354: "It ia obvious, that where 
 the prisoner gives evidence of his good character the proper 
 course is for the prosecutor to require the officer of the 
 court to charge the jury with the previous conviction, and 
 then to put in the certificate and prove the identity of the 
 prisoner in the usual way. If the prisoner gives such 
 evidence during the course of the case for the prosecution 
 then this should be done before the case for the prosecu- 
 tion closes; but if the evidence of character is given after 
 the case for the prosecution closes then the previous con- 
 viction must be proved in reply." See a. 952, post, as to 
 punishment in certain cases. 
 
 PUi.'.miNAUY OiMFX'TioNX TO IsuicT-MEXT. {Amended). 
 
 039. Every objection to any indictment for any defect apparent on the 
 face thereof shall bo taken by denuirrer, or motion to (luash the indictment, 
 liffdie the defendant has pleaded, and not afterwards, ixccpt bi/ leave of the 
 
 ' ()»• Jwliie btf'ire whi'ia the tritd likt.t plncc, and evory court before which 
 iiivsucli objection is taken may, if it is thought necessary, cause the indict- 
 iii.nt to b<' fortlnvith ami-ndt'd in such particular by son-o officer of the court 
 .,r other person, and thereut)on the trial shall proceed as if no such defect had 
 apiieait (1 ; and no motitm in arrest of j'ulgmcnt shall be allowed for any defect 
 ill the iiidietiiient which might have W. i taken advantap^e of by demurrer, or 
 auiriuled under the authority of this Act. R. S. C. e. 174, s. 143. 
 
 The words in italics are new and, it seems, relate to an 
 objection taken at the irial, and must be read in connec- 
 tion with s. 12d,po8t. S. 733, jjosf, gives the right to move 
 in arrest of judgment when the indictment {as amended^ 
 Khen amended) does not charge an indictable offence. 
 "Indictment" defined, s. 3, and includes pleas : see R. v. 
 Creighton, 19 0. R. 339. "When should a motion to quash 
 be made? E. v. Chappie, 17 Cox, 455. That case, how- 
 ever, only applies to defects that are cured by verdict : see 
 R. V. Howes, 5 Man. L. R. 339. 
 
 "It may be observed, that as the power to amend is 
 vested entirely in the discretion of the courts, a case can- 
 
 iff* r 
 
 
702 
 
 PROCEDURE. 
 
 [Sec. 02!) 
 
 t 
 
 I ':. k 
 
 t 
 
 not be reserved under the 11 & 12 V. c. 78 (establishing 
 the court of Crown cases reserved), as to the propriety of 
 making an amendment, as that statute only authorizes the 
 reservation of * a question of law.' If, however, a case 
 should arise in which the question was, whether the court 
 had jurisdiction to make a particular amendment — in other 
 words, whether a particular amendment fell within the 
 terms of the statiUe, there the court might reserve a cast 
 for the opinion of tiio judges as to that point, as that 
 would clearly be a mere question of law " : Lord Camp. 
 bell's Acts, by Greaves, p. 2. 
 
 The Imperial statute, from which this clause is taken, 
 reads as follows : 
 
 ** Every objection to any indictment for any formnl 
 defect apparent on the face thereof shall be taktrn bv 
 demurrer or motion to quash such indictment he/ore tlte 
 jury shall be stcorn, and not afterwards ; and every court 
 before which any such objection shall be taken for aiiij 
 formal defect may, if it be thought necessary, cause the 
 indictment to be forthwith amended in such particular bv 
 some officer of the court or other person, and thereupon 
 the trial shall proceed as if no such defect had appeared ": 
 14 & 15 V. c. 100, s. 25. 
 
 Greaves says on this clause : " Under this section all 
 formal objections must be taken before the jury are sworn. 
 They are no longer open upon a motion in arrest of judj;- 
 ment or on error. By the common law many formal 
 defects were amendable : sec 1 Chit. 297, and the cases 
 there cited ; and it has been the common practice for tlit 
 grand jury to consent, at the time they were sworu, that 
 the court should amend matters of form. The power of 
 amendment, therefore, given in express terms by this 
 section, seems to be no additional power, but rathe: the 
 revival of a power that had rarely, if ever, been exercised 
 of late years." 
 
[Sec. 620 
 
 78 (establishing 
 the propriety of 
 ly authorizes the 
 however, a case 
 ,'hether the court 
 ulment— in other 
 t fell withiu tlie 
 ht reserve a case 
 at point, as that 
 r " : Lord Camp- 
 is clause is taken, 
 
 nt for any fomnl 
 ihall be taken by 
 iUctmeut before the 
 i ; and every court 
 I be taken for amj 
 ecessary, cause the 
 such particular by 
 on, and thereupon 
 ct had appeared": 
 
 tier this section all 
 the jury are sworn. 
 . in arrest of judg- 
 law many formal 
 I297, and the cases 
 ion practice for the 
 ty were sworn, that 
 tm. The power oi 
 Jess terms by this 
 Iver, but rathev the 
 [ever, been exercised 
 
 Sec. (120] INDICTMKXT-P'iELIMINAUY OIJJKCTION.S. 
 
 708 
 
 A motion for arrest of jud<^raent will always avail to 
 tlie defendant for defects apparent on the face of the indict- 
 ment, when these defects are such that thereby no otl'ence 
 in law appears charged against the defendant : II. v. Lynch, 
 20 L. C. J. 187; s. 783, post. Such an indictment cannot 
 1)0 aided by verdict, and such defects are not cured by 
 verdict. As said in R. v. Waters, 1 Den. 35(5 : " There is 
 a difference between an indictment which is bad for charg- 
 ing an act which as laid is no crime and an indictment 
 which is bad for charging a crime defectively ; the latter 
 may be aided by verdict, the former cannot." 
 
 If the indictment charges no ofTence there can be no 
 waiver of the objection to it. It is void. Even where a 
 statute requires the objection to be taken at an early stage, 
 or not at all, a conviction on such a defective indictment 
 cannot be sustained. See E. v. Montminy, p. 077, ante. 
 
 Defects in matters of substance are not amendable, so 
 if a material averment is omitted the court cannot allow 
 the amendment of the indictment by inserting it, for the 
 very good reason that if uhere is an omission of a material 
 averment, of an averment without which there is no offence 
 known to the law charged against the defendant, then, 
 s'rictly speaking, there is no indictment ; there is nothing 
 to amend. 
 
 In a criminal charge there w no lat'diuh of intention 
 to include anything more than is charged ; the charge 
 must be explicit enough to support itself. Per Lord 
 Mansfield, in II. v. Wheatly, 2 Burr. 1127. 
 
 The court cannot look to what the prosecutor intended 
 to charge the defendant with ; it can only look to what he 
 has charged him with. And this charge, fully and clearly 
 defined, of a crime or offence known to the law, the indict- 
 ment as returned by the grand jury must contain. If the 
 indictment as found by the grand jury does not contain 
 such a charge, the defect is fatal ; if the grand jury has 
 not charged the defendant with a crime it will not be 
 
704 
 
 PROCEDURE. 
 
 [Sec. 62i> 
 
 allowed, at a later period of the case, to amend the indict- 
 ment so aa to make it charge one. (Subject now to amend- 
 ments at the trial under s. 723, post) 
 
 It must not be forgotten that when the clerk of the 
 court, on the grand jury returning the bill, asked them to 
 agree that the court should amend matters of form in the 
 indictment, the grand jury gave their assent, but on the 
 express condition that no matter of substance should be 
 altered. Who are the accusers on an indictment? The 
 grand jury, and to their accusation only has the prisoner 
 to answer. This accusation cannot be changed into 
 another one, at any time, without the consent of the 
 accuser: 1 Chit. 298, 324. And if they have brought 
 against the prisoner an accusation of an offence not known 
 in law the court cannot turn it into an offence known in 
 law by adding to the indictment. 
 
 This section, though the word " formal " is not in it as 
 in the English Act, must be interpreted as obliging the 
 defendant to demur or move to quash before joining issue 
 for defects apparent on the face of the indictment, ivhich 
 the court has the power to amend. In cases where the 
 court has not the power to amend the defect or omission 
 the motion for arrest of judgment will avail to the defendant 
 as heretofore. And this clause itself supposes cases where 
 the court has not the power to amend, when it says that : 
 " No motion in arrest for judgment shall be allowed for 
 any defect in the indictment which might have been taken 
 advantage of by demurrer, or amended under the authority 
 of this Act" giving it clearly to be- understood that a 
 " motion for arrest of judgment shall be allowed for any 
 defect in the indictment which could not have been taken 
 advantage of by demurrer or amended under the authority 
 of this Act," leaving the question reduced to : What are the 
 amendments allowed under the authority of this Act! 
 Which can be, it seems, very < asily answered. Of course 
 this clause has no reference to the amendments allowed on 
 
 St 
 
Sec. 629] INDICTMENT— PRELIMINARY OBJECTIONS. 
 
 705 
 
 jnd the indict- 
 now to amend- 
 
 le clerk of the 
 asked them to 
 , of form in the 
 mt, but on the 
 tance should be 
 lictment? The 
 las the prisoner 
 changed into 
 consent of the 
 jT have brought 
 lence not known 
 )ffence kno\yn in 
 
 I " is not in it as 
 as obliging tbe 
 'ore joining issue 
 .dictment, ivhich 
 cases where the 
 sfect or omission 
 to the defendant 
 lOses cases where , 
 „en it says that ; 
 ,1 be allowed for 
 have been taken 
 ..er the authority 
 iderstood that a 
 allowed for any 
 [have been taken 
 ler the authority 
 ,o: What are the 
 [ttj of this Act!- 
 ■red. Of course 
 tents allowed on 
 
 the trial, by s. 723, post Then the only other clause in 
 the Act relating to amendments is this s. 629. And it does 
 not authorize amendments in matters of substance or 
 material to the issue. For instance, heretofore if the word 
 " feloniously " in an indictment for felony had been 
 omitted the court could not allow its insertion. This 
 would have been adding to the o£fence charged by the 
 grand jury, and a change of its nature and gravity. See 
 note {a) by Greaves, 1 Ruas. 935 ; R. v. Gray, L. & C. 365. 
 
 And in an indictment intended to be for burglary the 
 
 word " burglariously," if omitted, could not have been 
 
 inserted by amendment. It would have been charging the 
 
 defendant with burglary, when the grand jury had not 
 
 charged him with that offence. And in England, in au 
 
 indictment intended to be for murder, if it is barely alleged 
 
 that the mortal stroke was given feloniously, or that the 
 
 defendant murdered, etc., without adding of malice afore- 
 
 thought, or if it only charges that he killed or slew without 
 
 averring that he murdered the deceased, the defendant can 
 
 only be convicted of manslaughter : 1 East, P. C. 345 ; 1 
 
 Chit. 243; 3 Chit. 737, 751. And why? Because the 
 
 offence charged is manslaughter, not murder. And the 
 
 court has not the power by any amendment to try for 
 
 murder a defendant whom the grand jury has charged with 
 
 manslaufihter. 
 
 And even in the case of a misdemeanour, on an indict- 
 ment for obtaining money by false pretenses, if tbe words 
 ''with intent to defratul" are omitted in the indictment 
 there is no offence "charged, and the court cannot allow 
 their insertion by amendment : R. v. James, 12 Cox, 127, 
 jitT Lush, J. See now form under s. 611, ante. So if a 
 statute makes it an offence to do an act " wilfully " or 
 " maliciously " the indictment is bad if it does not contain 
 these words : R. v. Bent, 1 Den. 157 ; R. v. Ryan, 2 Moo. 
 15 ; R. V. Turner, 1 Moo. 239 ; it does not charge the 
 defendant with a crime. An amendment which alters the 
 
 Cbim. Law — 45 
 
 ■h 
 
 ill 
 
 
706 
 
 PROCEDURE. 
 
 [Sec. 629 
 
 nature and quality of the offence will not be made : B. v. 
 Wright, 2 F. ife F. 320. 
 
 And whether the defendant takes advantage of m 
 objection of this nature, or not, makes no difference. Na}v 
 even after verdict, even without a motion in arrest of 
 judgment, the court is obliged to arrest the judgment if 
 the indictment is insufficient: B. v. Wheatly, 2 £urr. 
 1127 ; 1 Chit. 303 ; E. v. Turner, 1 Moo. 239 ; B. v. Webb, 
 1 Den. 338 ; see also Sill's Case, Dears. 132. 
 
 These omissions are not defects in the sense of this 
 word as used in this section ; they make the indictment 
 no indictment at all, or, at least, the indictment charges 
 the defendant with no crime or offence. 
 
 On these principles the Court of Queen's Bench, in 
 Quebec, decided B. v. Carr, 26 L. C. J. 61. 
 
 In that case the indictment was under s. 10, of c. 20, 
 32 & 33 v., now s. 232, mite, for an attempt to murder. 
 A verdict of guilty was given, but the court being of 
 opinion that the indictment was defective on its face, and 
 that words material to the constitution of the offence 
 charged were omitted therein, granted a motion to arrest 
 the judgment and quash the indictment, though the prose. 
 cutor invoked s. 32 of the Act then in force, now s. 629, 
 ante, and contended that the prisoner was too late to take 
 the objection. 
 
 Section 629 leaves the law of amendments what it is 
 at common law. It leaves to the judge the discretion of 
 allowing or refusing the amendment, and in matter of 
 substance no such amendment can be allowed. An irregu- 
 larity may be amendable, but a nullity is incurable, and 
 it has been held that the court itself, ex proprio motu, will 
 refuse to try an indictment on which plainly no good jud^'- 
 ment can be rendered: B. v. Tremearne, B. & M. 147; 
 B. V. Deacon, B. & M. 27. 
 
 The ruling in the case of R. v. Mason, 22 U. C. C. P. 
 246, is not a contrary decision. The concluding remarks 
 
[Sec. 629 
 
 J made : B. v. 
 
 vantage oi ai> 
 fference. Nay, 
 n in arrest of 
 he judgment if 
 eatly, 2 Burr. 
 9 ; B. V. Webb, 
 
 te sense of this 
 3 the indictment 
 ictment charges 
 
 leen'B Bench, m 
 
 • 
 
 ers. 10, ofc.20, 
 ,empt to murder. 
 court being of 
 on its face, and 
 of the offer^ce 
 motion to arrest 
 hough the prose- 
 orce, now s. 629, 
 IS too late to take 
 
 dments what it is 
 ) the discretion of 
 ad in matter of 
 )wed. Anirregu- 
 is incurable, and 
 Iproprto ?Hot«, \\iii 
 Inly no good judg- 
 ^e, B. »& M. 147; 
 
 lon.22U.C.C.P. 
 Including remarks 
 
 Sec. 629] INDICTMENT-PRELIMINARY OBJECTIONS. 
 
 707 
 
 of Gwynne, J., show that the coart in that case did not 
 hold that no arrest of judgment or reversal on error 
 should, in any case, be granted for any defect whatever 
 in the indictment apparent on the face thereof. What 
 can be gathered from these remarks, taken together with 
 those of Hagarty, C.J., is, that it was there held that 
 the objections taken would not have been good grounds 
 of demurrer, or that if they had been raised by demurrer 
 the court would have had the power to amend the indict^ 
 ment in such particulars, and that, therefore, the defend-^ 
 ant was too late to raise these objections after verdict. 
 And this ruling was perfectly right. 
 
 As remarked, ante, if the defect is one which the court 
 
 {•or ' ".mend the objection must be taken in limine litis', 
 
 a . ' f not guilty may then be a waiver of the right to 
 
 taiie advantage of such a defect. But if the indictment i» 
 
 defective in a matter of substance a plea of not guilty 
 
 ia no waiver. Nay, more, a plea of guilty is no waiver, and 
 
 does not prevent the defendant from taking exceptions in 
 
 arrest of judgment to defects apparent on the record : 1 
 
 Chit. 431; 2 Hawk. 466; E. v. Brown, 24 Q. B. D. 357. 
 
 The court, as said before, cannot allow an amendment 
 
 adding, for instance, to the offence charged, or having the 
 
 effect to make the indictment charge an offence where none, 
 
 in law, was charged, or to change the nature of the offence 
 
 charged by the grand jury, and the statute obliges to 
 
 demur or move to quash before plea only for objections. 
 
 based on amendable defects. 
 
 It is true, as remarked by one of the learned judges in IT. 
 V. Mason, that the last part of this clause of our statute, tak- 
 ing away, in express words, the motion in arrest of judg- 
 ment, is not in the Imperial statute ; but it will be seen, 
 ante, that Mr. Greaves, who framed the English clause, is 
 of opinion that even without these words it has the same 
 effect; the words, and not afterwards, in the English Act> 
 cannot be interpreted otherwise : see s. 733, post. 
 
 
 iM 
 
 m 4 
 
'A 4 
 
 U 
 
 «* 
 ^ J 
 
 708 
 
 PROCEDURE. 
 
 [Sec. 629 
 
 Another difference between the two Acts consists in the 
 words, before the defendant has pleaded, in the Canadian 
 Act, instead of, before the jury shall he sworn, in the Eng- 
 lish one. This is not an important change, however. In 
 «,\] cases a demurrer must be pleaded before the plea of 
 ■*' not guilty," though the same may not strictly be said of 
 the motion to quash : E. v. Heane, 9 Cox, 433. And the 
 judge may allow a plea of " not guilty " to be withdrawn 
 in order to give the defendant his right to demur or move 
 to quash for any substantial defect. See cases under s. 
 657, post 
 
 Greaves' Note, MSS., on the foregoing remarks as con- 
 tained in first edition : "I altogether concur in the remarks 
 on the omission of * formal ' before ' defect ' in the 14 & 15 
 v. c. 100, s. 25. If construed according to the terms under 
 the new clause a man might be hanged for what was really 
 no crime, because he was too ignorant to perceive the 
 defect in the statement of the offence in due time." 
 
 If the indictment does not charge any o£fence the court 
 cannot amend it so as to make it charge an offence : E. v. 
 Norton, 16 Cox, 59 ; see E. v. Flynn, 2 P. & B. (N.B.) 321. 
 
 Indictments may be signed by the clerk of the crown, or 
 by a counsel prosecuting for the crown *' for and in the 
 name of the Attorney-General of the province": E. v. Grant, 
 2 L. C. L. J. 276 ; E. v. Downey, 13 L. C. J. 193 ; E. v. 
 Ouellette, 7 E. L. 222 ; E. v. Eegnier, Eamsay 's App. Gas. 188. 
 
 A defective indictment may be quashed on motion as 
 well as on demurrer : E. v. Bathgate, 13 L. C. J. 299 : see 
 E. v. Eyland, L. E. 1 C. C. E. 99 ; E. v. Belyea, James 
 (N.S.) 220. 
 
 Everything that is necessary to constitute the offence 
 must be alleged in the indictment : E. v. Bourdon, 2 E. L. 
 713. See Bishop, 1 Cr. Proc. 98, 124. 
 
 On an indictment for defrauding a bank the indict- 
 ment was amended by adding the words "a body cor- 
 porate": E. V. Paquet, 2 L. N. 140. 
 
Sec 629] INDICTMENT -PRELIMINARY OBJECTIONS. 
 
 70D 
 
 Defendant was indicted as mistress of a certain girl 
 called Marie. At the trial the indictment was amended 
 by striking out that she was such mistress, and inserting 
 the girl's right name: E. v. Bissonette, 23 L. C. J. 249. 
 See also K. v. Leonard, 3 L. N. 138. 
 
 A.n indictment for perjury, based on an oath alleged to 
 have been made before the " judge of the general sessions 
 of the peace in and for the said district" instead of "before 
 the judge of the sessions of the peace in and for the city" of 
 Montreal," may be amended after plea : R. v. Pelletier, 15 
 L. C. J. 146. 
 
 It is not a misjoinder of counts to add allegations of a 
 previous conviction for misdemeanour as counts to a count 
 for larceny; and the question, at all events, can only be 
 raised by demurrer or motion to quash the indictment, 
 under 32 & 33 V. c. 29, s. 32, s. 629, ante. And where there 
 has been a demurrer to such allegations as insufficient in 
 law, and judgment in favour of the prisoner, but he is con- 
 victed on the felony count, a court of error will not re-open 
 the matter on the suggestion that there is a misjoinder of 
 counts : where a prisoner arraigned on such an indictment 
 pleads " not guilty " and is tried at a subsequent assize 
 when the count for larceny only is read to the jury : Held 
 no error, as the prisoner was given in charge on the lar- 
 ceny count only : R. v. Mason, 22 U. C. C. P. 246. 
 
 Defendant was convicted on an indictment charging him 
 with felonioaaly receiving goods of three different persons 
 (naming them) knowing the same to have been feloniously 
 stolen : held, that the defendant, having pleaded to the 
 indictment, could not, in arrest of judgment, object that it 
 was bad as charging him with receiving goods not alleged 
 to have been feloniously stolen, as the defect was aided by 
 the verdict under the Act of 1869, c. 29, s. 32, and the fact 
 of three different offences being charged in the indictment, 
 if objectionable at all, could not be taken advantage of after 
 verdict. An order for an extra jury panel under R. S. (N. S.) 
 
 t'f 
 
 i:f. i 
 
 ':■■'![ 
 
 :■ f- 
 
•i 
 
 Iwi 
 
 710 
 
 PROCEDURE. 
 
 [Sec. G30 
 
 8d Ser., c. 92, s. 87, is valid although not signed by a 
 majority of the judges: B. v. Quinn, 1 B. & G. (N. S.) 
 139» 
 
 An indictment charged that the prisoner did steal, take 
 and carry away, etc., without charging that it was done 
 feloniously. Before pleading the prisoner's counsel moved 
 to quash the infdictment. After argument the presiding 
 judge allowed the indictment to be amended, under 32 & 88 
 V. c. 20, s. 82, s. 629, ante, by adding the word " felon- 
 iously." The prisoner was found guilty upon the amended 
 indictment. 
 
 Held, on a case reserved, that the indictment without 
 the word feloniously was bad and that it was not amend- 
 able under the said section : B. v. Morrison, 2 P. & B. 
 (N. B.) 682 ; see B. v. Flynn, 2 P. & B. (N. B.) 321. 
 
 Time to Plead. 
 
 630. No person prosecuted shall be entitled as of right to traverse or 
 postpone the trial of any indictment preferred against him in any court, or to 
 imparl, or to have time allowed him to plead or demur to any such indictment : 
 Provided always, that if the court before which any iierson is so indicted, upon 
 the application of such person or otherwise, is of opinion that he ought to be 
 allowed a further time to plead or demur or to jirepare for his defence, or 
 otherwise, such court may grant such further time and may adjourn the trial 
 <tf such person to a future time of the sittings of the court or to the next or 
 any subsequent session or sittings of the court, and upon such terms, as to bail 
 or otherwise, as to the court seem meet, and may, in the case of adjournment 
 to another session or sitting, respite the recognizances of the prosecutor and 
 witnesses accordingly, in which case the prosecutor and witnesses shall be 
 bound to attend to prosecute and give evidence at such subsequent session or 
 sittings without entering into any fresh recognizances for that purpose. 
 R. S. C. c. 174, 8. 141. 
 
 See 8s. 767, 758, 759, post, on special enactments for 
 Ontario. 
 
 Formerly, it was always the practice in felonies to try 
 the defendant at the same assizes: 1 Chit. C. L. 488; but it 
 was not customary nor agreeable to the general course of 
 proceedings, unless by consent of the parties, or where the 
 defendant was in gaol, to try persons indicted for mis- 
 demeanours during the same term in which tbey bad 
 pleaded not guilty or traversed the indictment : 4 Blacks. 
 851. 
 
Sec. 630] 
 
 TRAVERSE, ETC. 
 
 711 
 
 enactments for 
 
 Traverse took its name from the French de trovers, 
 wb.ich is no other than de tranaverao in Latin, signifying 
 on the other side; because as the indictment on^the one side 
 cbarg^th the party, so he, on the other side, cometh in to 
 discharge himself. 
 
 The word traverse is only applied to an issue taken upon 
 an indictment f'^r r isdemeanour; and '^. ~hould rather 
 Beom applicab ^^o i- fact of putting ou the trial till a 
 following sessions or assizes, then to the joining of the 
 issue ; and therefore, perhaps, the derivation is from the 
 meaning of the word transverto, which, in barbarous Latin, 
 is to go over, i. e., to go from one sessions, etc., to another, 
 and thus it is that the officer of the court asks the party 
 whether he be ready to try then, or will traverse over to the 
 next sessions, etc., but the issue is joined immediately by 
 pleading not guilty : 6 Burn, 1019. 
 
 To traverse properly signifies the general issue or plea 
 of not guilty : 4 Stephens' Comm. 419. 
 
 To imparl is to have license to settle a litigation 
 amicably, to obtain delay for adjustment: Wharton's Law 
 Lexicon, verbo *' imparl.** 
 
 The above 8. 630 is taken from the 60 Geo. IIL & 1 
 Geo. IV. c. 4, ss. 1 «& 2, and the 14 & 15 V. c. 100, s. 27. 
 
 . On the 14 & 15 V. c. 100, s. 27, Greaves says: — 
 
 " This section is intended wholly to do away with 
 traverses, which were found to occasion much injustice. A 
 malicious prosecutor could formerly get a bill for any frivol- 
 ous assault found by the grand jury, and cause the defendant 
 to be apprehended during the sitting of the court; and 
 then he was obliged to traverse till the next session or 
 assizes, as he could not compel the prosecutor to try the 
 case at the sessions or assizes at which the bill was found. 
 Tbis led to the expense of the traverse-book and sundry 
 fees, which operated as a great hardship on the defendant, 
 not uufrequently an innocent person. Again, the defendant, 
 
 ^Wi 
 
w 
 
 
 
 
 mm 
 
 712 
 
 PROCEDURE. 
 
 [Sec. 630 
 
 in many instances, has been able to turn hia right to 
 traverse into a means of improperly pntting the prosecutor 
 to expense and inconvenience. The intention of the section 
 is to abolish traverses altogether, and to put misdemeanours 
 precisely on the same footing in this respect as felonies. 
 In felonies, the prisoner has no right to postpone his trial, 
 but the court, on proper grounds, will always postpone the 
 trial. Under this section, therefore, no defendant in a case 
 of misdemeanour can insist on postponing his trial ; but the 
 court in any case, upon proper grounds being adduced, not 
 only may, but ought to, order the trial to be postponed. If, 
 therefore, a witness be absent, or ill, or there has not been 
 reasonably sufiicient time for the defendant to prepare for 
 his defence, or there exist any other ground for believing 
 that the ends of justice will be better answered by the trial 
 taking place at a future period, the court would exercise a 
 very sound discretion in postponing the trial accordingly. " 
 There are several cases in which, upon a proper appli- 
 cation, the court will put off the trial. And it has been 
 laid down that no crime is so great, and no proceedings so 
 instantaneous, but that the trial may be put off if suffi- 
 cient reasons are adduced to support the application ; but 
 to grant a postponement of a trial on the ground of the 
 absence of witnesses, three conditions are necessary ; 1st, 
 the court must be sati.sfied that the absent witnesses are 
 material witnesses in the case; 2nd, it must be shown 
 that the party applying has been guilty of no laches or 
 neglect in omitting to endeavour to procure the attendance 
 of these witnesses ; and, 3rd, the court must be satisfied 
 that there is a reasonable expectation that the attendance 
 of the witnesses can be procured at the future time to 
 which it is prayed to put off the trial : B. v. D'Eou, 3 Burr. 
 1514. 
 
 But if an affidavit is given that, on cross-examination, 
 one of the abaant witnesses for the prosecution who has 
 been bound over to appear can give material evidence for 
 
Sec. 630] 
 
 POSTPONING TRIAL. 
 
 'TIS 
 
 the prisoner, this is sufficient ground for postponing the 
 trial, without showing that the defence has made any 
 endeavour to procure thib witness's attendance as the pri- 
 soner was justified in believing that, being bound over, the 
 witness would be present : E. v. Macarthy, Car. & M. 625. 
 
 In R. V. Savage, 1 C. & K. 75, the court required an 
 affidavit stating what points the absent witness was expected 
 to prove, so as to form an opinion as to the witness being 
 material or not. 
 
 The party making an application to postpone a trial, on 
 the ground of the absence of a witness, is not bound in his 
 affidavit to disclose all that the absent witness can testify 
 to, but he must show that the absent witness is likely to 
 prove some fact which may be allowed to go to the jury ; 
 he must; also show the probability of having the witness at 
 a later term : li. v. Dougall, 18 L. C. J. 85. 
 
 The court will postpone until the next assizes the trial 
 of a prisoner charged with murder, on an affidavit by his 
 mother that she would be enabled to prove by several wit- 
 nesses that he was of unsound mind, and that she and her 
 family were in extreme poverty, and had been unable to 
 procure the means to produce such witnesses, and that she 
 had reason to believe that if time were given to her the 
 requisite funds would be provided : R. v. Langhurst, 10 
 Cox, 353. 
 
 But the affidavit of the prisoner's attorney, setting forth 
 the information he had received from the mother, is 
 insufficient : Idem. 
 
 Upon an indictment for a murder recently committed 
 the court will postpone the trial, upon the affidavit of Ihe 
 prisoner's attorney that he had not had sufficient time to 
 prepare for the defence, the affidavit suggesting the possi- 
 bility of a good ground of defence : R. v. Taylor, 11 Cox, 
 
 m. 
 
 
 
 

 ■f'h 
 
 i 
 
 11 
 
 714 
 
 PROCEDURE. 
 
 [Sec. C31 
 
 If the applioafcion is made by the defendant, he shall be 
 remanded and detained in custody until the next assizes 
 or sessions ; but where the application is made by the 
 prosecutor, it is in the discretion of the court either, ou 
 consideration of the circumstances of each particular case, 
 to detain the defendant in custody, or admit him to bail, 
 or to discharge him on his own recognizance : R. v. Beard- 
 more, 7 C. & P. 497 ; E. v. Parish, 7 C. & P. 782 ; E. v. 
 Osborn, 7 C. & P. 799 ; R. v. Bridgman, Car. & M. 271. 
 But, as a general rule, after a bill has been found, if the 
 offence be of a serious nature, the court will not admit the 
 prisoner to bail r R. v. Chapman, 8 C. & P. 568 ; E. v. 
 Outtridge, 9 C. & P. 228 ; R. v. Owen, 9 C. «& P. 83 ; E. v 
 Bowen, 9 C. & P. 509 ; 5 Burn, 1032. 
 
 The production of fresh evidence on behalf of the prose- 
 cution (not known or forthcoming at the preliminary 
 investigation, and not communicated to the defence a 
 reasonable time before the trial) may be a ground for 
 postponing the trial, on the request of the defenc-e, if it 
 appears necessary to justice : R. v. Flannagan, 15 Cox, 
 403. 
 
 On the finding of an indictment for perjury application 
 was made for defendant to appear by counsel and plead : 
 Held, that he should submit to the jurisdiction of the 
 court, and appear himself, before he can be allowed to take 
 any proceedings therein : R. v. Maxwell, 10 L. C. E. 45. 
 
 AuTHEKOis Acquit, Etc. {Amended). 
 
 031« The following speoial pleas and no others may be pleaded according 
 to the provisions hereinafter contained, that is to say, a plea of autrefois acquit, 
 « plea of autrcfoia convict, a plea of pardon, and such pleas in oases of defama- 
 tory libel as are hereinafter mentioned. 
 
 2. All other flfrounds of defence may be relied on under the plea of not 
 guilty. 
 
 3. The pleas of autrefois acquit, autrefois convict, and pardon may be 
 pleaded together, and if pleaded shall be disposed of before the accused is 
 called on to plead further ; and if every such plea is disposed of against tlie 
 accused he shall be allowed to plead not guilty. 
 
 4. In any plea of autrefois acquit or niUrefois convict it shall be sufficient 
 for the accused to state that he has been lawfully acquitted or convicted, as 
 
Sees. 632, 633] 
 
 AUTREFOIS ACQUIT, ETC. 
 
 715 
 
 !i 
 
 L under the plea of not 
 
 the case may be, of the offence charged in the count or rounta to which sucli 
 {ika itt pleaded, indicating the time and place of such acquittal, or conviction. 
 R. S. C. 0. 174, 8. 146. 
 
 5. "'n the trial of an issue on a plea of autrefois nequit or autrefois convict 
 to any count or counts, if it api^ar that the matter on which the accused was 
 given in charge on the former trial is the same in whole or in part as that on 
 which it is proposed to give him in charge, and that he might on the former 
 trial, if all proper amendments had been made which mi'jht then have been viade, 
 have been convicted of all the offences of which he may be convicted on the 
 count or counts to which such plea is pleaded, the court shall give judgment 
 that he be discharged from such count or counts. 
 
 G. If it appear that the accused might un the funner trial have been con- 
 victed of any offence of which he might bo convicted on the count or counts to 
 which such plea is pleaded, but that he may be convicted on any such count or 
 counts of some offence or offences of which he could not have been convicted 
 on the former trial, the court shall direct that he shall not bo convicted on any 
 such count or counts ot any offence of whioh he might have been convicted on 
 the former trial, but that he shall plead over as to the other offence or offences 
 charped. 
 
 63S. On the trial of an issue on a plea of autrefois acquit or convict the 
 dejiositions transmitted to the court on the former trial, together with the judge's 
 (iiui official stenographer's notes if available, and the depositions transmitted to 
 the court on the subsequent charge, shall be admissible in evidence to prove or 
 disprove the identity of the charges. See ss. 694 Sc, 720, post, 
 
 03%. When an indictment charges substantially the same offence as that 
 cliarged in the indictment on which the accused was given in charge on a 
 former trial, but adds a statement of intention or circumstances of aggravation 
 tending if proved to increase the punishment, the previous acquUtal or convic- 
 tion sliall bea bar to such subsequent indictment. 
 
 2. A previous conviction or acquittal on an indictment for muvder shall be 
 a bar to a second indictment for the same homicide charging it as manslaughter ; 
 and a previous conviction or acquittal on an indictment for manslaughter shall 
 III' a bar to a second indictment for the same homicide charging it as murder. 
 
 The wurds in italics in the fifth line of s-s. 5 of s. 681 and 
 in the second line of s. 632 are new. Section G38 seems 
 open to a construction that would make it an extension 
 of the law. Sections 799, 821, 866 & 969, post, contain 
 enactments on acquittals or convictions in special cases as 
 a bar to all farther proceedings for the same cause. 
 
 Sub-section 4 of s. 631 is taken from the 14 k 15 V. 
 c. 100, 8. 28, of the Imperial Statutes. 
 
 It is a sacred maxim of law that **nemo his vexari 
 debet p'o eadem causa" no man ought to be twice tried, or 
 
 Vi 
 
 
 a 
 
 .»',' 
 
 '-} 'i 
 
716 
 
 PROCEDURE. 
 
 [Sec. 03;{ 
 
 brought into jeopardy of his life or liberty more than r ice, 
 for the same offence. 
 
 '• This enactment very properly," says Greaves, Lord 
 Campbell's Acts, 31, " abbreviates the form of pleas of 
 autrefois acquit and autrefois convict, and renders it unne- 
 cessary to set forth the previous indictment, and to make 
 the many averments of identity, and so forth, which were 
 requisite before the passing of this statute." 
 
 These pleas are of the class called special pleas in bar; 
 such pleas may be pleaded ore tenna. 
 
 The following is the form of a plea of autrefois acquit, 
 when drawn up in answer to the whole ot the indictment: 
 
 " And the said J. S., in his own proper person cometli 
 into court here, and having heard the said indictment 
 read, saith, that our said Lady the Queen ought not further 
 to prosecute tho said indictment against the said J. S., be- 
 cause he saith that heretofore, to wit, at (describe the court 
 correrMy) ho, the said J. S., was lawfully acquitted of the 
 said oflfence charged in the said indictment and this he, the 
 said J. S., is ready to verify. Wherefore he prays judg- 
 ment, and that by the court here he may be dismissed and 
 discharged from the said premises in the present indictment 
 specified": Archbold, 132. 
 
 If there is more than one count in the indictment it is 
 better to plead to each : R. v. Westley, 11 Cox, 139. By s. 3, 
 a)iti', the word indictment includes pleas, so that all tho rules 
 as to amending indictments apply to pleas. The defendant 
 might before the Code plead over to tho indictment, iu 
 felonies, at the same time as pleading such special pleas, 
 but now, under s-s. 3 of s. 631, that cannot be done. 
 
 The jury must first determine the plea of former acquit- 
 tal or conviction. The prisoner has the right of challenge 
 in the usual way : 2 Hale, P. C. 267d ; E. v. Scott, 1 Leacli, 
 401. See remarks, post, under s. 667, as to challenges. If 
 the verdict is in favour of the prisoner, and finds the plea 
 
■':] 
 
 Sec. <W3] 
 
 AUTREFOIS ACCJUIT, ETC. 
 
 717 
 
 ecial pleas in bar; 
 
 proved, the prisoner is discharged, and the trial is at an 
 end. If, on the contrary, the jury find the plea " not 
 proved " and the prisoner then pleads not guilty, they are 
 chtirged again, if both the prosecutor and the accused do 
 uot ask for another jury, this time to inquire of the second 
 issue, i. e., on the plea of not guilty, and the trial proceeds 
 as if no plea in bar had been pleaded: 1 Chit. 4G1 ; 2 Hale, 
 255 ; R. V. Knight, L. & C. 378. They then need not be 
 sworn de novo to try this second issue : R. v. Key, 2 Den. 
 347. But if both the accused and the prosecutor do not 
 consent to have the same jury a new jury has to be ehosLH 
 to try the issue of not guilty; another and quibo sepaidte 
 trial then takes place : s-s. 6, s. 667 ; R. v. Roche, 1 Leach, 
 134. Formerly, when such pleas contained the first indict- 
 ment, with the judgment, etc., detailed at full length li.e 
 prosecutor could demur to it, and then the court pionotaceu 
 on that demurrer without the intervention of a jury; but 
 now, with the general form allowed by the statute, the 
 prosecutor meets the plea with a general replication, 
 entered only when the recoid is made up, after trial, th» ugh 
 not necessarily actually pleaded, and the issue must be 
 determined by a jury : see R. v. Connell, 6 Cox, 178 ; Arch- 
 bold, 133 ; note by Greaves, 2 Russ. 161 ; R. v. Tancock, 13 
 Cox, 217. 
 
 This replication and the similiter, (as i- vhich see s. 
 734, post,) when so entered upon the recoid, may be as 
 follows : 
 
 "And hereupon A. 13., who prosecute.^ for our said Lady 
 the Queon in this behalf, says thaf by reason of anything 
 in the said pica of the said J. S. above pleaded in bar to the 
 present indictment, our said Lady the Queen ought not to 
 be precluded from prosecuting the said indictment against 
 the said J. S., because he says that the said J. S. was not 
 lawfully acquitted of the said ofience charged in the said 
 indictment, in manner and form as the said J. S. hath 
 above in his said plea alleged ; and this he, the said A. B., 
 
 ; it 
 
 k I 
 
 If' t 
 
 if 
 
 ts!,>V 
 
 m 
 
718 
 
 PROCEDURE. 
 
 [Sec. G3S 
 
 prays may be inquired of by the country. And the said 
 J. 8. doth, the like." 
 
 For a form of plea of autrefois acquit or autrefois con- 
 vict to one count' only of the indictment see Lord Camp- 
 bell's Acts, by Greaves, 88 ; R. v. Connell, 6 Cox, 178; R. v. 
 Bird, 5 Cox, 11. 
 
 When any one is indicted for an offence and acquitted 
 he cannot afterwards be indicted for the same offence, 
 provided the first indictment were such that he could have 
 been lawfully convicted on it; and if he be thus indicted 
 a second time he may plead autrefois acquit, and it will 
 be a good bar to the indictment. And an acquittal in a 
 foreign country by a competent tribunal is a bar to an 
 indictment for the same o£fence in this country : Hutche- 
 son's Case, note to E. v. Eoche, 1 Leach, 134. 
 
 The true test by which the question, whether such a 
 plea is a sufficient bar in any particular case, may be tried 
 is whether the evidence necessary to support the second 
 indictment would have been sufficient to procure a legal 
 conviction upon the first : E. v. Bulmer, 5 L. N. 92 ; R. v. 
 Sheen, 2 C. & P. 634 : E. v. Bird, 2 Den. 94 ; E. v. Drury, 
 3 C. & K. 193 ; E. v. Miles, 1 7 Cox, 9 ; Eyley v. Brown, 17 
 Cox, 79; though in E. v. Gilmore, 15 Cox, 85, some doubt 
 has been thrown on the accuracy of that proposition. 
 
 Thus, an acquittal upon an indictment for burglary 
 and larceny may be pleaded to an indictment for a larceny 
 of the same goods, because upon the former indictment the 
 defendant might have been convicted of the larceny. But 
 if the first indictment were for a burglary, with intent to 
 commit a larceny, and did not charge an actual larceny, 
 an acquittal on it would not be a bar to a subsequent indict- 
 ment for the larceny : 2 Hale, 245 ; E. v. Vandercomb, 2 
 Leach 716; because the defendant could not have been 
 convicted of the larceny on the first indictment. An 
 acquittal upon an indictment for murder may be pleaded 
 in bar of another indictment for manslaughter, because the 
 
[Sec. 633 
 
 y. And the said 
 
 5 or autrefois con- 
 t »ee Lord Camp- 
 1, 6 Cox, 178; E. v. 
 
 nee and acquitted 
 he same offence, 
 ;hat he could have 
 ) be thus indicted 
 icquit, and it will 
 an acquittal in a 
 1 is a bar to an 
 country: Hutche- 
 134. 
 
 I, whether such a 
 jase, may be tried 
 ipport the second 
 bo procure a legal 
 5 L.N. 92; Rv. 
 . 94 ; R. V. Drury, 
 yley v. Brown, 17 
 i, 85, some doubt 
 proposition. 
 
 lent for burglary 
 aent for a larceny 
 ler indictment the 
 the larceny. But 
 •y, with intent to 
 n actual larceny, 
 lubsequent indict- 
 V. Vandercomb, 2 
 d not have been 
 indictment. An 
 r may be pleaded 
 jhter, because the 
 
 defeii(Jan6 could be convicted nf fi, 
 first indictment. So. an acouilnf '"'"'^'»-'«'>'« on th, 
 manslanghter i,, it UenirHar T" "''."*''«'»»' '», 
 murder, for they differ only to d«^ ot? ""'"'"ment for 
 
 on the previous todicfment , m TTl^ "' "■" ''"^"■P^ 
 murder of a child is a bar'to ,„ • ^j° : ^"""^ai'telforthe 
 *o birth of the aame cMd Z ""'"""»°« ^r concealing 
 Wenclant upon the firriS«,^, '" ''\ P^. *bf 
 
 victed under s. 718, «o.t .»„„?, ""«•" •"»'« been cop 
 W this assault: R. V^tmits:' U Vt'^^""^ '■"'■«"'» 
 So, also, a neraon .'n^; * ^ * * V- J5. 652. 
 
 •«»ult with intent to colmU 7 „ V"'"'*'' '» ''» 
 indicted for larceny and "con m.^ "' ""^ » P'^n 
 ■nftedonthesamefacTsforobu -"r ""«"'"<'» be 
 anJ » person todicted fo/obtai^to ' ^f ^/ '"'' ^"^<'^^- 
 aeqmtted may afterwards be ntr*' /.'""' ?"'«»»«» ^i 
 «" facts, as ss. 196-198 of 'T74 R 1 'n '""""^ »" '"» 
 "•enacted : R. v. Henderson 2 aI ,t °- ^^"^ "«" been 
 » 't 2 Buss. 65; Stepb ™' Hi^"".'"? "'"^ «"«"« «"<. 
 fe Pars. 15, 16 . R „ 1 7 ^'■- 1- 162 •• 2 Tavln, 
 
 »f « in ai/m'ant X^reivinr; ^ " » ™° "» 
 ««t afterwards be prosecuted °^ '''''°'' 8~'la. he can- 
 
 Ws rule is equally appSe,hf'"."u ""> =»"« f^c* • 
 •r;«?'h«<lefend^tSlVwrh^^^^ '*'" '•■"''«"»''»' 
 
 
 ^t 
 
\ 
 
 t20 
 
 PROCEDURE. 
 
 [Sec. C33 
 
 Dann, 1 Moo. 424. See R. v. O'Brien, 16 Cox, 29. Warb. 
 Lead. Cas. 229, and R. v. Miles, Id. 230. R. v. Gilmoie, 
 15 Cox, 86, cannot be followed in Canada, because under 
 8. 713, post, the defendant, in such a case, may be convicted 
 upon a first charge of the offence subsequently charged in 
 that case. 
 
 But the prisoner must have been put in jeopardy on the 
 first indictment. If by reason of some defect in the record, 
 either in the indictment, the place of trial, the process, or 
 the like, the defendant was not lawfully liable to suffer 
 judgment for the offence charged against him in the first 
 indictment, as it stood at the time of the verdict, he has 
 not been in jeopardy, in the sense which entitles him to 
 plead the former acquittal or conviction in bar of a subse- 
 quent indictment: R. v. Drury, 3 C. & K. 193; R. v. Green, 
 Dears. & B. 113. 
 
 " In general," says Starkie, Cr. PI. 320, " where the 
 original indictment is insufficient no acquittal founded 
 upon that insufficiency can be available, because the defend- 
 ant's life was never really placed in jeopardy, and there- 
 fore the reason for allowing the plea entirely fails." 
 
 And 1 Chit. Cr. L. 454, says: "And hence we may 
 observe that the great general rule upon this part of the 
 subject is, that the previous indictment must have been 
 one upon which the defendant could legally have been 
 convicted, upon which his life or liberty was not merely in 
 imaginary but in actual danger, and consequently in which 
 there was no material error . . . Upon the same principle, 
 where the defendant was acquitted merely on some error of 
 indictment, or variance in the recitals, he may be indicted 
 again upon the same charge, for the first proceedings were 
 merely nugatory. Thus, if an indictment for larceny lay 
 the property in the goods in the wrong person the party 
 may be acquitted, and afterwards tried on another, stating 
 it to be the property of the legal owner." 
 
14 
 
 [Sec. G33 
 
 OX, 29. Wavb. 
 :i. V. Gilmore, 
 aecause under 
 y be convicted 
 tly charged in 
 
 eopardyontbe 
 t in the record, 
 the process, or 
 iable to suffer 
 lim in the first 
 verdict, he has 
 entitles him to 
 bar of a subse- 
 93; R. V.Green. 
 
 20, " where tbe 
 iquittal founded 
 sause the deiend- 
 
 ,rdy, and there- 
 
 ly fails." 
 
 hence we may 
 this part of tbe 
 |must have been 
 Tally have been 
 18 not merely in 
 luently in which 
 same principle, 
 pn some error of 
 [may be indicted 
 proceedings were 
 for larceny lay 
 [erson the party 
 lanother, stating 
 
 Sec. 633] 
 
 AUTREFOIS ACQUIT, ETC. 
 
 721 
 
 And even now, that an amendment is allowed in such 
 a case, and that the court, on the first indictment, might 
 have substituted the name of the legal owner for the wrong 
 one first alleged, if the indictment was not, in fact, so 
 amended, the plea of autrefois acquit cannot be sustained ; 
 the indictment must be considered as it was, not as it 
 might have been made ; the court was not bound to amend, 
 and the indictment to be considered is the indictment upon 
 which the jury in the first case gave their verdict : B. v. 
 Green, Dears. & B. 113 ; though it may be contended that 
 the wording of s-s. 5 of s. 631 may now make a change in 
 this respect. 
 
 An abortive trial without verdict cannot be pleaded as 
 an acquittal ; thn acquittal, in order to be a*bar, must be 
 by verdict on a trial. Thus if after the jury are sworn, 
 and the prisoner given in charge to them, the judge, in 
 order to prevent a failure of justice by a refusal of a witnela 
 to give his evidence, or by reason of the non-agreement of 
 the jury to a verdict, or by reason of the death or such 
 illness of a juryman as to necessitate the discharge of the 
 jary before verdict, does so discharge them without coming 
 to a verdict, in all these and analogous cases the prisoner 
 must be tried again : R. v. Winsor, 10 Cox, 276, 7 B. & S. 
 490 ; R. V. Charlesworth, 1 B. & S. 460 ; 1 Burn, 348 ; 2 
 Russ, 62, note by Greaves ; R. v. Ward, 10 Cox, 673. 
 
 A previous summary conviction for an assault is not a 
 bar to an indictment for manslaughter of the party 
 assaulted, dead since, founded upon the same facts : R. v. 
 Morris, 10 Cox, 480; R. v. Friel, 17 Cox, 325. 
 
 A person was acquitted of an assault with intent to 
 murder, but was convicted of an assault with intent to do 
 grievous bodily harm, and the prosecutor, having subse- 
 quently died, he was indicted for murder, and it was held 
 right : R v. Salvi, 10 Cox, 481, note. See The Queen v. 
 Bozan, 2 Mauritius Decisions 35. 
 
 Cbim. Law— 46 
 
 m 
 
 i»i 
 
 ^i 
 
,f ■* 
 
 722 
 
 PROCEDURE. 
 
 [Sec. 633 
 
 And these two cases cannot be questioned. There can 
 never be the crime of murder till the party assaulted dies ; 
 the crime has no existence, in fact or law, till the death of 
 the party assaulted. Therefore, it cannot be said that one 
 is tried for the same crime when he is tried for assault 
 during the life, and tried for murder after the death, of the 
 injured party. That new element of the injured person's 
 death is not merely a supervening aggravation but it 
 creates a new crime; per Lord Ardmillan, in Stewart's 
 Case, (Scotland), 5 Irvine, 810. S. 633, ante^ will probably 
 be held not to apply where the aggravation results from 
 facts subsequent to the first indictment. 
 
 A, man steals twenty pigs at the same time, can he be 
 charged with twenty larcenies of one pig, in twenty differ- 
 ent indictments ? . After verdict on the first indictment 
 can he maintain a plea of autrefois acquit or autrefois con- 
 vtct in answer to the subsequent indictments ? 
 
 It may be said that, in principle, a .man who steals 
 twenty pigs, at the same time, commits but one larceny, 
 but one criminal act. Suppose a man steals a bag con- 
 taining three bushels of potatoes, could he be charged with 
 three larcenies of one bushel each, in three different indict- 
 ments, or with two larcenies in two indictments, one of the 
 bag, and one of the potatoes? Or if a man steals ten 
 pounds in ten one pound notes, can he be charged in ten 
 different indictments with ten different larcenies of one 
 pound ? 
 
 Then A., at one shot, murders B. and C, though the 
 shot was directed at B. only; has he committed one 
 murder or two murders ? If he is tried for the murder of 
 B. and acquitted, can he plead autrefois acquit to an indict- 
 ment charging him with the murder of C. ? Of course 
 not. He is guilty of two murders. 
 
 In all these cases there has been only one criminal act, 
 only one actual execution of a criminal design, only one 
 guilty impulse of the mind ; yet, it appears to be settled that 
 
\ 
 
 [Sec. 633 
 
 d. There can 
 Bsaulted dies ; 
 ,11 tbe death of 
 B said that one 
 led for assault 
 le death, oi the 
 ijured person's 
 ■avation but it 
 n, in Stewart's 
 ie, will probably 
 on results from 
 
 time, can he be 
 in twenty differ- 
 first indictment 
 or autrefois con- 
 
 QtS? 
 
 man who steals 
 but one larceny, 
 iteals a bag con- 
 be charged with 
 [e different indict- 
 ^ments, one of tbe 
 man steals ten 
 |e charged in ten 
 larcenies of one 
 
 Id C, though tbe 
 
 committed one 
 
 Ifor the murder of 
 
 cquit to an indict- 
 
 (3. ? Of course 
 
 lone criminal act, 
 
 [design, only one 
 
 to be settled that 
 
 Sec. 633] 
 
 AUTREFOIS ACQUIT, ETC. 
 
 723 
 
 where several chattels are stolen at the same time, an 
 acquittal on an indictment for stealing one of them is no 
 bar to an indictment for stealing another of theno, although 
 it appear that both were taken by the same act : 8th Bep. 
 Cr. L. Comm., 5th July, 1845. 
 
 " And thus it hath happened," says Hale, vol. 2, p. 245^ 
 " that a man acquitted for stealing the horse hath yet been 
 arraigned and convicted for stealing the saddle, though both 
 were done at the same time." And in B. v. Brettel, Gar. & 
 M. 609, 2 Buss. 60, it was held that where the prisoner had 
 been convicted of stealing one pig, he might be tried for 
 stealing another pig at the same time and place ; but as 
 the prisoner was undergoing his sentence upon the convic- 
 tion already given against him, the Judge (Oresswell, J.) 
 thought that the second indictment should be abandoned^ 
 and this was done. 
 
 Erie, J., in B. v. Bond, 1 Den. 517, seemed to be of 
 opinion that one act of taking could not bo two distinct 
 crimes. He said : " I do not think it necessary in a plea 
 of autrefois convict^ to allege the identity o! the specific 
 chattel charged to be taken (under the old form of such 
 pleas). Suppose the first charge to b''. taking a coat ; the 
 second, to be taking a pocket-book; autrefois convict 
 pleaded : parol evidence showing that the pocket-book was. 
 in the pocket of the coat. I think that I would support the 
 plea because it would show a previous conviction for the, 
 same act of taking.'^ 
 
 But a note by Greaves, 2 Buss. 60, thinks this dictum" 
 erroneous, and the reporter, in Denison, in a foot note to 
 the case says : " Qiuere, whether a plea of autrefois acquit 
 or convict would be supported by mere proof of the same 
 act of takinfi? Suppose a purse stolen containing ten 
 sovereigns, five belonging to A., five to B. Two indictments 
 preferred one charging prisoner with a theft from A., the 
 other with a theft from B. ; a conviction of the theft from 
 A. If the same act of taking were the gist of the crime, he 
 
 % 
 
 4- 
 
724 
 
 PROCEDURE. 
 
 [Sec. 633 
 
 could plead autrefois convict to the indictment of stealing 
 from B. It seems that, to support a plea of autrefois con- 
 vict or acquit, there must be proof of * a taking of the same 
 thing from the same party at the same time.' " 
 
 If, according to this note, in the case where ten sover- 
 eigns are stolen at one and the same time, in the same 
 purse, five belonging to A^, five to B., two crimes have 
 been committed by one act, it follows that in the case of the 
 stealing of a bag containing potatoes, if the bag belongs to 
 A., and the potatoes to B., two larcenies may be charged, cue 
 of the bag and one of the potatoes. See B. v. Ghampueys, 
 2M. & Rob. 26. 
 
 The proof, on a plea of this nature, lies on the defend- 
 ant, and he is to begin : Archbold, 133 ; 2 Buss. 62, note 
 by Greaves. 
 
 In order to prove a formal acquittal or conviction, if it 
 took place at a previous session or in a different court, the 
 prisoner must produce the record regularly drawn up : R. 
 V. Bowman, 6 G. & P. 101, 337. But if it took place at the 
 seme assizes, the original indictment, with the notes of the 
 clbrk of the court upon it, are sufficient evidence : R. v. 
 Lea, 2 Moo. 9 (called R. v. Parry, in 7 G. &. P. 886). 
 
 But see ss. 694, 726, 865 & 866 post. If any issue of 
 fact as to identity of charges, or of persons, etc., is raised 
 it must be tried by a jury as in B. v. Lea, 2 Moo. 9. See 
 8. 690,po8t 
 
 Conviction for unlawfully taking girl of sixteen out of 
 possession of her father not a bar under autrefois convict 
 to indictment for seduction of same girl : B. v. Smith 
 19 O.B. 714. 
 
 Greaves' MSS. note.—" The nest question is, suppos- 
 iog the judges of G. G. R. were to hold that evidence bad 
 been improperly received or rejected, and simply deter- 
 mined to arrest or reverse the judgment, could the prisoner 
 be indicted de novo, and tried and convicted for the same 
 
 I 
 
 ■Sir 
 
Sec. 633] 
 
 AUTREFOIS ACQUIT, ETC. 
 
 725 
 
 offence ? And it is perfectly clear that be could. Nothing, 
 except a verdict of guilty or not guilty on a valid indict- 
 ment, and a lawful and still existing judgment on such ver- 
 dict can afford a bar to another prosecution for the very 
 same offence. See my note, 2 Buss. 69 et seq. R. v. Winsor, 
 6 B. & S. 143-7-190 ; 2 Hale, 246 ; Yaux's Case, 4 Rep. 
 44." 
 
 " I have said on a valid indictment. Now an indict- 
 ment may be either actually valid or valid as against the 
 crown in some cases ; for a very material distinction exists 
 between an acquittal and conviction upon a bad indict- 
 ment. If autrefois acquit be pleaded and the former indict- 
 ment is bad upon the face of it, tbe plea fails, because the 
 judgment may and is to be supposed to have been upon that 
 defect, as it is simply quod eat sine die (3 Inst. 214, 2 Hale, 
 248, 394). But if a prisoner be convicted and sentenced on 
 an insufficient indictment a plea of autrefois convict will be 
 good unless the judgment has been reversed : 2 Hale, 247 ; 
 ior the judgment could only be given on the verdict. So if 
 a special verdict be found, and the court erroneously 
 adjudges it to be no felony, autrefois acquit is a good plea 
 as long as that judgment is unreversed on error : 2 Hale, 
 246. And in the case of an acquittal, if the judgment has 
 been quod eat inde quietus, as the ancient form is in case of 
 acquittal upon not guilty pleaded, that could never refer 
 to the defect of tbe indictment,* but to the very matter of 
 tbe verdict, and the prisoner could not be indicted again 
 until the judgment had been reversed on error : 2 Hale, 
 394." 
 
 "Whenever a plea of autrefois acquit or convict in the 
 sbort form allowed by the 14 & 15 V. c. 100, s. 28, is pleaded, 
 if the former indictment, or other part of the record be bad 
 on the face of it, the question arises whether the replication 
 should not set out the record and conclude with a demur- 
 rer. If tbe objection was the only answer to the plea, it 
 would seem to be the better course. A jury might in such 
 
 
 ■l; 
 
 i • 
 
 !r'll 
 
,<fj' i 
 
 i 
 
 i ■ ; 
 
 
 'V ( 
 
 726 
 
 PROCEDURE. 
 
 [Sec. 634 
 
 a case err, as they certainly did in E. v. Lea, 1 Moo. 9, 
 where, against the direction of the judge, and without any 
 reasonable evidence, they found for the prisoners, and it was 
 held that the verdict could not be set aside. A judge might 
 also decide erroneously against the crown ; and, if a ver- 
 dict passed for the prisoner, there would be great doubt 
 whether any remedy existed. A case could not be reserved 
 under the Act, for there would not be any conviction, and 
 error would not be available, for tlie lormer record could 
 not appear on the subsequent record, and there is grave 
 doubt as to a special verdict in such a case. But if judg- 
 ment were given against the crown on such a replication as I 
 have suggested, error might remedy the mischief." 
 
 •34 . PLEA OF JUSTIFICATION IN CASE OF LIBEL. 
 
 See ante, under s. 802, p. 805. 
 
\ i 
 
 Sees. 633-639] 
 
 CORPORATIONS. 
 
 727 
 
 ]■ I 
 
 PART XLVII. 
 
 CORPORATIONS. 
 
 68S. Every corporation against which a bill of indictment is found at 
 any court having criminal jurisdiction shall apiiear by attorney in the court in 
 which such indictment is found and plead or demur thereto. R. S. C. c. 174, 
 
 8.155. 
 
 See R. V. Birmingham, Warb. Lead. Cas. 33. 
 
 030. No writ of certiorari shall be necessary to remove any such indict- 
 ment into any superior court with the view of compelling the defendant to 
 plead thereto ; nor shall it be necessary to issue any writ of distringas, or other 
 process, to compel the defendant to appear and plead to such indictment. 
 R. S. C. c. 174, 8. 156. 
 
 6S7> The prosecutor, when any such indictment is found against a 
 corporation, or the clerk of the court when such indictment is founded on a 
 presentment of the gt&nd jury, may cause a notice thereof to be served on the 
 mayor or chief ofHoer of such corporation, or upon the clerk or secretary thereof, 
 stating the nature and purport of such indictment, and that, unless such 
 corporation appears and pleads thereto in two days after the service of such 
 notice, a plea of not guilty will be entered thereto for the defendant by the 
 court, and that the trial thereof will be proceeded with in like manner as if the 
 said corporation had appeared and pleaded thereto. R. S. C. c. 174, s. 157. 
 
 038* If such corporation does not appear in the court in which the 
 indictment has been found, and plead or demur thereto within the time speci- 
 fied in the said notice, the judge presiding at such court may, on proof to him 
 by affidavit of the due service of such notice, order the clerk or proper officer 
 of the court to enter a plea of "not guilty " on behalf of such corporation, and 
 such plea shall have the same force and effect as if such corporation had 
 appewed by its attorney and pleaded such plea. R. S. C. c. 174, s. 158. 
 
 639. The court may — whether such corporation appears and pleads to 
 the indictment, or whether a plea of "not guilty " is entered by order of the 
 court— proceed with the trial of the indictment in the absence of the defendant 
 in the same manner as if the corporation had appeared at the trial and defended 
 the same ; and in case of conviction, may award such judgment and take such 
 other and subsequent proceedings to enforce the same as are applicable to con- 
 victioni* ."igainst corporations. R, S. C. c. 174, s. 159. 
 
 >^>^ 
 
 i*i 
 
 I' ■ J 
 
 i { 
 
V 
 
 728 
 
 PROCEDURE. 
 
 [Sec. 640 
 
 PART XLVIII. 
 
 PREFERRING INDICTMENT. 
 Jurisdiction. (J\rew). 
 
 640. Every court of criminal jurisdiction in Canada is, subject to the 
 provisions of Part XLII. (s. 638), competent to try all offences wherever com- 
 mitted, if the accused is found or apprehended or is in custody within the juris- 
 diction of such court, or if he has been committed for trial to such court or 
 ordered to be tried before such court, or before any other court the jurisdiction 
 of which has by laiqful authority been transferred to such first mentioned court 
 under any Act for the time being in. force : Provided that nothing in this Act 
 authorizes any court in one province of Canada to try any person for any 
 offence comm: 1 entirely in another province, except in the followinf? 
 case : 
 
 2. Every proprietor, publisher, editor, or other person charged with the 
 publication in a newspaper of any defamatory libel shall be dealt with, indicted, 
 tried and punished in the province in which he resides, or in which such news- 
 paper is printed. 61 V. c. 44, s. 2. 
 
 This section extends to all cases, the provision hereto- 
 fore to be found in various statutes that the accused may 
 be tried in any district where he is apprehended or in 
 custody: see R. v. Lynch, 20 L. C. J. 187 ; R. v. Smith, 1 F. 
 & F. 36; R. V. James, 7 C. & P. 563; R. v. Smythies, 1 
 Den. 498, and note (c) to 1 Ruse. 274. S-s. 2 is given as 
 an exception to the proviso in s-s. 1. But it is clearly not 
 an exception to the enactment of that proviso that any 
 offence committed entirely in one Province shall not be 
 triable in another Province. 
 
 See ante, under s. 542, the Imperial statutory provisions 
 as to the trial in the colonies of offences committed abroad 
 or within the jurisdiction of the Admiralty. 
 
 The words "wherever committed" in s. 640 must receive 
 a limited construction, and be read as if the words "in 
 Canada" were added thereto: Macleod v. The Attorney- 
 General, 17 Cox, 341, (1891), A.C. 455. Parliament cannot 
 have intended to legislate on offences committed abroad by 
 any one, even by foreigners, as this enactment taken 
 
640 must receive 
 
 Sec. 641] 
 
 MODES OF PROSECUTION. 
 
 729 
 
 literally vrould infer. The English draft code yraa more 
 happily worded. It said "eyery court competent to try 
 offences triable in England or Ireland shall be competent 
 to try all such offences wherever committed if the accused 
 is found, etc. What this s. 640 means is, what was meant 
 by the English draft, namely, that all courts otherwise com- 
 petent to try an offence shall be competent to try it 
 irrespectively of the place where it was committed, the 
 place of trial being determined by the costs and expenses, 
 the convenience of the court, the witnesses, and the person 
 accused, the county where the offence was committed, being, 
 of course, as a general rule, the best place for the purpose : 
 1 Stephens' Hist. 278. The Code is silent as to what are 
 the offences committed on the high seas or abroad, on land^ 
 either wholly or partly, that can be tried in Canada : see 
 remarks under s. 542, ante. The Imperial draft code had 
 two special articles on the subject, but they have not been 
 reproduced. 
 
 Modes of Prosecution. (New). 
 
 64 1< Any one who is bound over to prosecute any person, whether 
 committed for trial or not, may prefer a bill of indictment for the charge on 
 which the accused has been committed, or in respect of which the prosecutor 
 is 80 bound over, or for any charge founded upon the facts or evidence 
 disclused on the depositions taken before the justice. The accused may at any 
 time before he is given in charge to the jury apply to the court to quash any 
 count in the indictment on the ground that it is not founded on such facts or 
 evidence, and the court shall quash such count if satisfied that it is not so 
 founded. And if- at any time during the trial it appears to the court that any 
 count ia not so founded, and that injustice has been or is likely to be done to 
 the accused in consequence of such count remaining in the indiotuient, the 
 court may then quash such count and discharge the jury from findiiig any 
 verdict upon it. 
 
 2. The Attorney-General or any one by his direction or any one with the 
 written consent of a judge of any court of criminal jurisdiction or of the 
 Attorney-General, may prefer a bill of indictment for any offence before the 
 grand jury of any court specified in such consent ; and any person may prefer 
 any bill of indictment before any court of criminal jurisdiction by order of such 
 court. 
 
 3. It shall not be necessary to state such consent or order m the indict- 
 ment. An objection to an indictment for want of such consent or order must 
 be taken by motion to quash the indictment before the accused person is given 
 in charge. 
 
\ 
 
 780 
 
 PROCEDURE. 
 
 [Sec. 041 
 
 P 
 
 1^ 
 
 :ii 
 
 f 
 
 4. Save us afurestaid no bill of indictment shall after the commencement of 
 this Act be preferred in any province in Canada. 
 
 The words " Attorney-General " include the Bolicitor- 
 general : s. 3. 
 
 This enactment extends to all offences whatever the 
 provisions of s. 140, c. 174, R. S C, which applied only to 
 certain specified offences. The ^rand jury are not now at 
 liberty to find a bill upon their own knowledge only ; and 
 the right to go directly before them and prefer a bill against 
 any one is taken away. No one, as a general rule, is now 
 liable to be indicted without a preliminary inquiry being 
 first held before a magistrate. The only exceptions are 
 those contained in s-s. 2 of the above s. 641. Criminal 
 informations will lie as heretofore, though there may be 
 some difficulty to determine in what cases, owing to the 
 silence of the Code on the subject, the distinction between 
 felonies and misdemeanours being abolished, and the remedy 
 by information being given in England only in cases of mis- 
 demeanours. 
 
 By s. 595, ante, if the magistrate dismisses the charge 
 and refuses to commit or bail the person accused, he is 
 bound, if required to do so, to take the prosecutor's recog- 
 nizance to proseciito thu charge • R. v. Lord Mayor, 16 
 Cox, 77 ; 8ee Ex parte Wason, 38 L. J. Q. B. 802. 
 
 This clause 641 forms in England the Acts known as 
 the "Vexatious Indictments Acts" 22 & 23 V. c. 17; 
 80 & 31 V. c. 35; 44 & 45 V. c. 60 and 48 & 49 V. c. 69, 
 and the enactment applies there only to certain specified 
 offences. 
 
 The order of a judge in a court of civil jurisdictioti 
 ordering any one to be prosecuted for perjury under s. 4 of 
 c. 164, R. S. C. (unrepealed, see, ante, p. 98) is not covered 
 by 8-8. 2 of s. 641, as it was by 8. 140 of the Procedure Act. 
 
 As to jurisdiction of a state over offences committed 
 abroad by its own subjects see cases under s. 542, anV; 
 and Macleod v. Attorney General, 17 Cox, 341, [18911 
 A.C. 465. The offence committed abroad in that last case 
 
Sec. 641] 
 
 MODES OF PROSKCUTION. 
 
 7ai 
 
 was committed by a British subject, but that fact does not 
 geem to have been speoially alluded to, or else it was 
 assumed that a colony has not, in such cases, like the 
 Imperial Parliament, jurisdiction over offences committed 
 abroad. 
 
 It is not necessary by s-s. 8 that the pe.'ormance of any 
 of the conditions mentioned in this section should be 
 averred in the indictment or proved before the petit jury : 
 Knowlden v. K. (in error) 5 B. & S. 582, 9 Cox, 488; 
 Boaler v. R. 16 Cox, 488, 21 Q. B. D. 284. When the 
 inlictment is preferred by the direction in writing of a 
 judge of competent jurisdiction, it is for the judge to whom 
 the application is made for such direction to decide what 
 materials ought to be before him, and it is not necessary to 
 summon the party accused or to bring him before the judge ; 
 the court will not interfere with the exercise of the discre- 
 tion of the judge under this clause : K. v. Bray, 3 B. & S. 
 255, 9 Cox, 215. 
 
 The provisions of the above statute must be complied 
 with in respect to every count of an indictment to which 
 they are applicable, and any count in which they have 
 not been complied with must be quashed, but the motion 
 to quash need not necessarily be made before plea pleaded : 
 R. v. Fuidge, L. & C. 390, 9 Cox, 430 ; R. v. Bradlaugh, 15 
 Cox, 156. So if an indictment contains one count for ob- 
 tainiog money by false pretenses on the 26th of September, 
 1878, and another count for obtaining money by false pre- 
 tenses on the 29th of September, 1878, though the false 
 pretenses charged be the same in both cases, the second 
 count must be quashed, if the defendant appears to have 
 been committed only for the offence of the 26th September, 
 and if the second offence is not disclosed by the depositions. 
 Where three persons were committed for conspiracy, and 
 afterwards the Solicitor>General, acting under this clause, 
 directed a bill to be preferred against a fourth person, who 
 had not been committed, and all four were indicted together 
 
 I \ 
 
\ 
 
 mii^ 
 
 1 1 
 
 732 
 
 PROCEDURE. 
 
 [Seo. 64?' 
 
 for the same conspiracy, such a course was held unobjec- 
 tionable : Knowlden v. B. (in error), 5 B. & S. 532, 9 Cox,. 
 483. ^ 
 
 Where it is made clear, either on the face of an indict- 
 ment or by affidavit, that it has been found without juris- 
 diction, the court will quf^'^b it on motion of the defendant, 
 even after he has pleaded : B. v. Heane, 4 6. & S. 947, 9 
 Cox, 433. 
 
 A prosecutor who has required the magistrates to take 
 his recognizances to prosecute under s. 595 when the 
 magistrates have refused to commit or to bail for trial the 
 person charged, must either go on with the prosecution or 
 have his recognizances forfeited, as it would defeat the ob- 
 ject of the statute if he was allowed to move to have his 
 recognizances discharged: B. v. Hargreaves, 2 F. & F. 
 790. 
 
 Held, that where one of the preliminary formalities 
 mentioned in this section is required, the direction by a 
 Queen's counsel then acting as crown prosecutor, for and 
 in the name of the Attorney-General, is not sufficient. The 
 Attorney-General or Solicitor-General alone can give the 
 direction t Abrahams v. B., 6 S. C. B. 10 ; B. v. Ford, 14 
 Q. L. B. 231. 
 
 A person heretofore prosecuting under s. 140 of the 
 Procedure Act had no right to be represented by any other 
 counsel than the representative of the Attorney-General : B. 
 V. St. Amour, 5 B. L. 469. As to the interpretation of the 
 said section : 8««, further, B. v. Bradlaugb, 15 Cox, 156; 
 also B. V. Bell, 12 Cox, 37 ; B. v. Yates, 15 Cox, 272, and 
 Yates V. B. 15 Cox, 686. 
 
 Coroner's Inquisition. {Ifeio). 
 
 043« After the commencement of this Act no one shall be tried upon 
 any coroner's inquisition. 
 
 By s. 668, the coroner cannot now commit any one for 
 trial. He must send any one charged by his inquest before 
 a magistrate. 
 
Sees. 643-647] 
 
 OATH BEFORE GRAND JURY. 
 
 733 
 
 U shall be tried upon 
 
 Oath Befork Oijand Jury. 
 
 643. It shall not be nece»c>ary for any pernon to take an oath in open 
 court in order to qualify him to give evidence before any grand jury. 
 R. S. 0. c. 174, 8. 173. ■ 
 
 044* The foreman of the grand jury or any member of the grand jury 
 who may, for the time being, act on behalf of the foreman in the examination 
 of witnesses, may administer an outh to every person who appears before such 
 grand jury to give evidence in support of any bill of indictment ; and every 
 such person may be sworn and examined upon oath by such grand jury touch- 
 ng the -matters in question. R. S. C. c. 174, s. 174. 
 
 048. The name of every witress examined, or intended to be examined, 
 shall be endorsed on the bill of indictment ; and the foreman of the grand 
 jury, or any member of the grand jury so acting for him, shall write his 
 initials against the name of each \vitness sworn by him and examined touching 
 such bill of indictment. R. S. C. c. 174, s. 175. 
 
 640* The name of every witness intended to be examined on any bill of 
 indictment shall be submitted to the grand jury by the officer prosecuting on 
 behalf of the Crown, and no others shall be examined by or before such grand 
 jury unless upon the written order of the presiding judge. R. S. C. c. 17^i, 
 s. 17C. 
 
 647< Nothing in this Act shall affect any fees by law payable to any 
 officer of any court for swearing witnesses, but such fees shall be payable as if 
 the witnesses had been 8\sorn in oiien court. R. S. C. c 174, s. 177. 
 
 Sections 643, 644 & 645 are re-enactments of the 
 Imperial Act, lU & 20 V. c. 54. S. 646 would, perhaps, be 
 held not to apply to private prosecutions, sed quaere ! 
 
 The omission by the foreman to write his initials against 
 the name of each witness swoin and examined would give 
 to the prisoner the right, before plea, to ask that the indict- 
 ment be sent back to the grand jury with a direction to 
 the foreman to so initial the names of the witnesses exa- 
 mined. In a case in Illinois, under a similar enactment, it 
 was held that the statute requiring the foreman of the 
 grand jury to note on the indictment the names of the 
 witnesses upon whose evidence the same is found is man- 
 datory, and that a disregard of this requirement would, no 
 doubt, be sufficient ground to authorize the court, upon a 
 inoijei- motion, to quash the indictment : Andrews v. The 
 People, 117 111., 196. 
 
 See Thompson on Juries, 724. 
 
 1 1 
 1 1 
 
734 
 
 PROCEDURE. 
 
 [Sec. 047 
 
 Uudei' s. 629, ante, a motion to quash the indictment 
 upon such a ground must be made before plea, and upon 
 such a motion the court would send the indictment back to 
 the grahd jury to remedy the defect. If the grand jury has 
 been discharged the indictment, it seems, must be quashed. 
 
 With the grand jury's consent the witnesses before 
 them are examined by the crown prosecutor or clerk of the 
 crown, or by the private prosecutor or his solicitor. But 
 ' the grand jury must be alone during their deliberations : 
 1 Chit. 815 ; 3 Burn, 36 ; charge to grand jury, Drummond, 
 J., 4 R. L. 364 ; Stephen's Cr. Proc. Art. 190; and 1 Hist. 
 Cr. L. 273, 274. 
 
 Not more than twenty-three grand jurors should be 
 sworij in. But any number from twelve to twenty-three 
 constitute a legal grand jury. At least twelve of them 
 must agree to find a true bill. If twelve do not agree, they 
 must return " not found," or " not a true bill," or " ifjnor- 
 ajniis" ; this last form, however, is v~t now often used: 
 4 Stephen's Bl. 375 (10th edit.) ; 1 Chit. 322 ; 2 Burr. 
 1089 ; 3 Burn, 37 ; R. v. Marsh, 6 A. & E. 236 ; Dickin- 
 son's Quarter Sess. 183; Stephen's Cr. Proc. Art. 186; 
 Low's case, 4 Me. 437 ; 1 Whart. Cr. L. pars. 463, 497. In 
 addressing the grand jury, in Montreal, Queen's Bench. 
 June Ist, 1893, Wurtele, J., instructed them that to ftnd an 
 accusation founded or to declare it v/nfounded twelve at 
 least must concur. The italicized words contain a palpable 
 error. 
 
 The court will not inquire whether the witnesses were 
 properly sworn before the grand jury : R. v. Russell, 
 C. & M. 247, but 866 R. v. Dickinson, ])ost. 
 
 The court will not receive an affidavit of a grand juror 
 as to what passed in the grand jury room upon the subject 
 of the indictment : R. v. Marsh, 6 A. & E. 236; nor allow 
 one of them to be called as a witness to explain ^he finding : 
 R. V. Cooke, 8 C. & P. 582. 
 
 On the trial of Alexander Gillis for murder, his counsel 
 called the foreman of the grand jury which found the bill 
 
Sec. 647] 
 
 OATH BEFORE GRAND JURY. 
 
 735 
 
 against him to prove that a witness's evidence before the 
 grand jury was different from that given by the witness on 
 the trial. The counsel for the crown objected that a grand 
 juror could not be allowed to give evidence ot what took 
 place in the grand jury room : Held, that a grand juror's 
 obligation to keep secret what transpired before the grand 
 jury only applied to what took place among the grand 
 jurors themselves, and did not prevent his beiiJg called to 
 prove what a witness had said : E. v. Gillis, 6 C. L. T. 203. 
 
 On this point, see Taylor, Ev. par. 863. Also, Stephen 
 Ev., Art. 114, where it is said : " It is also doubtful 
 whether a grand juror may give evidence as to what any 
 witness said when examined before the grand jury." See 
 8. 145, ante, as to perjury committed before a grand jury. 
 
 A grand jury cannot on a suspicion that a witness 
 called before them has been tampered with by the prisoner 
 receive in evidence his written examination given at the 
 preliminary investigation for the purpose of finding a bill : 
 R. v. Denby, 1 Leach, 514. 
 
 Depositions not taken in presence of the accused cannot 
 be submitted to the grand jury : R. v. Carb? j y 13 Q. L. R. 
 100. 
 
 A grand jury have no right to ignore a bill on account 
 of insanity, either when the offence wag committc:1 or at 
 the time when the bill is preferred : R. v. Hodges, 8 C. & F. 
 195. 
 
 In R. V. Dickinson, R. & R. 401, it being discovered after 
 conviction that the witnesses had been examined before the 
 grand jury without being sworn, the judge thought the 
 objection came too late, and sentenced the prisoner. Sub- 
 sequently, without deciding on the validity of the objection, 
 the judge thought that, as a matter of discretion, it was 
 better to direct application to be made for a pardon. 
 
 As to whether a bill once thrown out by the grand jury 
 can be submitted de novo during the same term of the 
 
 
,• f"- 
 
 1 ' 
 
 736 
 
 PROCEDURE. 
 
 [Sec. 648 
 
 41 
 
 court, see B. v. Humphreys, Gar. & M. 601 ; R. v. Newton, 
 2 M. & Bob. 508. By observing either one or the other of 
 the preliminary formalities required by s. 641 a new bill 
 founded on the same facts may, it would seem, be preferred 
 .during the same term. 
 
 Witnesses may be examined before the petit jury whose 
 names are not on the back of the indictment : .Archbold, 86. 
 
 Bench Warrant. {Amended). 
 
 OlS* When any ono against whom an indiotmenc has been duly pre- 
 ferred and has been found, and who ia then at large, does not appear to plead 
 to such indictment, whether he is under recognizances to appear or not— 
 
 (a) the court before which the accused ought to have been tried viay issue a 
 wmrrant for his apprehension, which may be executed in any part of Canada ; 
 
 (6) the officer of the court at which the said indictment is found or (if the 
 placeior trial has been changed) the officer of the court before which the trial 
 is to take place, shall, at any time after the time at which the accused ought 
 to have appeared and pleaded, grant to the prosecutor, upon application made 
 on his behalf and upon payment of twenty cents, a certificate of such indict- 
 ment having been found. The certificate may he in the form GG in schedule 
 one hereto, or to the like effect. Upon production of such certificate to any 
 justice for the county or place in which the indictment was found, or in which 
 the accused is or resides or is suspected to be or reside, such justice shall issue 
 his warrant to apprehend him, and to cause him to be brought before such 
 justice, or before any other justice for the same county or place, to be dealt 
 with according to law. The warrant may be in the form HH in schedule one 
 hereto, or to the like effect. 
 
 . 8. If it is proved upon oath before such justice that any one appi-ehended 
 and brought before him on such warrant is the person charged and named in 
 such indictment, such justice shall, without further inquiry and examination, 
 either commit him to prison by a warrant which may be in the form II in 
 schedule one hereto, or to the like effect, or admit him to bail as in other cases 
 prcvideH : but if it appears that the accused has without reasonable excuse hmkn 
 hit recognizance to appear he shaU not in any case be bailable as of right. 
 
 3. If it is proved befor . the justice upon oath that any such accused |)erson 
 is at the time of such application and production of the said certificate a^ 
 aforesaid confined in any prison for any other offence than tiiat charged in the 
 said indictment, such justice shall issue his warrant directed to the warden or 
 gaoler of the prison in which such person is then confined as aforesaid, cuui- 
 manding him to detain him in his custody until by lawful authority he is 
 removed therefrom. Such warv.int may be in the fonn J J. in schedule one 
 hereto, or to the like effect. R. S. C. c. 174, ss. 33, 34 & 36. 11 & 12 V. c. 42, 
 8. 3, Imp. : Arch bold, 89. 
 
 
[Sec. 648 
 
 R. V. Newton, 
 ir the other of 
 ;41 a new bill 
 1, be preferred 
 
 etit jury whose 
 : .Archbold, 86. 
 
 has been duly pre- 
 not appear to plead 
 bppear or not— 
 een tried may mue a 
 y part of Canada ; 
 nt is found or (if the 
 before which the trial 
 ich the accused ought 
 pon application made 
 ificate of such indict- 
 form GG in schedule 
 moh certificate to any 
 as found, or in which 
 loh justice shall issue 
 J, brought before such 
 [y or place, to be dealt 
 HH in schedule one 
 
 any one apprehended 
 Icharged and named in 
 luiry and examination, 
 be in the form II in 
 ^ bail as in other cases 
 lamiahk excuse hnkm 
 ihle <«« of right. 
 ly such accused i^rson 
 the said certificate as 
 Ian that charged in thf 
 3Cted to the warden or 
 ined as aforesaid, corn- 
 lawful authority he is 
 J J. in schedule one 
 'k 11&12V.C.12, 
 
 Sec. 648] 
 
 BENCH WARRANT, ETC. 
 
 737 
 
 QG.— {Section 648.) 
 
 CERTIFICATE OF INDICTMENT BEING FOUND. 
 Canada, \ 
 
 Province of , l- 
 
 County of .) 
 
 I hereby certify that at a i irt of (Oyer and Terminer, 
 or General Gaol Delivery, or General Sessions of the Peace) 
 holden in and for the county of , at , in the 
 
 said (county), on , a bill of indictment was found by the 
 
 grand jury against A. B., therein described as A. B. late of 
 (labourer), for that he (Sc, stating shortly the offence),. 
 and that the said A. B. has not appeared or pleaded to the said 
 indictment. 
 
 Dated this day , in the year 
 
 Z. X. 
 
 (Title of oficer.) 
 
 mi..— {Section 648.) 
 
 WARRANT TO APPREHEND A PERSON INDICTED. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the. 
 saiu county of 
 
 Whereas it has been duly certified by J. D., clerk of the" 
 [mmetlw court) {or E. G., deputy clerk of the Crown or clerk of" 
 tlie peace, or as the case may be), in and for the county of ,, 
 
 that {etc., statiny the certificate). These are therefore to com- 
 mand you m Her Majesty's name forthwith to apprehend the said: 
 A. B , and to bring him before {me) or some other justice or 
 justices of the peace in and for the said county to be dealt with 
 according to law. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid 
 
 J. S., [seal.] 
 
 J. P., (Name of county.) 
 Grim. Law— 47 
 
\ 
 
 738 
 
 PROCEDURE. 
 
 [Sec. 048 
 
 II.— {Section 648.) 
 
 WARRANT OF COMMITMENT OJ A PERSON INDICTED. 
 
 Canada, | 
 
 Province of , > 
 
 County of . ) 
 
 To all or any of the constables and other peace oflScers in the 
 said county of , and the keeper of the common 
 
 gaol, at , in the said county of 
 
 Whereas by a warrant under the hand and seal of , 
 
 (a) justice of the peace in and for the said county of , 
 
 dated , after reciting that it had been certified by J. D., 
 
 (etc., as in the certificate), the said justice of the peace commanded, 
 all or any of the constables or peace officers of the said county, 
 in Her Majesty's name, forthwith to apprehend the said A. B., 
 .and to bring him before (him) the said justice of the peace or 
 before some other justice or justices in and for the said county, 
 to be dealt with according to law ; and whereas the said A. B. 
 has been apprehended under and by virtue of the said warrant, 
 and being now brought before (me) it is hereupon duly proved 
 to [me] upon oath that the said A. B. is the same person who is 
 named and charged as aforesaid in the said indictment : These 
 are therefore to command you, the said constables and peace 
 officers, or any of you, in Her Majesty's name, forthwith to take 
 and convey the said A. B. to the said common gaol at , 
 
 in the said county of , and there to deliver him to the 
 
 keeper thereof, together with this precept ; and (/) hereby com- 
 mand you the said keeper to receive the said A. B. into your 
 custody in the said gaol, and him there safely to keep until he 
 shall th r ce b*. ?.elivered by due course of law. 
 
 Givevj under (my) hanri and seal, this day of , 
 
 in the ye at , at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P., (Xame of count i/.) ■ 
 
Sec. 648] 
 
 BENCH WARRANT, ETC. 
 
 739 
 
 J3.— {Section 648.) 
 
 WARRANT TO DETAIN PERSON INDICTED WHO IS ALREADY 
 IN CUSTODY FOR ANOTHER OFFENCE. 
 
 Canada, ^ 
 
 Province of , U 
 
 County of J 
 
 To the keeper of the common gaol at , in the said county 
 
 of 
 
 Whereas it has been duly certified by J. D., clerk of the 
 (HrtH/f the conrt) {or deputy clerk of the Crown or clerk of the peace 
 of and for the county of , or as tlie case may he) that {etc., statiwj 
 the certificate) ; And whereas (/ am) informed that the said A. B. 
 is in your custody in the said common gaol at aforesaid, 
 
 charged with some offence, or other matter ; and it being now 
 duly proved upon oath before {me) that the said A. B., so indicted 
 as aforesaid, and the said A. B., in your custody, as aforesaid, 
 are one and the same person : These are therefore to command 
 you, in Her Majesty's name, to detain the said A. B. in your 
 custody in the common gaol aforesaid, until by a writ of habeas 
 corpus he shall be removed therefrom, for the purpose of being 
 tried upon the said indictment, or until he shall otherwise be 
 removed or discharged out of your custody by due course of law. 
 
 Given under {my) hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P., {Name of county.) 
 
 
 ^vC 
 
 ^^^.^ 
 

 740 
 
 PROCEDURE. 
 
 [Sees. 649-C51 
 
 
 111 
 
 PART XLIX. 
 
 REMOVAL OF PRISONERS-CHANGE OF VENUE. 
 
 640. The Governor in Council or the Lieutenant-Governor in Council 
 of any province may, if, from the insecurity or unfitness of any gaol of any 
 county or district for the safe custody of prisoners, or for any other cause, 
 he deems it expedient so to do, order any person charged with, an indictable 
 offence confined in such gaol or for whose arrest a warrant has been issued, t^ 
 be removed to any other place for safe keeping or to any gaol, which place or 
 gaol shall be named in such order, there to be detained until discharged in 
 due course of law, or removed for the purpose of trial 'o the gaol of the county 
 or district in which the trial is to take place ; and \. copy of such order, 
 certified by the clerk of the Queen's Privy Council for Canada, or the clerk of 
 the Executive Council, or by any person acting as such clerk of the Privy 
 Council or Executive Council, shall be sufficient authority to the sheriffs and 
 gaolers of the counties or districts respectively named in such order, to deliver 
 over and to receive the body of any person named in such order. R. S. C. 
 c. 174, 8. 97. 
 
 2. The Governor in Council or a Lieutenant-Governor in Council may, in 
 any such order, direct the sheriff in whose custody the person to be removed 
 then is, to convey the said person to tho place or g» .>i in which he is to be 
 confined, knd in caae of removal to another county or district shall direct the 
 sheriff or gaoler of such county or district to receive the said person, and to 
 detain him until he is discharged in due course of law, or is removed for the 
 purpose of trial to any other county or district. R. S. C. c. 174, s. 98. 
 
 3. The Governor in Council or a Lieutenant-Governor in Council may 
 make an order as hereinbefore provided in respect of any person under 
 sentence of imprisonment or under sentence of death,— and in the latter case, 
 the sheriff to whose gaol the prisoner is removed shall obey any direction 
 given by the said order or by any subsequent order in council, for tiie return 
 of such prisoner to the custody of the sheriff by whom the sentence is to be 
 executed. R. S. C. c. 174, s. 100. 
 
 630. If after such removal a tame bill for any indictable offence is 
 returned by any grand jury of the county or district from which any such 
 person is removed, against any such person, thecourt into which such tnie bill 
 is returned, may make an order for the removal of such jmrson. from the (fool 
 in which he is then confined, to the gaol of the county or district in which 
 such court is sitting, for the purpose of his being tried in such county or dis- 
 trict. R. S. C. c. 174, 3. 99. 
 
 Change ok Ve.\ce. 
 
 Otil* Whenever it api^ears to the satisfaction of the court or judge 
 hereinafter mentioned, that it is expedient to the ends f)f justice that the trial 
 of any person charged with an indictable offence should be held in some Hi- 
 
[Sees. 649-G51 
 
 Sec. 651] 
 
 CHANGE OF VENUE. 
 
 741 
 
 VENUE. 
 
 rovemor in Council 
 ot any gaol of any 
 n any other cause, 
 I with an indictable 
 
 has been issued, tg 
 jaol, which place or 
 
 until discharged in 
 le gaol of the county 
 copy of such order, 
 nada, or the clerk of 
 I clerk of the Privy 
 y to the sheriffs and 
 mch order, to deliver 
 uch order. R. S. C. 
 
 or in Council may, in 
 person to be removed 
 in which he is to be 
 itrict shall direct the 
 le said person, and to 
 |or is removed for the 
 c. 174, 8. 98. 
 •nor in Council may 
 if any person under 
 ind in the latter case, 
 ll obey any direction 
 luncil, for the return 
 the senUnce is to be 
 
 lindictable offence is 
 
 om which any such 
 
 J which 8\ich tnie bill 
 
 ^.erson. from the t'cul 
 
 or district in wliich 
 
 I such county or dis- 
 
 1 the court or judge 
 justice that the trial 
 bii held in some dis- 
 
 trict, county or place other than that in which the offence is supposed to have 
 been committed, or would otherwise be triable, the court lt>efore which such 
 j)er8on is or is liable to Ixj indicted may, at any term or sitting thereof, and 
 any judge whtj might hold or sit in such court may, at a.iy other time, either 
 before or after the presentation of a bill of indictment, order that the trial 
 shall be proceeded with in some other district, county or place within the same 
 province, named by the court or judge in such order ; but such order shall be 
 made upon such conditions as to the payment of any additional expense there- 
 by caused to the accused, as the court or judge thinks proper to prescribe. 
 
 2. Forthwith uixin the order of removal being made by the court or judge, 
 the indictment, if any has been found against the prisoner, and all inquisitions, 
 informations, depositions, recognizances and other documents relating to the 
 prosecution against him, shall be transmitted by the officer having tlie custody 
 thereof to the proper officer of the court at the place where the trial is to be 
 had, and all proceedings in the case shall be had, or, if previously commenced, 
 shall be continued in such district, county or place, as if the case had arisen 
 or the offence had been committed therein. 
 
 3. The order of the court, or of the judge, made under this section, shall b** 
 a sufficient warrant, justification and authority, to all sheriffs, gaolers and peace 
 officers, for the removal, disposal and reception of the prisoner, in conformity 
 with the terms of such order ; and the sheriff may appoint and empower any 
 constable to convey the prisoner to the gaol in the district, county or place in 
 which the trial is ordered to be had. 
 
 4. Every recognizance entered into for the prosecution of any person, and 
 ever}- recognizance, as well of any witness to give evidence, as of any person 
 for any offence, shall, in case any such order, as provided by this section, is 
 made, be obligatory on each of the persons bound by such recognizance as to 
 all things therein mentioned with reference to the said trial, at the place where 
 such trial is so ordered to be had, in like manner as if such recognizance had 
 been originally entered into for the doing of such things at such last mentioned 
 place : Prfjvided that notice in writing shall be given either personally or by 
 leaving the same at the place of residence of the persons bound by such recog- 
 nizance, as therein described, to apiiear before the court, at the place where 
 such trial is ordered to be had. R. S. C. c. 174, s. 102. 
 
 See s. 600, s-s. 2. 
 
 By this section, 651, the court or judge has a discre- 
 tionary power of a wide extent : ** Whenever it appears to 
 the satisfaction tfthe court or judge" it says, and when the 
 court or judge declares that it so appears, the matter quoad 
 hoc is at an end, the venue is changed, and the trial must 
 take place in the district, county or place designated in the 
 order. 
 
 The words of the statute require that the court or judge 
 be satisfied that the change of venue is expedient to the ends 
 of justice. Mr. Justice Sanhorn, in Ex parte Brydgee, IS 
 
\ 
 
 vm\' 
 
 742 
 
 PROCEDURE. 
 
 [Sev\ 051 
 
 L. C. J. 141, said that "the commoQ law discourages change 
 of venue, and it is only to be granted with caution and upon 
 strong grounds." \ 
 
 The following cases decided in England may be usefully 
 noticed here : 
 
 Where there was a prospect of a fair trial the court 
 refused to change the venue, though the witnesses resided 
 in another county : R. v. Dunn, 11 Jur. 287. 
 
 The court will not permit the venue in an indictment to 
 he changed for any other cause than the inability to obtain 
 a fair trial in the original jurisdiction : B. v. Patent Eureka 
 and Sanitary Manure Company, 13 L. T. 365. 
 
 The court lias no power to change the venue in a crim- 
 inal case, nor will they order a suggestion to be entered on 
 the roll to change the place of trial in an information foi- 
 libel, on the ground of inconvenience and difficulty in 
 securing the attendance of the defendant's witnesses : It. v. 
 Cavendish, 2 Cox, 176. 
 
 Change of venue asked for upon the ground on an 
 indictment for conspiracy to destroy foxes, that the gentle- 
 men who were likely to serve on the jury were much 
 addicted to fox-hunting refused: R. v. King, 2 Chit. 
 Rep. 217. 
 
 It is no ground to change the venue that the defendant's 
 witnesses are all resident in another county and that he bas 
 no funds to bring them for his trial : R. v. Casey, 18 Cox, 
 614. 
 
 The court will remove an indictment for a misdemean- 
 our from one county to another, if there is reasonable cause 
 to apprehend or suspect that justice will not be impartially 
 administered in the former county : R. v. Hunt, 3 B. & Aid. 
 444 ; 2 Chit, 130. 
 
 The court has a discretionary power of ordering a sug- 
 gestion to be entered on the record of an indictment for 
 felony, removed thither by certhrari, for the purpose of 
 
rages change 
 ion and upon 
 
 Ety be usefully 
 
 rial the court 
 aessea resided 
 
 indictment to 
 (ility to obtain 
 Patent Eureka 
 )5. 
 
 jnue in a crim- 
 ) be entered on 
 information for 
 ad difficulty in 
 ^vitnesses*. E.v. 
 
 ground on an 
 
 [that the gentle- 
 
 iry were much 
 
 King, 2 Chit. 
 
 I the defendant's 
 land that he has 
 Casey, 13 Cox, 
 
 a misdemean- 
 [easonable cause 
 It be impartially 
 lunt, 3 B. & Aid. 
 
 ordering a sug- 
 
 indictment for 
 
 [the purpose of 
 
 Sec. 051] 
 
 CHANGE OF VENUE. 
 
 743 
 
 awarding the jury process into a foreign county ; but this 
 power will not be exercised unless it is absolutely necessary 
 for the purpose of securing an impartial trial : R. v. Holden, 
 5 B. &. Ad. 347. 
 
 In the case of R. v. Harris, et al., 3 Burr. 1330, the 
 private prosecutors, in their affidavit on an application 
 made by them for a change of the -uue, went no further 
 than to swear generally "thatthe^- ■nly believed that there 
 could not be a fair and impartial tri Viad by a jury of the 
 Cityof Gloucester," without giving j ^jarticular reasons 
 or grounds for entertaining such a belief. The case to be 
 tried was an information against the defendants, as alder- 
 men of Gloucester, for a misdemeanour in refusing to admit 
 several persons to their freedom of the city, who demanded 
 their admission, and were entitled to it, and in consequence 
 to vote at the then approaching election of members of 
 Parliament for that city, and whom the defendants did 
 admit after the electiop was over ; but would not admit 
 them till after the election, and thereby deprived them of 
 their right of voting at it. The prosecutors had moved for 
 this rule on a supposition " that the citizens of the city 
 conld not but be under an influence or prejudice in thi& 
 matter." The application was refused. 
 
 " There must be a clear and solid foundation for it," 
 said Lord Mansfield ; " now, in the present case, this gen- 
 eral swearing to apprehension and belief only is not a suffi- 
 cient ground for entering such a suggestion, especially as 
 it is sworn on the other side that there is a list returned 
 up, consisting of above six hundred persons duly qualified 
 to serve. Surely a person may espouse the interest of one 
 or another candidate at an election, without thinking him- 
 self obliged to justify, or being even inclined to defend, the 
 improper behaviour of the friends or agents of such candi- 
 date." 
 
 " The place of trial," said Mr. Justice Denison, "ought 
 not to be altered from that which is settled and established 
 
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 744 
 
 PROCEDURE. 
 
 [Sec. 651 
 
 by the common law, unless there shall appear a clear and 
 plain reason for it, which cannot be said to be the present 
 case." \ 
 
 " Here is no fact suggested," said Mr. Justice Foster, 
 ** to warrant the conclusion that there cannot be a fair and 
 impartial trial had by a jury of the City of Gloucester. It 
 is a conclusion without premises. The reason given, or 
 rather the supposition, would hold as well in all cases of 
 riots at elections. This is no question relating to the 
 interest of the voters ; it is only whether the defendants, 
 the persons particularly charged with this misdemeanour, 
 have personally acted corruptly or not." 
 
 " There was no rule better established," said Mr. Jus- 
 tice Wilmot, " than that all causes shall be tried in the 
 county, and by the neighbourhood of the place where the 
 fact is committed ; and, therefore, that rule ought never to 
 be infringed, unless it plainly appears that a fair and im- 
 partial trial cannot be had in that county ; . . It does 
 not follow that because a man voted on one side or on the 
 other he would therefore perjure himself to favour that 
 party when sworn upon a jury. God forbid ! The freemen 
 of this corporation are not at all interested in the personal 
 conduct of these men upon this occasion ; the same reason- 
 ing would just as well include all cases of election riots." 
 
 It may be remarked on this case : (1) That the applica- 
 tion for a change of the venue was made by the prosecution, 
 and there is no doubt that much stronger reason must then 
 be given than when the application is made by the defendant; 
 <2) That the case dates from 1762, and that in some of the 
 more recent cases on this point, the court seems to have 
 granted such an application, on the part of the defendant, 
 with less reluctance. This is easily explained; it must 
 have been an unheard of thing, at first, to change the venuei 
 at common law, at the time where the jurors themselves 
 were the witnesses, and the only witnesses; where they 
 were selected for each case because they were supposed to 
 
 ■''■•' Wr 
 
Sec. 651] 
 
 CHANGE OF VENUE. 
 
 745 
 
 know the facts. Where no other witnesses, no evidence 
 whatever was offered to them, it may well be presumed that 
 a change in the venue was not allowable under any circum- 
 stances. The rule must then invariably, inflexibly, have 
 been that the venue should always be laid in the county 
 where the offence was committed. The strictness of the 
 rule can have been relaxed only by degrees, and even when, 
 for a long period, the strongest reason in support of it had 
 ceased to exist, by the changes which have given us the 
 present system of jury trial, it is not surprising to find the 
 judges still adhering to it as much as possible. But, 
 insensibly, a change is perceptible in the decisions, and 
 now, under our statute, there is no doubt that every time, 
 for any reason whatever, it is expedient to the ends ofjvxtice 
 that a change in the venue, upon any criminal charge, 
 fihould take place, it should be granted whether applied for 
 by the prosecution or by the defence. 
 
 Another decision, in England, on the question may be 
 noticed here: 
 
 The court removed an indictment from the Central 
 Criminal Court, and changed the venue from London to 
 Westminster, where it was a prosecution instituted by the 
 Corporation of London for a conspiracy in procuring false 
 votes to be given at an election to the office of brid'^j- mas- 
 ter : B. V. Simpson, 5 Jur. 462. 
 
 A case in the Province of Quebec gave rise to a full 
 discussion on this section: Ex parte Brydges,18 L. C. J. 141. 
 
 In this case, a coroner's jury in the district of Quebec 
 returned a verdict of manslaughter against the defendant, 
 a resident of Montreal. The coroner issued his warrant, 
 upon which the defendant was arrested ; he gave bail, and 
 then, in Montreal, before Mr. Justice Badgley, a judge of 
 the Court of Queen's Bench, made application in chambers 
 for a change in the venue ; the only affidavit, in sup;oort 
 of the application, was the defendant's, who swore that he 
 could not have a fair trial in the district of Quebec. The 
 
V 
 
 746 
 
 PROCEDURK 
 
 [Sec. 651 
 
 crown was served with a notice of the application, and 
 resisted it ; Mr. Justice Badgley, however, granted it, and 
 ordered that the trial should take place in Montreal^ 
 deciding (1) that, under the statute, a judge of the Court 
 of Queen's Bench, in chambers in Montreal, may order the 
 change of the venue from Quebec to Montreal, of the trial 
 of a person charged with the commission of an offence in 
 the Quebec district, and (2) that this order may be given 
 immediately after the arrest of the prisoner. 
 
 On this last point there is no room for doubt. By the 
 statute, as soon as a person is charged with an offence, the 
 application can be made, and there is no doubt, that in 
 Brydges' case such an application could even have been 
 made before the issuing of the warrant of arrest agf^inst 
 him.! The finding by the coroner's inquisition of man- 
 slaughter against him was the charge. From the moment 
 this finding was delivered by the jury Brydges stood 
 charged with manslaughter ; see now s. 568, ante. In fact, 
 this finding was equivalent to a true bill by a grand jury, 
 and upon it he had, if remaining intact, to stand his trial, 
 whether or not a bill was later submitted to the grand Jury, 
 whether the grand jury found " a true bill," or a "no bill" 
 in the case. See K. v. Maynard, R. & R. 240 ; R. v. Cole^ 
 2 Leach, 1095 ; and the authorities cited in R. v. Tremblay, 
 18 L. C. J. 158. 
 
 Upon the other point decided, in this case, by Mr. Jus- 
 tice Badgley, as to the jurisdiction he had to grant the 
 order required, there seemed at first to be more doubt. Biit 
 the question was s t rest by the judgment afterwards 
 given in the case i^. Jamsay and Sanborn, JJ., who en- 
 tirely concurred with Mr. Justice Badgley in his ruling on 
 the question, as follows : 
 
 Ramsay, J. — " Before entering on the merits of thepe 
 rules it becomes necessary to deal with a question of juris- 
 diction which has been raised on the part of the crowp. 
 It is urged that this case is not properly before us, 
 
Sec. 651] 
 
 CHANGE OF VENUE. 
 
 747 
 
 1: ; 1 
 
 that if it is, that the law under which it is brought before 
 the court, sitting iu this district, is of so inconvenient and 
 dangerous a character that it should be altered. With the 
 inconvenience of the law we have nothing to do ; neither 
 ought we to express any opinion as to whether the grounds 
 on which the learned judge who gave the order to change 
 the venue were slight or not, provided he bad jurisdiction. 
 The whole question rests on the interpretation of s. 11 of 
 the Criminal Procedure Act of 1869. That section is in 
 these words : (His Lordship read the section.) 
 
 <* We have only to ask whether, at the time this order 
 was given, Judge Badgley was a judge who might hold or 
 Bit in the Court of Queen's Bench. If so, he had juris- 
 diction. 
 
 "But we are told that the statute evidently intended 
 that the judge giving the order should be actually sittings 
 in the district in which the offence is alleged to have taken 
 place. There is no trace of any such intention in the 
 statute and there is no rule of interpretation of statutes sa 
 well established as this, that where the words of a statute 
 are clear and sufficient they must be taken as they stand. 
 If courts take upon themselves, under the pretext of inter- 
 preting the law, to diminish or extend the clearly expressed 
 scope of a statute, they are usurping the powers of the 
 legislature, aud assuming a responsibility which in no way 
 devolves on them. In the particular case before us it does 
 not appear clear to my mind that it was the intention of 
 the legislature to limit the power to change the venue to a^ 
 jadge sitting in the district where the offence was said to 
 be committed. In the first place, our statute goes far 
 beyond the old law, which, I believe, is still unchanged in 
 England. Not only is the power given here to a judge in 
 chambers to change the venue, but he may do so before 
 the bill of indictment is either laid or found. The object 
 was to protect a man from being even put to trial by a 
 prejudiced grand jury, and this could only be effectually 
 
 if* 
 
 t 
 
 i 
 
 i 
 
748 
 
 PROCEDURE. 
 
 [Sec. 651 
 
 done by giving the power to any judge who could bold or 
 sit in the court to change the venue, for it will be observed 
 that in 1869, when the Act was passed, there were many 
 districts in this Province in which there was no resident 
 judge, and in Ontario the judges of the superior courts all 
 live in Toronto, and, so far as I know, in each of the other 
 Provinces, they live in the capital town. Unless, then, 
 there was to be a particular provision for the Province of 
 Quebec the law had to be drawn as we find it. Besides 
 this the Court of Queen's Bench is not for the district but 
 for the whole Province. The object of dividing the Province 
 into districts is for convenience in bringing suits, but the 
 jurisdiction of the court is general. This has never been 
 doubted, and it has been the practice both in England and 
 this 'country to bail in the place where the prisoner is 
 arrested. In the case of Blossom, where the taking of bail 
 "was vigorously resisted by the crown, this court, sitting at 
 Quebec, bailed the prisoner who was in jail here. This is 
 going a great deal farther, but the power of the court to 
 bail was not, and, I think, could not, be questioned. We 
 are told that great inconvenience might arise if this statute 
 be not restrained. This is really no valid objection to the 
 law. There are no facultative acts which may not be 
 abused one way or another. A discretionary power involves 
 the possibility of its indiscreet exercise, but that is not 
 ground for us to annul the law creating it. In this case 
 the inconveniences referred to are not specially apparent 
 — the prisoner arrested in Montreal was bailed there, and 
 made his application to have the venue changed to the 
 district where he resided and where he actually was. The 
 order made by Mr. Justice Badgley could hardly then be 
 used as a precedent for an abusive use of the statute. It 
 must be understood that in saying this I do not refer to the 
 sufficiency or insufficiency of the affidavit on which the 
 order was given, which is not in any way before us, but 
 €olely to the circumstance of the accused being actually 
 before the judge here. As the point is a new one, and as 
 
Sw. 651] 
 
 CHANGE OF VENUE. 
 
 749 
 
 ho could hold or 
 i will be observed 
 there were many 
 was no resident 
 nperior courts all 
 each of the other 
 1. Unless, then, 
 r the Province of 
 find it. Besides 
 ar the district but 
 iding the Province 
 ^ing suits, but the 
 is has never been 
 kh in England and 
 re the prisoner is 
 3 the taking of bail 
 lis court, sitting at 
 jail here. This is 
 ver of the court to 
 e questioned, ^'e 
 arise if this statute 
 lid objection to the 
 rhich may not be 
 lary power involves 
 |e, but that is not 
 it. In this case 
 specially apparent 
 bailed there, and 
 le changed to the 
 .ctuallywas. The 
 lid hardly then be 
 |of the statute. It 
 do not refer to the 
 vii on which the 
 ,ay before us, but 
 led being actually 
 new one, and as 
 
 questions of jurisdiction are always delicate, we would wil- 
 lingly have reserved it for the decision of all the judges; 
 but the Act allowing us to reserve cases is unfortunately as 
 much too narrow as the statute before us appears to Mr* 
 Ritchie to be too wide in its phraseology. We can only 
 reserve after conviction, and irregular* reservations for the 
 opinion of the judges have no practically good results. 
 We must, therefore, give the judgment to the best of our 
 ability, and I must say for my own part that I cannot see 
 any difficulty in the matter. The words of the statute are 
 perfectly unambiguous, and there is no reason to say that 
 they lead to any absurd conclusion." 
 
 Sanborn, J. — ".First, as to the jurisdiction. It is 
 
 objected that the venue was improperly changed, and that 
 
 this inquisition ought to be before the court at Quebec. If 
 
 wo are not 'legally' possessed of the inquisition of course 
 
 we cannot entertain these motions to quash. This has 
 
 been fully and exhaustively treated by the President of the 
 
 court. It is merely for us to inquire : Had Mr. Justice 
 
 Badgley the power to order the trial to take place here 
 
 instead of in the district of Quebec where the accident 
 
 occurred ? The 11th section of the Criminal Procedure Act 
 
 undoubtedly gives that power. He was a judge, entitled to 
 
 sit at the court lohere the party loas sent for trial. The 
 
 jurisdiction of any of the judges of the Queen's Bench is 
 
 not local for any district, but extends to all parts of the 
 
 Province." 
 
 The words " be was a judge, entitled to sit at the court 
 where the party ivas sent for trials" in Mr. Justice Sanborn's 
 remarks appear not supported by the statute. It is the 
 court at which the party charged with a crime was at first 
 liable to be indicted, or any judge who might hold or sit in 
 that court, who have jurisdiction in the matter, not the court 
 where the party is sent for trial nor a judge ivho can hold and 
 sit in such last mentioned court. Of course, in Brydpies' 
 case this distinction could not be made, as Mr. Justice 
 
 f'f 
 
 
 SI " 
 
\ 
 
 760 
 
 PROCEDURE. 
 
 [Sec. 051 
 
 Badgley, who gave the order to change the venue, could sit 
 in the court at Quebec as well as in Montreal, and in Mont- 
 real as well as in Quebec. But suppose that such an 
 application is made to a judge who can hold or sit in a 
 <3oart of quarter sessions, at which the party charged is or 
 ia liable to be indicted; and there are not many cases 
 where a party accused is not liable to be indicted before the 
 <i0urt of quarter sessions ; the statute gives jurisdiction only 
 to the court of quarter sessions of and for the locality 
 where the trial should take place, in the ordinary course of 
 law, or to a judge thereof, and not to a court or judge of 
 another locality ; and the judge of the quarter sessions for 
 Montreal, for instance, could not, in a case from the dis- 
 trict, of Quebec, order the trial to take place in Montreal, 
 though he would be a judge entitled to sit at the court 
 where the party was sent for trial. 
 
 See in Re Sproule, 12 S. G. R. 140, questions as to 
 change of venue, and R. v. Martin, 16 Q. L. R. 281. 
 
 Change of venue allowed upon prisoner's solicitor's affi- 
 davit that from conversations he had had with the jurors, 
 he was convinced of a strong prejudice against the prisoner: 
 R. V. McEneany, 14 Cox, 87 ; see R. v. Walter, 14 Cox, 579. 
 
 Held, that 82 & 83 V. c. 20, s. 11, does not authorize any 
 order for the change of the place of trial of a prisoner in 
 any case where such change would not have been granted 
 under the former practice, the statute only affecting pro- 
 cedure : R. V. McLeod, 6 P. R. (Ont.) 181. 
 
 The power so granted is purely discretionary, but, 
 where application is made on the part of the accused, it 
 will be a sufficient ground that persons might be called on 
 the jury whose opinions might be tainted with prejudice, 
 and whom the prisoner could not challenge : R. v. Russell, 
 Ramsay's App. Cas. 199. See Ex parte Corwin, 24 L. C. 
 J. 104, 2 L. N. 864. 
 
 As to the carrying out of the sentence where venue has 
 beeii changed, see iwst, s. 783, s-s. 4. 
 
Sees. 632-C66] 
 
 ARRAIGNMENT. 
 
 751 
 
 PART L. 
 
 Arraionhknt. {Amended). 
 
 092. If any person against, whom any indictment is found is at the time 
 confined for some other cause in the prison belonging to the jurisdiction of the 
 court by which he is to be tried, the court may by order in writing, without a 
 writ of habeas corpus, direct the warden or gaoler of the prison or sheriff or 
 other person having the custody of. the prisoner to bring up the body of such 
 person as often as may be required for the purposes of the trial, and such warden, 
 gaoler, sheriff or other person shall obey such order. R. S. C. c. 174, s. 101. 
 30-31 V. c. 35 (Imp.). 
 
 '* Prison " uefined, s. 3. 
 
 RiQHT TO Inspect Dkpobitions, Etc. 
 
 633. Every accused person shall be entitled at the time of his trial to 
 inspect, without fee or reward, all deiiositions, or copies thereof, taken against 
 him and returned into the court before which, such trial is had, and to have the 
 indictment on which he is to be tried read over to him if he so requires. R. S. 0. 
 c. 174, 8. 180. 
 
 This is the 6 & 7 Wm. IV. c. 114, s. 4 of the Imperial 
 Statutes. See s. 597, ante. 
 
 Copy op Indictment. 
 
 654. Every person indicted for any offence shall, before being -i-x.igned 
 on the indictment, be entitled to a copy thereof on paying the clerk JJt cents 
 per folio of me hundred words for the same, if the court is of opinion that the 
 Bame can be made without delay to the trial, but not otherwise. R. S. C. 
 c. 174, 8. 181. 
 
 The cost was ten cents hy the repealed statute. At 
 common law, the prisoner was not entitled to a copy of the 
 iDdictment in treason and felonies. 
 
 Copt op Depositions. 
 
 655. Every person indicted shall be entitled to a copy of the depositions 
 returned into court on payment of >!ve cents per folio of one hundred words for 
 the same, provided, if the same are not demanded before the opening of the 
 assizes, term, sittings or sessions, the court is of opinion that the same can be 
 made without delay to the trial, but not otherwise ; but the court may, if it 
 sees fit, postpone the trial on accoimt of such copy of the depositions not 
 having been previously had by the person charged. R. S. C. c. 174, s. 182. 
 U-12V. c. 42, s. 27{lmp.). 
 
762 
 
 PROCEDURE. 
 
 [Seca. 656, 667 
 
 The coat was ten cents by the repealed statute. See s. 
 597, ante. 
 
 Pleas in Abatement Abolished. (New), 
 
 636. Xo plea in abatement shall be allowed after the commencement of 
 this Act. Any objection to the constitution of the grand jury may be taken 
 by motion to the court, and the indictment shall be quashed if the court is of 
 opinion both that such objection is well founded and that the accused has 
 suffered or may suffer prejudice thereby, but not otherwise. R. S. C. c. 174^ 
 8. 142 part. 
 
 The repealed clause applied only to certain pleas in 
 abatement. An objection that the grand jury was com* 
 posed of more than twenty-three members should now be 
 taken by motion : see Bishop, 1 Gr. P. 884. It is only 
 objections to the constitution of the grand jury that this 
 section provides for. The Code makes no provision on the 
 constitution of the grand jury, with the exception of s. 662, 
 post : in R. v. Mitchel, 3 Cox 93, an objection that a grand 
 juror was disqualified was taken by a plea in abatement. 
 There is no such thing known to the criminal law as a 
 challenge to the grand jury : R. v. Mercier, Q. B. 1 Q. B. 
 541. 
 
 It seems that an objection that the witnesses have not 
 been properly sworn before giving their evidence before the 
 grand jury is a question of law that can be reserved for the 
 Court of Appeal : R. v. Tew, Dears, 429. 
 
 The prosecutor has the right to move to quash the 
 finding of the grand jury : R. v. Fieldhouse, 1 Russ. 1030. 
 
 Though an objection to the constitution of the grand 
 jury may be well founded, yet the indictment is not to be 
 quashed if the court is of opinion that the accused has not 
 suffered or will not suffer prejudice thereby by the objec- 
 tion. See R. V. Belyea, James (N.S.) 220. 
 
 Plea— Refusal to Plead. (Amended). 
 
 657. When the accused is called upon to plead he may plead either 
 guilty or not guilty, or such special plea as is hereinbefoie provided for. 
 
 2. If the accused wilfully refuses to plead, or will not answer directly, the 
 court may order the proper officer to enter a plea of not guilty. R. S. C. o. 174, 
 SB. 144, 145. 
 
Sea«57] 
 
 ARBAIONJIENT. 
 
 753 
 
 The words "at.„d, „„„ „, „ . 
 
 clause are replaced by " .ntnUy ret's'to Z*. ""-'«-» 
 
 This clause is taken from 7 t. a r. 
 1 & 2 of .he Imperial statutes ^ * « «<»• IV. o. 28, ss. 
 
 Formerly, to stand mute was *„ „ ;, 
 defendant stood mute of m^lic.JlT'"'- ""'• '' ">« 
 tenced. In the ease of R. v Mereilri"?""^!'""^ '»- 
 prisoner bemg arraigned, stood mn e T. *"''• '^' "•» 
 the sheriff to return a jury il,T^; ,^''° """t Ofdere,? 
 
 prisoner stood mute obst nLrorbvlL ''! ""'"■'' '"^ 
 A jury being accordingly ret J^d T ^' y,""*""" »f Sod. 
 .dmmistered to themf "You "hfl'l ^°,-^''"°"'''«»«''' "" 
 true-presentment make for and n„ h ? if ""^ '"«"'« ""'I 
 Lord the King, whether PrrnlMet^"" ll °" «»^"-> 
 at the bar, being now here ndicLf 11'' "".^ "<"' ?"»«»««• 
 David Samuel Mondrey stand, t ! V^' "'""" '»»"'er of 
 and obstinately, „r b^te 1"",'' '""'"''''•"^' ''«»"? 
 according to your evidence Td t ', *'"' ■"=' "^ <iol 
 mmined the «itnessest oln" „rt'""'"'«'" '"'^ i^^ 
 verdict that the prisoner stood Z' *?'" "•"'■''°'' «» «>«'' 
 tbe visitation of God. WhereLon ^b """'"' """ ■"" "^^ 
 passed sentence of dea^h uporthe r"' '•""'"''"^'y 
 accordrngly executed on the Monday WIowLT "'"' '"' 
 
 '/whr:ri''t^„:ratsr '^^^^ - ~-^ 
 
 ."formality in swearing the witne "l/ ''°°''""' °' ^""^ 
 «Pon an indictment for the same 'ff™' "S"''" """'s-ed: 
 plead, alleging that he had beenL.^'T- '""' ''^''^ '» 
 }- and Vaughan, B., order^ " il ^^ '"'"• Li'Wale,. 
 »tered for him: B. y'. BiZ^sVlrP .2"' «""^ '» ''^• 
 
 '^eii'rratry'rLr '""^'^'^^ '^ ^e'cny- 
 . was mute by the Z^io:^"^- '" "' "^"h^' 
 i was so; they were then sworn .'.^'J"^ ''"""' «>»* 
 We to plead which thev fo„„T • i" ''^ ''=«"'" he wag 
 
 «-;<». by a sign^XtTn'o*; ^1^1"'^""' 
 CWM.LAW--48 " s'^'^J; the judge thea 
 
 f# 
 
 Iff ■ 
 
 t 
 
754 
 
 PROCEDURE. 
 
 [Sec. 657 
 
 m 
 
 ordered the jury to be empannelled to try i^vhetber the 
 defendant was now sane or not, and, on this question, 
 directed them to Bay whether the defendant had sufficient 
 intellect to understand the course of the proceedings to 
 make a proper defence, to challenge the jurors and com- 
 prehend the details of the evidence, and that, if they 
 thought he had not, they should find him of non-sane 
 mind: R. v. Pritchard, 7 C. & P. 803. 
 
 It seems that where a prisoner who is called on to plead 
 remains mute the court cannot hear evidence to prove 
 ihat he does so through malice, and then enter a plea of 
 not guilty under this section; but a jury must be empan- 
 nelled to try the question of malice, and it is upon their 
 :fincfing that the court is authorized to enter the plea : B. v. 
 Israel, 2 Cox, 268. 
 
 A prisoner, when called upon to plead to an indicttnent, 
 stood mute. A jury was empannelled and sworn to try 
 whether he was mute of malice or by the visitation of God. 
 A verdict of mute of malice having been returned the 
 court ordered a plea of not guilty to be entered on the 
 record : R. v. Schleter, 10 Cox, 409. 
 
 A collateral issue of this kind is always tried instanter 
 by a jury empannelled for that purpose. In fact there is, 
 properly speaking, no issue upon it ; it is an inquest of 
 office. No peremptory challenges are allowed : R. v. Rad- 
 cliffe, Fost. 86, 40. The jury may be chosen amongst 
 the jurors in attendance for the term of court, but must 
 be returned by the sheriff, on the spot, as a special panel : 
 Dickinson's Quarter Sessions, 481. If the jury return 
 a verdict of " mute by the visitation of God," as where the 
 prisoner is deaf or dumb, or both, a plea of not guilty is 
 to be entered, and the trial is to proceed in the usual way, 
 but in so critical a case great diligence and circumspection 
 ought to be exercised by the court ; all the proceedings 
 against the prisoner must be examined with a critical eye, 
 and every possible assistance consistent with the rules of 
 

 See. 658J 
 
 SrECUtPHovisIONSINxREASdN-. 
 
 , . "'^ *^ TREASON. 7ce 
 
 law given to him br ih^ . ° 
 
 In the ease of B. v' teTt; ^ \ '''^'' ' ^-eaeh «1 
 returned tha. the prisoner C'"^!'''''' ^'^^ «"« S 
 God " It .pp,„i th"*' ""'« by the visitatioi of 
 
 dumb could receive\nd JZ,^^:"- 7'" ""' "-^ «>"' 
 """ "«■>'- » P«aon skilled inXT.t^'""""'"'''' ^y «"■ 
 
 aceused i, i.s;„r«:f i' f^;^;",;,'"; '"e o.,e „here an 
 after the prisoner had plead«r"^' . '^*' ^^^- Formerly 
 
 y the clerk: -J,,, ^tl ,X1""^t" .'" ""' -^^' 
 he had to answer, if » .' ^'' '"'™ h" Wal 
 
 -««"^^" if a pe^r. "bTZ! ^ "^' "'^ ""I ''« 
 refused to answer, the injl, , " "•* P«"." if u. 
 aud he stood convlc'ted : "/S^r """"■ ^™ -»"-' 
 
 .orc.lCt:^n°^"''^--«--Huddell 
 «-- cited ; also. K^ol^' ^^^J^^^f' ^^^. -d clt 
 
 , . "■ '"" »"«isninent ; th.. 
 
 (-l.ooproUhetodictmenl. 
 . (») • li.1 ot the «.!»„«„,, L . 
 
 sj;!."'"'"'"' ">»'»-«'»' .he ,„„„„,„.„^ 
 
 5 T. . . "^^ °' *<' ^uf »itne«», «„d 
 
 «• -inis section shall nof i 
 
 ^^B- ^-F-t.. Moo. X.O;B.v. Burke. :o 00. ;:! 
 
 If 
 
 ft 
 
 I 
 
766 
 
 PROCEDURE. 
 
 [Sees. 650, 660 
 
 PART LI. 
 
 Trial. 
 fk!i9. Every^person tried for any indictable offence shall be admitted, 
 after the close of the case for the prosecution, to make full answer and defence 
 thereto by counsel learned in the law. R. S. C. c. 174 s. 178. 6-7 Wm. IV. 
 c. 114 (Imp.). 
 
 See remarks under the two next sections. 
 Presence op the Accused at Trial. 
 
 660. Every accused person shall be entitled to be present in court 
 during the whole of his trial unless be misconducts himself by so interrupting 
 the proceeding^ as to render their continuance in his presence iiispraoticable. 
 
 2. ,The court may permit the accused to be out of court during the whole or any 
 part of any trial on such terms as it thinks proper. 
 
 Sub- section 2 is new as to offences heretofore known as 
 felonies. 
 
 The defendant should in all cases, as a general rule, ap- 
 pear in person to plead and to receive his sentence. In 
 cases where the punishment may be for more than five 
 years, {see s. 668) the court will probably not allow the 
 defendant to be out of court, except for grave reasons, and 
 under particular circumstances. A defendant should sub- 
 mit to the jurisdiction of th? court and appear in person 
 before his plea can be receiv^O : R. v. Maxwell, 10 L. C. E. 
 45. 
 
 The following cases on the practice may serve as guides 
 in the future notwithstanding the change introduced by 
 s-s. 2 of s. 660. 
 
 A prisoner charged with felony, whether he has been on 
 bail or not, must be at the bar, viz., in the dock during his 
 trial, and cannot take his trial at any other part of the 
 court, even with the consent of the prosecutor : R. v. St. 
 George, 9 C. & F. 483. A merchant was indicted for an 
 offence against the Act of parliament prohibiting slave- 
 trading (felony). His counsel applied to the court to allow 
 him to sit by him, not on the ground of his position in 
 
[Sees. 659, 660 
 
 Sec. 661] 
 
 ADDRESSES TO JURY. 
 
 757 
 
 e shall be admitted, 
 
 I answer and defence 
 
 178. 6-7Wm. IV. 
 
 be present in court 
 (elf by so interrupting 
 sence iispracticable. 
 during the whole or any 
 
 retofore known as 
 
 I general rule, ap- 
 |bia sentence. In 
 Ir more than five 
 jly not allow the 
 ;rave reasons, and 
 iclant should sub- 
 appear in person 
 .xwell. 10 L. C. B. 
 
 [ay serve as guides 
 \ge introduced by 
 
 ler he has been on 
 L dock during his 
 [other part of the 
 aecutor : B. v. St. 
 L indicted for an 
 Iprohihiting slave- 
 \ the court to allow 
 of his position in 
 
 society, but because he was a foreigner, and several of the 
 documents in the case were in a foreign language, and it 
 would, therefore, be convenient for his counsel to have him 
 by his side, that he might consult him during his trial : 
 Held, that the application was one which ought not to be 
 granted : R. v. Zulueta, 1 C. & K. 215, 1 Cox, 20. A 
 similar application by a captain in the army was also 
 refused in R. v. Douglas, Car. & M. 193. But in misde- 
 meanours a defendant who is on bail and surrenders to 
 take his trial need not stand at the bar to be tried : R. v. 
 Lovett, 9 C. & P. 462. 
 
 CouNSEt's Addressks to the Jury. {Amended). 
 
 601. If an accused person, or any one of several accused i^ersons being 
 tried together, is defended by counsel, such counsel shall, at the end of the 
 case for the prosecution, declare whether he intends to adduce evidence or not 
 on behalf of the accused person for whom he appears ; and if he does not there- 
 upon announce his intention to adduce evidenve the counsel for the prosecu- 
 tion may address the jury by way of summing up. 
 
 2. Upon every trial for an indictable offence, whether the accused i^erson 
 is defended by counsel or not, he or his counsel shall be allowed, if he thinks 
 fit, to open his case, and after the conclusion of such opening to examine such 
 witnesses as he thinks fit, and when all the evidence is concluded to sum up 
 the evidence. If no vHtnesses are examined for the defence the counsel for the 
 accused shall have the privilege of addressing the jury last, othenoise such right 
 shall belong to the counsel for the prosecution : Provided, that the right of reply 
 shall be always allowed to the Attorney-General or Solicitor-General or to 
 any counsel acting on behalf of either of them. R. S. C. c. 174, s. 179. 28 V. 
 f. 18, s. 2 (Imp.). 
 
 The words in italics in s-s. 2 seem in contradiction with 
 the last part of s-s. 1. The corresponding section in the 
 Imp. draft Code is differently worded. However, as it is, this 
 8. 661 probably bears a construction that brings no substan- 
 tial change in the law. The reply is now given to any coun- 
 sel acting on behalf of the Attorney-General or Solicitor- 
 Genei-al instead of to any Queen's counsel acting on behalf of 
 the Grown. The addresses of counsel are, therefore, to take 
 place as follows : — First case : When no evidence for the 
 defence : Counsel for the Crown opening the case : 
 Crown's evidence. Defendant or his counsel declares 
 that he has no evidence to adduce ; counsel for the Crown 
 
 W 
 

 1 15^ 
 
 9\ 
 .'A 
 
 758 
 
 PROCEDURE. 
 
 [Sec. 661 
 
 sums up : defendant or his counsel addresses jury; reply of 
 counsel for the Crown, but only by Attorney or Solicitor- 
 General, or counsel, acting on behalf of either of them. 
 Second case: where the defence adduces evidence. Crown 
 prosecutor opens the case : evidence of the Crown ; defend- 
 ant or his counsel addresses the jury: defendant's evi- 
 dence; defendant or his counsel sums up ; reply of 
 prosecution in all cases. In the first case, the counsel for 
 the prosecution seldom in practice exercises both the rights 
 of summing up and replying, and should not do so except 
 for special reasons : B. v. Holchester, 10 Cox, 226 ; if the 
 counsel, however, is not the Attorney-General or Solicitor- 
 General, or a counsel acting on behalf of either of them, he 
 has to sum up the evidence, after it is over and before the 
 defendant or his counsel addresses the jury, if he thinks 
 proper to do so, as he is not allowed to reply ; if he is the 
 Attorney- General or Solicitor-General, or a counsel acting 
 on behalf of either of them, he, in practice, does not sum up, 
 as he is entitled to reply whether the defendant adduces 
 evidence or not, though in England this right is very sel- 
 dom exercised where no evidence, or evidence as to char- 
 acter only, is offered. In the second case, in practice, the 
 defence addresses the jury only after its evidence is over ; 
 two addresses would generally have no other result but t^ 
 lengthen the trial, and fatigue judge, counsel and jury: 8(e 
 R. V. Kain, 15 Cox, 388, and Archbold, 178. 
 
 Opening of counsel for prosecution. — A prosecutor con- 
 ducting his oase in person, and who is to be examined as 
 a witness in support of the indictment, has no right to 
 address the jury as counsel : R. v. Brice, 2 B. & Aid. 606 ; 
 R. V. Stoddart, Dickinson's Quarter Sessions, 152 ; B. v. 
 Gurney, 11 Cox, 414, where a note by the reporter, sup- 
 ported by authorities, says that such is the law whether 
 the prosecutor is to be a witness or not. 
 
 Sergeant Talfourd, in Dickinson's Quarter Sessions, 
 495, on the duties of the counsel for the prosecution, says: 
 
Sec. 661] 
 
 ADDRESSES TO JURY. 
 
 759 
 
 " When the counsel fnr th. ' 
 
 •.e ought ,0 crfi„?u^J:,n:t'"'>-«<'i~«es the My 
 fact, which he e.pecLt:'Zliyr^*^'-^nto,\l 
 pnsooer has no counsel he ^hZu I '" ™'°' "here the 
 stating any part „/ the fact, tee n'""r'r'^"fr''i°from 
 o™ brief appears donb/mi^tTw^h ''''''''' ^'''" "s 
 oation; for he will either ^rodZ " ^^ ""''"' '"»"«• 
 jurors an impression which the m«r J -.^ minds of the 
 may not remove in instances X: the':?- ""'^"'"^""^ 
 to comment on it with effect n^ "^ '°°" " ""aWe 
 against the case for the proJJLTVT°'^^''^'^^'>'« 
 
 spects it maynot deserve. The eonrT.'v '" """^ "• 
 »o. fail, in the summing up to I 'f^'"' ;'"»»''"•".-'»»- 
 between the statement and 2e „Lf "2 *° "^''^'Paney 
 well of felony as misdemean u whe L . '" "" '"'"=• "^ 
 sel. not only may the facts Zl^ZT'^'""^'^ '"'""■ 
 be stated, but they may be reasjned ' ^""""'*''»^ rests 
 a»y line of defence ^Ucb^^'ZLZ' °,° "' '" ""«">«« 
 a« counsel for parties charg^wirf^ '^ "^ *''''?'"'• ^"^ 
 he jury in their defence T^t 1°"^ -"ay now address 
 in misdemeanour, the 1" tS. nf T """^ '^^» ''»« 
 f ber degree of offence is hra». T "/ "''"8^'' ""b 
 ftey have counsel, and it is no L!™, *"* '" '"''' '"'ere 
 *cutor's counsel to abstain f^ol T '''"™'''« '»' ">« P™- 
 «- he opens in such mannrrasT"' "'"^"'"y » «'» 
 «'y way he may think adri»»hl ! '»/'""'«'" «s parts i„ 
 , *i!.ty of g„i,t and the difficX' f "^'""'''"'"e 'he pro- 
 B»t even here he. should 3 °f " "P^ "' ™"'=''"'<'"- 
 <«. and from appealing to th^ ^ .■"'^•"8'"« '" »vec- 
 'k'jnry; for it is neither in aln, TT "'' "' P"'"'""^ °f 
 '"•«8'e for a conviction "a " 'd° T ."«''"°»'»S '" 
 «lends for a verdict." *'''"'™'^ '" » eivil cause 
 
 Oo the duties of counsel ;„ „ • 
 PWcution, it ia said in Ar,l'hluT,o'"« "■' ""»« '<>' the 
 "St to state alt that if ''' "*^ "^° •'o-ns so he 
 
 «»atio„softh pri:n'r;as''frr'' 1" "'o^^' '' - 
 - -e be a d^screSr^- tl- 5^ - 
 
 ^i^^'l^ 
 
W4 
 
 
 , 
 
 ■ 
 
 ■t^ 
 
 
 
 
 
 
 
 
 •i 
 
 
 
 m 1 
 
 
 fill 
 
 
 1?' 
 
 .ili 
 
 1 
 
 .Kj '[ 
 
 k- 
 
 
 ff> 
 
 760 
 
 PROCEDURE. 
 
 [Sec. 661 
 
 ments of counsel and the evidence afterwards adduced in 
 support of them: per Parke, B., R. v. Hartel, 7 C. & P, 
 778 ; B. V. Davis, 7 G. & P. 785 ; unless such declarations 
 should amount to a confession, where it would be improper 
 for counsel to open them to the jury ; B. v. Swatkins, 4 G. 
 & P. 548. The reason for this rule is that the circum- 
 stances under which the confession was made may render 
 it inadmissible in evidence. The general effect only of any 
 confession said to have been made by a prisoner ought, 
 therefore, to be mentioned in the opening address of the 
 prosecutor's counsel." 
 
 Mr. Justice Blackburn, in B. v. Berens, 4 F. & F. ^42, 
 "Warb. Lead. Gas. 237, said that the position of prosecuting 
 counsel in a criminal case is not that of an ordinary coun- 
 sel in a civil case, but that he is acting in a quasi judicial 
 capacity, and ought to regard himself as part of the court: 
 that while he was there to conduct his case, he was to do 
 it at his discretion, but with a feeling of responsibility, not 
 as if trying to obtain a verdict, but to assist the judge in 
 fairly putting the case before the jury, and nothing more. 
 
 In E. V. Puddiok, 4 F. & F. 497, it is said per Cromp- 
 ton, J. : " The counsel for the prosecution are to regard 
 themselves as ministers of justice, and not to struggle fo 
 a conviction as in a case at nisiprius ; nor be betrayed b' 
 feelings of professional rivalry to regard the question tt 
 issue as one of professional superiority, and a contest f>r 
 skill and pre-eminence." ' 
 
 Summing up by counsel for the prosecution, where h( 
 defence brings no evidence. — It has already been remarked 
 that in practice, if the counsel for the prosecution hasihe 
 right of reply and intends to avail himself of it, it wouUbe 
 waste of time for him to sum up ; but if the counsel has 
 not the right of reply he will perhaps find it usefil to 
 review the evidence as it has been adduced, and give tome 
 explanations to the jury. But it has been held in I v. 
 Puddick, 4 F. & F. 497, that the counsel for the prosewtion 
 
[Sec. 661 
 
 rds adduced in 
 ftel. 7 C. & P. 
 ch declarations 
 lid be improper 
 
 Swatkins, 4 C. 
 dat the circum- 
 ade may render 
 fEect only of any 
 
 prisoner ougbt, 
 ^ address of the 
 
 on of prosecuting 
 ,n ordinary coun- 
 in a quasi judicial 
 part of the court; 
 •ase, he was to do 
 responsibility, not 
 issist the judge in 
 ,d nothing more. 
 
 Is said per Cromp- 
 
 lion are to regard 
 
 jot to struggle fo 
 
 tor be betrayed b' 
 
 •d the question jt 
 
 and a contest ftr 
 
 Littiow, where lie 
 Idy been remarled 
 rosecutionhasibe 
 ifofit,itwouUbe 
 [if the counselbaa 
 find it usefUto 
 fed, and give lome 
 Len held in ^l. v. 
 kor the proseoition 
 
 Sec. 661] 
 
 ADDRESSES TO JURY. 
 
 761 
 
 ought not, in summing up the evidence, to make obser- 
 vations on the prisoner's not calling witnesses, unless, at all 
 events, it has appeared that he might be fairly expected to 
 be in a position to do so, and that neither ought counsel 
 to press it upon the jury that if they acquit the prisoner 
 they may be considered to convict the prosecutor or prose- 
 cutrix of perjury. Nor is it the duty of coansel for the 
 prosecution to sum up in every case in which the prisoner's 
 counsel does not call witnesses. The statute gives him the 
 right to do so, but that right ought only to be exercised in 
 exLAjjLional cases, such as where erroneous statements have 
 been made and ought to be corrected, or when the evidence 
 differs from the instructions. The counsel for the prose- 
 cution is to state his case before he calls the witnesses ; 
 then, when the evidence has been given, either to say 
 simply, •' I say nothing," or " I have already told you what 
 would be the substance of the evidence, and you see the 
 statement which I made is correct ; " or in exceptional 
 cases, as if something different is proved from what he 
 expected, to address to the jury any suitable explanation 
 which may be required : R. v. Berens, 4 F. & F. 842, 
 reporter's note ; R. v. Holchester, 10 Cox, 226 ; B. v. 
 Webb, 4 F. & F. 862. By the Canada Evidence Act of 
 1898, 56 Y. c. 31, s. 4, it is enacted that the failure of the 
 accused or of his wife or husband to testify shall not be 
 made the subject of comment by the judge or by counsel 
 for the prosecution in addressing the jury. 
 
 TJie defence. — The defendant cannot have the assistance 
 of counsel in examining and cross-examining witnesses, 
 and reserve to himself the right of addressing the jury : 
 R. V. White, 8 Camp. 98 ; R. v. Parkins, 1 C. & P. 548. 
 But see post as to statements by him to the jury. But if 
 the defendant conducts his own case counsel will be allowed 
 to address the court for him c n points of law arising in the 
 case : Idem. Not more than two counsel are entitled to 
 address the court for a prisoner during the trial upon a 
 point of law : R. v. Bernard, 1 F. & F. 240. 
 
V 
 
 762 
 
 PROCEDURE. 
 
 [Seo. 661 
 
 The counsel for the defendant may comment on the 
 case for the prosecution. He may adduce evidence to any 
 extent, and even introduce new facts, provided he can 
 establish them by witnesses. He cannot, however, assume 
 as proved that which is not proved. Nor will he be 
 allowed to state anything which he is not in a situation to 
 prove, or to state the prisoner's story as the prisoner him- 
 self might have done : E. v. Beard, 8 C. & P. 142 ; B. v. 
 Butcher, 2 M. & Rob. 228. 
 
 At a meeting of all the judges, in 1881, in England it 
 was resolved: " That in the opinion of the judges it is con- 
 trary to the administration and practice of the criminal law 
 as hitherto allowed, that counsel for prisoner should state 
 to the jury as alleged existing facts, matters which they 
 have been told in their instructions, on the authority of the 
 prisoner, but which they do not propose to prove in 
 evidence": Archbold, 180. 
 
 Bishop says, 1 Cr. Proc. 311 : " No lawyer ought to 
 undertake to be a witness for his client, except when he 
 testifies under oath, and subjects himself to cross-examina- 
 tion, and speaks of what he personally knows. Therefore, 
 the practice, which seems to be tolerated in many courts, of 
 counsel for defendants protesting in their addresses to the 
 jury that they believe their clients to be innocent, should 
 be frowned down and put down, and never be permitted to 
 show itself more. If a prisoner is guilty and he communi- 
 cates the facts fiilly to counsel in order to enable the latter 
 properly to conduct the defence, then, if the counsel is an 
 honest man, he cannot say he believes the prisoner inno- 
 cent; but if he is a dishonest man he will as soon say this 
 as anything. Thus a premium is paid for professional 
 lying. Again, if the counsel is a man of high reputation, 
 a rogae will impose upon him by a false story to make 
 him an " innocent agent " in communicating a falsehood to 
 the jury. Lastly, a decent regard for the orderly adminis- 
 tration of justice requires that only legal evidence be 
 
 A 
 
Sec. 661] 
 
 ADDRESSES TO JURY. 
 
 763 
 
 ment on the 
 Idence to any 
 idod he can 
 /ever, aasume 
 r will he be 
 a situation to 
 prisoner him- 
 P. 142 ; R. V. 
 
 , in England it 
 adgea it ia con- 
 kie criminal law 
 ler should state 
 era which they 
 authority of the 
 36 to prove in 
 
 lawyer ought to 
 except when he 
 ;o crosa-examina- 
 ,wa. Therefore, 
 many courts, of 
 addreaaea to the 
 innocent, should 
 ir be permitted to 
 ,nd he communi- 
 enable the latter 
 |the counsel is an 
 le prisoner inno- 
 p aa soon say this 
 for professional 
 high reputation, 
 ,e Btory to make 
 ,ing a falaehood to 
 orderly adminis- 
 fegal evidence be 
 
 produced to the jury, and the unaworn statement of the 
 prisoner's counsel, that he believes the prisoner innocent » 
 is not legal evidence. It is the author's cherished hope 
 that he may live to see the day when no judge, sitting 
 \yhere the common law prevails, will ever, in any circum- 
 stances, permit such a violation of fundamental law, of true 
 decorum, and of high policy to take place in his presence 
 as is involved in the practice of which we are now 
 speaking." 
 
 On the same subject it is said in 3 Wharton's Cr. L. 
 3010 : " Nor is it proper for counsel in any stage of the 
 case to state their personal conviction of their client's inno- 
 cence. To do so is a breach of professional privilege, well 
 deserving the rebuke of the court. The defendant is to be 
 tried simply by the legal evidence adcaced in the case; and 
 to intrude on the jury statements not legal evidence is an 
 incerference with public justice of such a character that, if 
 persisted in, it becomes the duty of the court, in all cases 
 where this can be done constitutionally, to discharge the 
 jury and continue the case. That which would be con- 
 sidered a high misdemeanour in third parties cannot be 
 permitted to counsel. And where the extreme remedy of 
 discharging the jury is not resorted to, any undue or 
 irregular comment by counsel may be either stopped at «ihe 
 time by the court, or the mischief corrected by the judge 
 when charging the jury." 
 
 Summing up by the defence. — The counsel for the pri- 
 soner or the prisoner himself is entitled at the close of the 
 examination of his witnesses to sum up the evidence: R. v. 
 Wainwright, 13 Cox, 171. In practice, it is the only time 
 when the counsel for the prisoner addresses the jury, and 
 what has just been said on the defence generally applies to 
 the address to the jury, whether made before or after the 
 examination of witnesses. 
 
 The rule formerly was that if the prisoner's counsel has 
 addressed the jury the prisoner himself will not be allowed 
 
 ., ■{«, 
 
 ■1 
 
\ 
 
 764 
 
 PROOEDtTRB. 
 
 [Sec. 661 
 
 to address the jury also : B. v. Boucher, 8 C. & P. 141 ; 
 R. V. Burrows, 2 M. & Rob. 124 ; R. v. Rider, 8 C. & P. 589. 
 But the following cases show that there seems now in 
 England to be no well settled rule on the subject. Plere, 
 in Canada, now that by the Evidence Act of 1893, 56 V.c.81, 
 B.4, the prisoner is a competent witness, he probably will not 
 bo allowed to make a statement to the jury. As he is at 
 liberty to give his story upon oath, he should not be allowed 
 to protect himself from cross-examination by making tbe 
 same statement not upon oath. 
 
 A person on his trial defended by counsel is not entitled 
 to have his explanation of the case to the jury made through 
 the mouth of his counsel, but may, at the conclusion of bis 
 counsel's address, himself address the jury and make sucb 
 statements, subject to this, that what he says will be treated 
 as additional facts laid before the court, and entitling tbe 
 prosecution to the reply: R. v. Shimmin, 15 Cox, 122; 
 see reporter's note, and R. v. Doherty, 16 Cox, 806, 
 Warb. Lead. Cas. 242. 
 
 In R. V. Weston, 14 Cox, 346, the prisoner's counsel 
 was allowed to make a statement on behalf of his client. 
 
 Per Stephen, J., A prisoner may make a statement to 
 the jury provided he does so before his counsel's address to 
 the jury : R. v. Masters, 50 J. P. 104. 
 
 A prisoner on his trial defended by counsel may, at the 
 conclusion of his counsel's address, make a statement of 
 facts to the jury, but the prosecution will be entitled to 
 reply : R. v. Rogers, 2 B. C. L. R. 119. 
 
 In R. V. Taylor, 15 Cox, 265, the prisoners were allowed 
 to address the jury after their counsel : see R. v. Millhouse, 
 15 Cjx, 622, where the judge said that could be allowed 
 only where the prisoner called no witnesses. 
 
 In R. V. Borrowes, cited in Shirley's Leading Cases, 140, 
 the court held that a prisoner defended by counsel is uot 
 entitled to address the jury as a matter of right. 
 
Sec, 661] 
 
 ADDRESSES TO JURY. 
 
 765 
 
 The Reply. — If the defeudaut brings no evidence thei 
 counsel for the prosecution is not allowed to reply, except 
 if be be the Attorney-General or Solicitor-General, or 
 counsel acting on behalf of either of them. 
 
 On this privilege to reply it is said in 1 Taylor Ev.» 
 par. 862 : " But as this is a privilege, or rather a preroga- 
 tive which stands opposed to the ordinary practice of the 
 courts, the true friend of justice will do well to watch with 
 jealousy the parties who are entitled to exercise it. Mr> 
 Home, so long back as the year 1777, very properly 
 observed that the Attorney-General would be grieviously 
 embarrassed to produce a single argument of reason or 
 justice on behalf of bis claim, and, as the rule which pre- 
 cludes the counsel for the prosecution from addressing the 
 jury in reply when the defendant has called no witnesses 
 has been very long thought to afford the best security 
 against unfairness in ordinary trials, this fact raises a 
 natural suspicion that a contrary rule may have been 
 adopted, and may still be followed in State prosecutions, 
 for a different and less legitimate purpose. It is to be 
 hoped that ere long this question will receive the consider- 
 ation which its importance demands, and that the Legis- 
 lature, by an enlightened interference, will introduce one 
 uniform practice in the trial of political and ordinary 
 offenders." 
 
 If the defendant gives any evidence, whether written or 
 parol, the counsel for the prosecution has a right to reply. 
 If witnesses are called merely to give evidence to character 
 the counsel for the prosecution is strictly entitled to reply, 
 though in England, in such cases, the practice is not to 
 reply. 
 
 In R. V. Bignold, 4 D. & B. 70, Lord Tenderden revived 
 an important rule, originally promulgated by Lord Kenyon, 
 and by which a reply is allowed to the counsel for the 
 prosecution if the counsel for the defendant, in his address 
 to the jury, states any fact or any document w'ach is not 
 
 
\ 
 
 766 
 
 PROCEDURE. 
 
 [Sec. 661 
 
 
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 ^H 
 
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 already in evidence, although he afterwards decHnes to 
 prove the fact or put in the writing : 6 Burn, 857 ; see R. v. 
 Trevelli, 16 Cox, 289; R. v. Stephens, 11 Cox, 669; R. v. 
 Burns, 16 Cox, 196, Warb. Lead. Cas. 240. 
 
 ' Evidence in reply. — Whenever the defendant gives evi- 
 dence to prove new matter by way of defence, which the 
 Crown could not foresee, the counsel for the prosecution is 
 entitled to give evidence in reply to contradict it, but then 
 be does not address the jury in reply before going into that 
 evidence. The general rule is that the evidence in reply 
 must bear directly or indirectly upon the subject-matter of 
 the defence, and ought not to consist of new matter uncon- 
 nected with the defence, and not tending to controvert or 
 dispiite it. This is the general rule, made for the purpose 
 of preventing confusion, embarrassment and waste of time; 
 but it rests entirely in the discretion of the judge whether 
 it ought to be strictly enforced or remitted as he may think 
 best for the discovery of truth and the administration of 
 justice : 2 Phillips' Ev. 408 ; R. v. Briggs, 2 M. & Rob. 
 199 ; R. V. Frost, 9 C. & P. 169. Where the counsel for 
 the Crown has, per incuriam, omitted to put in a piece of 
 evidence before commencing his reply, and the course of 
 justice might be interfered with if the evidence were not 
 given, the court may permit the evidence to be given : R. 
 V. White 2 Cox, 192. If evidence of his good character is 
 given on behalf of a prisoner, evidence of his bad character 
 may be given in reply : R. v. Rowton, L. & C. 520, over- 
 ruling R. V. Burt, 5 Cox, 284 ; see R. v. Brown, Warb. 
 Lead. Cas. 236 ; R. v. Triganzie, 15 0. R. 294. 
 
 Defendant's reply on evidence adduced in answer to 
 his own. — When evidence is adduced for the prosecution 
 in reply to the defendant's proof the defendant's counsel 
 has a right to address the jury on it, confining himself to 
 its bearings and relations, before the generalSreplying ad- 
 dress of the prosecution : Dickinson's Quart. Sess. 565. 
 
Seo. 661] 
 
 CHARGE TO JURY. 
 
 767 
 
 Witneases may be recalled : R. v. Lamere, 8 L. C. J. 
 281 ; R. V. Jennings, 20 L. C. J. 291 ; 2 Taylor, Ev. par. 
 1331. 
 
 Charge by the judge to the jury. — It is the duty cf the 
 president of the court, the case on both sides being closed, 
 to sum up the evidence. His address ought to be free from 
 all technical phraseology, the substance of the charge 
 plainly stated, the attention of the jury directed to the 
 precise issue to be tried, and the evidence applied to that 
 issue. It may be necessary, in some cases, to read over 
 the whole evidence, and, when requested by the jury, this 
 will, of course, be done ; but in general it is better merely 
 to state its substance : 5 Burn, 857 ; 1 Chit. 632 ; see Re 
 Dillet, 16 Cox, 241, for a conviction set aside by the Privy 
 Council on account of the unfairness of the charge. 
 
 In 12 Cox, 549, the editors reported a case from the 
 United States, preceding it with the following remarks : 
 "Although an American case, the principles of the crim- 
 inal law being the same as in England, and the like duties 
 and powers of the judge being recognized, a carefully pre- 
 pared judgment on an important question that may arise 
 here at some time has been deemed worthy of a place for 
 any future reference." 
 
 The case is Commonwealth v. Magee, Philadelphia, 
 December, 1878, decided by Pierce, J., as follows, on a 
 motion for a new trial. and in arrest of judgment on the 
 ground of misdirection in the charge to the jury : 
 
 Pierce, J., in his judgment, said : " The evidence 
 against the defendant was clear and explicit by two wit- 
 nesses, who testified to having bought and drunk liquors 
 at the defendant's place within this year. The defendant 
 offered no testimony." 
 
 "There was nothing in the manner or matter of the 
 witnesses to call in question their veracity, or in the slight- 
 est degree to impugn their evidence; the counsel for the 
 
 
\ 
 
 T't * > " . « 
 
 -ICJ. ( , > If- 
 
 ' i 
 
 768 
 
 PROCEDURE. 
 
 1 jB. ' >" 1 
 
 1 '^h 
 
 
 ••■J .■ 
 
 [SecOtti 
 
 defence did not in any manner question the truth of their 
 evidence, but confined his address to the jury to an attack 
 upon the law and the motives of the prosecutors. Were 
 the jury, under these circumstances, at liberty to disregard 
 their oaths and acquit the defendant? They had been 
 solemnly sworn to try the case according to the evidence, 
 and a regard to their oaths would lead them but to cue 
 conclusion, the guilt of the defendant. The counsel for the 
 Commonwealth states the charge to have been : ' The judge 
 declared that he had no hesitation in saying that, under 
 the evidence, it was the duty of the jury to render a verdict 
 of guilty under the bill of indictment.' But no matter which 
 form of expression was used, it was the evidence to which 
 I had just called their attention that indicated their duty, 
 and in view of which the remark was made. I perceive no 
 error in this. It was not a direction to the jury to convict 
 the defendant. It was simply pointing them to their duty. 
 Jurors are bound to observe their oaths of office, whether 
 it will work a conviction or acquittal of a defendant, and 
 they are not at liberty to disregard uncontradicted and 
 unquestioned testimony at their will and pleasure. Where, 
 however, the testimony is contradicted by testimony on the 
 other side, or a witness is impeached in his general char- 
 acter, or by the improbability of his story, or his demeanour, 
 it would be an unquestionable error in a judge to assume 
 that the facts testified to by him had been proved." 
 
 In 3 Wharton's Cr. L., par. 3280, it is said : "Can a 
 judge direct a jury peremptorily to acquit or convict if, in 
 his opinion, this is required by the evidence? Unless 
 ther'^ is a statutory provision to the contrary this is within 
 the province of the court, supposing that there is no dis- 
 puted fact on which it is essential for the jury to pass." 
 See, also, 1 Wharton Cr. L., par. 82a. 
 
 See charge to the jury in R. v. Dougall, 18 L. C. J. 90. 
 
 In R. V. Wadge (July 27th, 1878), for murder, Denman, 
 J., remarked that ** he had to take exception to the request 
 
See. 061] 
 
 CHARGE TO JURY. 
 
 769 
 
 made to the jury by the counsel for th^ defence, that, • if 
 they had any doubt nbout the ense, they should give the 
 prisoner the benefit of ii.' That was an expression fre- 
 quently employed by counsel in defending prisonur^, but it 
 was a fallacious and an artful one, and intended to deceive 
 juries. The jury had no right to grant any benefit or boon 
 to any one, but only to be just and do their duty." 
 
 In R. V. Glass (Montreal, Q. B., March, 1877), the 
 counsel for the defence after the judge's charge asked him 
 to instruct the jury with regard to any doubt they might 
 have iu the case. Eamsay, J., answered, " No, I shall not 
 when there is no doubt." 
 
 When the judge has summed up the evidence he leaves 
 it to the jury to consider of their verdict. If they cannot 
 agree by consulting in their box they withdraw to a conven- 
 ient place, appointed for the purpose, an officer being 
 sworn to keep them, as follows, in all capital cases, (and 
 in other cases, when so ordered by the court, 8. 673): " You 
 shall well and truly keep this jury, you shall not suffer anj' 
 person to speak to them, neither shall you speak to them 
 yourself, unless it be to ask them if they are agreed on 
 their verdict. So help you God:" 1 Chit. 632; 6 Burn, 
 357. 
 
 But this formality need not appear on the face of the 
 record. The precautions taken for the safe keeping of the* 
 jury are noted by the clerk in the register, but they form^ 
 no part of what is technically known as the record. Con- 
 sequently the regularity or sufficiency of this part of the 
 proceedings cannot be questioned upon a writ of error l 
 Duval V. R., 14 L. C. R. 62. 
 
 The jury coming back to the box the prisoner is brought 
 to the bar. The clerk then calls the jurors over by their 
 names, and asks them whether they agree on their verdict ; 
 if they reply in the affirmative, he then demands who shall 
 say for them to which they answer, their foreman. He 
 then addresses them as follows : " Gentlemen, are you 
 
 Crim. Law— 49 
 
770 
 
 PROCEDURE. 
 
 [Sec. 661 
 
 agreed on your verdict ; how say you, is the prisoner at 
 the bar (or naming him if the defendant is bailed or not in 
 •court) guilty of the oflfence whereof he stands^ indicted, or 
 not guilty ? " If the foreman says guilty, the clerk of the 
 «ourt addresses them as follows : " Hearken to your verdict 
 as the court recordeth it ; you say that the prisoner at 
 the bar (or as the case may he) is guilty (or " not guilty," if 
 such is the verdict received) of the offence whereof he stands 
 indicted; thatisyourverdict, andsosayyouall." The verdict 
 is then recorded. The assent of all the jury to the verdict 
 pronounced by their foreman in their presence is to be con- 
 clusively inferred. But the court may, before recording 
 the verdict, either proprio motu, or on demand of either 
 party, poll the jury, that is to say, demand of each of them 
 successively if they concur in the verdict given by their 
 foreman : 2 Hale, 299 : Bacon's Abr. Verb, juries, p. 768 ; 
 1 Bishop, Cr. Proc. 1003. 
 
 The mere entry, by the clerk, of the verdict does not 
 necessarily constitute a final recording of it. If it appear 
 promptly, say after three or four minutes, that it is not 
 recorded according to the intention of the jury it may be 
 vacated and set right : E. v. Parkin, 1 Moo. 46 ; even if the 
 prisoner has been discharged from the dock he will be 
 immediately brought back, on the jury which had not left 
 the box saying that " not guilty " has been entered by 
 mistake, and that "guilty " is their verdict : R. v. Vodden, 
 Dears. 229. 
 
 A judge is not bound to receive the first verdict which 
 ihe jury gives, but may send them to reconsider it. Pol- 
 lock, C.B., said, in R. v. Meany, L. & C. 213 : *' A judge has 
 & right, and in some cases it is his bounden duty, whether 
 in a civil or a criminal case, to tell the jury to reconsider 
 their verdict. He is not bound to receive their verdict 
 unless they insist upon his doing so ; and where they re- 
 consider their verdict, and alter it, the second, and not the 
 first, is really the verdict of the jury." 8ee R. v. Smith, 1 
 
IF 
 
 Jll: 
 
 Seos. 662, 663] 
 
 QUALIFICATION OF JURORS. 
 
 771 
 
 prisoner at 
 lied or not in 
 a indicted, or 
 e clerk of the 
 ) your verdict 
 3 prisoner at 
 not guilty" if 
 reof be stands 
 ," The verdict 
 to the verdict 
 !e is to be con- 
 fore recording 
 aand of either 
 )feacb of them 
 given by their 
 juries, p. 768 ; 
 
 Russ. 749 ; Archbold, 166 ; Bacon's Abr. Verb. " verdict ; " 
 5 Burn, 858 ; 1 Chit. 647 ; R. v. Maloney, 9 Cox, 6 ; 2 
 Hale, 309. 
 
 A recommendation to mercy by the jury is not part of 
 their verdict : R. v. Trebilcock, Dears. & B. 453 ; R. v. 
 Crawshaw, Bell, 303. 
 
 The saying that " a judge is bound to be counsel for the 
 prisoner " is erroneous : Per Wills, J., in R. v. Gibson, 16 
 Cox, 181. 
 
 Qualification of Jurobs. 
 
 662. Every person qualified and summoned as a grand or petit juror, 
 according to the laws in force for the time being in any province of Canada, 
 shall be duly qualified to serve as such juror in criminal cases in that province. 
 R. S. C. c. 174, 8. 160. 
 
 The following words were in the repealed clause : 
 " whether such laws were in force or were or are enacted 
 by the Legislature of the Province before or after such pro- 
 vince became a part of Canada, but subject always to any 
 provision in any Act of the Parliament of Canada, and in 
 so far as such laws are not inconsistent with any such Act. 
 
 The Jurors and Juries Acts of Ontario and Quebec, and 
 s. 160 of the Dominion Criminal Law Procedure Act, are 
 constitutional : R. v. Provost, M. L. R. 1 Q. B. 477 ; R. v. 
 Bradshaw, 38 U. C. Q. B. 564 ; R. v. O'Rourke, 1 0. R. 464. 
 
 The defendant in a criminal case has no right to a com- 
 munication of the petit jury list : R. v. Maguire, 13 Q. L. 
 R. 99. 
 
 Juries de Mbdietatk Lingua Abolished as to Aliens. 
 
 603. No alien shall be entitled to be tried by a jury de viedictatc lingua; 
 but shall be tried as if he was a natural bom subject. R. S. C. c. 174, s. 161. 
 
 Ever since the 28 Ed. III. c. 13, aliens, under our 
 criminal law, have been entitled to be tried by a jury com- 
 posed of one half of citizens and one half of aliens or 
 foreigners, if so many of these could be had. It seems to 
 have been thought necessary, in R. v. Vonhoff, 10 L. C. J. 
 292, that these six aliens should be natives of the country 
 to which the defendant alleged himself to belong, but the 
 
''^'f5 
 
 ;* 
 
 « i 
 
 772 
 
 PROCEDURE. 
 
 [Sec. 664 
 
 better opinion seemed to be that six aliens were required, 
 without regard to nationality. S. 2 of 28 Ed. III. c. 18, 
 says " the other half of aliens." 
 
 However, this is now of historical interest only, and by 
 the above clause aliens, all through the Dominion, when 
 indicted before a criminal court, are on the same footing as 
 British subjects as to the composition of the jury. 
 
 In England also, now, an alien is not entitled to a jury 
 de medietate linguce : 33 & 34 V. c. 14 (Imp.). 
 
 Mixed Juries in Province of Quebec. 
 
 684. In those districts in the province of Quebec in which the sheriff is 
 required by law to return a panel of petit jurors composed one half of persons 
 speaking the English language, and one half of persons speaking the French 
 language, he shall in his return specify separately those jurors whom he returns 
 as speaking the English language, and those whom he returns as speaking the 
 French language respectively ; and the names of the jurors so summoned shall 
 be called alternately from such lists. R. S. C. c. 174, s. 166. 
 
 The right to a medietate linguoe jury exists in misde- 
 meanours as in felonies : B. v. Maguire, 13 Q. L. B. 99. 
 
 Sub-section 2 of s. 7, 27 & 28 V. c. 41 (1864), clearly 
 gives that right to any prosecuted party. And though 
 the Quebec Legislature, by 46 V. c. 16, s. 62 (1883), has 
 repealed the said Act, this particular clause, giving the 
 right to a mixed jury, must be considered as still in force, 
 the Quebec Legislature not having had the right to repeal 
 it. Otherwise, there is no statute in the Province giving 
 the right to a mixed jury in any case whatever, s. 664, 
 ante, merely taking it for granted that the right exists. If 
 the Quebec Legislature had the power to repeal that clause 
 the Dominion Parliament had not the right to enact for 
 Manitoba s. 167 of the Procedure Act, now s. 665, 'post. 
 
 Where in a case of felony, in which one half of the jury, 
 on the application of the prisoner, were sworn as beiDg 
 skilled in the French language, it was discovered after 
 verdict that one of such French half was not so skilled iu 
 the French language ; held, that the trial and verdict were 
 null and void : B. v. Ghamaillard, 18 L. G. J. 149. 
 
Sec. 664] 
 
 MIXED JURIES. 
 
 773 
 
 rere required, 
 Id. III. c. 13, 
 
 t only, and by 
 jminion, when 
 ame footing as 
 
 ! jury- 
 
 titled to a jury 
 
 ;o. 
 
 i which the sheriff is 
 d one half of persons 
 speaking the French 
 irors whom he returns 
 turns as speaking the 
 )rs so summoned shall 
 166. 
 
 exists in misde- 
 3 Q. L. R. 99. 
 
 The right to have a jury, composed of at least one half of 
 persons skilled in the language of the defence, must, 
 undoubtedly, both in Manitoba and Quebec, be exercised 
 ^ipon arraignment. Immediately after arraignment the 
 venire is presumed to have issued, and if it issues without 
 this order the jurors must be summoned in the usual man- 
 ner, that is to say, without regard to language. 
 
 In R. V. Dougall, 18 L. C. J. 85, it was held by Mr. 
 Justice Ramsay : 1st. That where defendant has asked for 
 a jury composed one half of the language of the defence 
 six jurors speaking that language may first be put into the 
 box, before calling any juror of the other language; 2nd. 
 That the right of the Crown to tell jurors " to stand aside," 
 exists for misdemeanours as well as for felonies ; 3rd. That 
 when to obtain Fix jurors speaking the language of the 
 defence all speaking that language have been called, the 
 Crown is still at liberty to challenge to stand aside, and is 
 not held to show cause until the whole panel is exhausted. 
 Mr. Justice Ramsay said that the calling the jurors' names 
 alternately from the English and French lists, mentioned 
 in s. 40, now s. 664, ante, is only directory, and applies only 
 to the calling of the jury in ordinary cases, where no order 
 has been given for a jury composed of one half English and 
 one half French. The case was reserved^ by the learned 
 judge, for the consideration of the full court, but only on 
 the one point thirdly above mentioned, given in the sum- 
 mary of the report of the decision of the court, at page 242, 
 18 L. C. J., as follows ; " Where to obtain six jurors 
 speaking the language of the defence (English), the list 
 of jurors speaking that language was called, and several 
 were ordered by the Crown to stand aside ; and the six Eng- 
 lish-speaking jurors being sworn the clerk re-commenced 
 to call the panel alternately from the list of jurors speak- 
 ing the English and French languages, and one of those 
 (English) previously ordered to " stand aside " was again 
 called: Held, that the previous ** stand aside " stood good 
 
 v:.^-!'. 
 
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 774 
 
 PROCEDURE. 
 
 [Sees. 665, 66S 
 
 until the panel was exhausted by all the names on both 
 lists being called." 
 
 " Mixed Jcrirs in Manitoba. 
 
 66S. Whenever any person who is arraigned before the Court of Queen's 
 Bench for Manitoba demands a jury composed, for the one half at least, of 
 persons skilled in the language of the defence, if such langtiasre is either English 
 or French, he shall be tried by a jury composed for the one half at least of the 
 persons whose names stand first in succession upon the general panel and who, 
 on appearing and not being lawfully challenged, are found, in the judgment of 
 the court, to be skilled in the language of the defence. 
 
 2. Whenever, from the number of challenges or any other cause, there is 
 in any such case a deficiency of persons skilled in the language of the defence 
 the court shall fix another day for the trial of such case, and the sheriff shall 
 supply the deficiency by summoning, for the day so fixed, such additional 
 number of jurors skilled in the langxiage of the defence as the court orders, and 
 as are found inscribed next in succession on the list of petit jurors. R. S. C. 
 c. 174, s. 167. 
 
 See remarks under preceding; section. 
 
 Challenging the Array. {New). 
 
 666. Either the accused or the prosecutor may challenge the array on 
 the ground of partiality, fraud, or wilful misconduct on the part of the sheriff 
 or his deputies by whom the panel was returned, but on no other ground. The 
 objection shall be made in writing, and shall state that the person retuminfi^ 
 the panel was partial, or was fraudulent, or wilfully misc(jnducted himself, as 
 the case may be. Such objection may be in the form KK in schedule one 
 hereto, or to the like effect. 
 
 2. If partiality, fraud or wilful misconduct, as the case may be, is denied 
 the court shall appoint any two indifferent persons to try whether the alleged 
 ground of challenge is true or not. If the triers find that the alleged ground 
 of challenge is true in fact, or if the party who has not challenged the array 
 admits that the ground of challenge is true in fact, the court shall direct a 
 new panel to be returned. 
 
 This is taken in part from 39 & 40 V. c. 78, b. 17 (Imp.) 
 (for Ireland). 
 
Sec. 666] 
 
 CHALLENGES. 
 
 77& 
 
 KK.— (Section 666.) 
 
 CHALLENGE TO ARRAY. 
 
 :} 
 
 Canada, 
 province of 
 County of 
 
 The Queen ^ The said A. B., who prosecutes for our Lad7 
 t;. y the Queen {or the said CD., as the case may be) 
 
 C. D. J challenges the array of the panel on the ground 
 that it was returned by X. Y., sheriff of the county of 
 [or E. F., deputy of X. Y., sheriflf of the county of , as the 
 
 case may be), and that the said X. Y. {or E. F., as the case may be) 
 was guilty of partiality {or fraud, or wilful misconduct) on 
 returning said panel. 
 
 Relationship between the sheriff and the prosecutor or 
 the defendant are no more by themselves grounds for 
 challenging the array, and R. v. Rouleau, 16 Q. L. R. 322 
 cannot now be followed. The form above given is very 
 general, but the court may order the party challenging to 
 give particulars : see Archbold, 171. 
 
 A challenge to the array is an exception to the whole 
 panel of jurors returned, and must be made before the 
 swearing of any of the jury is commenced. 
 
 The ground of the challenge may be either that some 
 fact exists inconsistent with the impartiality of the sheriff, 
 or other officer returning the panel, or that some fact 
 exists which makes it improbable that he should be im- 
 partial, or that some fact exists wbioh does, in fact, interfere 
 with bis impartiality. 
 
 The challenge must be in writing, and must set forth 
 the fact on which it is grounded. The court must decide 
 whether the alleged fact is in itself a good cause of chal- 
 lenge, in which case it Is ca,lled a principal challenge, or 
 whether it is merely a fact from which partiality may or 
 may not be inferred, in which case it is called a challenge 
 to the favour, or that the sheriff has been guilty of some 
 default in returning the panel. 
 
 !'■ ■„.• 
 
 ^1 
 
776 
 
 PROCEDURE. 
 
 [Sec. 667 
 
 If the court holds that the alleged fact is a good cause 
 for a principal challenge, and the alleged fact is denied, or 
 if the court holds that the alleged fact is good as a 
 challenge to the favour, and either the fact or the partiality 
 sought to be inferred from it, or both, are denied, two triers 
 must be appointed by the court to try the facts in dispute. 
 
 If the triers find in favour of the challenge the panel h 
 quashed, and a new one is ordered to be returned by the 
 coroners or other officers. If they find against the chal- 
 lenge the panel is affirmed : Stephen's Gr. Froc. Art. 280. 
 
 Held, in an indictment against B. M., that it was ground 
 of principal challenge to the array that the prisoner's 
 husband had an action pending against the sheriff for au 
 assault committed on the prisoner: R. v. Rose Milne, 4 P & 
 B. (N. B.) 394. This case cannot now be followed. 
 
 Calling the Panel. {New). 
 
 00 V. If the array is not challenged, or if the triers find against tlie 
 challenge, the officer of the court shall proceed to call the names of the jurors 
 in the following manner : The name of each juror on the panel returned, with 
 his number on the panel and the place of his abode, shall be written on a 
 distinct piece of card, such cards being all as nearly as may be of an equal size. 
 The cards shall be delivered to the officer of the court by the sheriff or other 
 officer returning the panel, and shall, under the direction and care of the 
 officer of the court, be put together in a box to be provided for that purpose, 
 and shall be shaken together. 
 
 2. The officer of the court shall in oper court draw out the said cards, one 
 after another, and shall call out the name and number uixin each such card as 
 it is drawn, until such a number of persons have answered to their names as in 
 the opinion of the court will probably be sufficient to provide a full jury after 
 allowing for challenges of jurors and directions to stand by. 
 
 3. The officer of the court shall then proceed to swear the jury, eacli juror 
 being called to swear in the order in which his name is so drawn, until, after 
 subtracting all challenges allowed and jurors directed to stand by, twelve 
 jurors are sworn. If the numVwr so answering is not sufficient to provide a 
 full jury such officer sliall proceed to draw further names from the box, and 
 call the same in manner aforesaid, until, after challengei allowed and directions 
 to stand by, twelve jurors are sworn. 
 
 4. If by challenges and directions to stand by the panel is exhausted witli- 
 out leaving a sufficient number to form a jury those who have been directed to 
 Btand by shall be again called in the order in which they were drawn, and shall 
 be sworn, unless challenged by the accused, or unless tlie prosecutor ciiallenges 
 them and shows cause why they should not be sworn : Provided that if before 
 
[Sec. 667 
 
 ls a good cause 
 ,ct is denied, or 
 is good as a 
 )r the partiality 
 inied, two triers 
 its in dispute. 
 
 nge the panel is 
 returned by tbe 
 gainst the cbal- 
 Proc. Art. 280. 
 
 lat it was ground 
 t the prisoner's 
 the sheriff for an 
 lose Milne, 4 P & 
 followed. 
 
 triers find against the 
 
 |the names of the jurors 
 
 le panel returned, with 
 
 (, shall be written on a 
 
 nay be of an equal size. 
 
 by the sheriff or other 
 
 rection and care of tlie 
 
 ivided for that purpose, 
 
 ■ out the said cards, one 
 uiwn each such card as 
 Lred to their names as in 
 Lrovide a full jury after 
 Id by. 
 
 lear the jury, each juror 
 lis 80 drawn, until, after 
 ^d to stand by, twelve 
 sufficient to provide a 
 lames from the box, and 
 M allowed and directions 
 
 Ipanel is exhausted with- 
 \\o have been directed to 
 Ipy were drawn, and shall 
 flie prosecutor challenges 
 ■ Provided that if before 
 
 Sec. 668] 
 
 CHALLENGES. 
 
 777 
 
 any such juror is sworn other jurymen in the panel become available the 
 prosecutor may require the names of such jurymen to be put into and drawn 
 from the box in the manner hereinbefore prescribed, and such jurors shall be 
 sworn, challenged, or ordered to stand by, as the case may be, before the 
 jurors originally ordered to stand bv are again called. 
 
 5. The twelve men who in manner aforesaid are ultimately sworn shall be 
 the jury to try the issues on the indictment, and the names of the men so 
 drawn and sworn shall be kept apart by themselves until such jury give in 
 their verdict or until they are discharged ; and then the names shall be 
 returned to the box, there to be kept with the other names remaining at that 
 time undrawn, and so toties quotks as long as any issue remains to be tried. 
 
 6. Provided that when the prosecutor and accused do not object thereto 
 the court may try any issue with the same jury that has previously tried or 
 been drawn to try any other issue, without their names being returned to the 
 box and redrawn, or if the parties or either of them object to some one or more 
 of the jurors fonning such jury, or the court excuses any one or more of them, 
 then the court may order such persons to withdraw, and may direct the 
 requisite number of names to make up a complete jury to be drawn, and the 
 persons whose names are so drawn shall be sworn. 
 
 7. Provided also, that an omission to follow the directions in this section 
 shall not affect the validity of the proceedings. 
 
 This section is taken from the 39 &c 40 V. c. 78, s. 19 
 (Imp.), for Ireland. i 
 
 Challenges, Etc. 
 
 OOS- Every one indicted for treason or any offence punishable with death 
 is entitled to challenge twenty jurors peremptorily. 
 
 2. Every one indicted for any offence, other than treason or an offence 
 punishable with death, for which he may be sentenced to imprisonment for 
 more than five years, is entitled to challenge twelve jurors peremptorily. 
 
 3. Every one indicted for any other offence is entitled to challenge four 
 jurors peremptorily. 
 
 4. Every prosecutor and every accn d i^erson is entitled to any number of 
 chiiUenges on any of the following grounds : that is to say : 
 
 (a) that any juror's name does not appejvr in the panel : Provided that no 
 misnomer or misdescription shall be a ground of challenge if it apiiears to the 
 court that the description given in the panel sufficiently designates the persons 
 referred to ; or 
 
 [b) that any juror is not indifferent between the Queen and the accused ; or 
 
 (r) that any juror has been convicted of any offence for which he was 
 sentenced to death or to any term of imprisonment with hard labour or exceed- 
 ing twelve months ; or 
 
 (d) that any juror is an alien. 
 
 5. No other ground of challenge than those above-mentioned shall be 
 
 allowed. 
 
 6. If any such challenge is made the court may in its discretion require the 
 party challenging to put his challenge in writing. The challenge may be in 
 
 p 
 
 
V 
 
 
 ttllil 
 
 778 
 
 PROCEDURE. 
 
 [Sec. 668 
 
 the form LL in schedule one hereto, or to the like effect. The other party may 
 deny that the g^round of challenge is true. 
 
 7. If the ground of challenge is that the jurors' names do not appear in the 
 panel, the issue shall be tried by the court on the voir dire by the inspection of 
 the panel, and such other evidence as the court thinks fit to receive. 
 
 8. If the ground of challenge be other than as last aforesaid the two jurors 
 last sworn, or if no jurors have then been sworn then two persons present 
 whom the court may appoint for that purpose shall be sworn to try whether 
 the juror objected to stands indifferent between the Queen and the accused, or 
 has been convicted, or is an alien, as aforesaid, as the case may be. If the 
 court or the triers find against the challenge the juror shall be sworn. If 
 they find for the challenge he shall not be sworn. If after what the court con- 
 siders a reasonable time, the triers are unable to agree the court may discharge 
 them from giving a verdict, and may direct other persons to be sworn in their 
 place. 
 
 9. The Crown shall have power to challenge four jurors peremptorily, 
 and may direct any nimiber of jurors not peremptorily challenged by the 
 accused to stand b> until all the jurors have been called who ar« available for 
 the purpose of trying that indictment. 
 
 10. The accused may be called upon to declare whether he challenges any 
 jurors peremptorily or otherwise, before the prosecutor is called upon to declare 
 whether he requires such juror to stand by, or challenges him either for cause 
 or peremptorily. R. S. C. c. 174, ss. 163 & 164 . (Amended). 
 
 Hi.— (Section 668.) 
 
 Canada, 
 Province of, 
 County of 
 
 The Queen 
 
 V. 
 
 CD., 
 
 the panel {or 
 
 CHALLENGE TO POLL. 
 
 X 
 
 •J 
 
 The said A.B., who prosecutes, &c (or the 
 said CD., as the case may be) challenges G.H., 
 on the ground that his name does not appear in 
 that he is not indi£ferent between the Queen and 
 the said CD., " or " that he was convicted and sentenced to 
 (' death ' or • penal servitude,' or • imprisonment with hard 
 labour,' or ' exceeding twelve months,' " or *• that he is disquah- 
 fied as an alien." 
 
 "Jurors" in second line of s-s. 10 ought to be "juror." 
 
 The word " last " in s-s. 8 constitutes a change in the 
 law as given in Bacon's Abr. Juries E. 12 : 3 Blacks. 363 ; 
 2 Hale, 275; and Archbold, 176, that the two first jurors 
 sworn are to try all the subsequent challenges. The rule 
 
..< ll 
 
 Sec. 668] 
 
 CHALLENGES. 
 
 n9 
 
 that when the challenge is made to the first juror and dis- 
 allowed by the two triers chosen by the court, then this 
 first juror is joined to the two triers till another juror is 
 sworn is not reproduced. See s. 675. 
 
 A challenge to the polls is an exception to some one or 
 more individual juror or jurors. It may be made orally. 
 See s-s. 6, ante. After issue joined between the crown and 
 the prisoner, when the jury is called and before they are 
 sworn, is the only time when the right of challenge can be 
 exercised : R. v. Key, 2 Den. 347 ; R. v. Shuttleworth, 2 
 Den. 341 1; Stephen's Hist. 302. In R. v. Giorgetti, 
 ^ F. & F. 546, it was held that the challenge must be made 
 before the book is given into the hands of the juror, and 
 before the officer has recited the oath, and it comes too late 
 afterwards though made before the juror has kissed the 
 book. In R. v. Frost, 9 C. & P. 136, it was held that the 
 challenge of a juror, either by the Crown or by the prisoner, 
 must be before the oath is commenced. The moment the 
 oath has begun it is too late. The oath is begun by the 
 juror taking the book, having been directed by the officer of 
 the court to do so. But if the juror takes the book with- 
 out authority neither party wishing to challenge is to be 
 prejudiced thereby. But a juror may be challenged even 
 after being sworn if the prosecutor consents : Bacon's Abr. 
 Verb. Juries, 11 ; 1 Chit. 545 ; R. v. Mellor, Dears. & B. 
 494, per Wightman, J. 
 
 By s-s. 10 of s. 668, the prisoner may be compelled to 
 eibaust all his challenges before the Crown is called upon to 
 show cause for its challenges or order to stand aside: 
 1 Stephen's Hist. 303. 
 
 It is obvious that each juror must be sworn separately 
 in all cases, see s-s. 3, s. 667, ante. 
 
 The accused is to be informed before the swearing of 
 tbe jurors that if he will challenge them or any of them 
 he must challenge them as they come to the book to be 
 sworn and before they are sworn ; the following is the 
 
 I 
 

 
 i i 
 
 K 
 
 780 
 
 PROCEDURE. 
 
 [Sec. CCS 
 
 usual form : " Prisoner, these good men, whose names you 
 shall now hear called, are the jurors who are to pass between 
 our Sovereign Lad}' the Queen and you upon your trial 
 (in a capital case, upon yoar life and death) ; if, therefore, 
 you would challenge them or any of them, you must chal- 
 lenge them as they come to the book to be sworn, and 
 before they are sworn, and you shall be heard": 1 Gbii. 
 631. 
 
 The accused must make all his challenges in person, 
 even in cases where he has counsel : 1 Chit. 546 ; 2 
 Hawk. 570. The practice is not uniform on that point. 
 
 To enable the accused to make his challenges he is 
 entitled to have the whole panel read over, in order that 
 he may see who they are that appear: 2 Hawk. 570; 
 Townly's case, Fost. 7. 
 
 A. challenge to the polls is either peremptory or for 
 cause ; a peremptory challenge is such as is allowed to be 
 made to a juror without assigning any cause ; the number 
 of these challenges allowed in each particular case is settled 
 by 8. 668, ante. 
 
 Peremptory challenges are not allowed upon any colla- 
 teral issue : R. v. Batcliffe, Fost. 40 ; Barkstead's case, 
 Kel. 16; Johnson's case, Fost. 46; R. v. Paxtou, 10 
 L. C. J. 213. 
 
 Hale, 2 P. C. 267d, says that no peremptory challenges 
 are allowed to the defendant "if he had pleaded any foreign 
 plea in bar or in abatement, which went not to the trial of 
 the felony, but of some collateral matter only." And it is 
 added, in Bacon's Abr. Verb. Juries, 9, that " this peremp- 
 tory challen}{e seems by the better opinion to be only 
 allowable when the prisoner pleads the general issue.'' 
 This would seem to take away the right of peremptorily 
 challenging on the trial of pleas of ** autrefois acquit " or 
 •* autrefois convict.*' But it is not so ; the issue on a plea 
 of this kind is not a collateral issue. And it is said in 2 
 Hale, loc. cit., that if a man plead not guilty, or 2>le(^(l «''y 
 
[Sec. CBS 
 
 ose names you 
 io pass between 
 pon your trial 
 ); if, therefore, 
 you must chal- 
 be sworn, an(\ 
 leard": 1 Cbii. 
 
 inges iu peraon, 
 1 Chit. 546; 2 
 )n that point, 
 challenges he is 
 er, in order that 
 :: 2 Hawk. 570; 
 
 eremptory or for 
 tB is allowed to be 
 .use ; the number 
 liar case is settled 
 
 jd upon any colla- 
 
 Barkstead's case, 
 
 Ir. v. Paxton, 10 
 
 Imptory challenges 
 lleaded any foreign 
 not to the trial of 
 only." And it is 
 [hat •' this peremp- 
 Pinion to be only 
 he general issue.'' 
 Lht of peremptorily 
 litrefois acqidt," 0"^ 
 [the issue on a plea 
 lAnd it is said in 2 
 luilty. or rlc(^^l i<M^j 
 
 Sec. 668] 
 
 CHALLENGES. 
 
 781 
 
 other matter of fact triable by the same jurfi, and plead 
 over to the felony, he has his peremptory challenges. By 
 collateral issues must be understood, for instance, where a 
 criminal convict pleads any matter allowed by law in bar 
 of execution, as pregnancy, pardon, an act of grace, or, as 
 in Ratcliffe's case, above cited, when a person brought to 
 the bar to receive his sentence says that he is not the same 
 person that was convicted, the issues in these cases being 
 always tried by a jury instanter. 
 
 Where several persons are tried by the same jury each 
 of such persons has a right to his full number of peremp- 
 tory challenges in all cases where the right of peremptory 
 challenge exists; and if twenty men were indicted for the 
 same offence by one indictment yet every prisoner should 
 be allowed his full number of peremptory challenges. Th ey 
 may join in their challenges, if they wish to be tried 
 together, and then they can only challenge amongst them 
 to the number allowed to one: s. 671, posi. But if they 
 refuse to do so the Grown has the right of trying each, or 
 any number of them less than the whole, separately from 
 the others, in order to prevent the delay which might arise 
 from the whole panel being exhausted by the challenges : 1 
 Chit. 535. 
 
 So, in Charnock's case, 3 Salk. 80 (in many books 
 erroneously called Char wick,) three being indicted together. 
 Holt, C.J., told them '* that each of them had liberty ta 
 challenge thirty-live of those who were returned upon the 
 panel to try them, without showing any cause; but that if 
 they intended to take this liberty, then they must be tried 
 separately and singly, as not joining in the challenges; but, 
 if they intended to join in the challenges, then they could 
 challenge but thirty-five in the whole, and might be tried 
 jointly upon the same indictment ; " accordingly, they all 
 three joined in their challenges and were tried together and 
 found guilty. 
 
 Il'lir 
 

 \ 
 
 782 
 
 PROCEDURE. 
 
 [Sec. 668 
 
 A challenge to the polls for cause Ib either 2^ri>icipal or 
 for favour : it is allowed to both the prosecutor and the 
 defendant : Archbold, 152. 
 
 It is said in Archbold, 156 : " The defendant in treason 
 or felony may, for cause shown, object to all or any of the 
 jurors called, after exhausting his peremptory challenges of 
 . thirty-five or twenty." If this means that the prisoner 
 must first exhaust all his peremptory challenges, before 
 being allowed to challenge for cause, it is an error, and was 
 80 held by the Court of Queen's Bench, in Ontario, in R. v. 
 Whelan, 28 U. C. Q. B. 2, confirmed by the Court of Appeal, 
 28 U. C. Q. B. 108, in which case, it was unanimously held 
 that the prisoner is entitled to challenge for cause before 
 exhausting his peremptory challenges, Richards, C.J., con- 
 curring, though he had at first at the trial, on Archbold's 
 passage above cited, ruled that the prisoner, before being 
 allowed to challenge for cause, must first have exhausted 
 his peremptory challenges. 
 
 If the prosecutor or the dufsndant have several causes 
 of challenge against a juror he must take them all at the 
 same time: Bacon's Abr. Verb, juries, 11; 1 Chit. 545. 
 
 If a juror be challenged for cause and found to be indif- 
 ferent he may afterwards be challenged peremptorily, if 
 the number of the peremptory challenges is not exhausted , 
 1 Chit. 545 ; R. v. Geach, 9 C. & P. 499. 
 
 The most important causes of a principal challenge to 
 the polls are : 1. Pri-^^ier defectum, on account of somt 
 personal objection, as alienage, minority, old age, insanity, 
 present state of drunkenness, deafness, or a want of the 
 property qualifications required by law. 2. Propter affeo 
 turn, on the ground of some presumed or actual partiality 
 in the juror who is objected to; as if he be of atliuityto 
 either party, or in his employment, or is interested in tbe 
 event, or if he has eaten or drunk at the expense of one of 
 the parties, if the juror has expressed his wishes as to tlie 
 
[Sec. Gfi8 
 
 er imncipal or 
 cutor and tbe 
 
 dant in treason 
 il or any of the 
 vy cballenges of 
 at the prisoner 
 allenges, before 
 a error, and \9as 
 Ontario, in R. v. 
 Court of Appeal, 
 inanimously held 
 for cause before 
 •hards, C.J., con- 
 al, on Archbold's 
 ,ner, before being 
 st have exhausted 
 
 ive several causes 
 le them all at the 
 1 Chit. 545. 
 
 foundtobeindif- 
 1 peremptorily, if 
 , is not exhausted ; 
 
 Icipal challenge to 
 1 account of some 
 t old age, inaanity, 
 ' or a want of the 
 2. Proi)ter affec- 
 [x actual partiality 
 heheoi affinity to 
 L interested in tbe 
 3 expense of one o( 
 lis wishes as to tbe 
 
 Soo. 668] 
 
 CHALLENGES. 
 
 783 
 
 result of the trial, or his opinion of the guilt or innocence 
 of the defendant, also if he was one of the grand jurors who 
 found the indictment upon which the prisoner is then 
 arraigned, or any other indictment against him on the same 
 facts. 3. Propter delictwn, on the ground of infamy as 
 where the juror has been convicted of treason, felony, 
 perjury, conspiracy, or any other infamous ofifence ; see s. 
 668, ante. 
 
 A challenge to the polls for favour is founded on the alle- 
 gation of facts not sufficient in themselves to warrant the 
 court in inferring undue influence or prejudice, but suffi- 
 cient to raise suspicion thereof, and to warrant inquiry 
 whether such influence or prejudice in fact exists. The 
 cases of such a challenge are manifestly numerous, and 
 dependent on a variety of circumstances, for the question 
 to be tried is whether the juryman is altogether indifferent 
 as be stands unsworn. If a juror has been entertained in 
 the party's house, or if they are fellow-servants, are cited 
 as instances of facts upon which a challenge for favour may 
 be taken : 1 Chit. 544. 
 
 In the case of a principal challenge to the polls the 
 court, without triers, examines either the juror challenged, 
 or any witness or evidence then offered, to ascertain the 
 truth of the fact alleged as a ground of challenge, if this 
 fact is not admitted by the adverse party; and if the 
 ground is made out to the satisfaction of the court, the 
 challenge is at once allowed, and the juror set aside. 
 
 In these cases, the necessary conclusion in law of the 
 fact alleged against the juror is that he is not indifferent, 
 and this, as a matter of law, must be decided by the 
 
 court. 
 
 But in the case of a challenge for favour the matter of 
 challenge is left to the discretion of triers. In this case 
 the gi'ounds of such challenge are not such that the law 
 necessarily infers partiality therefrom, as, for instance, 
 
 W 
 
 'm\ 
 
 (J' -# 
 
 jMj, 
 
 ;r 
 
 
784 
 
 PROCEDURE. 
 
 [Sec. GG8 
 
 relationship ; but are reasonable grounds to suspect that the 
 juror will act under some undue influence or prejudice. 
 
 Bishop says, 1 Cr. Proc. 905 : " It is plain that the line 
 which separates the challenge for principal cause and the 
 challenge to the favour must be either very artificial, or 
 very uncertain." 
 
 And Wharton, 3 Cr. L. 3125, says : " The distinction, 
 however, between challenges for favour and those for prin- 
 cipal cause is so fine that it is practically disregarded." 
 
 The oath taken by the triers is as follows : " Tou shall 
 well andtridy try whether A. B., one of the jurors, stands 
 indifferent to try the prisoner at the bar, and a true verdict 
 give according to the evidence. So help you God." 
 '■' No challenge of triers is admissible : 1 Chit. 549. 
 
 The oath to be administered to the witnesses brought 
 before the triers is as follows : 
 
 " The evidence which you shall give to the court and triers 
 upon this inquest shall he the truth, the ivhole truth, cmd 
 nothing hut the truth. So help you God." 
 
 If this challenge is made to the first juror, and before 
 any one has been sworn, then the court will direct two 
 indifierent persons, not returned of the jury, to act as 
 triers ; if they find against the challenge the juror will be 
 sworn, and he joined ivith the triers in determining the 
 next challenges. Such has been the rule heretofore, though, 
 as noted above, it is not enacted in s. 668. 
 
 But as soon as two jurors have been found indifierent 
 and have been sworn then the office of the first two triei-s 
 ceases, and every subsequent challenge is referred to the 
 decision of the two first jurors sworn : 3 Blacks. 363 ; (now 
 the two last, s. 668). If the challenge is made when there 
 is yet only one juror sworn, one trier is chosen by each 
 party, and added to the juryman sworn, and the three, 
 together, try the challenges till a second juror is sworn: 
 1 Chit. 549; Bacon's Abr. Verb. Juries, E. 12; 2 Hale, 274; 
 s. 675.-* 
 
Sec. C)6S] 
 
 CHALLENGES. 
 
 785 
 
 suspect that the 
 or prejudice, 
 ain that the line 
 lI cause and the 
 i^ery artificial, or 
 
 'The distinction, 
 id those for prin- 
 disregarded." 
 ,lows : " You shall 
 the jurors, stands 
 and a true verdict 
 
 you God. 
 1 Chit. 549. 
 witnesses brought 
 
 Uhe court andtriers 
 le ivhole truth, md 
 
 d." 
 
 it juror, and before 
 Lrt will direct two 
 iC jury, to act as 
 [e the juror will be 
 ■,n determining tk 
 heretofore, though, 
 
 ^n found indifferent 
 the first two triei^ 
 is referred to the 
 Blacks. 363 ; (now 
 L made when there 
 I is chosen by each 
 lorn, and the three, 
 pnd juror is sworn: 
 I E 12; 2 Hale, 214; 
 
 The trial then proceeds by witnesses before the triers, 
 in open court ; the juror objected to may also be examined, 
 having first been sworn as follows : 
 
 " Yoiv shall true answer rruike to all such questions as 
 the court shall demand of you. So help you God." 
 
 The challenging party first addresses the triers and calls 
 his witnesses ; then the opposite party addresses them and 
 calls witnesses if he sees fit, in which case the challenger 
 has a reply. But in practice there are no addresses in 
 such cases. The judge sums up to the triers who then 
 say if the juror challenged stands indifferent or not ; this 
 verdict is final : Roscoe, 197, 198. But a juror challenged 
 by one side and found to be indifferent may still be chal- 
 lenged by the other : 1 Chit. 545. 
 
 See R. V. Mellor, Dears. & B. 468 ; Morin v. R., 16 Q. L. R. 
 366, 18 S. C. R. 407; Brisebois v. The Queen, 15 S. C. R. 421 ; 
 Bowsse V. Cannington, cited in Doe v. Oliver, 2 Sm. Lead. 
 Cas. 780 ; Mansell v. R., Dears. & B. 375 ; R. v. Geach, d 
 C. & P. 499; 1 Chit. 547; 4 Blacks. 353. In Morin v. 
 R. uhi supra, the result in the Supreme Court was that 
 the court had no jurisdiction to determine the question 
 raised. All that was said upon the merits of that question 
 is obiter. 
 
 On a trial for forgery the panel of petit jurors contained 
 the names of Robert Grant and Robert Crane. Robert 
 Grant, as was supposed, was called and went into the box. 
 After conviction, and before the jury left the box, it was 
 discovered that Robert Crane had by mistake answered to- 
 the name of Robert Grant, and that Robert Crane wasi 
 really the person who had served on the jury : held, a 
 mis-trial : R. v. Feore, 3 Q. L. R. 219. 
 
 The prisoner should challenge before the juror takes the 
 book in his hand, but the judge, in his discretion, may allow 
 the challenge afterwards before the oath is fully admin- 
 istered : R. V. Kerr, 3 L. N. 299. 
 Criu. Law— 60 
 
 
786 
 
 PROCEDURE. 
 
 [Sees. 669-672 
 
 Challenge by the Crown in Libel Cases. 
 
 069. Special provision as to the right of the Crown to cause any juror 
 to stand aside in a libel case. See ante, under s. 302, p. 305. 
 
 On a public prosecution for libel by order of the 
 
 Attorney-General this section does not apply: R. v. 
 
 Maguire, 13 Q. L. R. 99. But in all trials for libels upon 
 
 private individuals this section applies, even when the 
 
 prosecution is conducted by a counsel appointed by and 
 
 representing the Attorney-General : R. v. Patteson, 36 U. 
 
 C. Q. B.129. 
 
 But it is restricted to cases of libel : R. v. Brice, 15 
 ^. L. R. 147. 
 
 Challbnoes in Case of Mixed Jurobs. 
 
 I ©70. Whenever a person accused of an oifence for which he would be 
 Entitled to twenty or twelve peremptory challenges as hereinbefore provided 
 elects to be tried by a jury composed one-half of persons skilled in the language 
 of the defence under sections six hundred and sixty-four or six hundred and 
 sixty-five, the number of peremptory challenges to which he is entitled shall 
 be divided, so that he shall only have the right to challenge one half of such 
 number from among the English speaking jurors, and one half from among the 
 French speaking jurors. R. S. C. c. 174, ss. 166 & ^67. 
 
 This applies to Quebec and Manitoba: ss. 664, 665, 
 ante. When the accused has only four peremptory chal- 
 lenges this s. 670 does not apply. The crown exercises its 
 challenges without regard to the language of the jurors. 
 
 Joint Trials. 
 
 071* If several accused persons are jointly indicted and it is proimed to 
 try them together, they or any of them may either join in their challenges, in 
 which case the persons who so join shall have only as many challenges as a 
 single person would be entitled to, or each may make his challenges in the 
 «ame manner as if he were intended to bo tried alone. 
 
 That has always been the law ; see remarks, cmif, 
 
 under s. 668. 
 
 Ordering Tales. 
 
 67*2. Whenever after the proceedings hereinbefore provided the panel 
 has been exhausted, and a complete jury cannot be had by reason thereof, 
 then, upon request made on behalf of the Crown, the court may order the sheriff ot 
 other proper officer forthwith to summon such uuinber of ijcrsons whether 
 qualified jurors or not as the court deems necfci!s.;ry and directs in order to 
 make a full jury ; and such jurors may, if necessary, be eummoned I'y word of 
 mouth. 
 
si.i 
 
 [Sees. 669-672 
 
 3E8. 
 
 ti to cause any juror 
 
 (5. 
 
 order of the 
 
 ) apply- ^- ^• 
 
 for libels upon 
 
 even when the 
 
 ^pointed by and 
 
 -, Patteson, 36 U. 
 
 : E. V. Brice, 15 
 
 BORS. 
 
 , for which he would be 
 fl hereinbefore provided 
 18 skilled in the language 
 four or six hundred and 
 hich he is entitled shall 
 allenge one half of such 
 1 one half from among the 
 
 7 
 
 toba: ss. 664, 665, 
 peremptory chal- 
 crown exercises its 
 age of the jurors. 
 
 lictedanditisproiK-sedto 
 
 oin in their challenges, in 
 
 .Was many challenges as a 
 
 ie his challenges in the 
 
 \ee remarks, «^if. 
 
 Lfore provided the pane 
 fbe had by reason thereo , 
 Lt may order the Bhen 
 
 Lnber of l^rsons whe « 
 l,y and directs in order^ 
 
 tie summoned by word 0' 
 
 Sees. 673-675] 
 
 JURIES. 
 
 787 
 
 2. The names of the persons so summoned shall be added to the general 
 panel, for the purposes of the trial, and the same proceedings shall be taken as 
 to calling and challengring such persons and as to directing them to stand by as 
 are hereinbefore provided for with respect to the persons named in the original 
 panel. R. S. 0. c. 174, s. 168^ ,. 
 
 This is a re-enactment. 
 
 Jurors not to Sbparatb. (New). 
 
 6T3« The trial shall proceed continuously; subject to the power of the 
 court to adjourn it. Upon every such adjournment the court may in all cases, 
 if it thinks fit, direct that during the adjournment the jury shall be kept 
 together, and proper provision made for preventing the jury from holding 
 communication vdth any one on the subject of the trial Such direction shall 
 be given in all cases in which the accused may upon conviction be sentenced 
 to death. In other cases, if no such direction is given, the jury sh&ll be per- 
 mitted to separate. 
 
 2. No formal adjournment of the court shall hereafter be required, and no 
 entry thereqf in the Crovm book shall be necessary. R. S. C. c. 174, s. 169. 
 
 Jurors may have Fire, Etc. (New). 
 674> Jurors, after having been sworn, shall be allowed at any time before 
 ^ving their verdict the use of fire and light when out of court, and shall also 
 be allowed reasonable refreshment. 53 V. c. 57, s. 21. 
 
 Sating Clause. 
 
 675. Nothing in this Act shall alter, abridge or affect any power or 
 authority which any coui't or judge has when this Act takes effect, or any 
 practice or form in regard to trials by jury, jury process, juries or jurors, 
 except in cases where such power or authority is expressly altered by or is 
 inconsistent with the provisions of this Act. R. S. C. c. 174, s. 170. 
 
 Section 673 alters the law ; s. 674 was first enacted in 
 1890. 
 
 On a trial for felony the jury could not be allowed to 
 separate during the progi-ess of the trial, and where such 
 separation took place it was a mis-trial, and the court then 
 directed that the party convicted be tried again as if no 
 trial had been had in such case : R. v. Derrick, 23 L. C. J. 
 239. 
 
 It seems to have always been admitted that in misde- 
 meanours the jury might be allowed to separate during the 
 trial : K. v. Woolf , 1 Chit. Rep. 401 ; R. v. Kinnear, 2 B. & 
 Aid. 462. 
 
 There is no doubt that, generally speaking, the judge 
 ought not to allow the jury to separate in cases where the 
 
 .*',' 
 
788 
 
 PROCEDURE. 
 
 [Sec. 6' 
 
 la 
 
 punishment may be for over five years' imprisonment. In 
 fact, some judges never allow the jury to separate and if 
 it can be done without too much inconvenience, this is, 
 perhaps, the best practice. When, however, such separation 
 is permitted, the judge ought to caution the jury against 
 holding conversation with any person respecting the case, 
 or suffering it in their presence, or reading newspaper 
 reports or comments regarding it, or the like : see 1 Bishop, 
 Cr. Proc. 996. They are not allowed to separate after they 
 have retired to consider their verdict : s. 727. 
 
 The doctrine that " a jury sworn and charged in case 
 of life or member cannot be discharged by the court, but 
 they ought to give a verdict," is exploded, and it may now 
 be considered as established law that a jury sworn and 
 charged with a prisoner, even in a capital case, may be 
 discharged by the judge at the trial without giving a ver- 
 dict, if a necessity — that is a high degree of need — for 
 such discharge is made evident to his mind. If after delib- 
 erating together the jury say that they have not agreed, 
 and that they are not likely to agree, the judge may dis- 
 charge them. It lies absolutely in his discretion how long 
 they should be kept together, and his determination on the 
 subject cannot be reviewed in any way : R. v. Charles- 
 worth, 2 F. & F. 326, 1 B. & S. 460; Winsor v. K (in 
 error), 7 B. & S. 490, 10 Cox, 276 ; s. 728 post. 
 
 In the course of the trial one of the jurors had, without 
 leave, and without it being noticed by any one, left the 
 jury box and also the court-house, whereupon the court 
 discharged the jury without giving a verdict, and a fresh 
 jury was empannelled. The prisoner was then tried anew, 
 and convicted before the fresh jury : Held, by the Court 
 of Criminal Appeal, that the course pursued was right : R. 
 v. Ward, 10 Cox, 573. 
 
 If a juryman is taken ill, so as to be incapable of 
 attending through the trial, the jury may be discharged, 
 and the trial and examination of witnesses begun over 
 
[Sec. 675 
 
 )risoninent. In 
 separate and if 
 enience, this is, 
 , such separation 
 bhe jury against 
 aecting the case, 
 ding newspaper 
 :e : see 1 Bishop, 
 parate after they 
 '27. 
 
 I charged in case 
 by the court, but 
 I, and it may now 
 I jury sworn and 
 ital case, may be 
 lOut giving a ver- 
 yree of need— for 
 id. If after delib- 
 have not agreed, 
 le judge may dis- 
 iscretion how long 
 lermination on the 
 tv : R. V. Charles- 
 Winsor v. R. (in 
 post. 
 lurors had, without 
 any one, left the 
 lereupon the court 
 [erdict, and a fresh 
 ,8 then tried anew, 
 :eW, by the Court 
 
 lued was right: R. 
 
 L be incapable of 
 [nay be discharged, 
 Inesses begun over 
 
 Sec. 675] 
 
 JURIES. 
 
 789 
 
 again another juror being added to the eleven; but in that 
 case the prisoner should be offered his challenges over again 
 as to the eleven, and the eleven should be sworn de novo : 
 R. V. Edwards, R. & R. 224 ; see also R. v. Scalbert, 2 Leach, 
 620 ; R. V. Beere, 2 M. & Rob. 472 ; R. v. Gould, 3 Burn, 98. 
 
 In R. V. Murphy, 2 Q. L. R. 383, after the prisoner had 
 been given in charge to the jury, the case was adjourned 
 for one day on account of his counsel's illness. 
 
 But when such a trial has to be begun over again it is 
 not regular, whether the prisoner assents to it or not, instead 
 of having the witnesses examined anew viva voce, to simply 
 call and swear them over again and then read over the 
 notes of their evidence taken by the judge on the first trial, 
 even if, then, each witness is asked if what was read was 
 true, and is submitted at the pleasure of the counsel on 
 either side to fresh oral examination and cross-examina- 
 tion : R. V. Bertrand, 10 Cox, 618. 
 
 Although each juryman may apply to the subject before 
 him that general knowledge which any man may be sup- 
 posed to have, yet if he be personally acquainted with any 
 material particular fact he is not permitted to mention the 
 circumstance privately to his fellows, but he must submit 
 to be publicly sworn and examined, though there is no 
 necessity for his leaving the box, or declining to interfere 
 in the verdict : R. v. Rosser, 7 C. & P. 648 ; 2 Taylor, Ev. 
 par. 1244 ; 3 Burn 96 ; see R. v. Petrie, 20 O. R. 317. 
 
 A juror was summoned in error but not returned in the 
 panel, and in mistake was sworn to try a case during the 
 progress of which these facts were discovered. The jury 
 were discharged and a fresh jury constituted : R. v. Phil- 
 lips, 11 Cox, 142. It is not necessary when a jury are dis- 
 charged without giving a verdict to state on the record the 
 reason why they are so discharged: R. v. Davison, 2 F. & F. 
 250, 8 Cox, 360. 
 
 The rule is that the right to discharge the jury without 
 giving a verdict ought not to be exercised except in some 
 
 '• V 
 
790 
 
 PROCEDURE. 
 
 [Sec. 675 
 
 case of physical necessity, or where it is hopeless that the 
 jury will agree, or where there have been some practices to 
 defeat the ends of justice. If after the prisoner is given in 
 charge, though before any evidence is given, it is discovered 
 that a material witness for the prosecution is not acquaint- 
 ed with the nature of an oath, it is not a sufficient ground 
 for discharging the jury so that the witness might be 
 instructed before the next assizes upon that point, and a 
 verdict of acquittal must be entered if the prosecution has 
 no other sufficient evidence : R. v. Wade, 1 Moo. 86. R. v. 
 White, 1 Leach, 430, seems a contrary decision, but is now 
 overruled by the above last cited case. Where, during the 
 trial of a felony, it was discovered that the prisoner had a 
 relation on the jury, Erskine, J., after consulting Tindal, 
 C.J., held that he had no power to discharge the jury but 
 that the trial must proceed : R. v. Wardle, Car. & M. 647. 
 
 If it appear during a trial that the prisoner, though he 
 has pleaded not guilty, is mad, the judge may discharge 
 the jury of him, that he may be tried after the recovery of 
 his understanding: 1 Hale, 34: see ^'^^sif, sections 737, et seq., 
 and remarks thereunder. 
 
 In Kinloch's case, Fost. 16, 23, et seq., it was held that a 
 jury can be lawfully discharged in order to allow the 
 defendant to withdraw his plea of " not guilty," and to 
 plead in bar. 
 
 On a writ of error the record showed that on the trial 
 the judge discharged the jury after they were sworn, in 
 consequence of the disappearance of a witness for the 
 crown, and the prisoner was remanded. Held, that the 
 judge had a discretion to discharge the jury which a court 
 of error could not review ; that the discharge of the jury 
 without a verdict was not equivalent to an acquittal, aud 
 that the prisoner might be put on trial again : Jones v. R, 
 3 L. N. 309. 
 
 A jury had been sworn on the previous day to try the 
 prisoner on an indictment for murder. In the coui-se of the 
 
[Sec. 675 
 
 peless that the 
 me practices to 
 oner is given in 
 
 it is discovered 
 is not acqiiaint- 
 iifficient ground 
 tness might he 
 tiat point, and a 
 
 prosecution has 
 . Moo. 86. R. V. 
 ision, but is now 
 /here, during the 
 [le prisoner had a 
 onsulting Tindal, 
 irge the jury but 
 5, Car. & M. 647. 
 risoner, though he 
 ge may discharge 
 er the recovery oi 
 jctions 737, et seq.. 
 
 Sees. 676, 67:1 
 
 WITNESSES. 
 
 791 
 
 it was held that a 
 •der to allow the 
 ot guilty," and to 
 
 d that on the trial 
 ey were sworn, in 
 witness for the 
 Held, that the 
 ury which a court 
 [harge of the jury 
 an acquittal, and 
 [gain : Jones v. K, 
 
 |iou8 day to try the 
 In the course of the 
 
 trial one of the jurors was discharged because he came 
 from a house where there was small-pox. The case being 
 resumed before a new jury the prisoner contended that, 
 having been once put in jeopardy of his life, no new trial 
 could be had. The court overruled the objection : R. v. 
 Considine, 8 L. N. 307. 
 
 A juror may be a witness. He is then twom without 
 leaving the jury box : 2 Taylor, Ev., par. 1244. See R. v. 
 Rosser, 7 C. & C. 648. Under s. 675 it seems that the 
 whole of s. 7 of the 27 & 28 V. c. 41 (1864), is still in force in 
 the Province of Quebec, (see remarks under s. 664, ante), 
 except s-8. 8 & 9 thereof, which are repealed by 49 V. 
 c. 4 (D.). 
 
 Proceedings Whejt Previous Conviction Charged. 
 
 0T6. The proceedings upon any indictment for committing any offence 
 
 after a previous conviction or convictions shall be as follows, that is to say : 
 
 the offender shall, in the first instance, be arraigned upon so much only of the 
 
 indictment as charges the subsequent offence, and if he pleads not guilty, or if 
 
 the court orders a plea of not guilty to be ei)«ered on his behalf, the jury shall 
 
 be charged, in the first instance, to inquire concerning such subsequent 
 
 offence only ; and if the jury finds him guilty, or if on arraignment he pleads. 
 
 guilty, he shall then, and not before, be asked whether he was so previousl> 
 
 convicted as alleged in the indictment ; and if he answers that he was so 
 
 previously convicted the court may proceed to sentence him accordingly, but. 
 
 if he denies that he was so previously convicted, or stands mute of malice, or 
 
 will not answer directly to such question, the jury shall then be charged to 
 
 inquire concerning such previous conviction or convictions, and in such case it 
 
 shall not be necessary to swear the jury again, but the oath already taken by 
 
 them shall, for all purposes, be deemed to extend to such last mentioned 
 
 inquiry : Provided, that if upon the trial of any person for any such subsequent 
 
 offence, such person gives evidence of his good character, the prosecutor may, 
 
 in answer thereto, give evidence of the conviction f>f such person for the 
 
 previous offence or offences before sxich verdict of guilty is returned, and the 
 
 jury shall inquire concerning such previous conviction or convictions at the 
 
 same time that they inquire concerning such subsequent offence. R. S. C 
 
 c. 174, s. 207. 
 
 See s. 628, ante, and remarks thereunder 
 field, 16 Cox, 314. 
 
 Witnesses' Attendance. 
 
 R. v. Wood- 
 
 677. Every witness duly subpoenaed to attend and give evidence at any 
 criminal trial before any court of criminal jurisdiction shall be bound to attend 
 and remain in attendance througho'it the trial. R. S. C. c. 174, s. 210. 
 
 
792 
 
 PROCEDURE. 
 
 Compelling Attendance of Witnesses, 
 
 [Sees. 678-680 
 
 618- Upon proof to the satisfaction of the judge of the service of the 
 subpoena upon any witness who fails to attend or remain in attendance, or 
 upon -its appearing that any witness at the preliminary examination has 
 entered into a recognizance to appear at the trial, and has failed so to appear, 
 and that the presence of such witness is material to the ends of justice, the 
 judge may, by his warrant, cause such witness to be apprehended and forth- 
 with brought before him to give evidence and to answer for his disregard of 
 the subpoena ; and such witness may be detained on such warrant before 
 the judge or in the common gaol with a view to secure his presence as a 
 witness, or, in the discretion of the judge, he may be released on a recogniz- 
 ance, with or without sureties, conditioned for his appearance to give evidence 
 and to answer for his default in not attending or not remaining in attendance ; 
 and the judge may, in a summary manner, examine into and disixise of the 
 charge against such witness, who, if he is found guilty thereof, shall be liable 
 to a fine not exceeding one hundred dollars, or to imprisonment, with or with- 
 out hard labour, for a term not exceeding ninety days or to both. R. S. C. 
 c. 174, 8. 211. 
 
 As to re-calling witnesses see R. v. Lam^re, 8 L. C. J. 
 181 ; R. V. Jennings, 20 L. C. J. 291 ; 2 Taylor, Ev. par. 
 
 1331. 
 
 Witness Out op the Jurisdiction, 
 
 « 
 
 0T9, If any witness in any criminal case cognizable by indictment in 
 any court of criminal jurisdiction at any term, sessions or sittings of any court 
 in any part of Canada, resides in any part thereof, not within the ordinary 
 jurisdiction of the court before which such criminal case is cognizable, such court 
 may issue a writ of subjMBna, directed to such witness, in like manner as if 
 such witness was resident within the jurisdiction of the court ; and if such 
 witness does not obey such writ of subpoena the court issuing the same may 
 proceed against' such witness for contempt or otherwise, or bind over such 
 witness to appear at such days and times as are necessary, and upon default 
 being made in such appearance may cause the recognizances of such witness to 
 be estreated, and the amount thereof to be sued for and recovered by process 
 of law, in like manner as if such witness was resident within the jurisdictiun 
 of the court. R, S. C, c, 174, s, 212, 
 
 Witness from Gaol or Penitentiary. 
 
 680. When the attendance of any person confined in any prison in 
 Canada, or upon the limits of any gaol, is required in any court of criminal 
 jurisdiction in any case cognizable therein by indictment, the court before 
 whom such prisoner is required to attend may, or any judge of such court, or 
 of any superior court or county court may, before or during any such term or 
 sittings at which the attendance of such (xarson is required, make an order 
 upon the warden or gaoler of tiie prison, or u^xju the sheriff or otlier person 
 having tffe custody of such prisoner, to deliver such prisoner to the person 
 named in such order to receive him ; and such person shall, at the time 
 prescribed in such order, convey such prisoner to the place at wliich such 
 person is required to attend, there to receive and obey such further order as 
 to the said court seems meet. R. S. C. c. 174. s. 213. 
 
[Sec3. 678-680 
 
 the service of the 
 1 in attendance, or 
 f examination has 
 failed so to appear, 
 ends of justice, the 
 ehended and forth- 
 for his disregard of 
 vich warrant before 
 B his presence as a 
 eased on a recogniz- 
 mce to give evidence 
 ining in attendance ; 
 D and disiwse of the 
 lereof , shall be liable 
 nment, with or with- 
 3r to both. R. S. C. 
 
 im^re, 8 L. C. J. 
 Taylor, Ev. par. 
 
 N. 
 
 able by indictment in 
 r sittings of any court 
 ; within the ordinarj- 
 cognizable, such court 
 in like manner as if 
 le court ; and if such 
 issuing the same may 
 4e, or bind over such 
 iry, and upon default 
 ices of such witness to 
 recovered by process 
 [•ithin the jurisdiction 
 
 luY. 
 
 Ined in any prison in 
 lany court of criminal 
 >nt, the court before 
 Ldge of such court, or 
 iring any such term or 
 luired, make an order 
 Iheriff or other person 
 Irisoner to the person 
 [n shall, at the time 
 l)lace at which such 
 Luch further order as 
 
 Sec. 680] 
 
 WITNESSES. 
 
 793 
 
 At common law writ? -f subpoena have no force beyond 
 the jurisdictional limi^dof the court from which they issue, 
 but, by the above clause, 679, any court of criminal juris- 
 diction in Canada may summon a witness from any other 
 part of Canada, for instance, a criminal court in Quebec 
 can summon a witness in Nova Scotia, or vice versa, and if 
 the subpcena is not obeyed the court may proceed against 
 the witness in like manner as if such witness were resident 
 within the jurisdiction of the court. In England, 46 
 Geo. III. c. 92 contains a provision of the same nature. 
 In criminal cases the witness is bound to attend even if he 
 has not been tendered his expenses : 3 Russ. 575 ; Roscoe, 
 Ev. 104. 
 
 Section 680 renders unnecessar}'-, in criminal matters, the 
 writ of habeas corpus ad testificandum. It seems to go 
 very farj and might lead to serious consequences ; it, for 
 instance, authorizes a judge of the court of quarter sessions, 
 or of the county court in any part of the Dominion, to order 
 the removal of a prisoner from any other part of the 
 Dominion. Moreover, this removal is not, as in England, to 
 be made under the same care and custody as if the prisoner 
 was brought under a writ of habeas corpus, and by the offi- 
 cer under whose custody the witness is, but by any other 
 person named by the judge in his order, thereby, against all 
 notions on the subject, releasing for a while a prisoner from 
 the custody of his gaoler, who, of course, ceases, pro tem- 
 pore, to be responsible for his safe keeping. The Imperial 
 Act on the subject is the 16 & 17 V. c. 30, s. 9. Though our 
 statute does not expressly require it, an affidavit stating the 
 place and cause of confinement of the witness, and further 
 that his evidence is material, and that the party cannot, in 
 his absence, safely proceed to trial, sliould be given in sup- 
 port of the application. And if the prisoner be confined at 
 a great distance from the place of trial, the judge will,*per- 
 haps, require that the affidavit should point out in what 
 manner his testimony is material: 2 Taylor, Ev. par. 1149. 
 
 The word " prison " includes any penitentiary, s. 3. 
 
 ;• -K 
 
794 
 
 PROCEDURE. 
 
 [Sees. 681-6S3 
 
 Evidence of Pbrhon III may be Taken under Commission. 
 
 081- Whenever it ia made to appear at the instance of the crown, or of the 
 prisoner or defendant, to the satisfaction of a judge of a superior court, or a jud^e 
 of a county court having criminal jurisdiction, that any person, who is danger- 
 ously ill, and who, in the opinion of some licensed medical practitioner, is not 
 likely to recover from such illness, is able and willing to give material infor- 
 mation relating to any indictable otfence, or relating to any person accused of 
 any such offence, such judge may, by order under his hand, appoint a commiM- 
 sioner to take in writing the statement on oath or affirmation of such peison. 
 
 2. Such commissioner shall take such statement and shall subscribe the 
 same and add thereto the name? of the persons, if any, present at the taking^ 
 thereof, and if the deposition relates to any indictable offence for which any 
 accused person is already committed or bailed to appear for trial shall transmit 
 the same, with the said addition, tj the proper officer of the court at which 
 such accused person is to be tried ; and in every other case he shall transmit 
 the same to the clerk of the peace of the county, division or city in which he 
 has taken the same, or to such other officer as has charge of the records and 
 proceedings of a superior court of criminal jurisdiction in such county, 
 division or city, and such clerk of the peace or other officer shall praservre tiie 
 same and file it of record, and upon order of the court or of a judge transmit 
 the same to the propar officer of the court where the same shall be required tj 
 be used as evidence. U. S. C. c. 174, s. 220. 
 
 See s. 686, post 
 
 Presence of Prisoner. 
 
 0S2< Whenever a prisoner in actual custody is served with, or receivos, 
 notice of an intention to take the statement mentioned in the last precediu? 
 section the judge who has appointed the commissioner may, by an order in 
 writing, direct the officer or other parson having the custody of the prisoner to 
 convey him to the place mentioned in the said notice for the purpose of being^ 
 present at the taking of the statement ; and such officer or other person sliall 
 convey the prisoner accordingly, and the expenses of such conveyance whall be 
 paid out of the funds applicable to the other expenses of the prison from which 
 the prisoner has been conveyed. R. S. C. c. 174, s. 221. 
 
 See 8. 686, post. 
 
 Commission Out op Canada. 
 
 683* Whenever it is made to appear, at the instance of the Crown, or of 
 the prisoner or defendant, to the satisfaction of the judge of any superior court, 
 or the judge of a county court having criminal jurisdiction, that any person 
 who resides out of Canada is able to give material information relating to any 
 indictable offence for which a prosecution is pendiivj, or relating to any person 
 accused of such offence, such judge may, by order under his hand, appoint a. 
 commissioner or commissioners to take the evidence, up<m oath, of such 
 person. 
 
 2. Until otherwise provided by rules of court, the practice and procedure 
 in connection with the appointment of commissioners under this section, the 
 t»king of depositions by such commissioners, and the certifying and return 
 
 ■ f >4 
 
 "' '«, 
 
Sees. 684, 685] 
 
 WITNESSES. 
 
 795 
 
 thereof, and the use of such depo^^ltions as evidence at the trial, shall be, as 
 nearly as practicable, the same as those which prevail in the respective courts 
 in connection with the like matters in civil causes. 53 V. s, 37, s, 23. 
 
 Order for examination of witness out of jurisdiction 
 under 53 V. c. 37, s. 23 should not provide that evidence so 
 taken should be read before the grand jury : R. v. Chet- 
 wynd, 23 N. S. Rep. 332. 
 
 When Evidence must be Corroborated. 
 
 684' No person accused of an offence under any of the hereunder 
 mentioned sections shall be convicted upon the evidence of one witness, 
 unless such witness is corroborated in som'^ material particular by evidence 
 implicating the accused : 
 
 (a) Treason, Part IV., section sixty-five ; 
 
 (6) Perjury, Part X., section one hundred and forty-six ; 
 
 (c) Offences under Part XIII sections one hundred and eighty-one to one 
 hundred and ninety inclusive ; 
 
 (rf) Pnxjurmg feigned marriage. Part XXII., section two hundred and 
 sevent,' -seven ; 
 
 (e) Forgery, Part XXXI., section four hundred and twenty-three. 
 
 Section 218, c. 174 R. S. C, as to evidence in cases of for- 
 gery, required corroboration only of an interested witness : 
 see R. v. Rhodes, 22 O. R. 480. 
 
 Evidence op Child in Certain Cases. 
 
 685. Where, upon the bearing or trial of any charge for carnally know- 
 ing or attempting to carnally i now a girl under fourteen or of any charge 
 under section two hundred and fifty-nine for indecent assault, the girl in 
 respect oi whom the offence is charged to have been committed, or any other 
 child of tender years who is tendered as a witness, does not, in the opinion of 
 the cjurt or justices, understand the nature of an oath, the evidence of such 
 girl nr other child of tender years may be received though not given upon oath 
 if, in the opinion of the court or justices, as the case may be, such girl or other 
 child of tender years is possessed of sufficient intelligence to justify the recep- 
 tion of the evidence and understands the duty of speaking the truth. 
 
 2, But no person shall be liable to be convicted of the offence, unless the 
 testimony admitted by virtue of this section, and given on behalf of the 
 prosecution, is corroborated by some other material evidence in support 
 thereof implicating the accused. 
 
 .3. Any witness whose evidence is admitted under this section is liable to 
 indictment and punishment for perjury in all respects as if he or she had been 
 sworn. 53 V.c. 37, s. 13. 4S-49 V. c. 69, s. 4 (Imp.). 
 
 -Sfee 8. 25 of the Canada Evidence Act, 1893, 56 V. c. 31. 
 
796 
 
 PROCEDURE. 
 
 / 
 
 [Sees. OHG, f)H7 
 
 This provision applies to thu trial of offences under ss. 
 259, 269, & 270, mite. 
 
 See R. V. Wealand, 16 Cox, 402, 20 Q. B. D. 827 ; R. v. 
 Paul, 17 Cox, 111, 25 Q. B. D. 202 ; R. v. Pruntey, 16 Cox, 
 314. The evidence so given would be evidence to .support 
 any verdict allowed in virtue of s. 713, ^)osf, on an indict- 
 ment for any of the offences provided for in ss. 259, 260 
 &/ 270. Held, in that sense, by Court of Queen's Bench, 
 Montreal, May 26th, 1893, in R. v. Grantyei-s, 
 Depositions to bS read in Evidence. 
 
 0S6« If the evidence of a Hick jwrnon has been taken under commission 
 as provided in section six hundred and eighty -one, and upon the trial of any 
 offender for any offence to which the same relates, the person who made tlie 
 statement is proved to be dead, or if it is proved that there is no reasonable 
 probability that such jjerson will ever be able to attend at the trial to give evi- 
 dence, such statement may, upon the production of the judge's order apiwint- 
 ing such commissioner, be read in evidence, either for or against the accused, 
 without further proof thereof, — if the same purports to be signed by the com- 
 missioni'r by or before whom it jjurports to have been taken, and if it is proved 
 to the satisfaction of the co>irt that reasonable notice of the intention to take 
 such statement was served upon the jierson (whether prosecutor or accused) 
 Against whom it is proposed to be read in evidence, and that such person or hit 
 counsel or solicitor had, or might have had, if he had chosen to be present, full 
 opiwrtunity of cross-e-\amining the i)erson who made the same. R. S. C 
 o. 174, 8. 220. 
 
 See s. 681, ante. 
 
 The notice required by this section is a written notice. 
 Whether it has been a reasonable notice, and whether the 
 opportunity for cross-examination was sufficient or not, are 
 questions for the judge at the trial : R. v. Shurmer, 16 Cox, 
 
 94. 
 
 Depositions to be read .n Evidence. 
 
 0H7. If upon the trial of any accused person it is proved upon the oath 
 or affirmation of any credible witness that any i)erson whose deposition has 
 been taken by a justice in the preliminary or other inve-itigation of any charge 
 is dead, or so ill as not to be able to travel, or is absent from Uanada, and if it 
 is also proved that such deposition was taken in the jjresence of the jwrsun 
 accused, and that he, his coun.sel or solicitor, had a full opportunity of cross- 
 examining the witness, then if the deposition purports to be signed by tiie ju.t. 
 tice by or before whom the same purports to have been taken it shall be raad as 
 evidence in the prosecution without further proof tliereof, unless it is proved 
 that such deposition was not in fact signed by the justice purixirting to have 
 signed the same. R. S. C. c. 174. s. 222. 11-12 V. c. 43, s. 17, (Imp.). 
 
[Sees. fiSG, 687 
 
 nces under ss. 
 
 D. 827 ; R. V. 
 untey, 10 Cox, 
 nee to Hupport 
 , on an indict- 
 in S8. 259, 269 
 Jueen's Bench, 
 ■s. 
 
 n under commission 
 ipon the trial of any 
 )er8on who made the 
 here i» no reasonalle 
 the trial to give evi- 
 idge's order apiwint- 
 against the accused, 
 (6 signed by tiie com- 
 en, and if it is pvoved 
 the intention to take 
 rosecutor or accused) 
 lat such person or his 
 en to be present, full 
 the same. R. S. C' 
 
 written notice, 
 nd whether the 
 eient or not. are 
 hurmer, 16 Cox, 
 
 Sec. 697] 
 
 WITNESSES. 
 
 797 
 
 See R. V. Pruntey. 16 Cox, 344; R. v. Bullard, 12 Cox, 
 353; R. V. Bull, 12 Cox, 31 ; R. v. Clements, 2 Den. 251 ; R. 
 V. Stephenson, L. & C. 165, Warb. Lead. Cas. 233 ; R. v. De 
 Vidil, 9 Cox, 4 ; Ex imrte Huguet, 12 Cox, 651. 
 
 Doubts have arisen in England whether, under this last 
 cited clause of the Imperial Act, the prosecution must have 
 been identically for the same offence as charged against the 
 prisoner by the depositions against him as taken by the 
 magistrate, and it has even been held that a deposition 
 taken on a charge of assault could not afterwards be received 
 on an indictment for wounding: R. v. Ledbetter, 3 C. & K. 
 108. Though in the subsequent case of R. v. Beeston^ 
 Dears. 405, it was held by the court of criminal appeal 
 that a deposition taken on a charge, either of assault and 
 robbery, of doing grievous bodily harm, or of feloniously 
 wounding with intent to do grievous bodily harm, can, 
 after the death of the witness, be read upon a trial for mur- 
 der or manslaughtv>r, where the two charges relate to the 
 same transaction, y.^t it seems by the report of the case 
 that if the charges on the two occasions had been substan- 
 tially different the deposition would not have been admis- 
 sible : see R. v. Lee, 4 F. & F. 63 ; R. v. Radboume, 1 
 Leach, 457 ; R. v. Smith, R. & R. 339 ; R. v. Dilmore, 6 Cox, 
 .52. But in Canada, by s. 088,posf, all doubts on the ques- 
 tion are removed, and a deposition taken on " any " charge 
 against a person may be read as evidence in the prosecution 
 of such person for " any other o fence," when the deposition 
 is otherwise admissible. 
 
 Prisoners deposition. — The depositions on oath of a 
 witness legally taken are admissible evidence against him 
 if lie is subsequently tried on a criminal charge. The only 
 exception is in the case of answers to questions which he 
 objected to, when his evidence was taken, as tending to 
 criminate him but which he has been improperly compelled 
 to answer : R. v. Coote, L. R. 4 P. C. 599, 12 Cox, 557; R. v. 
 Garbett, 1 Den. 236. Where a witness claims protection on 
 
 .' •' 
 
 f . 
 
 i i! 
 
WSm ! 
 
 
 798 
 
 PROCEDURE. 
 
 [Sec. 687 
 
 the ground that an answer may criminate him, and he is 
 compelled to answer, the answer is inadmissible w^hether he 
 claim the protection in the first instance or after havino 
 given some answers tending to criminate himself: R. v. 
 Garbett, uhi supra. But it seems that the part of the 
 deposition given before such witness has so claimed the pro- 
 tection of the court is admissible: R. v. Coote, uhi' siq^ra. 
 And the witness need not have been cautioned or put upon 
 his guard as to the tendency of the question in order to 
 render his answer admissible. See, now, s. 5 of the Canada 
 Evidence Act, 1893, 56 V. c. 31. S. 591, ante, is applicable to 
 accused persons only and not to witnesses ; and s. 592 enacts 
 specially that "nothing herein contained shall prevent 
 any prosecutor from giving in evidence any admission 
 or confession, or other statement made at any time by the 
 person accused or charged, which by law would be admis- 
 sible as evidence against him." See 3 Russ. 418, and R. v. 
 Coote, uhi supra. Also, R. v. Wellings, 14 Cox, 105, and 
 R. v. Beriau, Ramsay's App. Cas. 185. 
 
 The fact alone of the witness residing abroad at the time 
 of the trial is not sufficient to admit his deposition : R. v. 
 Austin, Dears. 612. 
 
 On a trial for murder the examination of the deceased 
 <»nnot be put in evidence if the prisoner had not the 
 opportunity to cross-examine him, he having knowledge 
 that it was his interest to do so: R. v. Milloy, 6 L. N. 95. 
 
 Depositions not taken in presence of the accused cannot 
 be submitted to the grand jury under s. 687: R. v. Carbmy, 
 13 Q. L. R. 100. 
 
 The deposition, regularly taken by the committini; 
 magistrate, of a witness was allowed to be read at the trial, 
 for the reason that a medical man proved that tlie witness 
 was old, and that he thought, under her state of nervous- 
 ness, that she would faint at the idea of coming into court, 
 though he was of opinion that she could go to London to 
 see a doctor without difficuity or danger: held, that her 
 
[Sec. 687 
 
 him, and he is 
 ible whether he 
 ,r after having 
 himself: R v. 
 he part of the 
 •laimed the pro- 
 mote, uhi' siijira. 
 aed or put upon 
 bion in order to 
 5 of the Canada 
 e, is applicable to 
 and s. 592 enacts 
 d shall prevent 
 i any admission 
 any time by the 
 would be admis- 
 Lss. 418, and R. v. 
 14 Cox, 105, and 
 
 broad at the time 
 deposition : K v. 
 
 li of the deceased 
 iner had not the 
 
 tving knowledge 
 lloy, 6 L. N. 95. 
 
 he accused cannot 
 IsT: R. v.Carbray, 
 
 the committini;' 
 I read at the trial 
 
 that the witness 
 state of nervous- 
 poming into court, 
 ] go to London to 
 kr: loeld, that her 
 
 Sec. 687] 
 
 DEPOSITIONS. 
 
 799 
 
 deposition ought not ^o have been received : R. v. Farrell, 
 12' Cox, 605; R. v. Thompson, 13 Cox, 181. 
 
 The deposition of a witness who has travelled to the 
 assize town, but is too ill to attend court, may be read 
 before the grand jury: R. v. Wilson, 12 Cox, 622; R. v. 
 Gerrans, 13 Cox, 158; R. v. Goodfellow, 14 Cox, 326. 
 
 Depositions taken abroad under the Merchant Shipping 
 Act may be received in evidence if the witness cannot be 
 had : R. V. Stewart, 13 Cox, 296. 
 
 Too much importance ought not to be attached to the 
 variations between what a witness says at the trial and 
 what his deposition before the magistrate makes him say, 
 if there is a substantial concordance between both : R. v. 
 Wainwright, 13 Cox, 171. 
 
 On a charge of murder, to prove malice or motive against 
 the prisoner the deposition of the deceased against him, 
 taken before the magistrates on another charge, was held 
 admissible : R. v. Buckley, 13 Cox, 293 ; R. v. Williams, 12 
 Cox, 101. 
 
 Upon a prosecution for uttering forged notes the deposi- 
 tion of one S., taken before the Police Magistrate on the 
 preliminary investigation, was read upon the following 
 proof that S. was absent from Canada. R. swore that S. had, 
 a few months before, left his (R.'s) house where she (S.) 
 had, for a time, lodged ; that he had since twice heard 
 from her in the U. S. but not for six months. The chief 
 constable of Hamilton, where the prisoner was tried, proved 
 inettectual attempts to find S., by means of personal inquiries 
 in some places, and correspondence with the police of other 
 cities. S. had for some time lived with the prisoner as his 
 wife : 
 
 Held, upon a case reserved, Cameron, J., dis., that the 
 admissibility of the deposition was in the discretion of the 
 judge at the trial, and that it could not be said that he had 
 wrongfully admitted it : R. v. Nelson, 1 O. R. 500. 
 
4 ' 
 
 fi 
 
 'i: i ■ 
 
 ■,i 
 
 SSi '5 
 
 if 
 
 lit 
 
 
 800 
 
 PROCEDURE. 
 
 [Sees. 688-691 
 
 Depositions may be Used foh Other Opp^'ces. 
 
 0S8> Depositions taken in the preliminary or other investigation of any 
 charge against any person may be r jad as evidence in the prosecution of such 
 person for any other oflfence, upon the like proof and in the same manner, in all 
 respects, as they may, according to law, be read in the prosecution of the 
 offence with which such person was charged when such depositions were taken. 
 R. S. C. c. 174, s. 224. 
 
 The deposition on oath of a jvitness is evidence against 
 
 him on his trial if he is subsequently charged with a 
 
 crime : R. v. Coote, 12 Cox, 557, L. R. 4 P. C. 599 : see R. 
 
 V. Buckley, ante, under s. 687, and remarks under that 
 
 section. 
 
 Evidence op Prisoner's Statement. 
 
 6S0« The statement made by the accused person before the justice may, 
 if necessary, upon thm trial of such person, be given in evidence against him 
 without further proof thereof, unless it is proved that the justice purporting to 
 have signed the same did not in fact sign the same. R. S. C. c. 174, a. 223. 
 11-12 V.c 48, 8. 18 (Imp.). 
 
 As to confessions under inducements see R. v. Fennel], 
 Warb. Lead. Cas. 250, and cases there cited. 
 
 See R. V. Soucie, 1 P. & B. (N.B.) 611. S. 689 must be 
 read in connection with s. 591 ante. 
 
 Admissions on Trial. (Xew). 
 
 000* Any accused person on his trial for any indictable offence, or his 
 counsel or solicitor, may admit any fact alleged against the accused so as to 
 dispense with proof thereof. 
 
 '• At present if the accused ia proved before his trial to have 
 made an admission it is evidence against him, but though he 
 offers to make the same admission in court it is thought that in 
 cases of felony the judge is obliged to refuse to let him do so."— 
 Imp. Comm. Rep. 
 
 iiiViDENCE on Trial for Perjury. 
 
 601. A certificate containing the substance and effect only, omitting 
 the formal part, of the indictment and trial for any offence, purporting to be 
 signed by the clerk of the court or other officer having the custody of ':he 
 records of the court whereat the indictment was tried, or among which such 
 indictment has been filed, or by the deputy of such clerk or other officer, shall, 
 upon the trial of an itdictment for perjury or subornation of iierjury, be 
 sufficient evidence of the trial of such indictment without proof of tho signa- 
 ture or official character of the person appearing to have signed the same. 
 R. S. C. c. 174, 8. 225. 14-15 V. c. 100, s. 22 (Imp.). 
 
[Sees. 688-691 
 
 NCES. 
 
 ivestigation of any 
 >ro3eoution of such 
 ame manner, in all 
 prosecution of the 
 )sition8 were taken, 
 
 aclence against 
 larged with a 
 C. 599 : see R. 
 :ks under that 
 
 )f ore the justice may, 
 evidence against him 
 , justice purporting to 
 R. S. C. c. 174, 8. 223. 
 
 iee R. V. Fennell, 
 i. 
 
 S. 689 must be 
 
 Mable offence, or his 
 the accused so as to 
 
 |e his trial to have 
 _i, but though lie 
 lis thought that in 
 1 let him do so."— 
 
 I effect only, omitting 
 Lnce, purporting to be 
 tg the custody of the 
 1 or among which such 
 or other officer, shall, 
 lation of lierjury, be 
 lut proof of tho signa- 
 lave signed the same. 
 
 Sees. 692-694] 
 
 EVIDENCE AT TRIAL. 
 
 801 
 
 It is to be observed that this section is merely remedial 
 and will not prevent a regular record from being still 
 admissible in evidence, and care must be taken to have such 
 record drawn up in any case where the particular aver- 
 ments in the former indictment may be essential : Lord 
 Campbell's Acts, by Greaves, 27. 
 
 Before the same court, though not during the same 
 term, the production by the officer of the court of the 
 indictment with the entries thereon and the docket entries 
 is sufficient : R. v. Newman, 2 Den. 390. But the record or 
 a certificate under the above section are necessarj'- when 
 before another court: R. v. Coles, 16 Cox, 165. 
 
 Evidence on Trial under Sections 460, kt seq. 
 
 093« When, upon the trial of any person, it becomes necessary to prove 
 I. ^ nry coin produced in evidence against such person is false or counterfeit, 
 
 ..)' not be necessary to prove the same to be false and ciunterfeit by the 
 •v' ' ;<3of anymonoyer or other officer of Her Majesty's mint, or other person 
 employed in producing the lawful coin in Her Majesty's dominions or else- 
 where, whether the coin counterfeited is current coin, or the coin of any 
 foreign prince, state or country, not current in Canada, but it shall be sufficient 
 to prove the same to be false or counterfeit by the evidence of any other credible 
 witness. R. S. C. c. 174, s. 229. 
 
 The usual practice is to call as a witness a silversmith 
 
 oiE the town where the trial takes place, who examines the 
 
 coin in court, in the presence of the jury : Davis's Cr. L. 
 
 235. 
 
 Evidence under Section 4S0. 
 
 603. On the trial of any person charged with the offences mentioned in 
 section four hundred and eighty, any letter, circular, writing or pajwr offering 
 or purporting to offer for sale, loan, gift or distribution, or giving or puriwrting 
 to give information, directly or indirectly, where, how, of whom or by what 
 means any counterfeit token of value may be obtained or had, or concerning 
 any similar scheme or device to defraud the public, shall be prima facie 
 evidence of the fraudulent character of such scheme or device. 51 V. c. 40, 
 
 8.4. 
 
 Proof of Previous CoNvinrioN. 
 
 604' A certificate containing the substance and effect onlj', omitting the 
 formal part, of any previous indictment and conviction for any indictable 
 offence, or a copy of any summary conviction, purixirting to be signed by the 
 clerk of the court or other officer having the custody of the records of tho 
 court before which the offender was first convicted, or to which such summary 
 conviction was returned, or by the deputy of such clerk or officer, shall, upon 
 Ckim. Law— 51 
 
802 
 
 PROCEDURE. 
 
 [Sec. 695 
 
 proof of the identity of the person of the offender, be sufBcient evidrace of 
 such conviction without proof of the signature or official character of the 
 person appearing to have signed the same. R. S. C. c. 174, s. 230. 
 
 See ss. 628 & 676 ante, to which this s. 694 is intended 
 to apply: see 34 & 35 V. c. 112, s. 18 (Imp.). The enactment 
 does not extend to proof of a previous acquittal. 
 
 Pbkvious Conviction of Witness. 
 
 095- A witness may be questioned as to whether he baa be^i convicted 
 of any offence, and upon being so questioned, if he either denies the fact or 
 refuses to answer, the opposite party may prove such conviction ; and a certi- 
 ficate, as provided in the next preceding section, shall, upon proof of the 
 identity of the witness as such convict, be sufficient evidence of his conviction, 
 without proof of the signature or the official character of the person appearing 
 to have signed the certificate. R. S. C. c. 174, s. 231. 
 
 This enactment is taken from the 28 V. c. 18, s. 6, of 
 the Imperial statutes, An Act for Amending the Law of 
 Evidence and Practice on Criminal Trials. 
 
 Questions tending to expose the witness to criminal 
 accusation, punishment or penalty need not be answered • 
 no one can be forced to criminate himself. But this privi- 
 lege can be invoked only by the witness himself. Nor is 
 the judge bound to warn the witness of his right, though 
 he may deem it proper to do so : 2 Taylor Ev. par. 1319 ; 
 R. v. Coote, L. R. 4 P. C. 599, 12 Cox, 557. Whether the 
 answer may tend to criminate the witness, or expose him 
 to a penalty or forfeiture, is a point which the court will 
 determine, under all the circumstances of the case, as soon 
 as the protection is claimed, but without requiring the 
 witness fully to explain how the effect would be produced ; 
 for, if this were necessary, the protection which the rule 
 is designed to .afford to the witness would at once be 
 annihilated. 
 
 It is now decided, contrary to an opinion formerly 
 entertained by several of the judges, that the mere declar- 
 ation of a witness on oath that he believes that the answer 
 will tend to criminate him will not suffice to protect him 
 from answering, when the other circumstances of the case 
 are such as to induce the judge to believe that the answer 
 
[Sec. 695 
 
 Jicient evidence of 
 a character of the 
 ,9.230. 
 
 594 is intended 
 The enactment 
 ittal. 
 
 e baa been convicted 
 er denies the fact or 
 eviction; andacerti- 
 1, upon proof of the 
 B^ of his conviction, 
 ; the person appearing 
 
 J V. c. 18, S. 6, of 
 ding the Law of 
 lis. 
 
 Ltness to criminal 
 not be answered; 
 F But this privi- 
 8 himself. Nor 13 
 ; his right, though 
 lor Ev. par. 1319 ; 
 57. Whether the 
 less, or expose him 
 lich the court vnW 
 \i the case, as soon 
 out requiring the 
 ould be produced; 
 >n which the rule 
 -ould at once be 
 
 opinion formerly 
 [at the mere declar- 
 ^es that the ansvyer 
 Iffice to protect him 
 
 Istances of the ca.se 
 Ive that the mm^ 
 
 Sec. 695] 
 
 PREVIOUS CONVICTION OF WITNESS. 
 
 803 
 
 would not really have that tendency. In all cases of this 
 kind the court must see from the surrounding circum- 
 stances, and the nature of the evidence which the witness 
 is called to give, that reasonable ground exists for appre- 
 hending danger to the witness from his being compelled to 
 answer. When, however, the fact of such danger is once 
 made to appear, considerable latitude should be allowed to 
 . the witness in judging for himself of the effect of a 
 particular question ; , for it is obvious that a question, 
 though at first sight apparently innocent, may, by affording 
 a link in a chain of evidence, become the means of bringing 
 home an offence to the party answering. On the whole, as 
 Lord Hardwicke once observed, "these objections to 
 answering should be held to very strict rules," and, in some 
 way or other, the court should have the sanction of an oath 
 for the facts on which the objection is founded : 2 Taylor 
 Ev. par. 1311. 
 
 If the prosecution to which the witness might be 
 exposed, or his liability to a penalty or forfeiture, is barred 
 by lapse of time, the privilege has ceased and the witness 
 must answer : 2 Taylor Ev. par. 1312. 
 
 Whether a witness is bound to answer any question, the 
 direct and immediate effect of answering which might be to 
 degrade his character, seems doubtful, although where the 
 transaction as to which the witness is interrogated forms 
 any material part of the issue he will be obliged to answer,, 
 however strongly his evidence may reflect on his character. 
 
 Where, however, the question is not directly material to* 
 the issue, but is only put for the purpose of testing the 
 character and consequent credit of the witness, there is 
 much more room for doubt. Several of the older dicta and 
 authorities tend to show that in such case the witness is 
 not bound to answer ; but the privilege, if it still exists, is 
 certainly much discountenanced in the practice of modern 
 times. Even Lord Ellenborough, who is reported to have 
 held on one occasion that a witness was not bound to state 
 
 Wm 
 
i<U 
 
 804 
 
 PROCEDURE. 
 
 [Sec. 695 
 
 whether he had not been sentenced to imprisonment in a 
 house of correction, and on another, that the question could 
 not so much as be put to him, seems in a later case to have 
 disregarded the rules thus enunciated by himself ; for, on a 
 witness declining to say whether or not he had been con- 
 fined for theft in gaol, his Lordship harshly observed : "If 
 yoxi do not answer the question I will send you there." 
 
 No doubt cases may arise where the judge, in the exer- 
 cise of his discretion, would very properly interpose to 
 protect the witness from unnecessary and unbecoming 
 •annoyance. For instance, all inquiries into discreditable 
 transactions of a remote date might, in general, be rightly 
 suppressed ; for the interests of justice can seldom require 
 that the errors of a man's life, long since repented of, and 
 forgiven by the community, should be recalled to remem- 
 brance at the pleasure of any future litigant. So questions 
 respecting alleged improprieties of conduct, which furnish 
 no real ground for assuming that a witness who could be 
 guilty of them would not be a man of veracity, might very 
 fairly be checked. But the rule of protection should not 
 be further extended ; for if the inquiry relates to transac- 
 tions comparatively recent, bearing directly upon the moral 
 principles of the witness, and his present character for 
 veracity, it is not easy to perceive why he should be privi- 
 leged from answering, notwithstanding the answer may 
 disgrace him. It has, indeed, been termed a harsh alterna- 
 tive to compel a witness either to commit perjurj' or to 
 destroy his own reputation ; but, on the other hand, it is 
 obviously most important that the jury should have the 
 means of ascertaining the character of the witness, and of 
 thus forming something like a correct estimate of the value 
 of his evidence. Moreover, it seems absurd to place the 
 mere feelings of a profligate witness in competition with the 
 substantial interests of the parties in the cause : 2 Taylor 
 Ev. pai-s. 1313, 1314, 1315 ; 3 Russ. 543, 547. 
 
 By the words "or refuses to answer" in the said section 
 (and these words are also in the Imperial statute), it would, 
 
Sees. 696-698] 
 
 EVIDENCE-CERTAIN CASES. 
 
 805 
 
 isonment in a 
 [question could 
 jr case to have 
 iself ; «or, on a 
 bad been con- 
 Dbserved:^^ "If 
 ^ou there." 
 ge, in the exer- < 
 [y interpose to 
 Qd unbecoming 
 ito discreditable 
 neral, be rightly 
 1 seldom require 
 repented oi, and 
 (Called to remem- 
 nt. So questions 
 ct, which furnish 
 [less who could be 
 ■acity. might very 
 ,ection should not 
 relates to transac- 
 ly upon the moral 
 lent character for 
 e should be privi- 
 the answer nmy 
 d a harsh altorna- 
 mit perjury or to 
 5 other hand, it is 
 r should have the 
 ihe witness, and of 
 iiniate of the value 
 )surd to place the 
 )mpetition with the 
 
 ixe cause: 2 Taylor 
 
 547. 
 
 in the said section 
 I statute), it wouW, 
 
 at first sight, seem that the witness questioned as to a pre- 
 vious conviction is not bound to answer ; but it is obvious 
 that this is not so ; and the above quotation from Taylor 
 goes to show clearly that the question, if insisted upon by 
 the court, must be answered. Indeed, in a great many 
 cases, the party putting the question could not be expected 
 to be ready n spot, to prove the "r>. miction of the 
 
 witness otherwise iD».«,a by himself. 
 
 By the Canada Evidence Act, 1893, 56 V. c. 31, s. 5, no 
 one is now excused from answering any question upon the 
 o-round that the answer may tend to criminate him. 
 
 Proof op Attested Isstrcmknts. 
 
 690. It shall not be necessary to prove by the attesting witness any 
 instrument to the validity of which attestation is not requisite ; and such 
 instniment may be proved by admission or otherwise as if there had been no 
 attesting witness thereto. R. S. C. c. 174, s. 232. 
 
 This is, verbatim, s. 7 of 28 V. c. 18 of the Imperial 
 statutes. Formerly the rule was that if an instrument, on 
 being produced, appeared to be signed by subscribing wit- 
 nesses, one of them, at least, should be called to prove ita 
 execution. The above clause abrogates this rule. It 
 applies only to instruments to the validity of which attes- 
 tation is not requisite. 
 
 Evidence at Trial for Child Murder. 
 
 697. The trial of any woman charged with the murder of any issue of 
 her body, male or female, which being born alive would, by law, be bastard, 
 shall proceed and be governed by such and the like niles of evidence and 
 presumption as are by law used and allowed to take place in respect to other 
 trials for murder. R. S. C. c. 174, s. 227. 
 
 If the mother of an illegitimate child endeavoured 
 privately to conceal his birth and death she was presumed 
 to have murdered it, unless she could prove that the child 
 was born dead. Taylor, on Ev., note 7, p. 128, justly says 
 that this rule was barbarous and unreasonable. 
 
 Comparison of Writings. 
 
 (»98. Comparison of a disputed writing with any writing proved to the 
 satisfaction of the court to be genuine shall be iHjrmitted to be madn by 
 witnesses ; and such writings, and the evidence of witnesses respecting the 
 
"> 
 
 806 
 
 PROCEDURE. 
 
 [Sec. 699 
 
 same, may be submitted to the court and jury as evidence of the genuineness 
 or otherwise of the writing in dispute. R. S. C. c. 174, s. 233. 
 
 This enactment is taken from the 28 V. c. 18 of the 
 Imperial statutes, and is, verhati'ni, s. 8 thereof. Before 
 this enactment, it was an established rule that, in a crim- 
 inal case, handwriting could not be proved by comparing a 
 paper with any other papers acknowledged to be genuine ; 
 neither the witness nor the jury were allowed to 
 compare two writings with each other, in order to ascer- 
 tain whether both were written by the same person : 2 
 Taylor Ev. par. 1667. 
 
 Party Discrediting his own Witness. 
 
 099. A party producing a witness shall not be allowed to impeach his 
 credit by general evidence of bad character, but if the witness, in the opinion 
 of the court, proves adverse, such party may contradict him by other evidence, 
 or, by leave of the court, may prove that the witness made at other times a 
 statement inconsistent with his present testimony ; but before such last 
 mentioned proof can be given the circumstances of the supposed statement, 
 sufficient to designate the particular occasion, shall be mentioned to the 
 witness, and he shall be asked whether or not he did make such statement. 
 K. S. C. c. i74, 8. 234. 
 
 This is s. 3 of the 28 & 29 V. c. 18 of the Imperial 
 statutes, An Act for Amending the Law of Evidence and 
 Practice on Criminal TriaU. 
 
 In the Province of Quebec a similar enactment is con- 
 tained in Article 269 of the Code of Civil Procedure. 
 
 The word adverse in the above clause does not mean 
 mei'ely unfavourable but hostile ; 2 Taylor Ev. par. 1282. 
 However, in Dear v. Knight, 1 F. & F. 433, Erie, J., appears 
 to have regarded a witness as " adverae," simply because he 
 made a statement contrary to what he was called to prove. 
 
 The first part of the clause seems to have always been 
 the law. It was decided in Ewer v. Ambrose, 3 B. & C. 
 740, that if a witness called to prove a fact prove the con- 
 trary his credit could not be impeached by general evi- 
 dence, but, in R. V. Ball, 8 C. & P. 745, that the party is at 
 liberty to make out his case by other and contradictory 
 evidence. The portion of the clause allowing a party to 
 
[Sec. 699 
 
 e of the genuineness 
 .233. 
 
 V. c. 18 of the 
 
 thereof. Before 
 that, in a crim- 
 by comparing a 
 
 ,d to be genuine ; 
 
 ere allowed to 
 
 I order to ascer- 
 same person: 2 
 
 S'ESS. 
 
 allowed to imi^ach hia 
 witness, in the opinion 
 ; him by other evidence, 
 made at other times a 
 ; but before such last 
 he supposed statement, 
 
 II be mentioned to the 
 1 make such statement. 
 
 of the Imperial 
 of Evidence and 
 
 enactment is con- 
 Procedure. 
 
 ise does not mean 
 lor Ev. par. 1282. 
 13, Erie, J., appears 
 simply because he 
 .8 called to prove. 
 
 have always been 
 mbrose, 3 B. & C 
 'act prove the con- 
 id by general evi- 
 lat the party is at 
 and contradictory 
 lUowing a party to 
 
 Sec. 700] 
 
 EVIDENCE-CERTAIN CASES. 
 
 807 
 
 prove that his witness made at any time a different account 
 of the same transaction seems to be new law according to 
 the said case of R. v. Ball, uhi swpra. See R. v. Little, 15 
 Cox, 319. 
 
 Former Written Statements by Witness. 
 700. Upon any trial a witness may be cross-examined as to previous 
 statements made by him in writing, or reduced to writing, relative to the 
 subject-matter of the case, without such writing being shown to him ; but if it 
 is intended to contradict the witness by the writing his attention must, before 
 such contradictory proof can be given, be called to those parts of the writing 
 which are to be used for the purpose of so contradicting him ; and the judge, 
 at any time during the trial, may require the production of the writing for his 
 inspection, and he may thereuiwn make such use of it for the purposes of the 
 trial as he thinks fit : Provided that a deiiosition of the witness, purporting to 
 have been taken before a justice on the investigation of the charge and to be 
 signed by the witness and the justice, returned to and produced from the 
 custody of the proper officer, shall be presumed prima facie to have been 
 signed by the witness. R. S. C. c. 174, s. 235. 
 
 The words " upon any trial " mean " upon any trial 
 in any criviinal case." This enactment is reproduced 
 from s. 5 of 28 V. c. 18 of the Imperial statutes. An Act for 
 Amending the Law of Evidence and Practice on Criminal 
 Trials : upon which see 2 Taylor Ev. pars 1301, 1302, 1303; 
 3 Russ. 550. The general rule was that, when a contra- 
 dictory statement alleged to have been made by the witness 
 was contained in a letter or other writing, the cross-examin- 
 ing party should produce the document as his evidence, and 
 have it read, in order to base any questions to the witness 
 upon it. The above clause abrogates this rule, under which 
 was excluded one of the best tests by which the memory 
 and integrity of a witness can be tried : 2 Taylor Ev. par. 
 1301. Before the abrogation of the rule the witness could 
 not be asked whether he did or did not state a particular 
 fact before the magistrate, without first allowing him to 
 read, or have read to him, his deposition: R. v. Edwards, 
 8 C. & P. 26. And it was irregular to Question a witness as 
 to the contents of a former declaration, affidavit, letter or 
 any writing made or written by him, or taken in writing 
 as his declaration or deposition, without first having the 
 said writing read: The Queen's case, 2 Brod. & B. 288. 
 
 ■ -.1 
 
 A; 
 
 :¥: 
 
 m 
 
 ' 5 ■. 
 
 :•? 
 
 < 'i 
 
I ? 
 
 ^u 
 
 i 
 
 808 
 
 PROCEDURE. 
 
 [Sec. 701 
 
 The prosecution cannot use or refer to the depositions with- 
 out putting them in : R. v. Muller, 10 Cox, 48. 
 
 But if the former declarations of the witness were not in 
 writing, but merely by parol, he may be cross-examined on 
 the subject of it, and if he deny it another witness may be 
 called to prove it, if it be a matter relevant to the issue ; 
 if not relevant to the issue, the witness' answer is conelu- 
 2 Taylor Ev. par. 1295. 
 
 sive 
 
 Proof ok Contradictory Statbjient bv Witness. 
 
 701« If a witness, ujK)n cross-examination as to a former statement made 
 by him relative to the subject-matter of the case and inconsistent with hia 
 present testimony, does not distinctly admit that he did make such statement, 
 proof may be given that he did in fact make it ; but before such proof can be 
 given the circumstances of the supposed statement, sufficient to desi(?nat« the 
 particular occasion, shall be mentioned to the witness and he shall be asked 
 whether or not he did make such statement. R. S. C. c. 174, s. 236. 
 
 This enactment is taken from s. 4 of the 28 V. c. 18 of 
 the Imperial statutes. 
 
 Formerly there was some difference of opinion as to 
 whether, in such a case, proof might be given that the wit- 
 ness had made the statement denied by him. It must be 
 observed that the clause applies only to a statement rehitm 
 to the subject matter of the case. If it is not relative to the 
 subject matter of the case the answer given by the witness 
 must be taken as conclusive. It seems that (juestions 
 respecting the motives, interest or conduct of the witness, 
 as connected with the cause or with either of the parties, 
 are relevant quoad this enactment, though Coleridge, J., in 
 R. v. Lee, 2 Lewin, 154, held that if a witness denies that 
 he has tampered with the other witnesses evidence to con- 
 tradict him cannot be received. This case was before the 
 statute, and does not specially apply to a former statement 
 made by a witness. As to the last part of the clause it is 
 based on a principle always received under the rules of 
 evidence. It was held in the Queen's case, 2 Brod. & B. 
 311, that where a witness for a prosecution has been exam- 
 ined in chief, the defendant cannot afterwards give evidence 
 
[Sec. 701 
 
 epositions with- 
 43. 
 
 ness were not in 
 oas-examined on 
 • witness may be 
 mt to the issue; 
 mswer is conclu- 
 
 W1TNE88. 
 
 Former statement made 
 I inconsistent witli hia 
 I make such atateuient, 
 ifore such proof can be 
 ffioient to der<i(?nat« the 
 i and he shall be asked 
 c. 174, 8. 23G. 
 
 the 28 V. c. 18 of 
 
 of opinion as to 
 iven that the wit- 
 him. It must be 
 statement rdctive 
 not relative to the 
 en by the witness 
 IS that (luestions 
 ict of the witness, 
 [ler of the parties, 
 rh Coleridge, J., in 
 fitness denies that 
 (s evidence to con- 
 lisc was before the 
 former statement 
 of the clause it is 
 inder the rules of 
 :ase, 2 Brod. & B. 
 Ion has been exam- 
 i'ards give evidence 
 
 Sees. 702-704] 
 
 EVIDENCE-CERTAIN CASES. 
 
 809 
 
 of any declaration by sucli witness, or of acts done by him, 
 to procure persons corruptly to give evidence in support of 
 l';e prosecution, unless he has previously cross-examined 
 such witness as to such declarations or acts 
 
 Evidence— Common Gamino House. 
 
 70%* When any cardH, dice, balls, counters, tables or other instruments 
 of Raraing used in playing any unlawful game are found in any house, room or 
 place suspected to be used as a common gaming-house, and entered under a 
 warrant or order issued under this Act, or about the person of any of those 
 who are found therein, it shall be prima facie evidence, on the trial of a 
 prosecution under section one hundred and ninety-eight, that such house, 
 room or place is used as a common gaming-house, and that the persons found 
 in the room or place where such tables or instruments of gaming are found 
 were playing therein although no play was actually going on in the presence of 
 the chief constable, deputy chief oon8*'>able or other officer entering the same 
 under a warrant or order issued under this Act, or in the presence of those 
 persons by whom he is accompanied an aforesaid. R. S. C. c. 158. s. 4. 8-9 V. 
 c. 101>, X. '2 (Imp.). 
 
 This provision applies to prosecutions under s 
 p. 134, ante. As to search warrant see s. 575, p. 643. 
 next section. 
 
 Sections 9 & 10 R. S. C 
 unrepealed. 
 
 198, 
 
 See 
 
 c. 158, on the same subject are 
 
 703- It shall be prima fncie evidence in any prosecution for keeping a 
 common gaming-house under section one hundred and ninety-eight of this Act 
 that a house, room or place is used as a common gaming-house, and that the 
 persons found therein were unlawfully playing therein— 
 
 («) if any constable or officer authorized to enter any house xooxa. or place, 
 is wilfully prevented from, or obstructed or delayed in, entering the same or 
 any part thereof ; or 
 
 (!/) if any such house, room or place is found fitted or provided with any 
 means or contrivance for unlawful gaming, or with any mpr^ns or contrivance 
 for concealing, removing or destroying any instnmients of gaming. R. S. C. 
 c. 158, 8. 8. 17-18 V. c. 38, s. 2 (Imp.). 
 
 Evidence of Gaminq in Stocks. 
 
 704- Whenever, on the trial of a person chargetl with making an agree- 
 ment for the sale or purchase of shares, gcxxls, wares or merchandise in the 
 manner set forth in section tw(» hundred and one, it is established that the 
 l*rson 80 charged has ma<le or signed any such contract or agreement of sale 
 or purchase, or has actetl, aided or abetted in the making or signing tlu-reof, 
 the burden of proof of the bona ,tidc intention to acquire or to sell such goods, 
 wares or merchandise, or to deliver or to receive delivery thereof, as the case 
 may be, shall rest upon the person so charged. 51 V. c. 42, a. 2. 
 
 See s. 201, ante. 
 

 810 
 
 PROCEDURE. 
 
 [Sees. 70? 709 
 
 I 
 
 Evidence in Certain Cases of Libel. 
 
 705« In any criminal proceeding commenced or prosecuted for publisliing 
 any extract from, or abstract of any (laper containing defamatory matter and 
 which has been published by or under the authority of the Senate, House of 
 Commons or any Legislative Council, Legislative Assembly or House of 
 Assembly, such paper may be given in evidence, and it may be shown that 
 8ucli extract or abstract was published in good faith and without ill-will to the 
 person defamed, and if such is the opinion of the jury, a verdict of not guilty 
 shall be entered for the defendant. Amemlment of 1893. 
 
 Evidence of Polyoamv, 
 
 706« In the case of any indictment under section two hundred and 
 seventy-eight (6), (c) and {d), no averment or proof of the method in which the 
 sexual relationship charged was entered into, agreed to, or consented to, shall be 
 necessary in any such indictment, or upon the trial of the person thereby 
 charged ; nor shall it be necessary upon such trial to prove carnal connection 
 had or intended to be had between the persona implicated. 53 V. c. 37, s. U. 
 
 See 8. 278, ante. 
 
 Evidence of Stealing Minebals. 
 
 707« In any prosecution, proceeding or trial for stealing ores or minerals 
 the possession, contrary to the provisions of any law in thut behalf, or any 
 smelt 1 gold or silver, or any gold-bearing quartz, or any unsmelted or other- 
 wise unmanufactured geld or silver, by any operative, workman or labourer 
 actively engaged in or on any mine, shall be primd facie evidence that the 
 same has been stolen by him. R. S. C. c. 164, s. 30. 
 
 See 8. 571 as to search warrant. As to stealing of ores 
 of metals, etc., see s. 343. 
 
 Evidence under Section 338, 
 
 70S« In any prosecution, proceeding or trial for any offence under 
 section three hundred and thirty-eight a timber mark, duly registered under 
 the provisions of the Act respecting the Marking of TiinJjer, on any timber, 
 mast, spar, saw-log or other description of lumber, shall be primd facie evidence 
 that the same is the proiwity of the registered owner of such timber mark ; 
 and possession by the offender, or by others in his employ or on his behalf, of 
 any such timber, mast, spar, saw-log or other description of lumber so marked, 
 shall, in all cases, throw upon the offender the burden of proving that such 
 timber, mast, spar, saw-log or other description of lumber came lawfully intu 
 his iK)ssession, or intct the possession of such others in his employ or on his 
 behalf. R. S. C. c. 174, s. 228. 
 
 The Act respecting the marking of timber is g. 64, 
 R. S. C. See ss. 338 and 572, ante. 
 
 Evidence under Sections 385, bt seq. 
 700. In any prosecution, proceeding or trial under sections three hundred 
 and eighty -five to three hundred and eighty -nine inclusive for offences relating 
 to public stores proof that any soldier, seaman or marine was actually doing 
 
Sees. 710, 711] 
 
 ATTEMPTS, ETC. 
 
 811 
 
 stealing of ores 
 
 timber is g. 64, 
 
 duty in Her Majesty's servioe shall be /^n'wd /acjc evidence that his enlistment, 
 entry or enrolment has been regular. 
 
 2. If the person charged with the oflence relating to public stores men- 
 tioned in article three hundred and eighty-seven was, at the time at which the 
 offence is charged to have been committed, in Hor Majesty's service or employ- 
 ment, or a dealer in marine stores, or n dealer in old metals, knowledge on his 
 part that the stores to which the charge relates bore the marks described in 
 section three hundred and eighty-four shall be presumed until the contrary is 
 shown. 50-61 V. o. 45, h. 13. 38-39 V. c. 25 (Imp.). 
 
 See 88. 384, et acq. 
 
 EviDENXB nv Fraudclent Trade Marks. 
 
 7I0t In any prosecution, proceeding or trial for any offence under Part 
 XXXIII. relating to fraudulent marks on merchandise, if the offence relates 
 to imported goods evidence of the ix)rt of shipment shall be ^^rr ' facie 
 evidence of the place or country in which the goods were made or produced. 
 51 V. 0. 41, 8. 13. 
 
 2. Provided that in any prosecution for forging a trade mark the burden 
 of proof of the assent of the proprietor shall lie on the defendant. 
 
 See 88. 443, et aeq. 
 
 Verdict of Attempt. 
 
 711* When the complete commission of the offence charged is ni>t 
 proved but the evidence establishes an attempt to commit the offence, the 
 accused may be convicted of such attempt and punished accordingly. R. S. 0. 
 c. 174, 88. 183, 185. 
 
 This section does not apply to murder, s. 713. See re- 
 marks under ss. 64 and 529 ; and as to punishment, in cases 
 not specially provided for, ss. 528, 529 and 951. Under s. 
 713 the defendant may be convicted of attempting to com- 
 mit any offence included in the offence <;■ .^-ged. 
 
 This clause is taken from s. 9 of 14 <ic 15 V. c. 100 of 
 the English statutes, upon which Greaves has the following 
 remarks : 
 
 "As the law existed before the passing of this Act 
 {except in the case of the trial for murder of a child, and 
 the offences falling within the 1 V. c. 85,8. 11,) there was no 
 power upon the trial of an indictment for any felony to find a 
 verdict against u prisoner for anything less than a felony, or 
 upon the trial of an indictment for a misdemeanour to find a 
 verdict for an attempt to commit such misdemeanour : see 
 B. V. Catherall, 13 Cox, 109 ; R. v. Woodhall, 12 Cox, 240 ; 
 
 ,< '.' 
 
812 
 
 PROCEDURE. 
 
 [Sec. 711 
 
 R. V. Bird, 2 Den. 94 ; 1 Chit. 251, 639. At the same time 
 the general principle of the common law was, that upon a 
 charge of felony or misdemeanour composed of several 
 ingredients the jury might convict of so much of the charge 
 as constituted a felony or misdemeanour : R. v. Holling- 
 berry, 4 B. «fe C. 329. The reason why, upon an indictment 
 for felony, the jury could not convict of a misdemeanour, was 
 said to be that thereby the defendant would be deprived of 
 many advantages; for if he was indicted for the misde- 
 meanour he might have counsel, a copy of his indictment, 
 and a special jury : R. v. Weatbeer, 2 Str. 1133, 1 Leach, 12. 
 The prisoner is now entitled, in cases of felony, to counsel,, 
 and to a copy of the depositions, and though not entitled to 
 a copy of the indictment yet as a matter of courtesy his 
 counsel is always permitted to inspect it. With regard to 
 a special jury, in the great majority of cases a prisoner 
 would not desire it, and it can in no case be obtained unless 
 the indictment has been removed by certiorari. Very little 
 ground, therefore, remained for objecting to the jury being 
 empowered to find a verdict of guilty of an attempt to com- 
 mit a felony upon an indictment for such felony, and the 
 prisoner obviously gains one advantage by it, as where he is 
 charged with a felony he may peremptorily challenge jury- 
 men, which he could not do if indicted for a misdemeanour. 
 No prejudice, therefore, being likely to arise to the pri- 
 soner, and considerable benefit in the administration of 
 criminal justice being anticipated by the change, the jury 
 are now empowered, upon the trial of any indictment for a 
 felony, to convict of an attempt to commit that particular 
 felony, and upon the trial of any indictment for a misde- 
 meanour to convict of an attempt to commit that particular 
 misdemeanour." 
 
 In R. V. McPherson, Dears. & B. 197, the prisoner was 
 indicted for breaking and entering a dwelling-house, and 
 stealing therein certain goods specified in the indictment, 
 the property of the prosecutor. At the time of the break- 
 
Sec. 711] 
 
 ATTEMPTS, ETC. 
 
 813 
 
 ing and entering the g'oocls specified were not in the house 
 but there were other goods there the property of the pro- 
 secutor. The jury acquitted the prisoner of the felon j^ 
 charged but found him guilty of breaking and entering 
 the dwelling-house of the prosecutor, and attemjytmg to 
 steal his goods therein : Held, by the court of criminal 
 appeal, that the conviction was wrong, as there was no 
 attempt to commit the "felony charged " within the mean- 
 inir of the aforesaid section. 
 
 Cockburn, C.J., said : " The effect of the statute is, that 
 if you charge a man with stealing certain specified goods, 
 he may be convicted of an attempt to commit " the felony 
 or misdemeanour charged;" but can you convict him of 
 stealing other goods than those specified ? If you indict a 
 man for stealing your watch you cannot convict him of 
 attempting to steal your umbrella. I am of opinion that 
 this conviction cannot be sustained. The prisoner was 
 indicted for breaking and entering the dwelling-house of 
 the prosecutor, and stealing therein certain specified 
 chattels. The jury found speciallj'- that, although he broke 
 and entered the house with the intention of stealing the 
 goods of the prosecutor, before he did so somebody else 
 had taken away the chattels specified in the indictment ; 
 now, by the recent statute it is provided, that where the 
 proof falls short of the principal ofl^ence charged the party 
 may be convicted of an attempt to commit the ,mme. The 
 word attempt clearly conveys with it the idea, that if the 
 attempt had succeeded the offence charged would have 
 been committed, and therefore the ]»risoner might have 
 been convicted if the things mentioned in the indictment 
 or any of them had been there ; but attempting to commit 
 a felony is clearly diiitinguishable from intending to com- 
 mit it. An attempt must be to do that which, if successful, 
 would amount to the felony charged ; but here the attempt 
 never could have succeeded, as the things which the indict- 
 ment charges the prisoner with stealing had been already 
 
1 :■■-■}!: 
 
 814 
 
 PROCEDURE. 
 
 [Sec. 711 
 
 removed, stolen by somebody else. The jury had found 
 him guilty of attempting to steal the goods of the prose- 
 cutor, but not the goods specified in the indictment." 
 
 An attempt to commit a felony can only be made out 
 where, if no interruption had taken place, the felony itself 
 could have been committed. The prisoner was indicted for 
 attempting to commit a felony by putting his hand into A.'s 
 pocket, with intent to steal the property in the said pocket 
 then being. The evidence was that he was seen to put his 
 hand into a woman's pocket, but there was no proof that 
 there was anything in the pocket: held, that on the assump- 
 tion that there was nothing in the pocket the prisoner 
 could not be convicted of the attempt charged : R. v. Collins, 
 L. & C. 471 ; though he was guilty of an assault with intent 
 to commit a felony. But that case is overruled ; see s. 64, 
 ante, and R. v. Brown, 24 Q. B. D. 357 ; R. v. Ring, 17 
 Cox, 491. 
 
 Greaves says, referring to the cases of R. v. McPherson, 
 and R. v. Collins : " There can be no doubt that this and the 
 preceding decision were right upon the grounds that the 
 indictment in the former alleged the goods to be in the 
 house, which was disproved, and the latter to be in the 
 pocket, which was not proved." Attempts to coniiuit 
 crimes, by Greaves, Cox & Saunders' Cons. Acts, cix. 
 
 But the case of R. v. Goodhall, 1 Den. 187, where it was 
 held that on an indictment for using an instrument with 
 inteijt to procure the miscarriage of a woman, the fact of 
 the woman not being pregnant is immaterial. Greaves 
 admits, is a direct authority that a man may be convicted 
 of an attempt to do that which it was impossible to do. And 
 if a person administers any quantity of poison, howover 
 small, however impossible that it could have caused death, 
 yet if it were done with the intent to murder the offence of 
 administering poison with intent to murder is complete: R, 
 V. Cluderay, 1 Den. 514 ; 1 Russ. 901, note by Greaves. 
 
[Sec. 711 
 
 ' had found 
 I the prose- 
 aent." 
 
 be made out 
 felony itself 
 J indicted for 
 land into A.'s 
 e said pocket 
 len to put his 
 lo proof that 
 I the assump- 
 the prisoner 
 : R. V. Collins, 
 lit with intent 
 lied ; see s. 64, 
 I. V. Ring, 17 
 
 V. McPherson, 
 
 bt this and the 
 
 iinds that the 
 
 to be in the 
 
 to be in the 
 
 ,s to couimit 
 
 cts, cix. 
 
 Sec. 711] 
 
 ATTEMPTS, ETC. 
 
 815 
 
 It was held in R. v. Johnson, L. & C. 489, that an indict- 
 ment for an attempt to commit a larceny, which charo-es 
 the prisoner with attempting to steal the goods and chattels 
 of A., without further specifying the goods intended to be 
 stolen, is sufficiently certain. 
 
 In R. V Cheeseman, L. & C. 140, Blackburn, J., said : 
 "If the actual transaction has commenced which would 
 have ended in the crime if not interrupted there is clearly 
 an attempt to commit the crime." 
 
 In R. V Roebuck, Dears. & B. 24, the prisoner was 
 indicted for obtaining money by false pretenses. It 
 appeared that the prisoner offered a chain in pledge to a 
 pawnbroker, falsely and fraudulently stating that it was 
 a silver chain whereas in fact it was not silver, but was 
 made of a composition worth about a farthing an ounce. 
 The pawnbroker tested the chain, and finding that it with- 
 stood the test he, relying on his own examination and test 
 of the chain, and not placing any reliance upon the 
 prisoner's statement, lent the prisoner ten shillings, the sum 
 he asked, and took the chain as a pledge; the jury found 
 the prisoner guilty of the attempt to commit the misde- 
 meanour charged against him: held, that the conviction was 
 ri^ht. 
 
 It is said in 2 Russ. 599, on this right given to con- 
 vict the defendant of the attempt to commit the offence 
 charged : " There are some oflfencea which may be attempt- 
 ed to be committed, whilst there are others which cannot 
 be so attempted. It is obvious that where an offence con- 
 sists in an act that is done, there may be an attempt to do 
 that act which will be an attempt to commit that offence. 
 But where an offence consists in an omission to do a thing, 
 or in such a state of things as may exist without anything 
 being done, it should seem that there can be no attempt 
 to commit such offence. Thus if an offence consists in 
 omitting or neglecting to turn the points of a railway, it 
 may well be doubted whether there could be an attempt to 
 
816 
 
 PROCEDURE. 
 
 [Sec. 711 
 
 commit that offence. And a very nice question might per- 
 haps be raised on an indictment on the 9 & 10 Wm. III. 
 c. 41, s. 2, for having j^osseasion of marked stores, where 
 the evidence failed to prove that the stores actually came 
 into the prisoner's possession though an attempt to get 
 them into his possession, as in R. v. Cohen, 8 Cox, 41, and 
 knowledge of their being marked, might be proved ; for in 
 order to constitute the offence of having possession of any- 
 thing it is not necessary to prove any act done, and, there- 
 fore, it would be open to contend that there could not be 
 an attempt to commit such an offence." 
 
 It is to be observed, however, that s. 387, ante, corre- 
 sponding to the 9 & 10 Wm. III. c. 41, s. 2 (Imp.), cited as 
 above in 2 Russ., has the words " receives, possesses ; " and 
 on a count charging the receiving of stores there seems 
 no reason to doubt that there might be a conviction of an 
 attempt to recei.ve; for receiving clearly includes an act 
 done. Thus in R. v. Wiley, 2 Den. 37, where a prisoner 
 went into a coach office and endeavoured to get possession 
 of stolen fowls which had come by a coach, there seems no 
 reason why she might not have been convicted of an 
 attempt to receive the fowls. 
 
 Can there be an attempt to commit an assault? Greaves 
 says : " In principle there seems no satisfactory ground for 
 doubting that there may be such an attempt. Although 
 an assault may be an attempt to inflict a battery on 
 another, as where A. strikes at B. but misses him, yet it 
 may not amount to such an attempt, as where A. holds up 
 his hand in a threatening attitude at B., within reacli of 
 him, or points a gun at him without more. Is not the 
 true view this — that every offence must have its beginning 
 and completion, and is not whatever is done which falls 
 short of the completion an attempt, provided it be suffici- 
 ently proximate to the intended offence ? Pointing a loaded 
 gun is an assault. Is not raising the gun in order to point 
 it an attempt to assault ? 
 
Sec. 712] 
 
 ATTEMPTS, ETC. 
 
 817 
 
 1 might per- 
 
 10 Wm. III. 
 
 jtores, where 
 
 ctually came 
 
 bempt to get 
 Cox, 41, and 
 
 roved ; for in 
 
 3ssion of any- 
 
 le, and, there- 
 could not be 
 
 i7, ante, corre- 
 Imp.), cited as 
 ossesses;" and 
 is there seems 
 onviction of an 
 ncludes an act 
 lere a prisoner 
 I get possession 
 there seems no 
 onvicted of an 
 
 isault? Greaves 
 iory ground for 
 ,pt. Although 
 |t a battery on 
 jses him, yet it 
 |iere A. holds up 
 within reach of 
 ,re. Is not the 
 Ive its beginning 
 lone which falls 
 led it be suffici- 
 [ointing a loaded 
 in order to point 
 
 In R. V. Ryland, 11 Cox, 101, it was held that under 
 an indictment for unlawfully assaulting and having carnal 
 knowledge of a girl between ten and twelve years of age 
 the prisoner may be convicted of the attempt to commit 
 that offence, though the child was not unwilling that the 
 attempt should be made. 
 
 In R. V. Hapgood, 11 Cox, 471, H. was indicted for 
 rape, and W. for aiding and abetting. Both were acquit- 
 ed of felony, but H. was found guilty of attempting to 
 commit the rape, and W. of aiding H. in the attempt. 
 The conviction was affirmed both as to W. and H. See 
 R, V. Bain, L. & C. 129, and note (a) thereto: R. v. Mayers,. 
 12 Cox, 311 : R. v. Barratt, 12 Cox, 498 : R. v. Dungey, 
 4 F. & F. 99. 
 
 Many cases of attempts to commit indictable offences 
 may now fall under s. 263, ante, which provides for the 
 puniijhment of any one who assaults any person with 
 intent to commit any indictable offence. 
 
 The prisoner wrote a letter to a boy of fourteen inciting 
 him to commit an unnatural offence : held, that this was 
 an attempt to incite to commit a crime, and a misdemeanour. 
 Any step taken with a view to the commission of a misde- 
 meanour is a misdemeanour ; per Lo^'d Denman in R. v. 
 Chapman, 1 Den. 432. 
 
 The attempt or inciting to commit a felony or a misde- 
 meanour is a misdemeanour: R, v. Martin, 2 Moo. 123 ; R. v. 
 Roderick, 7 C. & P. 795 ; Anon, 1 Russ. 85; R. v. Ransford,, 
 13 Cox, 9. See R. v. Gregory, 10 Cox, 459. 
 
 ArrKMPT CHARGED, FULL OfFENCE PrOVED. 
 
 7 IS* When an attempt to commit an offence is charged but the evidence' 
 establishes the commission of the full offence, the accused shall not be entitled 
 to be acquitted, but the jury may convict him of the attempt, unless the 
 court before which such trial is had thinks fit, in its discretion, to discharge 
 the jury from giving any verdict upon such trial, and to direct such person to 
 be indicted for the complete offence 
 
 2. Provided that after a conviction for such attempt the accused shall not 
 be liable to be tried again for the offence which he was charged with attempt- 
 ing to commit. R, S. C. c. 174, s. 184. 
 Ckim. Law — 52 
 
 m§ 
 
818 
 
 PROCEDURE. 
 
 [Sec. 713 
 
 I 
 
 Section 184, R. S. C. c. 174, upon which the above section 
 is based enacted that if upon a trial for a misdemeanour a 
 felony was also proved the prisoner was not therefore to be 
 acquitted. It was taken from the 14 & 15 V. c. 100, s. 12 
 of the Imperial Acts, upon which Greaves says : " This 
 section was introduced to put an end to all questions as to 
 whether on an indictment for a misdemeanour, in case upon 
 the evidence it appeared that a felony had been committed, 
 the defendant was entitled to be acquitted on the ground 
 that the misdemeanour merged in the felony : R. v. Neale, 
 1 Den. 36 ; R. v. Button, 11 Q. B. 929. The discretionary 
 power to discharge the jury is given in order to prevent 
 indictments being collusively or improperly preferred for 
 misdemeanours where they ought to be preferred for 
 felonies, and also to meet those cases where the felony is 
 liable to so much more severe a punishment than the mis- 
 demeanour, that it is fitting that the prisoner should be 
 tried and punished for the felony. For instance, if on an 
 indictment for attempting to commit a rape it clearly 
 appeared that the crime of rape was committed it would 
 be right to discharge the jury." 
 
 Formerly, where upon an indictment for an assault with 
 intent to commit rape a rape was actually proved, an 
 acquittal would have been directed on the ground that the 
 misdemeanour was merged in the felony : R. v. Harmwood, 
 1 East, P. C. 440 ; R. v. Nicholls, 2 Cox, 182 ; though in R. 
 V. Neale, 1 Den. 36, cited, ante, by Greaves, it was held 
 before this enactment that where a prisoner was indicted 
 for carnally knowing a girl between ten and twelve years 
 of age, and it was proved that he had committed a rape 
 upon her, he was not thereby entitled to be acquitted. 
 
 Offence charged Part only Proved. 
 
 713* Every count shall be deemed divisible ; and if the commission of 
 the offence charged, as described in the enactment creating the offence or as 
 charged in the count, includes the commission of any other offence the person 
 accused may be convicted of any offence so included which is proved, altliough 
 the whole offence charged is not proved ; or he may be convicted of an 
 attempt to commit any offence so included : 
 
4 I 
 
 [Sec. 713 
 
 above section 
 sdemeanour a 
 herefore to be 
 V. c. 100, 8. 12 
 
 Sec. 713] 
 
 ATTEMPTS, ETC. 
 
 81' 
 
 says : 
 
 'This 
 
 questions as to 
 r, in case upon 
 3en committed, 
 on the ground 
 y : R. V. Neale, 
 3 discretionary 
 :der to prevent 
 y preferred for 
 ! preferred for 
 ce the felony is 
 it than the mis- 
 goner should be 
 istance, if on an 
 rape it clearly 
 mitted it would 
 
 c an assault with 
 ally proved, an 
 ground that the 
 R. v. Harmwood, 
 \2 ; though in R. 
 ves, it was held 
 ner was indicted 
 ,nd twelve years 
 ommitted a rape 
 e acquitted. 
 
 ■ED. 
 
 d if the commission of 
 ating the offence or as 
 ther offence the person 
 
 |ich is proved, although 
 ly be convicted of an 
 
 2. Provided, that on a count charging murder, if the evidence proves 
 manslaughter but does not prove murder the jury maj- find the accused not 
 guilty of murder but guilty of manslaughter, but shall not on chat count find 
 the accused guilty of any other offence. 
 
 This is an extension of s. 191, c. 174, R. S. C. The 
 abolition of the distinction between felonies and misde- 
 meanours by itself alone extends very largely the number 
 of cases where a verdict may be given for another offence 
 than that one directly charged, as it has always been a 
 principle of the common law that upon a charge of an 
 offence composed of several ingredients the jury might, as 
 a general rule, convict of any offence included in the one 
 directly charged : R. v. Hollingberry, 4 B. & C. 330 ; 
 though on an indictment for a felony the jury could riot 
 convict of a misdemeanour. Where an indictment contains 
 divisible averments, as that the defendant " forged and 
 caused to be forged," proof of either averment is sufficient : 
 R. V. Middlehurst, 1 Burr. 400 ; and where a defendant is 
 charged with composing, printing and publishing a libel 
 he may be convicted of printing and publishing : R. v. 
 Williams, 2 Camp. 646 ; a verdict of manslaughter may 
 always be given, at common law, on a charge of murder, 
 " Because, say the books, manslaughter is included in the 
 charge of murder " : Fost. 328. Greater offences include 
 the lesser of a kindred character. On an indictment 
 founded on a statute the defendant can be found guiltj'' at 
 common law : 2 Hale, 191, 192 ; 1 Chit. 638 ; 2 Gabbett, 
 525. See R. v. Bullock, 1 Moo. 324 note ; R. v. Oliver, Bell, 
 287 ; R. V. Yeadon, L. & C. 81 ; R. v. Taylor, 11 Cox, 261. 
 Where the offence appears from the evidence to be of a 
 higher degree than is charged in the indictment it is in 
 the discretion of the court to discharge the jury, and to 
 direct another indictment to be preferred : 1 Chit. 639 ; but 
 if the offence charged is proved the court may receive a 
 verdict upon it ; the defendant cannot complain of having 
 been found guilty of a lesser offence than what he might 
 have been found guilty of on another indictment. But a 
 verdict for an offence of a hisfher dearee than the one 
 
 m'^'^ 
 
820 
 
 PROCEDURE. 
 
 [Sec. 713 
 
 charged can never be received. By s. 713 a verdict for 
 the attempt to commit any offence included in the offence 
 charged may be given, and on a count for murder no other 
 verdict can be given than for either murder or man- 
 slaughter ; or on a chai'ge of child murder for concealment 
 of birth ; s. 714 ; but, on an indictment for manslaughter, a 
 verdict may be given for any offence included in that 
 charge. See R. v. Bird, 2 Den. 94 ; R. v. Phelps, 2 Moo. 
 240 ; R. V. Ganes, 22 U. C. C. P. 185 ; R. v. Smith, 34 
 U. C. Q. B. 552. 
 
 On an indictment for stealing from the person a ver- 
 dict for stealing simply may be given : R. v. Sterne, 1 
 Leach 473 ; a conviction may be returned for any minor 
 offence which was substantially charged by the residue of 
 the indictment after striking out that portion of which the 
 defendant was acquitted: Commonwealth v. Murphy, 2 
 Allen Mass. 163 ; but the offence found must be the offence 
 proved : R. v. Gorbutt, Dears. & B. 166 ; R. v. Langmead, 
 L. & C. 427; R. v. Adams, 1 Den. 38; R. v. Rudge, 13 Cox, 17. 
 
 The following decisions on the repealed clause may be 
 usefully referred to for the construction of s. 713. 
 
 In a joint indictment for felony one may be found 
 guilty of the felony and the other of . ssault under this 
 clause : R. v. Archer, 2 Moo. 283. In an indictment for 
 felony a conviction cannot be given under this clause of an 
 assault completely independent and distinct, but only of 
 such an assault as was connected with the felony charged : 
 R. V. Guttridge, 9 C. & P. 471 ; and that case was followed 
 in R. V. Phelps, 2 Moo. 240, and in R. v. Bird, 2 Den. 94. 
 The case of R. v. Pool, 9 C. & P. 728, where Baron Gurney 
 held that if a felony was charged and a misdemeanour of 
 an assault proved the defendant might be convicted of the 
 assault although that assault should not be connected with 
 the felony, stands, therefore, overruled. In R. v. Boden, 1 
 C. & K. 395, it was held that on an indictment for assault- 
 ing with intent to rob, if that intent is negatived by the 
 
Sec. 713] 
 
 ATTEMPTS, ETC. 
 
 821 
 
 jury, the prisoner may be convicted of assault under this 
 enactment. In R. v. Birch, 1 Den. 185, upon a case 
 reserved, it was held that upon an indictment for robbery 
 the defendant, under tKis clause, may be found guilty of a 
 common assault. The judges thought, upon consulting all 
 the authorities, that this enactment was not to be confined 
 to cases where the prisoner committed an assault in the 
 prosecution of an attempt to commit a felony, nor was it to 
 be extended to all cases in which the indictment for a 
 felony on the face of it charged an assault. See also 
 R. V. Ellis. 8 C. & P. 654. But they were of opinion that, 
 in order to convict of an assault under this section, the 
 assault must be included in the charge on the face of the 
 indictment, and also be part of the very act or transaction 
 which the crown prosecutes as a felony by the indictment. 
 And it was suggested that it would be prudent that all 
 indictments for felony including an assault, should state 
 the assault in the indictment. 
 
 In R. V. Greenwood, 2 C. & K. 339, it was held by 
 Wightman, J., that if on an indictment for robbery with 
 violence the robbery was not proved the prisoner could 
 not be found guilty of the assault only, unless it appeared 
 that such assault was committed in the progress of some- 
 thing which, when completed, would be, and with intent to 
 commit, a felony. 
 
 In R. V. Reid, 2 Den. 88, it was held by five judges that 
 the verdict of assault allowed by this clause must be for an 
 assault as a misdemeanour, and not for a felonious assault, 
 and this has never since been doubted. 
 
 In R. V. St. George, 9 C. & P. 483, the prisoner was 
 charged with attempting to fire a pistol with intent, etc. 
 The question was whether the prisoner could be convicted 
 of an assault committed with his hand prior to having 
 drawn out the pistol. Baron Parke held that the prisoner 
 could only be found guilty of that assault which was 
 involved in and connected with firinsf the pistol ; but that 
 
 1 
 m 
 
 ^■\' li 
 
 I ; 
 
 *.'-;«*»■ 
 
 
822 
 
 PROCEDURE. 
 
 [Sec. 713 
 
 i'^-^ 
 
 I 
 
 case is overruled : see R. v. Brown, 10 Q. B. D. 381 ; R. v. 
 Duckworth, 17 Cox, 495, [1892] 2 Q. B. 83. 
 
 In R. V. Phelps, 2 Moo. 240, the prisoner with others 
 was indicted for murder. It was proved that Phelps, in a 
 scuffle, struck the deceased once or twice and knocked him 
 down ; that after this Phelps went away to his own home 
 and took no further part in the affray ; that, about a 
 quarter of an hour afterwards, the deceased, on the same 
 spot, was a^ain assaulted by other parties, and received 
 then an injury of which he died on the spot. On these 
 facts the jury acquitted Phelps of the felony and found 
 him guilty of the assault. But the judges were unani- 
 mously o*" opinion that the conviction was wrong, as for a 
 verdict of assault under the clause mentioned the assault 
 must be such as forms one constituent part of the greater 
 charge of felony, not a distinct and separate assault as this 
 was. 
 
 In R. V. Crumpton, Car. & M. 597, Patteson, J., held that, 
 in manslaughter, a jury should not convict a prisoner of an 
 assault unless it conduced to the death of the deceased, even 
 though the death itself was not manslaughter. See also R. 
 v. Connor, 2 C. & K. 518. 
 
 In the case of R. v. Ganes, 22 U. C. C. P. 185, already 
 cited, the court followed the rule laid down by the majority 
 in R. V. Bird, and decided that a verdict of assault cannot 
 be given upon an indictment for murder or manslaughter. 
 It may be remarked that, in this case, Chief Justice Hagarty 
 distinctly said that his own individual opinion was wholly 
 with that of the minority in R. v. Bird, viz., that, in such 
 eases, a verdict of assault is legal. 
 
 In Quebec, in the cases of R. v. Carr (2nd case,) R. v. 
 Wright, R. V. Taylor, and upon indictments charging either 
 murder or manslaughter, verdicts of "guilty of assault" 
 have been given, and received, unquestioned. 
 
 In R. V. Walker (Salacia case,) Quebec, 1875, for man- 
 slaughter, Dorion, C. J., charged the jury that they were at 
 liberty to return a verdict of common assault. 
 
Sec. 713] 
 
 ATTEMPTS, ETC. 
 
 823 
 
 Upon an indictment for rape, or for an assault with 
 intent to commit rape, a boy under fourteen may be con- 
 victed of a common assault or an indecent assault, though 
 not of an attempt to commit rape : R. v. Brimilow, 2 Moo. 
 122. See R. v. Waito, (1892) 2 Q. B. 600. 
 
 Upon an indictment for feloniously assaulting with intent 
 to murder, a verdict of common assault may be given : R. v. 
 Cruse, 2 Moo. 53; R. v. Archer, 2 Moo. 283 
 
 But to authorize such a verdict the felony cJ.arged must 
 necessarily include an assault on the person, and, for 
 instance, on an indictment for administering poison with 
 intent to murder, a verdict of assault cannot be given under 
 this clause. Nor can it be given on an indictment for bur- 
 glary with intent to ravish: R. v. Watkins, 2 Moo. 217 ; 
 R. V. Dilworth, 2 M. & Rob. 531 ; R. v. Draper, 1 C. & K. 
 176; but such a verdict may be given, if the indictment 
 charges an assault, and the wilfully administering of dele- 
 terious drugs : R. v. Button, 8 C. & P. 660 ; per Stephen, 
 J., '•' Poisoning is not an assault : R. v. Clarence, 16 Cox, 
 526. 
 
 In R. V. Cregan, 1 Han. (N. B.) 36, on an indictment for 
 murder, the jury found the prisoner guilty of an assault 
 only, but that such assault did not conduce to the death of 
 the deceased. The court held this conviction illegal and 
 not sustained by the statute. 
 
 In R. V. Cronan, 24 U. C. C. P. 106, the Ontario Court 
 of Common Pleas held that upon an indictment tor shoot- 
 ing with a felonious intent the prisoner, if acquitted of the 
 felony, may be convicted of a common assault, and that to 
 discharge a pistol loaded with powder and wadding at a 
 person, within such a distance that he might have been hit, 
 is an assault. 
 
 In R. V. Goadby it appears to have been held that a 
 verdict of assault cannot be received on an indictment for 
 feloniously stabbing with intent to do grevious bodily 
 harm, but this case seems very questionable, says Greaves, 
 note {d), 2 Russ. 63. 
 
 '>'»,«. 
 
I 
 
 824 
 
 PROCEDURE. 
 
 [Sec. 713 
 
 '$' 
 
 A prisoner accused of assault with intent to rob may 
 be found guilty of a simple assault: R. v. O'Neill, 11 R. L. 
 334. 
 
 The case of R. v. Dungey, 4 F. & F. 99, where it was 
 held that after an acquittal upon an indictment for rape 
 the prisoner may be indicted for a common assault, is not 
 law in Canada, under ss. 631-713. 
 
 Held, that on an indictment for murder in the short 
 form given in schedule A. to c. 29, of 32 & 33 V., a prisoner 
 cannot be convicted of an assault under s. 51 of that 
 chapter ; held, also, that the fact of the prisoner's counsel 
 having, at the trial, consented that he could be convicted, 
 and requested the judge so to direct the jury, did not pre- 
 clude him from afterwards objecting to the validity of the 
 conviction on this ground : see R. v. Sirois, 27 N. B. Rep. 
 610 ; R. v. Mulholland, 4 P. & B. (N.B.) 512. 
 
 Greaves' following note to R. v. Phillips, 3 Cox, 226, 
 may be inserted here. 
 
 " It may admit of some doubt whether the construction 
 of 8. 11 of the 1 V. c. 85, is finally settled. The framer of 
 the clause probably intended that the clause should apply 
 to those cases where, upon an indictment for a felony, 
 including an assault, the jury should acquit on the ground 
 that the felony, although attempted, was not completed. 
 But if such were the intention the words do not so clearly 
 express it as they ought, as they authorize the jury to 
 convict ' of assault ' on any indictment for felony ' where 
 the crime charged shall include an assault.' These words 
 are so general that they might include any assault, whetlier 
 at the time of ihe felony charged or not ; and the learned 
 judges have therefore been obliged to put some limitation 
 upon them, and the proper limitation seems to be that 
 which has been put upon them by the very learned Baron 
 in R. V. St. George, namely that the assault must be an 
 assault involved in and connected with the felony charged ; 
 and it is submitted that it must be such an assault as is 
 
Sec. 718] 
 
 ATTEMPTS, ETC. 
 
 825 
 
 ent to rob may 
 D'Neill, 11 R. L. 
 
 9, where it was 
 pitraent for rape 
 n assault, is not 
 
 ier in the short 
 33 v., a prisoner 
 r 8. 51 of that 
 jrisoner's counsel 
 lid be convicted, 
 iiry, did not pre- 
 e validity of the 
 )i8, 27 N. B. Rep. 
 2. 
 
 Hips, 3 Cox, 226, 
 
 the construction 
 The f ramer of 
 ,use should apply 
 int for a felony, 
 it on the ground 
 not completed, 
 do not so clearly 
 rize the jury to 
 3r felony 'where 
 These words 
 assault, whether 
 and the learned 
 some limitation 
 3ems to be that 
 •y learned Baron 
 ,ult must be an 
 felony charged ; 
 an assault as is 
 
 essential to constitute part of the crime charged. A felony 
 including an assault may be said to consist of the assault, 
 the intent to commit the felony, and the actual felony. 
 Thus in robbery there is the assault, the intent to rob, and 
 the actual robbery ; and in such a case it is submitted the 
 assault, of which the prisoner may i. r^ convicted, must be 
 such an assault as constitutes one step towards the proof 
 of the robbery. Upon this the question arises whether an 
 assault, where the jury negative any intention to commit 
 a felony, is within the section, and it is submitted that it is 
 not, as such an assault Cannot be said to be involved in or 
 connected with the felony charged in any manner whatso- 
 ever. It is true that an assault is included in the felony 
 but it is an assault coupled with an intent, and if the jury 
 negative the intent such an intent in no way tends to 
 prove the felony ; and it certainly would be a great 
 anomaly if the prisoner was indicted for a felony, and the 
 jury found he had no intention of con mitting a felony, 
 that he might be sentenced to three years' imprisonment 
 and hard labour, while if he had been indicted for the 
 offence of which he' was really guilty he could only be 
 sentenced to three years' imprisonment without hard labour^ 
 R. V. Ellis, 8 C. & P. 654, therefore seems deserving of 
 reconsideration, and the more so as it was decided before 
 R. v. Guttridge, 9 C. & P. 471 ; R. v. St. George, 9 C. & P. 
 483; R. V. Phelps, Gloucester Sum. Ass. MSS. cited 1 
 Russ. 781. The intention, no doubt, was to punish attempts 
 to commit felonies including assaults, and it is to be 
 regretted that the provision, instead of being what it is, 
 was not that upon any indictm<^ nf for felony, if the jury 
 should think that the felony was not completed, they might 
 find the prisoner guilty of an attempt to commit the felony 
 charged in the indictment." 
 
 In that case of R. v. Phillips four persons were indicted 
 for a felony. Three were found guilty of the felony and 
 one of common assault. 
 
 
826 
 
 PROCEDURE. 
 
 [Sec. 714 
 
 Verdict op Concealment op Birth on a Charge of Child Murder. 
 
 '3'14. If any person tried for the murder of any child is acquitted 
 thereof the jury by whose verdict such person is acquitted may find, in case it 
 so appears in evidence, that the child had recently been born, and that such 
 person did, by some secret disposition of such child or of the dead body of such 
 child, endeavour to conceal the birth thereof, and thereupon the court may pass 
 such sentence as if such person had been convicted upon an indictment for the 
 concealment of birth. R. S. C. c. 174. s. 188. 
 
 See s. 240 as to the offence of concealment of birth. — 
 
 Section 714 is taken from 24 & 25 V. c. 100, s. 60, 
 (Imp.), upon which Greaves remarks: "Cases have not 
 unfrequently occurred where endeavours have been made 
 to conceal the birth of children, and there has been no 
 evidence to prove that the mother participated in those 
 endeavours, though there has been sufficient evidence that 
 others did so, and under the former enactments, under 
 such circumstances, all must have been acquitted. The 
 present clause is so framed as to include every person 
 who uses any such endeavour, and it is quite immaterial 
 under it whether there be any evidence against the mother 
 or not." 
 
 Under the former enactments a person assisting the 
 mother in concealing a birth would only have been indict- 
 able as an aider or abettor ; but a person so assisting wouLl 
 come within the terms of this clause as a principal. 
 
 The terms of the former enactments were " by secret 
 burying or otherwise disposing of the dead body," and on 
 these terms many cjuestions had arisen : see R. v. Gold- 
 thorpe, 2 Moo. 240; R. v. Perry, Deal's. 471. Under thisj 
 clause " any secret disposition " is sufficient. 
 
 Under the former enactments the mother alone could 
 be convicted of this offence where she was tried for the 
 murder of her child. Under this clause any person tried 
 for the murder of a child may be convicted of this offence 
 whether the mother be convicted or not. The words " of 
 such child " are not in the Imperial Act. 
 
Sees. 715, 716] 
 
 TRIAL OF RECEIVERS. 
 
 82r 
 
 Trial of Joint Heceivers. 
 
 715« If, upon the trial of «".vo or more persons indicted for jointly 
 receiving any property, it is proved that one or more of sach persons separately 
 receivetl any part or paHs of such property, the jury may convict, upon such 
 indictment, such of the said persons as are proved to have received any part or 
 parts of such property. R. S. C. c. 174, s. 200. 24-25 V. c. 96, s. 94, (Imp.). 
 
 See 8. 314, et aeq., as to the offence of receiving stolen 
 goods. 
 
 Proceedings against Receivers. 
 
 716. When proceedings are taken against any person for having 
 received goods knowing them to be stolen, or for having in his ix)!isession 
 stolen property, evidence may be given, at any stage of the proceedings, that 
 there was found in ;he possession of such person other property stolen within 
 the preceding period of twelve months, and such evidence may be taken into 
 consideration for the purpose of proving that such person knew the property 
 which forms the subject of the proceedings taken against him to be stolen : 
 Provided, that not less than three days' notice in writing has been given to the 
 person accused that proof is intended to be given of such other px'operty, 
 stolen within the preceding period of twelve months, having been found in his 
 possession ; and such notice shall specify the nature or description of such other 
 property, and the person from whom the same was stolen. R, S. C. c. 174, 
 8. 203. 34-35 V. c. 112, s. 19, (Imp.). 
 
 See 8. 314, et seq., for the offence of receiving stolen 
 goods. 
 
 The cases of R. v. Oddy, 2 Den. 264 ; R. v. Du-in, 1 Moo. 
 146 ; and R. v. Davis, 6 C. & P. 177 are not law since the 
 above enactment 
 
 Upon an indictment for receiving stolen goods evidence 
 may be given under this section that there \ms found in 
 the possession of the prisoner other property stolen within 
 the preceding twelve months, although such other property 
 is the subject of another indictment against him : R. v. 
 Jones, 14 Cox, 3. 
 
 In order to show guilty knowledge, under this section, 
 it is not sufficient merely to prove that " other property 
 stolen within the preceding period of twelve months " had 
 at some time previously been dealt with by the prisoner, 
 but it must be proved that such " other property " was 
 found in the possession of the prisoner at the time when he 
 is found in possession of the property which is the subject 
 
 :m 
 
828 
 
 PROCEDURE. 
 
 [Sees. 717-720 
 
 of the indictment : R. v. Drage, 14 Cox, 85 ; R. v. Carter, 
 15 Cox, 448. Warb. Lead. Cas. 183. 
 
 The Same after Previous Conviction. 
 
 "yiT. When proceedings are taken against any person for having 
 received goods knowing them to be stolen, or for having in his possession 
 stolen property, and evidence has be^ given that the stolen property has been 
 found in his possession, then if such person has, within five years immediately 
 preceding, been convicted of any offence involving fraud or dishonesty, 
 evidence of such previous conviction may be given at any stage of the proceed- 
 ings, and may be taken into consideration for the purpose of proving that the 
 person accused knew the property which was proved to be in his possession to 
 have been stolen : Provided, that not less than three days' notice in writing 
 has been given to the i)erson accused that proof is intended to be given of such 
 previous conviction ; and it shall not be necessary, for the purposes of this 
 section, to charge in the indictment the previous conviction of the person so 
 accused. R. S. C. c. 174, s. 204. 34-35 V. c. 112, s. 19 (Imp.). 
 
 See s. 314, et seq., as to the offence of receiving stolen 
 
 goods. 
 
 Evidence under Sections 4G0, et seq. 
 
 718« Upon the trial of any person accused of any offence respecting the 
 currency or coin, or against the provisions of Part- XXXV., no difference in 
 the date or year or in any legend marked upon the lawful coin described in the 
 indictment, and the date or year or legend marked upon the false coin 
 counterfeited to resemble or pass for such lawful coin, or upon any die, plate, 
 press, tool or instrument used, constructed, devised, adapted or designed for 
 the purpose of counterfeiting or imitating any such lawful coin, shall he 
 considered a just or lawful cause or reason for acquitting any such person of 
 such offence ; and it shall, in any case, be sufficient to prove such general 
 resemblance to the lawful coin as will show an intention that the c ninterfeit 
 should pass for it. R. S. C. c. 174, s. 205. 
 
 See s. 460, et seq., for offences relating to the coin. This 
 s. 718 is not in the English Act. It was s. 31 of 32 & 33 V. 
 c. 18 of Canada. 
 
 710« Verdict in case of liljel, see ante, under s. 302, p. 305. 
 
 Impounding Documents. 
 
 7/!0. Whenever any instrument which has been forged or fraudulently 
 altered is admitted in evidence the court or the judge or jierson who admits the 
 aame niay, at the request of any person against whom the same is admitted in 
 evidence, direct that the same shall lie impounded and kept in tiie custody 
 of some officer of thi' court or other proper iierson for such period and subject 
 to such conditions, as to the court, judge or person admitting the same seems 
 meat. R. S. C. c. 174, s. 208. 
 
[Sees. 717-720 
 R. V. Carter, 
 
 erson for having 
 ' in his possession 
 I property has been 
 
 years immediately 
 ud or dishonesty, 
 ;age of the proceed- 
 o! proving that the 
 
 in his possession to 
 ^8' notice in writing 
 I to be given of such 
 he purposes of this 
 ion of the person so 
 mp.)- 
 
 •eceiving stolen 
 
 offence respecting the 
 XV., no difference iu 
 , coin described in tlie 
 upon the false coin 
 r upon any die, plate, 
 kpted or designed for 
 lawful coin, shall be 
 ig any such person of 
 prove such general 
 that the c lunterfeit 
 
 lo the coin. This 
 l31o£32&33V. 
 
 I2, p. 305. 
 
 Sees. 721-723] 
 
 AMENDMENTS AT TRIAL. 
 
 829 
 
 This clause is not in the Imperial statutes. It was 
 originally taken from c. 101, s. 2, C. S. U. C ; see s. 569, 
 
 s-s. 5. 
 
 Destroying Counterfeit Coin. 
 
 781. If any false or counterfeit coin is produced on any trial for an 
 offence against Part XXXV. , the court shall order the same to be cut in pieces 
 in open court, or in the presence of a justice of the peace, and then delivered 
 to or for the lawful owner thereof, if such owner claims the same. R. S. C. 
 c. 174, s. 209. 
 
 See ss. 460, et seq., as to offences relating to the coin, and 
 s. 569, s-s. 6, as to search war'-ant. The repealed clause 
 applied to all courts. This one applies only to criminal 
 
 courts. 
 
 View. 
 
 7S2« On the trial of any person for an offence against this Act the court 
 may, if it appears expedient for the ends of justice, at any time after the 
 jurors have been sworn to try the case and before they give their verdict, 
 direct that the jury shall have a view of any place, thing or person, and shall 
 Ifive directions as to the manner in which, and the persons by whom, the place, 
 thing or person shall be shown to such jurors, and may for that purpose 
 adjourn the trial and the costs occasioned thereby shall be in the discretion 
 uf the court. R. S. C. c. 174, s. 171. 
 
 2. When such view is ordered, the court shall give such directions as seem 
 requisite for the purpose of preventing undue coumxunication with such jurors : 
 Provided that no breach of any such directions shall affect the validity of thB 
 proceedings. R. S. C. c. 174, ss. 171, 172. 
 
 This is more a re-enactment of the Imperial Act, 39 & 
 40 V. c. 18, s. 11, (for Ireland) than of s Ml, c. 174, R. S. C. 
 Qiwre, ii evidence is improperly received by ^ha jury 
 during such view : K v. Martin, i2 Cox, 204. View 
 ordered in R. v. Whalley, 2 Cox, 231 {see this case as to 
 i'orms); Anon, 2 Chit. Rep. 422. If witnesses accompany the 
 jury so as to give explanations to them the prisoner has a 
 right to be present : see R. v. Petrie, 20 O. R. 317. 
 
 Variance and Amendments at Trial. 
 
 733. If on the trial of any indictment there appears to be a variance 
 between the evidence given and the charge in any count in the indictraent, 
 either as found or as amended, or as it would have been if amended in con- 
 formity with any particular supplied as provided in sections six hundred and 
 fifteen and six hundred and seventeen, the court before which the case is tried 
 may, if of opinion that the accused has not been misled or prejudiced in his 
 
 .»•.' 
 
830 
 
 PROCEDURE. 
 
 [Sees. 724, 725 
 
 t 
 
 I' 
 
 S-.: 
 
 defence by such variance, amend the indictment or any count in it or any such 
 particular so as to make it conformable with the proof. 
 
 2. If it appears that the indictment has been i)referred under some other 
 Act of Parliament instead of under this Act, or under this instead of under 
 some other Act, or that there is in the indictment, or in any count in it. an 
 omission to state or a defective statement of anything requisite to constitute 
 the offence, or an omission to negative any exception which ought to have been 
 negatived, but that the matter omitted is proved by the evidence, the court 
 before which the trial takes place, if of opinion that the accused has not been 
 misled or prejudiced in his defence by such error or omission, shall amend tlie 
 indictment or count as may be necessary. 
 
 3. The trial in either of these cases may then proceed in all resjiects as if 
 the indictment or count had been originally framed as amended : Provided 
 that if the court is of opinion that the accused has been misled or prejudiced 
 in his defence by any such variance, error, omission or defective statement, 
 but that the effect of such misleading or prejudice might be removed by 
 adjourning or postponing the trial, the court may in its discretion make the 
 amendment and adjourn the trial to a future day in the same sittings, or 
 discharge the jury and postpone the trial to the next sittings of the court, on 
 such terms as it thinks just. 
 
 4. In determining whether the accused has been misled or prejudiced in 
 his defence the court which has tf" determine the question shall consider the 
 contents of the depositions, as well as the other circumstances of the case. 
 
 5. Provided that the propriety of making or refusing to make any such 
 amendment shall Ijo deemed a question for the court, and that the decision 
 of the court ujjon it may be reserved for the Court of Appeal, or may be 
 brought before the Court of Appeal like any other decision on a point of law. 
 R. S. C. c. 174, ss. 237, 238, 2S9. (Amended). 
 
 Amendment to be Endorsed. 
 
 724. In case an order for amendment as provided for in the next 
 preceding seofion is made it shall be endorsed on the record ; and all other 
 rolls and proceedings connected therewith shall be amended accordingly by tlie 
 proper officer and filed with the indictment, among the proper records of tlie 
 court. R. S. C. c. 174, s. 240. 
 
 FouMAL Record in Such Case. 
 
 *73«5. If it becomes necessary to draw up a formal record in any case in 
 which an amendment has been made as aforesaid, such record shall be drawn 
 up in the form in which the indictment remained after the amendment was 
 made, without taking any notice of the fact of such amendment having been 
 made. R. S. C. c. 174, s. 243. 
 
 These clauses are taken with alterations from the 1-i tS: 
 15 V. c. 100, of the Imperial statutes (Lord Campbell's Act), 
 in relation to which Greaves remarks : — 
 
 " This is one of the most important sections in the Act, 
 and, if the power given by it be properly exercised, will 
 
[Sees. 724, 725 
 t in it or any such 
 
 under some other 
 5 instead of under 
 ,ny count in it. an 
 lisite to constitute 
 ought to have been 
 evidence, the court 
 •cused has not been 
 m, shall amend the 
 
 in all respects as if 
 imended : Provided 
 nisled or prejudiced 
 lefective statement, 
 jht be removed by 
 discretion make the 
 ;he same sittinprs, or 
 ings of the court, on 
 
 sled or prejudiced ii» 
 on shall consider the 
 mces of the case. 
 ,g to make any sucli 
 md that the decision 
 f Appeal, or may be 
 on on a point of law. 
 
 ded for in the next 
 ecord ; and all other 
 |ed accordingly by tli« 
 hroper rect)rds of thi- 
 
 k'ecord in any cine ui 
 fecord shall be drawn 
 I the ameuduR'Ut wiis 
 Indment having been 
 
 from the 14 Ai 
 ^ampboll'sAct), 
 
 lions in the Act, 
 exercised, will 
 
 Sees. 723-725] 
 
 AMENDMENTS AT TRIAL. 
 
 831 
 
 tend very materially to the better administration of crim- 
 inal justice. Formerly, if any variance occurred between 
 any allegation in an indictment, and the evidence adduced 
 in support jf it, the prisoner was entitled to be actjuitted. 
 This led to much inconvenience. It caused the multiplica- 
 tion of counts, varying the .^ tement in as many ways as it 
 was possible to conceive the evidence could support, and 
 thereby greatly increased the expense of the prosecution. It 
 sometimes led to the entire escape of heinous oft'enders, for it 
 happened in some cases that the grand jury were discharged 
 before the acquittal took place ; and though such acquittal 
 in many cases would not have operated as a bar to another 
 indictment, j^et the prosecutor chose rather to submit to 
 the first defeat than to prefer another indictment at a 
 subsequent assizes; and even in some cases an acquittal took 
 place under such circumstances that the prisoner was 
 enabled successfully to plead it in bar to another indict- 
 ment. Thus in Sheen'a case, 2 C. & P. G34, where the pri- 
 soner had been indicted for the murder of Charles William 
 Beadle, and acquitted on the ground that the name of the 
 deceased could not be proved, to a subsequent indictment, 
 which charged him with the murder of Charles William, he 
 pleaded the former acquittal, and that the deceased was as 
 well known by the name mentioned in the one indictment 
 as 1'^- the name mentioned in the other, and so the jury 
 found. This case clearly shows that the preferring a new 
 bill was not in all cases sufficient to prevent a failure of 
 justice in consequence of a variance ; and many like cases 
 have occurred." 
 
 " The provisions as to the amendment of variances in 
 criminal cases have been gradually extended. ' The first 
 statute which introduced the power of amendment was the 
 9 Geo. IV, c. 15, which empowered an}- judge at nisi, j^riiis, 
 or any court of oyer and terminer and general gaol deliv- 
 ery, to amend any variance, in cases of misdemeanour, 
 between any matter in writing or in print, and the recital 
 thereof on the record. After this statute h:ul been in opera- 
 
*-■ 
 
 J' i ^■■ 
 
 832 
 
 PROCEDURE. 
 
 [Sees. 723-725 
 
 tion for the full period of twenty years, and no injurious 
 consequences had been found to arise from it, the 11 & 12 
 V. c. 46, 8. 4, empowered any court of oyer and terminer 
 and general gaol delivery to amend any variance, in any 
 ojfence whatever, between any matter in writing or in 
 print and the recital thereof on the record. And the pro- 
 visions of this Act were extended to the sessions, as far as 
 they are applicable to offences within their jurisdiction, by 
 •the 12&13 V. c. 45, s. 10." 
 
 " As these enactments only applied to variances between 
 matters in writing and the recortl a very numerous class 
 of variances was left unprovided for, and the first clause in 
 this Act was intended to apply to all such variances." 
 
 " It is to be carefully noticed, also, tiii,t an amendment 
 is only prohibited where the defendant may be prejudiced 
 in his defence upon the merits, not in his defence simply 
 (S. 723 is to be read, it is assumed, as if the words " upon 
 the merits " were therein inserted after " defence " in the 
 eighth line.) Indeed, wherever any variance occurs which 
 makes an amendment necessary it may be truly said that 
 the defendant may be prejudiced in his defence by making it, 
 for if the amendment be not made the defendant would be 
 entitled to be acquitted. The prejudice, therefore, to the 
 defendant, which is to prevent an amendment, is properly 
 confined to a prejudice in his defence upon the oiierits, 
 which plainly means a substantial, and not a formal or 
 technical, defence to the charge made against him." 
 
 "Wit \ reg.i:d to the cases in which an amendment 
 ought to Ve made or refr.': )d, as the questions whether the 
 variance ha material to the merits of the case, and whether 
 the defendant may be prejudiced in his defence on the 
 merits by making an amendment, are questions which must 
 necessarily depend on the particular charge and particular 
 circumstances of each case, it is impossible to lay down 
 any general rule by which the court may be guided in all 
 cases ; indeed it is very possible that the very same idon- 
 
[Sees. 723-725 
 
 no injurious 
 the 11 & 12 
 ^nd terminer 
 mce, in any 
 riting or in 
 And the pro- 
 ons, as far as 
 irisdiction, by 
 
 ances between 
 uraerous class 
 first clause in 
 iriances." 
 
 m amendment 
 be prejudiced 
 defence simply, 
 e words " upon 
 efence" in the 
 ;e occurs which 
 truly said that 
 ce by making it, 
 idant would be 
 herefore, to the 
 ent, is properly 
 \on the iiierits, 
 jot a formal or 
 st him." 
 Ian amendment 
 Ins whether the 
 Ise, and whether 
 Idefence on the 
 Ions which musfc 
 and particular 
 lie to lay down 
 lv)e guided in all 
 lery same ideu- 
 
 Secs. 723-725] 
 
 AMENDMENTS AT TRIAL. 
 
 833 
 
 tical variance which ought unquestionably to be amended 
 in one case, ought just as clearly not to be amended in 
 another, as it may so happen that the amendment in the 
 one case could not possibly prejudice the prisoner in his 
 defence on the merits, but in the other might materially 
 prejudice the prisoner in such defence." 
 
 " Cases may easily be put where no doubt can exist that 
 the variance is not material to the merits, and that the 
 defendant cannot be prejudiced by an amendment in his 
 defence on the merits. For instance, a man steals a sheep 
 in the night out of a field, being ignorant at the time of 
 the name of the owner of the sheep ; in such a case it is; 
 very difficult to conceive that the name of the owner 
 can be material to the merits, or that the defendant 
 can be prejudiced in his defence by the name of the 
 owner being amended according to the proof. So, also, if ai 
 man were to shoot into a crowd and wound or kill an indi- 
 vidual, the name of such individual could hardly by possi- 
 bility be material. In each case, however, the court 
 must form its own judgment upon a consideration of the 
 whole facts of the case, and the manner in which the 
 variance is brought under its notice ; and it may not 
 unfrequently be material to see whether any such question- 
 has been raised before the committing magistrate ; for if the- 
 case has proceeded before the sitting magistrate without, 
 any such question being raised that may afford some 
 ground at least for concluding that the defendant did not . 
 consider the point material to his defence, and that it is. 
 not entitled to he so considered upon the trial." 
 
 " Before determining upon making an amendment the' 
 court sho\ild receive all the evidence applicable to the 
 particular point, otherwise it might happen that that which 
 appo.ared to be a variance upon the evidence at one stage 
 of the trial might afterwards be shewn to be no variance 
 by the evidence at a later period of the trial ; and if the 
 court were to amend on the evidence at the earlier period, 
 CuiM. Law— 53 
 
 
834 
 
 PROCEDURE. 
 
 [Sees. 723-725 
 
 it would be obliged to direct an acquittal upon the evidence 
 at the subsequent period, for the clause gives vo 2)0wer to 
 amend the same identical imrticular more than once." 
 
 " Again, in order to ascertain whether the prisoner may 
 be prejudiced in his defence by the amendment, the court 
 ought to look, not only to the facts in evidence on the part 
 of the prosecution at the time when the amendment is 
 applied for, but also to the defence already set up, or 
 intended to be set up ; for which purpose it may, perhaps, 
 in some cases be necessary to examine a witness or two on 
 behalf of the defendant and the contents of the depositions- 
 s. 723 s-s. 4." 
 
 "It must be remembered that the question is one entire!}' 
 for the court, and that the court must decide it itself ; and, 
 generally speaking, where this is the case the court will 
 not determine the question before it on the evidence on one 
 side, but will permit the other side immediately to intro- 
 duce any evidence that may bear upon the question, so that 
 the whole facts relating to tl.e particular question may be 
 before the court at once." 
 
 " Thus — to mention an analogous case — where the plain- 
 tiff proposed to put in evidence an account signed by the 
 defendant, and the defendant proposed to exclude the 
 account, on the ground that it had been delivered to the 
 plaintiff, an attorney, in his character of attorney for the 
 defendant, Erie, J., held that the det'endant was entitleil 
 immediately to put in a letter, and call a witness to prove 
 that the account was so delivered, though the plaintiff' sca.se 
 was not closed : Cleave v. Jones, Hereford Summer Assizes, 
 1851. It must be noticed, also, that the power to amend 
 clearly does not extend to altering the charge in the indict- 
 ment from one offence to another offence. For instance, an 
 indictment for ' forging ' could not he altered into an 
 indictment for ' uttering,' nor an indictment for ' stealing ' 
 into an indictment for ' obtaining by false pretenses.' " 
 
 ' t 
 
Sees. 723-725] 
 
 AMENDMENTS AT TRIAL. 
 
 835 
 
 " Equally clear is it that the amendment ought not to be 
 made so to apply to a ditferent transaction. Every offence, 
 however simple it may be, consists of a n'lmber of parti- 
 culars ; it must have time, and place, and its component 
 parts, all of which together constitute one individual 
 transaction. Now the real meaning of the clause is that, 
 provided you keep to the same identical transaction, you 
 may amend any such error as is mentioned in the clause as to 
 one or more of the particulars included in such transaction. 
 For instance, a burglary is charged in the house of James 
 Jones, in the parish of Winkill, and stealing the goods of 
 John Jeffs. The evidence shows that a burglary was com- 
 mitted in every respect as alleged, except that the goods 
 were the property of James Jeffs. There an amendment 
 would clearly be right. But suppose, instead of such a 
 case, it was proposed to prove a burglary at another time, 
 at another place in another man's house, and the stealing of 
 other goods; this clearly would not be a case for amendment. 
 The proper mode to consider the question is this : the grand 
 jur}'' have had evidence of one transaction upon which they 
 found the bill ; the case before the petty jury ought to be 
 contined to the same transaction, but if it is, it may turn 
 out that, either through insufficient investigation or other- 
 wise, the gi-and jury have been in error as to some particular 
 or other, and upon the trial the error is discovered. Now 
 this is just the case to which the clause applies. A civil 
 case may afford an apt illustration. The plaintiffs declared 
 on a promissor}' note for £250, made by tlie defeiuhmt, 
 dated the 9th of November, 1838, payable to the plaintiffs, 
 or their order, on deimind ; the defendant pleaded that he 
 did not make the note ; the plaintiffs proved on the trial a 
 ^oint and several promissory note for £250, made by the 
 defendant and Jiis wife, dated the Gth of November, paj'- 
 able twelve months afterdate, with interest. There was no 
 proof of the existence of any other note. Although it was 
 objected that there was a material variance in the substan- 
 tial parts of the note, the date, the parties, and the period 
 
 i*i 
 
836 
 
 PROCEDURE. 
 
 [Sees. 7J3-725 
 
 of its duration, it was held that the declaration was properly 
 amended so as to make it correspond with the note pro- 
 duced ; for it was a mere misdescription, and it was just 
 the case in which the Legislature intended that the discre- 
 tionary power of amendment should be exercised : Beckett 
 V. Button, 7 M. &. W. 157." 
 
 " The following appear to be the sort of variances which 
 are amendable. In an indictment for bigamy, a woman 
 described as a ' widow ' who is proved to be unmarried : R. 
 V. Deeley, 1 Moo. 303 ; or as 'Ann Gooding,' where the 
 register described her as ' Sarah Ann Gooding ' : R. v. 
 Gooding, Car. & M. 297. In an indictment for night poach- 
 ing describiPL,' a wood as ' The Old Walk,' its real name 
 being 'The Long Walk': R. v. Owen, 1 Moo. 118. In an 
 indictment for stealing ' a cow,' which was ' a heifer ' ■ 
 Cookes case, 1 Leach, 105 ; ' a sheep," which turned out to 
 be 'a iarib': R. v. Loom, 1 Moo. 160; or 'ewe': R. v. 
 Ptiddifoot, 1 Moo. 247 ; ' a filly,' which was a ' mare ' : R. v. 
 Jones, 2 Russ. 364 ; ' a spade,' which turned out to be 
 the iron part without any handle : R. v. Stiles, 2 Russ. 316. 
 So in an indictment for a nuisance, by not repairing, or by 
 obstructing a highway, the termini of the highway might 
 be amended. So where an indictment alleges a burglary, 
 or house-breaking, in the parish of St. Peter, in the county 
 of W., and it appeal's that only part of the parish is situateil 
 in such county, the indictment may be amended : R. v. 
 Brook. Car. & M. 543 ; R. v. Jackson, 2 Russ. 49, 76." 
 
 " Such are some of the instances in which amendments 
 would clearly be right, but it is easy to suggest other cases 
 in which an amendment ought not to be made. Suppose, 
 on the trial of an indictment for stealing a sheep, evidence 
 were given of stealing a cow, or vice versa, or on an indict- 
 ment for stealing geese it were proposed to prove stealing 
 fowls ; these are cases in which no amendment ought to be 
 made ; it is impossible to conceive that the grand jury can 
 have made such a mistake, and the offence, though in law 
 
[Sees. 723-725 
 
 1 was properly 
 the note pro- 
 id It was just 
 ,hat the (liscre- 
 cisecl: Beckett 
 
 variances which 
 amy, a woman 
 unmarried : R. 
 intf,' where the 
 oocUng ' : R- V. 
 for night poach- 
 C' its real name 
 30. 118. In an 
 was ' a heifer ' ; 
 ch turned out to 
 or 'ewe': R. v. 
 a ' mare ' : R. v. 
 irned out to be 
 Itiles, 2 Russ. 316. 
 repairing, or by 
 . highway might 
 lieges a burglary, 
 Lr, in the county 
 parish is situated 
 amended : R. v. 
 Russ. 49, 76." 
 |hica amendments 
 iggest other cases 
 ir!ade. Suppose, 
 a sheep, evidence 
 ■I, or on an indict- 
 to prove stealing 
 [iment ought to be 
 lie grand jury can 
 
 ^ce, though inlaw 
 
 Sees. 723-725] 
 
 AMENDMENTS AT TRIAL. 
 
 837 
 
 X ^^veni judge, that the 
 an be prejudiced by an 
 
 the same, and liable to the same punishment, is obviously 
 as different as if it were different in law, and liable to a 
 different ijunislnnent." 
 
 "Many decisions have been rendered by the courts in 
 civil cases as to the instances in which amendments ought 
 to be made, and some of the principles laid down in those 
 decisions may form a useful gu' 'f^ in questions arising 
 under this clause, and they are, ti -refore, here introduced." 
 
 "It has been well laid down l 
 fairest test of whether a defend;; 
 amendment is this : ' Supposii j; the deh adant comes with 
 evidence that would enable him to meet the case as it stands 
 on the record unamended would the same enable him to 
 meet it as amended ' : ^9er Rolfe, B., Cooke v. Stratford, 13 
 M. kit W. 379. If whatever would be availaVtle as a de- 
 fence under the indictment, as it originally stood, would be 
 equally so after the alteration was made, and any evidence 
 the defendant might have would be equally applicable to 
 the indictment in the one form as in the other, the amend- 
 ment would not be one by which the defendant could be 
 prejudiced in his defence, or in a matter material to the 
 merits: Gurford v. Bayley, 3 M. & G. 781. If the transac- 
 tion is not altered by the amendment, but remains precisely 
 the same, the amendment ought to be allowed : Cooke v. 
 Stratford, 13 M. & W. 379. But if the amendment would 
 8uV)stitute a different transaction from that alleged it 
 ought not to be made : Perry v. Watts, 3 M. & G. 775 ; 
 Brashier v. Jackson, 6 M. & W. 549 ; and the court will 
 look at all the circumstances of the case to ascertain 
 whether the transaction would be changed by the amend- 
 ment. If the amendment woUld render it necessaiv to 
 plead a different plea the amendment ought not to be 
 made: Perry v. Watts, 3 M. «& G. 775 ; Brashier v. Jackson, 
 6 M. & W. 549." 
 
 " It was laid down in two cases of perjury, which were 
 tried some years ago, that amendments in criminal cases 
 

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 PROCEDURE. 
 
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 ought to be made sparingly under the 9 Geo. IV. c. 15 ; 
 R. V. Cooke, 7 C. & P. 559 ; R. v. Hewins, 9 C. & P. 786. 
 These cases occurred at a time when amendments in crim- 
 inal cases were looked upon with great disfavour ; but the 
 opinion of the Legislature, evidenced by the 11 & 12 V. 
 c. 46, s. 4, the 12 & 13 V. c. 45, s. 10, and the present 
 statute, clearly is in favour of amendments being made in 
 all cases where the amendment is not material to the 
 merits, and the prisoner is not prejudiced by it. In civil 
 suits, the 9 Geo. IV. c. 15, and the 3 & 4 Wm. IV. c. 42, 
 8. 23, being remedial acts, have always received a liberal 
 construction ; Smith v. Brandram, 2 M. & G. 244 ; Smith 
 v. Knowlden, 2 M. & G. 561 ; Sainsbury v. Matthews, 
 4 M. & W. 343 ; and it has been held, that the fact of an 
 action being a harsh ^nd oppressive proceeding on the part 
 of a landlord, who was taking advantage of a forfeiture in 
 order to get possession of property on which the defendant 
 had laid out a large sum of money, was not a considera- 
 tion which ought to influence a judge against allowing an 
 amendment ; for if the amendment did not prejudice the 
 defendant in his defence it ought to be allowed : Doe d. 
 
 Marriott v. Edwards, 5 B. & Ad. 1065 "The 
 
 amendment must be made in the course of the trial, and 
 certainly before the jury give their verdict, because the 
 trial is to proceed and the jury are to give their opinion 
 upon the amended record : per Alderson, B., Brashier v. 
 Jackson, 6 M. &; W. 549. It would be better, indeed, in 
 all cases to make it immediately before any further evi- 
 dence is given, and where the amendment is ordered in the 
 coui-se of the case for the prosecution it certainly should 
 be made before the defence begins, for it is to the amended 
 record that the defence is to be made." 
 
 In England the provision re-enacted in s. 725, ante, 
 applies to all amendments including those made in virtue 
 of the enactment re-produced in s. 629, ante; but it is 
 clear that the substitution of the words " as afoi'esaid " in 
 the 8aid s. 725 of our Act for the words " under the provi- 
 
 'M-: ^ 
 
1 1 
 
 Sees. 723-725] 
 
 AMENDMENTS AT TRIAL. 
 
 839 
 
 sions of this Act " in the English corresponding clause has 
 the effect of rendering the enactment of s. 725 not appli- 
 cable to amendments made under the said s. 629, and that 
 in the case of such i n amendment having been made it 
 must so appear if a formal record has to be drawn up. 
 
 Sub-section 2 of s. 723 extends the power of amendment 
 to a very large extent. In practice, however, it may not be 
 acted upon frequently. If the indictment charges no 
 offence the courts will not replace the grand jury. And it 
 will not often happen that a case will come to trial before it 
 is discovered that the indictment is so defective that it 
 really charges no offence. Should that happen, all that 
 the counsel for the defence has to do, is not then to notice 
 the defect at all. If a verdict is given against his client 
 the objection will be open to him on arrest of judgment : 
 s. 733. The court, on that motion, will not have power to 
 make amendments of which no mention has been made 
 before the verdict. 
 
 Sub-section 5 of s. 723 makes the propriety of making 
 or refusing to make any such amendment a question for 
 the court : it does not seem clear how it could ever have 
 been a question for the jury. 
 
 The right to reserve a case upon such an amendment is 
 new. Any decision upon such a question was always held 
 not to be a question of law but one entirely in the discre- 
 tion of the judge 
 
 Greaves, in 3 Russ. 324, has the following additional 
 remarks on the English statute :— 
 
 " It has been well laid down by a very learned judge 
 (Byles, J., in R. v. Welton, 9 Cox, 297,) that a statute like 
 the 14 & 16 V. c. 100, should have a wide construction, and 
 should not be interpreted in favour of technical strictness, 
 and there are very strong reasons why a liberal construc- 
 tion should be made on such a statute. If a prisoner is 
 acquitted on the ground of a variance he may be again 
 more correctly indicted, and wherever this course is ttdopted 
 
 Wi 
 
 '«■■ 
 
 € 
 
l$h II 
 
 ^15 I'M' *:,.„ 
 
 •^r 1> ^H 
 
 
 m 
 
 840 
 
 PROCEDURE. 
 
 [Sees. 723-725 
 
 the effect of an acquittal on such a variance is to put both 
 the prosecutor and prisoner to additional trouble and 
 expense. And in case where no fresh indictment is pre- 
 ferred the result is that the costs of the prosecution are 
 thrown away, and an offender, possibly a very notorious 
 one, escapes the punishment he deserves. In every case 
 where an acquittal takes place in consequence of a variance 
 the court may order a fresh indictment to be preferred, and 
 the prisoner to be detained in prison or admitted to bail 
 till it is tried, and it may be well for the court, where a 
 variance occurs, to consider whether the prisoner might not 
 fairly be presented with the option either of having the 
 amendment made or of being indicted anew in a better 
 form." 
 
 In R. v. Bussel, 1 'Moo. 356, the prisoner consented to a 
 sentence though he had been unlawfully convicted, and the 
 court sentenced him accordingly. 
 
 WHEN THE AMENDMENT MUST BE MADE. 
 
 It had been laid down in R. v. Rymes, 3 C. & E. ?'26, 
 that an amendment should not be allowed after the counsel 
 for the defence has addressed the jury, but this case is now 
 no authority, and an amendment may be allowed after the 
 prisoner's counsel has addressed the jury : R. v. FuUarton, 
 6 Cox, 194. 
 
 But it must be made before verdict : R. v. Frost, Dears. 
 474 ; R. V. Larkin, Dears. 365 ; R. v. Oliver, 13 Cox, 588. 
 
 " Upon full consideration," says Greaves, 3 Russ. 329, 
 ** it seems that the verdict is the dividing line. Any one 
 familiar with criminal trials must have met with cases 
 where variances have not been discovered until just before 
 the verdict is given, and the only limit to the time for 
 amendment is in the words ' on the trial,' and the trial is 
 clearly continuing until the verdict, as the power to amend 
 is given ' whenever on the trial ' there shall appear to be 
 any variance." 
 
i! 
 
 [Sec8, 723-725 
 
 is to put botli 
 1 trouble aud 
 ctment is pre- 
 jrosecution are 
 very notorious 
 
 In every case 
 ce of a variance 
 )e preferred, and 
 idmitted to bail 
 ) court, where a 
 isoner migbt not 
 sr of having the 
 new in a better 
 
 er consented to a 
 onvicted, and the 
 
 S MADE. 
 
 88. 3 c. & K. n(i, 
 
 I after the counsel 
 
 ^t this case is now 
 
 allowed after the 
 
 : B. V. FuUarton, 
 
 i. V. Frost, Dears. 
 fer, 13 Cox, 588. 
 Jives, 3 Buss. 329, 
 .g line. Any one 
 |e met with cases 
 until just before 
 to the time for 
 fi; and the trial is 
 he power to amend 
 
 [hall appear to be 
 
 Sees. 723-726 
 
 AMENDMENTS AT TRIAL. 
 
 841 
 
 " Before making an amendment the court should receive 
 all the evidence bearing upon the point ; and as this is a 
 question to be determined by the court, but is not to be 
 left to the jury, the evidence bearing upon it which may 
 be in the possession of the 'prisoner may be interposed 
 when the point arises in the course of the case for the 
 prosecution, and this is much the best course, as the court 
 is thereby enabled to dispose of the point at once ; indeed, 
 it is now settled that in all cases, whether civil or criminal, 
 where a question is to be decided by the court, the proper 
 course is for the judge to receive the evidence on both 
 sides at once, and then to determine the question." 
 
 DECISIONS ON THE STATUTE. 
 
 The clause gives no power to amend the same identical 
 particular more than once, and the court will not amend an 
 amendment : B. v. Barnes, L. B. 1 C. C. B. 45. 
 
 And when an indictment is amended at the trial the 
 court of Crown cases reserved cannot consider it as it 
 originally stood, but only in its amended form : E. v. Prit- 
 chard, L. & C. 34 ; B. v. Webster, L. & C. 77. 
 
 Under this statute, an amendment in the name of the 
 owner of stolen property, by substituting a different owner 
 than the one alleged, may be made at the trial : B. v. Vin- 
 cent, 2 Den. 464 ; B. v. Senecal, 8 L. C. J. 287 ; see Cornwall 
 , V. R., 33 U. C. Q. B. 106, and B. v. Jackson, 19 U. C. C. P. 
 280. 
 
 In B. V. Welton, 9 Cox, 297, the prisoner was charged 
 with throwing Annie Welton into the water with intent to 
 murder her ; there being no proof of the name of the child 
 it was held by Byles, J., that the indictment might be 
 amended by striking out " Annie Welton " and inserting 
 " a certain female child whose name is to the jurors un- 
 known." .. 
 
 An indictment alleged that a footway led from a turn- 
 pike-road into the town of Gravesend, but the highway was 
 
 V'- 1.» 
 
41 
 
 I J 
 
 842 
 
 PROCEDURE. 
 
 [Sees. 723-725 
 
 I 
 
 
 '3i« I 
 
 
 
 Mi 
 
 
 a carriage way from the turnpike-road to the top of Orme 
 House Hill, and from thence to Gravesend it was a foot- 
 way, and the nuisance alleged was between the top of 
 Orme House Hill and Gravesend ; it was held that the 
 indictment might be amended by substituting a description 
 of a footway running from Orme House Hill to Gravesend 
 as this appeared to be the very sort of case for which the 
 statute provides : R. v. Sturge, 3 E. & 6. 734. 
 
 Where an indictment for perjury alleged that the crime 
 was committed on a trial for burning a bam, and it was 
 proved that the actual charge was one of firing a stack of 
 barley, it was held that the words stack of barley might be 
 inserted instead of bar^i : E. v. Neville, 6 Cox, 69. 
 
 Where the indictment stated that the prisoner had com- 
 mitted perjury at the hearing of a summons before the 
 magistrates charging a woman with being " drunk " where- 
 as the summons was really for being "drunk and 
 disorderly," the court held that it had power, under thig 
 statute, to amend the indictment by adding the words "and 
 disorderly": R. v. Tymms, 11 Cox, 645. 
 
 In an indictment for perjury the perjury was alleged to 
 have been committed at a petty sessions of the peace, at 
 Tiverton, in the county of Devon, before John Lane and 
 Samuel Garth, then respectively being justices of the peace 
 assigned to keep the peace in and for the said county, and 
 acting in and for the borough of Tiverton, in the said 
 county. It appeared by the proof that these gentlemen 
 were justices for the borough of Tiverton only, and were not 
 justices for the county. Blackburn, J., allowed the indict- 
 ment to be amended by striking out the words, the said 
 county, so as to make the averment be, " justices assigned 
 to keep the peace in and for, and acting in and for tlie 
 borough of Tiverton, in the said county." The court of 
 criminal appeal held that the judge had power so to amend : 
 R. V. Western, 11 Cox, 93. 
 
 The secretary of a friendly society, of which A. B. and 
 others were the trustees, was charged with embezzling 
 
[Sees. 723-725 
 
 xe top of Orme 
 it was a foot- 
 en the top of 
 , held that the 
 ttg a description 
 11 to Gravesend 
 je for which the 
 
 dthat the crime 
 ,am, and it was 
 firing a stack of 
 '6arl«2/ might be 
 
 :ox, 69. 
 
 )ri8oner had com- 
 mons before the 
 " drunk " where- 
 Qg "drunk and 
 power, under thia 
 ig the words "and 
 
 ary was alleged to 
 is of the peace, at 
 [e John Lane and 
 stices of the peace 
 said county, and 
 ^rton, in the said 
 [t these gentlemen 
 )nly, and were not 
 ftUowed the indict- 
 |he words, the said 
 " justices assigned 
 ig in and for the 
 ty." The court of 
 )Owersotoamend: 
 
 lof which A. B. and 
 with embezzling 
 
 Sees. 723-725] 
 
 AMENDMENTS 
 
 TRIAL. 
 
 843 
 
 money belonging to the society. In the indictment, the 
 property was laid as of " A. B. and others," without alleg- 
 ing that they were trustees of the society : held, that the 
 indictment might be amended by adding the words, " trus- 
 tees of : " R. V Marks, 10 Cox, 367 ; see R. v. Senecal, 8 
 L. C. J. 287. 
 
 The description of an Act of parliament in an indict- 
 ment may be amended : R. v. Westley, Bell, 193. 
 
 In an indictment for larceny of property belonging to a 
 banking company the property was laid to be in the 
 manager of the bank ; the banking business was carried on 
 by a joint-stock banking company, and there were more 
 than twenty partners or shareholders. The judge amended 
 the indictment by stating the property to be in " W. (one 
 of the partners) and others : " held, that this amendment 
 was right : R. v. Pritchard, L. & C. 34, 8 Cox, 461. 
 
 But an amendment changing the offence charged to 
 another offence should not be allowed. Where the prisoner 
 was indicted for a statutable felonious forgery, but the 
 evidence only sustained a forgery at common law, the 
 prosecutor was not allowed to amend the indictment by 
 striking out the word " feloniously," and thus convert a 
 charge of felony into one of misdemeanour : R. v. Wright, 
 2 F. & F. 320. 
 
 So upon an indictment for having carnal knowledge of 
 a girl between ten and twelve years of age, it appearing by 
 the proof that she was under ten, Maule, J., held that the 
 indictment could not be amended : R. v. Shott, 3 C. & K. 
 
 206. 
 
 The words " felonious " or " feloniously," if omitted, 
 can never be allowed to be inserted : 1 Russ, 935, note (a) 
 by Greaves. An amendment altering the nature or quality 
 of the offence charged cannot be allowed. 
 
 When an indictment against two bankrupts alleged 
 that they embezzled a part of their personal estate to the 
 value of £10 — to wit, certain bank-notes and certain 
 

 
 'PI 
 
 
 It 
 
 f i 
 
 ' •• '! 
 
 844 
 
 PROCEDURE. 
 
 [Sees. 723-725 
 
 monej'^s, and it rather seemed that the money converted 
 was foreign money, it was held that " moneys " meant 
 English moneys, and the court refused to amend the indict- 
 ment: R. V. Davison, 7 Cox, 158. But Greaves is of 
 opinion that the case seems to be one in which an amend- 
 ment clearly might have been made : 3 Russ. 327. 
 
 An indictment alleged that the prisoner pretended that 
 he had served a certain order of affiliation on J, Bell ; but 
 the evidence was, that the prisoner had said that he had 
 left the order with the landlady at the Chesterfield Arms, 
 where Bell lodged, he being out; it was held that this 
 variance was not amendable under the English statute, as 
 it was not a variance in the name or description of any 
 matter or thing named or described in the indictment : E. 
 v. Bailey, 6 Cox, 29.' But in Canada such a variance would 
 be amendable, being covered by the more general terms of 
 the statute. 
 
 A woman charged with the murder of her husband was 
 described as " A., wife of J. O., late of ," the judge 
 
 ordered this to be amended by striking out the word " wife," 
 and inserting the word " widow : R. v. Orchard, 8 C. & P. 
 665. 
 
 Where, in an indictment for false pretenses, the words 
 " with intent to defraud " are omitted, the indictment is bad, 
 and cannot be amended under this statute : per Lush, J., 
 R. V. James. 12 Cox, 127. The form given in form F. F. 
 schedule one under s. 611, ante, omits the words "with 
 intent to defraud." 
 
 An indictment charged the prisoner with stealing nine- 
 teen shillings and sixpence. At the trial, it was objected 
 by the prisoner's counsel that there was no case, for the 
 evidence showed that if the prisoner was guilty of stealing 
 anything it was of stealing a sovereign. Thereupon the 
 court amended the indictment by striking out the words 
 nineteen shillings and sixpence," and inserting in lieu thereof 
 " one sovereign." The jury found the prisoner guilty of 
 
[SecB. 723-725 
 
 )ney converted 
 loneys" meant 
 lend the indict- 
 
 Greaves is of 
 hich an amend- 
 ss. 327. 
 
 r pretended that 
 , on J. Bell ; but 
 said that he had 
 hesterfield Arms, 
 a held that this 
 Inglish statute, as 
 Bscription of any 
 ,e indictment : R. 
 
 a variance would 
 8 general terms of 
 
 ,f her husband was 
 
 ," the judge 
 
 it the word "wife." 
 
 irchard, 8 C. & P. 
 
 tetenses, the words 
 t indictment is bad, 
 
 [tute : per Lush, J., 
 [iven in form F. F. 
 the words "with 
 
 with stealing nine- 
 Vial, it was objected 
 [as no case, for the 
 Is guilty of stealing 
 Ti. Thereupon the 
 ang out the words 
 ertinginlieuthei-eof 
 
 prisoner guilty ot 
 
 Sec. 726] 
 
 FORM OF RECORD. 
 
 845 
 
 stealing a sovereign: held, that the court had power to 
 amend under the 14 & 15 V. c. 100, s. 1 : R. v. Gumble, 
 12 Cox, 248. 
 
 The words " with intent to defraud " allowed to be struck 
 out of an indictment : R. v. Cronin, 36 U. C. Q. B. 342. 
 
 If an indictment for libel contains merely a general 
 allegation that the newspaper in which it appeared circu- 
 lated in the district of Montreal, an amendment for the 
 purpose of alleging publication in that District of the 
 special article complained of is not allowable : R. v. Hick- 
 son, 3 L. N. 139. 
 
 Where two or more names are laid in an indictment 
 under an alias dictum, proof of one only will be sufficient : 
 R. V. Jacobs, 16 S. C. R. 433. 
 
 Form of Record. 
 
 726> In iraking up the record of any conviction or acquittal on any 
 indictment it shall be sufiBcient to copy the indictment with the plea pleaded 
 thereto, without any formal caption or heading ; and the statement of the 
 arraignment and the proceedings subsequent thereto shall be entered of record 
 in the same manner as before the passing of this Act, subject to any such alter* 
 ations in the forms of such entry as are, from time to time, prescribed by any 
 rule or rules of the superior courts of criminal jurisdiction respectively, — which 
 rales shall also apply to such inferior courts of criminal jurisdiction as are 
 therein designated. R. S. C. c. 174, 8. 244. 
 
 There is no stnlutory enactment, in England, corre- 
 sponding to this OKii;, and there the caption has, yet, to be 
 entered of record immediately before the indictment, when 
 the record has to be made up in form. 
 
 The record of judicial proceedings in criminal cases is 
 always, in the first instance, taken down by the clerk of 
 the court in the way of short entries made upon his docket, 
 or of endorsements upon papers filed, and the like. When 
 he has to make the extended record, or record proper, 
 resort is had to these docket entries, to the documents filed, 
 and to the several endorsements upon them, which serve as 
 memoranda for him. The record, formally made up, is the 
 history or narration of the proceedings in the ca?e, stating : 
 
 ■^*^^ 
 

 
 «l 
 
 r ■ i 
 
 84C 
 
 PROCEDURE. 
 
 [Sec. 726 
 
 Ist. The court before which the indictment was found, 
 and where and when holden. 
 
 2ndly. The grand jurors by whom it was found. 
 
 3rdly. The time and place where it was found, and that 
 the indictment was found under oath. 
 
 {These three 'part'iculara formi the caption.) 
 
 4thly. The indictment. 
 
 5thly. The appearance or bringing in of the defendant 
 into court. 
 
 6thly. The arraignment. 
 
 7thly. The plea. 
 
 8thly. The j')inder in issue, or aiiniliter. 
 
 9thly. The award of the jury process. 
 
 lOthly. The verdict. 
 
 llthly. The allocutus, or asking of the defendant why 
 sentence should not be passed on him. 
 
 12thly. The sentence. 
 
 It is probably now only to prove autrefois acquit or 
 autrefois convict that it will be necessary to draw up a 
 fonnal record, as ss. 694, 695 and 743 take away the necessity 
 of so doing in the other cases where it could have been 
 wanted. 
 
 The necessity of a formal caption or heading to a made- 
 up record is taken away by section 726. 
 
 The caption of the indictment is no part of the indict- 
 ment itself, but only the style or preamble thereto, the 
 formal history of the proceedings before the grand jury: 
 2 Hale, 165 ; 1 Starkie, Cr. PI. 233 . 2 Hawk. 349 ; 1 Ciiit, 
 325 ; Archbold, 37 ; 1 Bishop. Cr. Proc. 655. 
 
 The form of the caption is as follows : 
 
 Dominion of Canada. 1 In the Court of Queen's Bencii, 
 Province of Quebec. / Crown Side. 
 
 District of Quebec. — Be it remembered, that at a tenn 
 of the Court of Queen's Bench, crown side, holden at the 
 
S^-c. 726] 
 
 FORM OF RECORD. 
 
 847 
 
 the defendant why 
 
 sheading to a made- 
 
 city of Quebec, in and for the said district of Quebec, on 
 the day of , (the first day of the tervi,) in 
 
 the year of our Lord , upon the oatl»of {insert the 
 
 names of the grand jurors) good and lawful men of the 
 said district, now here sworn and charged to inquire for 
 our Sovereign L»dy the Queen, and for the body of the 
 said district, it is presented in the manner following, that 
 is to say : {this ends the caption). 
 
 Then the record continues to recite the indictment, etc., 
 as follows, and by s. 726, raay commence here : 
 
 District of Quebec. — The Jurors for our Lady the Queen 
 present, that John Jones, on the fifth day of June, in the 
 year of our Lord one thousand eight hundred and seventy, 
 wilfully and unlawfully did kill and murder one Patrick 
 Ray, whereupon the sheriflf of the aforesaid district is com- 
 manded, that he omit not for any liberty in his bailiwick, 
 but that he take the said John Jones, if he may be found 
 in his bailiwick, and him safely keep to answer to the 
 murder whereof he stands indicted. And afterwards, to 
 wit, at the same term of the said Court of Queen's Bench, 
 before the said Court of Queen's Bench, on the said 
 
 day of , in the said year of our Lord 
 
 here cometh the said John Jones under the custody of 
 William Brown, Esquire, sheriff of the district aforesaid 
 (in whose custody in the gaol of the district aforesaid, for 
 the cause aforesaid, he had been before committed), being 
 brought to the bar here in his proper person by the said 
 sheriff, to whom he is here also committed. And he, the 
 said John Jones, forthwith being demanded concerning the 
 premises in the said indictment above specified and charged 
 upon him, how he will acquit himself thereof, saith that 
 he is not guilty thereof, and therefore he puts himself upon 
 the country. And the honourable George Irvine, Attorney- 
 General of our said Lady the Queen, who prosecutes for our 
 .said Lady the Queen in this behalf, doth the like. There- 
 fore let a jury thereupon immediately come before the said 
 
! I 
 
 It''' 
 
 l/j;>'i/ 
 
 
 n i i 
 
 848 
 
 PROCEDURE. 
 
 [Sec. 726 
 
 court of free and lawful men of the said district of Quel)ec, 
 by whom the truth of the matter may be the better known, 
 and who are«not of kin to the said John Jones, to recognize 
 upon their oath whether the said John Jones be guilty of 
 the offence in the indictment above specified or not guilty ; 
 because, as well, the said George Irvine, who prosecutes for 
 our said Lady the Queen in this behalf, as the said John 
 Jones have put themselves upon the said jury. And the 
 jurors of the said jury, by the sheriff for this purpose 
 empannelled and returned — to wit (naming the twelve)— 
 being called, come, who to speak the truth of and concerning 
 the premises being chosen, tried and sworn, upon their oath, 
 say that the said John Jones is guilty of the offence afore- 
 said on him above charged, in manner and form aforesaid 
 as by the said indictment is above supposed against him. 
 And thereupon it is forthwith demanded of the said John 
 Jones, if he hath or knoweth anything to say why the said 
 court here ought not, upon the premises and verdict afore- 
 said to proceed to judgment against him ; who nothing 
 further saith, unless he has before said. Whereupon, all 
 and singular the premises being seen and fully understood 
 by the said court here, it is considered and adjudged by the 
 said court here that the said John Jones be taken to the 
 common gaol of the said district of Quebec, from whence he 
 came, and that he be taken from thence to the place of execu- 
 tion, on Friday, the day of , next ensuing, 
 and there be hanged by the neck until he be dead ; and the 
 court orders and directs the said execution to be done on the 
 said John Jones in the manner provided by law. 
 
 If the defendant against whom an indictment has been 
 found happen to be present in court, or in the custody of 
 the court, he may at once be arraigned upon the indictment 
 without previous process : 1 Chit. 338 ; Archbold, 78. 
 
 Then the record, when made up, instead of the words 
 " whereupon the sheriff of the aforesaid district is com- 
 manded," etc., as in the above form, must read " Whei^e- 
 
Sees. 727, 728] 
 
 JURY-PROCEEDINGS, ETC. 
 
 849 
 
 upon, to wit, on the said day of , at the same 
 
 term of the said Coui-t of Queen's Bench, before the said 
 Court of Queen's Bench here cometh the said John Jones 
 under the custody of William Brown, E8(|uire, sheriff of 
 the district aforesaid (in whose custody, in the gaol of the 
 diHtrict aforesaid, he stood before committed)," etc. 
 
 In the report of the case of Mansell v. R., Dears & B. 
 37.5, may be seen a lengthy form of a record with all the 
 proceedings on the challenges of jurors ; also in R. v. Fox, 
 10 Cox, 502 ; Whelan v. R., 28 U. C. Q. B. 2 ; Holloway 
 V. R., 2 Den. 289 ; and 4 Blacks. Appendix. 
 
 By s. 673 no formal adjournment need be entered. 
 
 In the case of Whelan v. R., cited supra, it was held in 
 Upper Canada that if, notwithstanding s. 52, c. 99, Con. 
 Stat. Can), (now s. 726 of this Code) a formal 2aption is 
 prefixed to the indictment this caption may be rejected if 
 it proves defective. 
 
 In R. V. Aylett, 6 A. & E. 247, note, and R. v. Marsh, 6 
 A. & E. 236, it was held that it is not necessary to name the 
 ^'rand jurors in the caption. 
 
 Jury Retiring. 
 
 7'i7» If the jury retire to consider their verdict they shall be kept under 
 the charge of an officer of the court in some private place, and no person other 
 than the officer of the court who has charge of them shall be permitted to 
 speak or to communicate in uiiy way with any of the jury without the leave of 
 the court. 
 
 2. Disobedience to the directions of this section shall not affect the 
 validity of the proceedings : Provided that if such disobedience is discovered 
 before the verdict of the jury is returned the court, if it is of opinion that such 
 disobedience has produced substantial mischief, may discharge the jury and 
 direct a new jury to be sworn or empanelled during the sitting of the court, ot- 
 postpone the trial on such terms as justice may require. 
 
 Jury cnable to Agree. 
 
 788. If the court is satisfied that the jury are unable to agree upon their 
 verdict, and that further detention would be useless, it may in its discretion 
 discharge them and direct a new jury to be empanelled during the sittings 
 i)f the court, or may postone the trial on such terras as justice may require. 
 
 2. It shall not be lawful for any court to review the exercise of this dis- 
 cretion. 
 
 Crisi. Law— 54 
 
 n*m 
 
850 
 
 PROCEDURE. 
 
 [Sees. 729-731 
 
 Proceedings on Sunday. 
 
 729- The taking of the verdict of the jury or other proceeding of the 
 court shall not be invalid by reason of its happening on Sunday. 
 
 See remark's, ante, under s. 675. S. 729 removes a 
 doubt that was raised in Winsor v. R., 10 Cox, 276 ; and R. 
 V, Cropper, 2 Moo. 18. 
 
 The closing of the term discharges the jury fix)m giving 
 a verdict, and the defendant may be tried again : Newton's 
 Case, 13 Q. B. 716 ; 3 Wharton, 3168. 
 
 That a witness is not sufficiently advanced in years or 
 religiously instructed to understand the nature of an oath, 
 if found out only after the jury has been sworn, is no ground 
 for discharging a jury and ordering the trial to be post- 
 poned : R. V. Wade, 1 Moo. 86 ; R. v. Oulaghan, Jebb, 270. 
 The case of R. v. White, 1 Leach, 430, does not support the 
 summary given by the reporter. 
 
 Jury de Ventre Inspiciendo. 
 
 730. If sentence of death is passed upon any woman she may move in 
 arrest of execution on the ground that she is pregnant. If such a motion is 
 made the court shall direct one or more registered medical practitioners to be 
 sworn to examine the woman in some private place, either together or succes- 
 sively, and to inquire whether she is with child of a quick child or not. If 
 upon the report of any o/theni it appears to the court that she is so with child 
 execution shall be arrested till she is delivered of a child, or until it is no longer 
 possible in the course of nature that she should be so delivered. 
 
 73 !• After the commencement of this Act no jury de ventre inspicmdo 
 «hall be empanelled or sworn. 
 
 This is the law in Ireland, 39 & 40 V. c. 78, s. 13, with 
 the exception of the words " in some private place" which, it 
 seems, were thought necessary in Canada. The oath to be 
 administered to the medical practitioner or practitioners 
 in open court may be as follows : 
 
 " You swear that you will search and try the prisoner 
 at the bar whether she be with child of a quick child or 
 not, and thereof a true verdict give according to your skill 
 and understanding. So help you God." Quick with 
 child is having conceived ; with quick child is when the 
 child is quickened : per Gurney, B., in R. v. Wycherley, 
 
} jury fi'om giving 
 
 Sec. 732] 
 
 NOLLE PROSEQUI. 
 
 851 
 
 8 C. & P. 262 ; see R. v. Russell, 1 Moo. 356, and the 
 
 reporter's note to R. v. Wycherley, uhi supra. S. 730 
 
 would seem to allow of the execution of a pregnant woman 
 
 if the child has not quickened. That construction no court 
 
 would give however. The law of England does not punish 
 
 foeticide as a crime but it does not authorize it or legalise it. 
 
 As a jury of matrons always did, formerly, the medical 
 
 practitioner will always, when the woman is pregnant, 
 
 report that she is with child of a quick child. Enceinte 
 
 with a quick child, or quick with child, mean the same 
 
 thing, says 2 Hale, 413. After the woman has been 
 
 delivered, or when the time within which in the course of 
 
 nature she should have been delivered, has elapsed she 
 
 must be brought into court again to be sentenced de novo, 
 
 or that a day be fixed for her execution : 1 Hale, 368. She 
 
 could not, at common law, plead pregnancy a second time ; 
 
 but under s. 730 it seems that it could now be done. 
 
 Nolle Prosequi. (New). 
 
 7') 2. The Attorney-General may, at any time after an indictment has 
 been found against any person for any offence, and before judgment is given 
 thereon, direct the officer of the court to make on the record an entry that the 
 proceedings are stayed by his direction, and on such entry 'being made all such 
 proceedings shall be stayed accordingly. 
 
 2. The Attorney -General may delegate such power in any particular court 
 to any counsel nominated by him. 
 
 The words " Attorney-General " include the Solicitor- 
 General, s. 3. 
 
 On an indictment for a public nuisance or any offence of 
 a public nature, or in which the public have an interest, the 
 Attorney-General can proceed with the case if the private 
 prosecutor refuses or neglects to do so : R. v. Wood, 3 B. & 
 Ad. 657. 
 
 The Attorney-General may in his discretion, and should 
 as a general rule, not give such a direction at the request 
 of the defendant without hearing the private prosecutor, if 
 any there is: R. v. Allen, 1 B. & S. 850 ; 1 Chit. 479; see R. 
 V. Rowlands, 2 Den. 364. 
 
 Ht'"'> 
 
 
 

 
 :-':f ■ 
 
 852 
 
 PROCEDURE. 
 
 [Sec. rs.') 
 
 A 'JioWe prosequi does not operate as an acquittal, and a 
 fresh indictment may be preferred ; but it puts an end to 
 the indictment upon which it is fyled: R. v. Mitchell, 3 Cox, 
 93, and cases there cited. There is no plea of lis pendens 
 or autrefois arraigned allowed in criminal cases, and that 
 an indictment for the same offence is pending is no bar. 
 The court will see that the defendant is not punished twice 
 or unjustly harassed : see R. v. Sirois, 27 N. B. Rep. 610. 
 
 Motion in Arrest op Judgment. 
 
 733. If the jury find the accused guilty, or if the accused pleads guilty, 
 the judge presiding at the trial shall ask him whether he has anything to say 
 why sentence should not be passed upon him according to law ; but the 
 omission so to ask shall have no effect on the validity of the proceedings. 
 
 2. The accused may at any time before sentence move in arrest of judg- 
 ment on the ground that the indictment does not (after any amendment which 
 the court is willing to and has power to make) state any indictable ofTence. 
 
 3. The court may in its discretion either hear and determine the matter 
 during the same sittings or reserve the matter for the Court of Appeal as 
 herein provided. If the court decides in favour .of the accused, he shall be 
 discharged from that indictment. If no such motion is made, or if the court 
 decides against the accused upon such motion, the court may sentence the 
 accused during the sittings of the court, or the court may in its discretion 
 discharge him on his own recognizance, or on that of such sureties as the court 
 thinks fit, or both, to appear and receive judgment at some future court or 
 when called upon. If sentence is not passed during the sitting, the judge of 
 iiny superior court before which the jierson so convicted afterwards appears cir 
 is brought, or if he waa convicted before a court of general or quarter sessions, 
 the court of general or quarter sessions at a subsequent sitting may pass 
 sentence upon him or direct him to be discharged. 
 
 4. When any sentence is passed upon any person after a trial had under 
 an order for changing the place of trial the court may, in its discretion, either 
 direct the sentence to be carried out at the place where the trial was had or 
 ordet the person sentenced to be removed to the place where his trial would 
 have been had but for such order, so that the sentence may be there carried 
 out. 
 
 Sections 743, et seq., provide for reserving a case for the 
 Court of Appeal. The court has no power to make any 
 amendment on a motion in arrest of judgment. S-s. 4 
 relates to a change of venue under s. 651. 
 
 The defendant, after conviction, may move at any time 
 in arrest of judgment before the sentence is actually pro- 
 nounced upon him. This motion can be grounded only on 
 
Sec. 733] 
 
 MOTION IN ARREST OF JUDGMENT. 
 
 853 
 
 some objection arising on the face of the record itself, and 
 no defect in the evidence, or irregularity at the trial, can be 
 urged at this stage of the proceedings But uny want of 
 sufficient certainty in the indictment, as in the statement of 
 time or place (where material), or of the facts and circum- 
 stances constituting the offence, by omitting to state or 
 not stating definitely anything requisite to constitute the 
 offence, or by omitting to negative any exception which 
 ought to have been negatived or otherwise, will be a ground 
 tor arresting the judgment, if not amended before verdict 
 or cured by the verdict. 
 
 The court will, ex propria Tnotu, arrest the judgment) 
 even if the defendant omits to move for it, when it is 
 satisfied that the defendant has not been found guilty of 
 any offence in law. If a substantial ingredient of the 
 offence does not appear on the face of the indictment the 
 court will arrest the judgment : R. v. Carr, 26 L. C. J. 
 61. Judgment will also be arrested if the court does not 
 appear by the indictment to have had jurisdiction over the 
 offence charged : 8th Crim. L. Com. Report, 162 ; R. v. 
 Fraser, 1 Moo. 407 ; R. v. Lynch, 20 L. C. J. 187. 
 
 A party convicted of felony must be present in court, in 
 order to move in arrest of judgment ; so a party convicted 
 of a misdemeanour unless his presence be dispensed with 
 at the discretion of the court : 1 Chit. 663 ; Cr. L. Com. 
 Rep. loc. cit. 
 
 If the judgment be arrested the indictment and all the 
 proceedings thereupon are set aside and judgment of 
 acquittal is given by the court, but such acquittal is no 
 liar to a fresh indictment : Archbold, 170 ; 8th Cr. L. Com. 
 Rep. 163 ; 3 Bum, 58. 
 
 Section 245, c. 174, R. S. C. as to forma? defects cured by 
 verdict has not been re-enacted. 
 
 When the verdict is quashed for informalities, or any 
 other grounds than the real merits of the case, the entry on 
 the record should state it in these words, "and because it 
 
 i 
 
 U 
 
A iK 
 
 ^1 
 
 854 
 
 PROCEDURE. 
 
 [Sec. 734 
 
 appears that the said indictment is not sufficient (or as the 
 case may be), therefore it is considered and adjudged that 
 the defendant go thereof without delay," so as to prevent a 
 plea of " autrefois acquit " : 1 Chit. 719. 
 See cases under next section. 
 
 JUDGMBNT NOT TO BE ARRESTED FOR FoRMAL DEFECTS. 
 
 734. .Judgment, after verdict upon an indictment for any oflFence wjainst 
 this Act, shall not be stayed or reversed for want of a similiter, nor by rpason 
 that the jury process has been awarded to a wrong officer, upon an insufficient 
 suggestion — nor for any misnomer or misdescription of the officer returnin" 
 such process, or of any of the jurors, — nor because any person has served ujx)!) 
 the jury who was not returned as a juror by the sheriff or other officer- 
 and where the offence charged is an offence creator! bv any statute, or subjected 
 to a greater degree of punishment by any statute, the indictment shall, afti^r 
 verdict, be held sufficient, if it describes the offence in the words of tlie 
 statute creating the offence, or prescribing the punishment, although they are 
 disjunctively stated or appear to include more than one offence, or otherwise. 
 R. S. C. c. 174, s. 240. 7 Geo. IV. c. 04, s. 21 (Imp.). 
 
 The repealed section applied to any indictable offence. 
 This one applies only to offences under the code. 
 
 See Heymann v. R., 12 Cox, 383, and R. v. Knight, 14 
 Cox, 31 as to aider by verdict and what defects are cureij 
 by verdict ; also Nash v. R., 9 Cox, 424. 
 
 Verdict will only cure defective statements. An alNo- 
 lute and total omission in the indictment is not cured bv 
 verdict : R. v. Bradlaugh, 14 Cox, (38. See R. v. Montiiiiiiv, 
 ante, p. 677. 
 
 No amendment allowed after verdict : R. v. Oliver, 13 
 Cox, 588. 
 
 In an indictment for perjury, alleged to have been com- 
 mitted in a certain cause, " wherein one Adrieu Girardiii, 
 of the Township of Kingsey, in the district of Arthabaska, 
 trader, and Thomas Ling, of the same place, farmer, ic/s 
 defendant." The omission of the words wai^ pldintif k 
 the description of the plaintiff held fatal, and conviction 
 • luashed: R. v. Ling. 5 Q. L. R. 350, 2 L. N. 410. 
 
 In an indictment for obstructing an officer of e.Kcise 
 under 27 & 28 V. c. 3 : held, that the omission in the indict- 
 ment of the averment that at the time of the obstruction 
 
 7 Is 
 
[Sec. 734 
 
 lufficient {or as the 
 
 and adjudged that 
 
 so as to prevent a 
 
 tMAL DEKKCTS. 
 
 mt for any offencf ai)ahi4 
 a similiter, nor by reason 
 [ficer, upon an insufficient 
 n of the officer returning 
 ny person has served uiwn 
 3 sheriff or other officer ; 
 V any statute, or subjected 
 the indictment shall, aft^r 
 ence in the words of the 
 shment, although they are 
 1 one offence, or otlierwisK 
 J.). 
 
 ly indictable offence. 
 r the code. 
 ,nd R. V. KmgU, U 
 at defects are cureil 
 
 atements. An abso- 
 iient is not cured by 
 See R. V. :Montininy, 
 
 iict: R. V. Oliver, 13 
 
 led to have been com- 
 mo Adrien Girardin, 
 I strict of Arthabaska, 
 [le place, farmer, vyi< 
 ^rds wax pl(dntif\^ 
 fatal and conviction 
 L. X. 410. 
 an officer of excise 
 Lnission in the indict- 
 [ne of the obstruction 
 
 Sec. 734] 
 
 DEFECTS CURED BY VERDICT. 
 
 855 
 
 iihe officer was acting in the discharge of his duty under the 
 authority of the said statute was not a defect of substance, 
 but a formal error, which was cured by the verdict : Spel- 
 ean V. R., 13 L. C. J. 154. 
 
 The defendant was indicted in the District of Beauhar- 
 nois for perjury committed in the District of Montreal, but 
 there was no averment in the indictment that he had been 
 apprehended or that he was in custody in the District of 
 Beauharnois at the time of finding the indictment : Held 
 bad, even after verdict: R. v. Lynch, 20 L. C. J. 187, 7 R. L. 
 553. 
 
 A defect such as the omission of the word " company " 
 in an indictment for embezzling money from the Grand 
 Trunk Railway Company of Canada is cured by verdict : 
 R. v. Foreman, 1 L. C. L. J. 70. 
 
 Defect in an indictment cured by verdict : R. v. Stans- 
 felcl, 8 L. N. 123; also in R. v. Stroulger, 16 Cox, 85. 
 
 An indictment too vague and too general in its language 
 is not cured by verdict : White v. R., 13 Cox, 318. 
 
 Under this clause, the tirst defect cured by verdict is the 
 want of a similiter. The similiter is the joinder in issue,, 
 contained in the record {see ante, under s. 726 for form of 
 a record) in these words : "And , who prosecutes for 
 
 our said Lady the Queen in this behalf, doth the like." 
 
 The second defect cured by verdict under this clause is 
 the wrongful award of the jury process upon an insufficient 
 sufwestion. The jury process is usually directed to the 
 isiieritl', but if one of the parties represents that the sherifl' is 
 interestetl, or of kin to one of the parties, or in any way 
 di.s(|ualitie'l to act in the case, an entry of this suggestion is 
 made on the back of the indictment hrst, and then on the 
 record, when it is made up formally; and then the jury 
 process is awarded to the coroner, if not dis(iualified, and if 
 disqualified then to two elisoi-s named by the court and 
 sworn, in which last case the return is tinal, and no challenge 
 to the array is allowed : Jervis, Coroners, 54; 1 Chit. 514; 
 
856 
 
 PROCEDURE. 
 
 [Sec. 734 
 
 Wharton, Law Lexicon, Verbo "elisors;" Archbold, 154. 
 By the above clause these formalities cannot be questioned 
 or investigated after verdict, and no misnomer or misde- 
 scription of the officer returning the proc'ess or of any of the 
 jurors can invalidate the verdict: see now s. 666, and 
 remarks thereunder ; see s. 735, post. 
 
 This clause says thirdly that no motion in arrest of 
 judgment or writ of error will avail on the ground that 
 any person has served upon the jury who was not returned 
 as a juror by the sheriff or other officer : see Dovey v. 
 Hobson, 2 Marsh. 154; R. v. Brisebois, 15 S. C. R. 427. 
 
 The fourth and most important part of this section con- 
 sists in the words : " And where the offence charged is an 
 offence created by any statute, or subjected to a greater 
 degree of punishment by any statute, the indictment shall, 
 after verdict, be held sufficient, if it describes the offence in 
 the words of the statute creating the offence, or prescribino 
 the punishment, although they be disjunctively^ stated or 
 appear to include more than one offence, or otherwise "; see 
 ss. 611 to 626. 
 
 What is the meaning of these two last words " or other- 
 wise," is not clear. "Although they be disjunctively stated" 
 means "although the words be disjunctively stated " "as 
 unlawfully or maliciously " instead of " unlawfully and 
 maliciously." 
 
 The words " or appear to include more than one offence" 
 are not new law: see R, v. Ferguson, Dears. 427; R. v. 
 Hey wood, L. & C. 451; and remarks under s. 626, dnte. 
 
 The words "subjected to a greater degree of punish- 
 ment " mean greater than it was at common law. 
 
 The following decisions on the interpretation of the part 
 of this clause rendering valid, after verdict, indictments 
 describing the offence in the words of the statute creating 
 it, or subjecting it to a greater degree of punishment, may 
 be usefully inserted here. 
 
Sec. 734] 
 
 DEFECTS CURED BY VERDICT. 
 
 857 
 
 In R. V. Larkin, Dears. 365, it was held that if an indict- 
 ment charging a felonious receiving of stolen goods does 
 not aver that the prisoner knew the goods to have been so 
 stolen, it is defective, and the defect is not cured by verdict. 
 
 An indictment under 14 & 15 V. c. 100, s. 49, for pro- 
 curing the defilement of a girl by false pretenses, false 
 representations or other fraudulent means, did not set 
 out or allege what were the false pretenses, false repre- 
 sentations or other fraudulent means. The defendant, 
 having been found guilty, brought a writ of error on this 
 ground, and the conviction was quashed : Howard v. R., 
 10 Cox, 54. See now, s. 616, ante. 
 
 In R. V. Warshaner, 1 Moo. 466, an indictment for hav- 
 ing unlawfully in possession jive florins, was held sufficient 
 at^3r verdict, though not showing what florins were and 
 their value, it being a foreign coin, as the indictment de- 
 scribed the offence in the words of the statute creating it. 
 
 After verdict defective averments in the second count 
 of an indictment are cured by reference to sufficient aver- 
 ments in the first count : R. v. Waverton, 2 Den. 340. 
 
 Formerly, if in an indictment for obtaining property by 
 false pretenses it did not appear who was the owner of the 
 property so alleged to have been unlawfully obtained, the 
 detect was not cured by verdict, and notwithstanding the 
 above clause in such a case a conviction, upon a writ of error, 
 would have been quashed ; R. v. Bullock, Dears. 653 ; Sill. 
 V. R., Dears. 132 ; R. v. Martin, 8 A. &. E. 481. 
 
 In R. V. Bowen, 13 Q. B. 790, the indictment was for 
 obtaining by false pretenses, and did not contain the word 
 " knowingly *' with " unlawfully " but the court held the 
 conviction good after verdict, as the indictment was in the 
 words of the statute : see Hamilton v. R., 9 Q. B. 271 and 
 R. V. Martin, 8 A. & E. 481. 
 
 But an indictment for felony must always allege that 
 the act which forms the subject matter of the indictment 
 
 »'',i 
 
 *t 
 

 858 
 
 PROCEDURE. 
 
 [Sec. 734 
 
 was done feloniously ; if an indictment for felony does not 
 contain the word " feloniously " it is bad, though in the 
 words of the statute creating the offence, and is not cured 
 by verdict : R. v. Gray, L. & C. 365. 
 
 If an indictment under s. 83 of the Larceny Act, c. 164, 
 R. S C, alleges the goods to have been " unlawfully 
 obtained, taken, and carried away, and that the receiver 
 knew them to have been unlawfully obtained " instead of 
 " unlawfully obtained by false pretenses " the indictment 
 is bad and not cured by verdict : see R. v. Wilson, 2 Moo. 52. 
 
 An indictment under the same section charged that de- 
 fendant " unlawfully did receive goods which had been 
 unlawfully, and knowingly, and fraudulently obtained by 
 false pretenses with intent to defraud, as in this count 
 before mentioned," but omitting to set out what the par- 
 ticular false pretenses were : held, that the objection, if at 
 any time valid, was cured by the verdict of guilty : R. v. 
 Goldsmith, 12 Cox, 479. 
 
 In R. V. Carr, 26 L. C. J. 61, the court quashed the 
 indictment on the ground of the omission therein of the 
 words " feloniously, wilfully, and of his malice afore- 
 thought," though the form given in the schedule of the 
 Procedure Act then in force for the offence created by the 
 clause under which the prisoner was indicted had not these 
 words. , 
 
 There is a difference between an ind' tnient which is bad 
 for charging an act which as laid is no crime, and an 
 indictment which is bad for charging a crime defectively. 
 The latter may be aided by verdict, the former cannot : R. 
 V. Waters, 1 Den. 356 ; see ante, remarks under s. 629. 
 
 When an indictment is (juashed or judgment upon it 
 arrested for insufficiency or illegality thereof, the court will 
 order that a new indictment be preferred against the 
 prisoner, and may detain the prisoner in custody therefor; 
 1 Bishop, Cr. Proc. 739 ; 2 Hale, 237 ; 2 Hawk. 514 ; R v. 
 Turner, 1 ]\Ioo. 239 ; see Greaves' note in 3 Russ. 321. 
 
[Sec. 734 
 
 ■ felony does not 
 [, though in the 
 and is not cured 
 
 L'ceny Act, c. 164-, 
 jen "unlawfully 
 that the receiver 
 ained " instead of 
 " the indictment 
 rilson, 2 Moo. 52. 
 1 charged that de- 
 
 which had been 
 iently obtained by 
 
 as in this count 
 out what the par- 
 he objection, if at 
 ct of guilty : R. v. 
 
 court quashed the 
 sion therein of the 
 
 his malice afore- 
 le schedule of the 
 snce created by the 
 
 licted had not these 
 
 Itment which is bad 
 no crime, and an 
 crime defectively. 
 former cannot: R. 
 
 Is under s. 629. 
 judgment upon it 
 
 lem)f\ the court will 
 
 Iferred against the 
 „ custody therefor; 
 
 I2 Hawk. 514 ; K v. 
 
 In 3 Russ. 321. 
 
 .Sec. 734] 
 
 DEFECTS CURED BY VERDICT. 
 
 859 
 
 In R. V. Vandercomb, 2 Leach, 708, the jury, by the 
 direction of the court, acquitted the prisoners, as the charge 
 as laid against them had not been proved; but as it resulted 
 from the evidence adduced that another offence ha<l been 
 committed by the prisoners, and as the grand jury were not 
 discharged, the prisoners w^ere detained in custody in order 
 to have another indictment preferred ay^ainst them. 
 
 In R. V. Senjple, 1 Leach, 420, the court quashed the 
 jndictment, upon motion of the prisoner, upon the ground 
 of informality, but ordered the prisoner to be detained till 
 the next session : see also 1 Chit. 304. 
 
 So, upon a demurrer, if the defendant succeeds he only 
 obtains a little delay, for the judgment is that the indict- 
 ment be quashed, and the defendant will be detained in 
 custody until another accusation has been preferred against 
 him, except, of course, where the demurrer has established 
 that the defendant has not committed any legal offence 
 whatsoever, in which case he will be altogether discharged 
 from custody: 1 Chit. 442. 
 
 In R. V. Gilchrist, 2 Leach, 657, the prisoner was found 
 {(uilty of forgery, but, upon motion in arrest of judgment, 
 the court held that the indictment, being repugnant and 
 defective, the prisoner should be discharged from it, but 
 that as the objection went only to the form of the indict- 
 ment, and not to the merits of the case, the prisoner should 
 be remanded to prison until the end of the session to afford 
 the prosecutor an opportunity, if he thought fit, of preferring 
 another and better indictment against him : .see also R. v. 
 Pelfryman, 2 Leach, 563. 
 
 In Archbold, page 166, it is said : Upon the delivery 
 of the verdict, if the defendant be thereby acquitted on the 
 merits, he is forever free and discharged from that accusa- 
 tion, and is entitled to be immediately set at liberty, unless 
 there be some other legal ground for his detention. If he 
 be ac(iuitted from some defect in the proceedings, so that 
 the acquittal could not beplearled in bar of another indict- 
 
 '■I 
 
 ■; r 
 
 'J 
 

 
 *1- 
 
 I 
 
 iiil 
 
 860 
 
 PROCEDURE. 
 
 [Sees. 735, 73(5 
 
 ment for the same offence, he may be detained to be indicted 
 afresh. So in 1 Chit. 649, and R. v. Knevvland, 2 Leach. 
 721. 
 
 An indictment having been held bad on demurrer it was 
 quashed so that another indictment might be preferred, not 
 that defendants be discharged: R. v. Tierney, 29 U. C. Q. B. 
 181. 
 
 In R. V. Bulmer, Montreal, Nov., 1881, though the 
 indictment had been quashed on demurrer, the court refused 
 to liberate the prisoner, and ordered his detention till the 
 following term. 
 
 In R. V. Woodhall, 12 Cox, 240, the verdict was held to 
 be illegal, but the prisoners were bound over to appear at n 
 future session. 
 
 Certain Omissions as to Jurors not Fatal. 
 
 78S> No omission to observe the directions contained in any Act as 
 respects the qualification, selection, balloting or distribution of jurors, the 
 preparation of the jurors' book, the selectinj? of jury lists, the drafting jjanels 
 from the jury lists or the striking of special juries, shall be a ground for 
 impeaching any verdict, or shall be allowed for error upon appeal to be 
 brought upon any judgment rendered in any criminal case. R. S. C. c. 174, 
 s. 247. (Amended in 1893.) 
 
 This is a statute of Upper Canada extended to all the 
 Dominion. This clause does not take away the right of 
 challenging the array. 
 
 A conviction, not by a special jur}', in cases where the 
 statute enacts that an offence shall be tried by special jury, 
 is a nullity : R. v. Kerr, 26 U. C. C. P. 214. 
 
 Insanity. 
 
 TSO. Whenever it is given in evidence upon the trial of any i)erson 
 charged with any indictable offence that such person was insane at the time 
 of the commission of such offence, and such ijerson is acquitted, the jury shall 
 be required to find, specially, whether such person was insane at the time of 
 the commission of such offence, and to declare whether he is acquitted by it on 
 account of such insanity ; and if it finds that such person was insane at the 
 time of committing such offence the court before which such trial is had shall 
 order such person to be kept in strict custody in such place and in such inannei 
 as to the court seems fit, until the pleasure of the Lieutenant-Governor is 
 known. R. S. C;. c. 174, s. 252. 
 
[Sees. 735, 7% 
 
 d to be iTirlidcd 
 viand, 2 Leach, 
 
 iemurrer it was 
 be preferred, not 
 y, 29 U. C. Q. B. 
 
 ;81, though the 
 the court refused 
 etention till the 
 
 srdict was held to 
 \;er to appear at u 
 
 T Fatal. 
 
 ontained in any Act a^ 
 tribution of jurors, the 
 lists, the draftnig panels 
 i, shall be a ground for 
 •ror upon appeal to bi- 
 ll case. R.S.C.C.174, 
 
 :tended to all the 
 laway the right of 
 
 In cases where the 
 led by special jury, 
 L4. 
 
 the trial of any lierson 
 L was insane at the tune 
 I acquitted, the jury 8hal 
 Las insane at the time of 
 L he is acquitted by It on 
 lerson was insane at the 
 Lh such trial is had shall 
 [place and in such manner 
 ■ Lieutenant-Governor.^ 
 
 Sees. 737-741] 
 
 INSANITY. 
 
 861 
 
 TST*. If at any time after the indictment is found, and hafore the verdict 
 H given, it appears to the court that there is sufflcient reason to doubt whether 
 the accused if then, on account of insanity, capable of conducting his defence, 
 the court may direct that an issue shall be tried whether the accused is or is 
 not then on account of insanity unfit to take his trial. 
 
 2. If such issue is directed before the accused is given in charge to a jury 
 for trial on the indictment such issue shall be tried by any twelve jurors. If 
 auch issue is directed after the accused has been given in charge to a jury for 
 trial on the indictment such jury shall be sworn to try this issue in addition to 
 that on which they are already sworn. 
 
 3. If the verdict on this issue is that the accused is not then unfit to take 
 his trial the arraignment or the trial shall proceed as if no such issue had been 
 directed. If the verdict is that he is unfit on account of insanity the court 
 shall order the accused to be kept in custody till the pleasure of the Lieutenant- 
 Governor of the ijrovince shall be known, and any plea pleaded shall be set 
 aside and the jury shall be discharged. 
 
 4. No such proceeding shall prevent the accused being afterwards tried on 
 auch indictment. R. S. C, c. 174, s. 252. 
 
 73§. If any person before the passing of this Act, whether before or 
 after the first day of July, one thousand eight hundred and sixty-seven, was 
 acquitted of any such offence on the ground of insanity at the time of the 
 commission thereof, and has been detained in custody as a dangerous person 
 by order of the court before which such person was tried, and still remains in 
 custody, the Lieutenant-Governor may make a like order for the safe custody 
 of such person during pleasure. R. S. C. c. 174, s. 254. 
 
 739* If any person charged with an offence is brought before any court 
 to be discharged for want of prosecution, and such person appears to be insane, 
 the court shall order a jury to be empanelled to try the sanity of such person, 
 and if the jury so empanelled finds him insane the court shall order such 
 person to be kept in strict custody, in such place and in such manner as to the 
 court seems fit, until the pleasure of the Lieutenant-Governor is known. 
 R. S. C. c. 174, 8. 256. 
 
 740. In all cases of insanity so found the Lieutenant-Governor may 
 make an order for the safe custody of the jjerson so found to be insane, in such 
 place and in such manner as to him seems tit. R. S. C. c. 174, ss. 253 & 257. 
 
 741> The Lieutenant-Governor, upon such evidence of the insanity of 
 any person imprisoned in any prison other than a penitentiary for an offence, 
 or imprisoned for safe custody charged with an offence, or imprisoned for not 
 finding bail for good behaviour or to keep the peace, as the Lieutenant-Governor 
 considers sufficient, may order the removal of such insane person to a place of 
 safe-keeping ; and such person shall remain there, or in such other place of 
 safe-keeping, as the Lieutenant-Governor from time to time orders, until his 
 complete or partial recovery is certified to the satisfaction of the Lieutenant- 
 Governor, who may then order such insane person back to imprisonment, if 
 then liable thereto, or otherwise to be dischareed. R, S. C. c. 174, s. 268. 
 
 ,«».* 
 
862 
 
 PROCEDURE. 
 
 [Sec. T41 
 
 i 
 
 It is said in 1 Russ. 29 : see E. v. Kear^*, 14 Cox, 148 . 
 " If a man in his sound memory commits a capital ufffnce, 
 and before arraignment for it he becomes mad, he ou^bt 
 not to be arraigned for it because he is not able to plead 
 to it with that advice and caution that he ought. And 
 if, after he has pleaded, the prisoner become mad he shall 
 not be tried, as he cannot make his defence. If, after he 
 is tried and found guilty, he loses his senses before judg- 
 ment, judgment shall not be pronounced, and if after 
 judgment he becomes of non-sane memory execution shall 
 be stayed ; for, peradventure, says the humanity of the 
 English law, had the prisoner been of sound memory he 
 might have alleged something in stay of judgment or exe- 
 cution. And, by the common law, if it be doubtful 
 whether a criminal who at his trial is, in appearance, a 
 lunatic, be such in truth or not, the fact shall be investi- 
 gated. And it appears that it may be tried by the jury 
 who are charged to try the indictment, or by an inquest of 
 office to be returned by the sheriff of the county wherein 
 the court sits, or, being a collateral issue, the fact may be 
 pleaded and replied to ore tenus, and a venire awarded 
 returnable instantcr, in the nature of an inquest of office. 
 See, now, s-s. 2 of s. 737. And if it be found that the 
 party only feigns himself mad, and he refuses to answerer 
 plead, he would formerly have been dealt with as one who 
 stood mute, but now a plea of not guilty may be entered." 
 
 The above sections on the procedure in the case of 
 insane prisoners are taken from the 39 & 40 Geo. III. c. 
 94, and the 3 & 4 V. c. 54. 
 
 Where, on a prisoner being brought up to plead, hi? 
 counsel states that he is insane, and a jury is sworn to try 
 whether he is so or not, the proper course is for the pri- 
 soner's counsel to begin the evidence on this issue, and 
 prove the insanity, as the sanity is always presumed: R. v. 
 Turton, 6 Cox, 385. 
 
 It has been seen, ante, under s. 668, that no peremp- 
 tory challenges are allowed on collateral issues. 
 
[S»-c. 741 
 
 ,ry, 14 Cox, 148 
 
 a capital uffpnce, 
 8 mad, he ouylit 
 Qot able to plead 
 he ougbt. And 
 )ine mad be shall 
 ,nce. H. after he 
 jnses before judg- 
 ced, and if after 
 )vy execution shall 
 humanity of the 
 sound memory he 
 f judgment or ese- 
 if it be doubtful 
 s, in appearance, a 
 ,ct Bhall be investi- 
 ,e tried by the jury 
 or by an inquest ol 
 the county wherein 
 ;ue, the fact may be 
 , a venire awarded 
 an inquest of olfice. 
 be found that the 
 refuses to answer or 
 lealt with as one who 
 ly may be entered." 
 ,.ure in the case of 
 I39 & 40 Geo. in. c. 
 
 [ht up to plead, bi^ 
 jury is sworu to try 
 [ouree is for the pri- 
 on this issue, and 
 [ays presumed: R.v. 
 
 leS. that no peremp" 
 i«al issues. 
 
 Sec. 741] 
 
 INSANITY. 
 
 863 
 
 The jury may judge of the sanity or insanity of the 
 prisoner from his demeanour in their presence without any 
 evidence : R. v. Goode, 7 A. & E. 636. 
 
 The jury »re sworn as follows : — "You shall diligently 
 inquire and true presentment make for and on behalf of 
 our Sovereign Lady the Queen, whether A. B., the prisoner, 
 be insane or not, and a true verdict give according to the 
 best of your understanding ; so help yoa God." 
 
 If a prisoner has not, at the time of his trial, from the 
 defect of his faculties sufficient intelligence to understand 
 the nature of the proceedings against him, the jury ought 
 to find that he is not sane, and upon such finding he may 
 be ordered to be kept in custody : R. v. Dyson, 7 C. & P. 
 305. 
 
 A grand jury have no right to ignore a bill against any 
 person on account of his insanity, either when the offence 
 was committed or at the time of preferring the bill, how- 
 ever clearly shown : R. v. Hodges, 8 C. & P. 195 ; 1 Russ. 
 32 ; Dickinson's Quarter Sessions, 476. 
 
 If at any stage of the trial it is thought that the pri- 
 soner has not sufficient intelligence to understand the nature 
 of the proceedings the jury should pass upon it under the 
 above s. 737 : R. v. Berry, 13 Cox, 189. 
 
 .»*> 
 
 ! i, 
 
 ■ ( 
 '1' 
 
 5 * ' . 
 
864 
 
 PROCEDURE. 
 
 [Sees. 742-743 
 
 PART LII. 
 
 APPEAL. 
 
 748. An appeal from the verdict or judgment of any court or judge 
 havinfir jurisdiction in criminal cases, or of a magistrate proceeding under 
 section seven hundred and eighty-five, on the trial of any person for an 
 indictable offence, shall lie upon the application of such person, if convicted, to 
 the Court of Appeal in the cases hereinafter provided for, and in no others. 
 
 2. Whenever the judges of the Court of Appeal are unanimous in deciding 
 an appeal brought before the said court their decision shall be final. If any of 
 the judges dissent from the opinion of the majority an appeal shall lie from 
 such decision to the Supreme Court of Canada as hereinafter provided. 
 
 Writ op Error Abolished— Cases Reserved. 
 
 743. ^"o proceeding in eiTor shall be taken in any criminal case begun qfter 
 the commencement of this Act : 
 
 2. The court before which any accused person is tried may, either during 
 or after the trial, reserve any question of law arising either on the trial or on 
 any of the proceedings preliminary, siibsequent, or incidental thereto, or arising 
 out of the direction of the judge, for the opinion of the Court of Appeal in 
 manner hereinafter provided. 
 
 3. Either tlie jirosecutor or the accused may during the trial either orally or 
 in writing apply to the court to reserve any such question as aforesaid, and the 
 court, if it refuses so to reserve it, shall nevertheless take a note of such objection. 
 
 4. After a question is reserved the trial shall proceed as in other cases. 
 
 5. If the result is a conviction the court may in its discretion respite the 
 execution of the sentence or postpone sentence till the question reserved has 
 been decided, and shall in its discretion commit the person convicted to prison 
 or admit him to bail with one or two sufficient sureties, in such sums as the 
 court thinks fit, to surrender at such time as the court directs. 
 
 6. If the question is reserved, a case shall be stated for the opinion of the 
 Court of Appeal. 
 
 Section 269 c. 174, R. S. C, is the repealed clause on 
 cases reserved. 
 
 Even in cases of misdemeanours, and where the prisoner 
 was on bail before his trial, the court is not bound to admit 
 the prisoner to bail during the pendency of a reserveil 
 case : R. v. Bird, 5 Cox, 11 ; see as to intermediate effects 
 of an appeal, s. 749, post. 
 
[Sees. 742-743 
 
 Sees. 744-746] 
 
 APPEAL-CASE RESERVED. 
 
 865 
 
 Appeal When a Reserved Case Refused. {Xe7o). 
 
 ,nt of any court or ]udge 
 ristrate proceeding under 
 ial of any person for an 
 uch person, if convicted, to 
 3d for, and in no others, 
 i are unanimous in deciding 
 
 3„ shall be final. I any of 
 ity an appeal shall lie from 
 
 hereinafter provided. 
 
 13 Reserved. 
 anycrininalcasebeyuno^fur 
 
 ,„i9 tried may, either during 
 £ng either on the trial or on 
 ^incidental thereto, or mm 
 ,nof the Court of Appeal in 
 
 luring the trial either oraUy or 
 tuestion as aforesaid, amn/a 
 ^\keanote of such objection. 
 
 proceed as in other ca^ses. 
 Lin its discretion respite tk 
 ftiU the question reserved hai 
 £eUo« convicted to pn« 
 
 fsurSes.insuchBUinsasthe 
 
 .court directs, 
 stated for the opinion of the 
 
 [he repealed clause on 
 
 and ^here the prisoner 
 liBnotboundtoadm 
 
 Ldency of a reserv^ 
 1 to intermediate effecH 
 
 744* If the court refuses to reserve the question the party applying* 
 may, with the leave in writing of the Attorney-General, move the Court of 
 Appeal as hereinafter provided. The Attorney-General may in his discretion 
 give or refuse such leave. 
 
 2. The Attorney-General, or any person to whom such leave as aforesaid 
 is given, may on notice of motion to be given to the accused or prosecutor, as 
 the case may be, move the Court of Appeal for leave to appeal. The Court of 
 Appeal may upon the motion, and upon considering such evidence (if any) as 
 they think fit to require, grant or refuse such leave. 
 
 ,3. If leave to appeal is granted a case shall be stated for the opinion of 
 the Court of Appeal as if the question had been reserved. 
 
 4. If the sentence is alleged to be one which could not by law be passed, 
 either party may without leave, upon giving notice of motion to the other side, 
 move the Court of Appeal to pass a proper sentence. 
 
 5. If the court has arrested judgment, and refused to pass any sentence, 
 the prosecutor may without leave make such a motion. 
 
 Evidence foe Court op Appeal. 
 
 745. On any apjieal or application for a new trial the court before which 
 the trial was had shall, if it thinks necessary, or if the Court of Appeal so- 
 desires, send to the Court of Appeal a copy of the whole or of such part as may 
 be material of the evidence or the notes taken by the judge or presiding justice 
 at the trial. The Court of Appeal may, if only the jxidge's notes arc sent and it 
 considers such notes defective, refer to such other evidence of what took place at 
 the tried as it may think fit. The Court of Appeal may in its discretion send 
 back any case to the court by which it was stated to be amended or re-stated. 
 R. S. C. c. 174, 8, 264. 
 
 Powers op Court op Appeal. 
 
 746. Upon the hearing of any appeal under the powers hereinbefore, 
 contained, the Court of Appeal may— 
 
 (a) confirm the ruling appealed from ; or 
 
 [h) if of opinion that the ruling was erroneous, and that there has been a" 
 mis-trial in consequence, direct a neio trial ; or 
 
 (c) if it considers the sentence erroneous, or the arrest of Judgment erroneous 
 ims such a sentence as ought to have been passed or set aside any sentence passed 
 by the court heloio, and remit tlie case to the couH below loith a direction to pass 
 the jjroper sentence ; or 
 
 (d) if of opinion in a case in which the accused has been convicted that 
 the ruling was erroneous, and that the accused ought to have been acquitted, 
 direct that the accused shall be discharged, which order shall have all the 
 effects of au acquittal ; or 
 
 ((') direct a new trial ; or 
 
 (/) make such other order as justice requires : Provided tlmt no conviction 
 shall he set aside nor any new trial directed, although it appears that some evidence 
 ims improperly admitted or rejected, or that something not according to laio was 
 Grim. Law— 55 
 
if 
 
 866 
 
 PROCEDURE. 
 
 [Sec. 746 
 
 done at the trial or some misdirection given, unless in the opinion of the Court of 
 ApiKol some substantial wronrf or miscarriage was thereby occasioned on the trial ; 
 Provided that if the Court of Appeal is of opinion that any cliallcnge for the 
 defence was improperly disallowed a new trial shall be granted. 
 
 2. If it ajypears to the Court of Ap2ieal that such wi-ong or miscarriage affected 
 some count only of the indictment the court may give separate directions as to each 
 count and may piass sentence on any coimt unaffected by such tvrong onniscarriage 
 ivhich stands good, or may remit t/ie case to the court helmv with directions to pass 
 such sentence as justice may require. 
 
 3. The order or direction of the Court of Appeal shall be certified under 
 the hand of the presiding chief justice or senior puisne judge to the proixr 
 officer of the court before which the case was tried, and suoh order or direction 
 shall be carried into effect. R. S. C. c. 174, s. 263. 
 
 The words "Court of Appeal" and "Attorney-General," 
 defined, s. 3. 
 
 Writs of error are abolished in all the cases begun after 
 the commencement of this Act. 
 
 Only the grounds upon which the Court of Appeal are 
 not unanimous are open to the appellant in a criminal 
 case before the Supreme Court : per Eitchie, C. J., R. v. 
 Cunningham, Cass. Dig. 107. 
 
 A case should not be reserved on frivolous grounds: 
 R. V. Ferguson, Dears. 427 ; E. v. Tew, Dears. 429. 
 
 The passages of the above sections 742, et seq., which 
 are in italics, are those where it is thought that the law is 
 either altered, extended, or settled on doubtful points. 
 
 As heretofore, no question of practice, or on points left 
 to the discretion of the judge, and only questions of law, 
 can be reserved by the judge at the trial, or brought before 
 the Court of Appeal. The only exception to this rule is 
 contained in s-s. 5 of s. 723. 
 
 Section 783, post, which allows a judge to reserve his 
 final decision on questions raised at the trial of offences 
 under the code, applies now to all the Dominion. It 
 previously applied only to Ontario, but to all trials what- 
 ever. It seems to apply to all questions raised at the 
 trial, not only to questions of law. 
 
 Question whether there is sufficient evidence to support 
 charge cannot be reserved, being a question for the jury; 
 
[Sec. 746 
 
 the opinion of the Court of 
 »6y occasioned on the trial : 
 
 that any cliallcnge for the 
 
 granted. 
 
 fong or miscarriage affected 
 'parate directions as to each 
 ,y such wrong or viiscarriage 
 'lelmv with directions toims 
 
 eal shall be certified under 
 .uiane judge to the proiier 
 and such order or direction 
 
 •Attorney-General," 
 
 the cases begun after 
 
 I Court of Appeal are 
 
 )ellant in a crimioal 
 
 Bitcbie, C.J., R. v. 
 
 n frivolous grounds: 
 
 sw, Dears. 429. 
 
 8 742, et seq., which 
 
 [ought that the law is 
 
 doubtful points. 
 
 jtice, or on pointa left 
 
 inly questions of lavr, 
 
 •ial, or brought before 
 
 iption to this rule is 
 
 judge to reserve his 
 the trial of offences 
 the Dominion. It 
 [ut to all trials what- 
 Vtions raised at the 
 
 it evidence to support 
 luestion for the jury; 
 
 Sec. 746] 
 
 APPEAL-CASE RESERVED. 
 
 867 
 
 whether there is any evidence is a question of law for the 
 judge : R. v. Lloyd, 19 0. R. 352. 
 
 The Imperial corresponding statute is 11 & 12 V. c. 78. 
 The statute gives no jurisdiction to the court of crown 
 cases reserved to hear a case reserved on a judgment on a 
 demurrer. There must have been a trial and a conviction 
 to give jurisdiction to this court : E. v. Faderman, 1 Den. 
 565 ; R. V. Paxton, 2 L. C. L. J. 162. 
 
 If a prisoner pleads guilty to the charge alleged in the 
 indictment no question of law can be reserved, as none can 
 be said to have arisen on the trial : R. v. Clark, 10 Cox, 
 338. But that case is overruled by R. v. Brown, 16 Cox, 
 715, 24 Q. B. D. 357. 
 
 In R. V. Daoust, 9 L. C. J. 85, the defendant having 
 been found guilty of felony, a motion for a new trial had 
 been granted by Mr. Justice Mondelet At the next term 
 of the court the prosecutor moved to fix a day for this new 
 trial before Mr. Justice Aylwin, who then reserved for the 
 court of crown cases reserved the question whether a second 
 trial could be had in a case of felony. The Court held 
 that the question was properly reserved, and that the 
 statute gave them jurisdiction to decide it : 10 L. C. J. 
 221. It may be doubted whether they had jurisdiction 
 before the second trial and conviction, if a second con- 
 viction there had been. 
 
 A question raised in the court below by a motion in 
 arrest of judgment is a question arising on the trial, and 
 properly reserved : R. v. Martin, 1 Den. 398, 3 Cox, 447 ; 
 R. v. Carr, 26 L. C. J. 61 ; R. v. Deery, 26 L. C J. 129 ; 
 R. v. Corcoran, 26 U. C. C. P. 134. 
 
 The statute gives jurisdiction to the court of crown 
 cases reserved to take cognizance of defects apparent on 
 the face of the record when questions upon them have 
 been reserved at the trial : R. v. Webb, 1 Den. 338. 
 
 What a jury may say in recommending a prisoner 
 to mercy is not a matter upon which a case should be 
 
 .v»< 
 
868 
 
 PROCEDURE. 
 
 [Sec. 746 
 
 reserved. When the jury say guilty there is an end to 
 the matter ; that is the verdict, and a recommendation to 
 mercy is no part of the verdict : E. v. Trebilcock, Dears. & 
 B. 453. 
 
 The insufficiency of an indictment upon a motion to 
 quash is not a question that can be reserved : E. v. Gibson, 
 16 0. R. 704. 
 
 On a trial for murder the name of A. a juror on the 
 panel was called ; B. another juror on the same panel 
 appeared by mistake, answered to the name of A. and was 
 sworn as a juror. The prisoner was convicted and sen- 
 tenced to death. The next day this irregularity in the 
 jury was discovered, when the judge, being informed of it, 
 reserved the question as to the effect of the mistake on the 
 trial : held, by eight judges, against six that the conviction 
 must stand : R. v. Mellor, Dears. & B. 468. The judges 
 were divided on the question whether the court of crown 
 cases reserved had jurisdiction over the case. 
 
 The court expects cases reserved to be submitted in a 
 complete form, and will ordinarily refuse to send back a 
 case for amendment ; R. v. HoUoway, 1 Den. 370. 
 
 A case may be reserved after the trial, and even after 
 the sessions of the court are over : ss. 743 and 753 ; R. v. 
 Brown, 16 Cox, 715, 24 Q.B.D. 357 ; R. v. Smith, 38 U. C. 
 Q. B. 218; R. v. Mellor, Dears. & B. 468; R. v. Whit- 
 church, 16 Cox, 743. If the judge who presided at the trial 
 is unable to send up the case reserved any judge of the 
 same court may do it : R. v. Featherstone, Dears. 369. 
 
 When the case reserved is upon the evidence the whole 
 of the evidence should not be made part of the case, but 
 merely the material facts established by the eviderce : E. 
 v. Gibson, 16 0. R. 704. 
 
 New trial granted upon a case reserved : R. v. Brice, 
 15Q. L. R. 147. 
 
Sec. 746] 
 
 APPEAL-CASE RESERVED. 
 
 869 
 
 trial, and even after 
 . 743 and 753 ; R. v. 
 I. V. Smith, 38 U. C. 
 . 468; R. V. Whit- 
 presided at the trial 
 ■ed any judge of the 
 ,one, Dears. 369. 
 
 jserved : R. v. Brice, 
 
 The defendant must be present when a motion is made 
 by his counsel to reserve a case : E. v. Murphy, 17 Q. L. 
 E. 306. 
 
 If a counsel shouid think that any material point raised 
 at the trial has been omitted in the case it would be pro- 
 per for him to communicate with the judge who reserved 
 the case, and suggest any amendment that in his judgment 
 may be necessary : E. v. Smith, Temple & Mews' Grim. 
 App. Cases, 214. Where a case reserved does not, in the 
 opinion of the counsel, fairly raise all the points that were 
 in issue, the proper course is to apply to the judge reserv- 
 ing to amend it : E. v. Smith, 1 Den. 510 ; see E. v. Win- 
 sor, 10 Cox, 276 ; E. v. Young, 14 Cox, 114. 
 
 The court will not send a case back for amendment on 
 the mere application of counsel, but will do so if on the 
 argument it appears that it is imperfectly stated : E. v. 
 Hilton, Bell, 20; E. v. Bourdeau, M. L. E. 7 Q. B. 176. 
 Where a case reserved has been re- stated by order of the 
 court an application, supported by affidavit, to have it 
 again re-stated will be refused. This court has no juris- 
 diction to interfere compulsorily with the judge's exercise 
 of his discretion : R. v. Studd, 10 Cox, 258. 
 
 The court must deal with the case as it is stated, and 
 upon the evidence returned by the judge : R. v. Brummitt, 
 L. & C. 9 ; see, now, b. 745. The Court of Appeal may 
 now order the stenographer's notes to be sent up. 
 
 By the express words of the statute the court of crown 
 cases reserved has its jurisdiction limited to the question 
 of law reserved and mentioned in the case sent up ; it has 
 no right to adjudicate on any other question : R. v. Tyree, 
 L. R. 1 C. C. R. 177; R. v. Blakemore, 2 Den. 410 ; R. v. 
 Smith, Temple and Mews' Cr. App. Cases 214 ; R. v. Shaw, 
 L. & C. 679. 
 
 So, in R. V. Overton, Car. & M. 655, on a crown case 
 reserved, it was held that the judges will not allow the 
 
■"■ -J' .^r ; ; "■■I ^ 
 
 I 
 
 870 
 
 PROCEDURE. 
 
 [Sec. 746 
 
 prisoner's counsel to argue objections that are apparent on 
 the face of the indictment unless they were reserved by 
 the judge, but will leave the prisoner to his writ of error. 
 
 The rule that a jury should not convict on the unsup- 
 ported evidence of an accomplice is a rule of practice only, 
 and not a rule of law, and questions of law only can be 
 reserved : R. v. Stubbs, Dears. 655, Warb. Lead. Cas. 12 ; 
 Contra, R. v. Smith, 38 U. C. Q. B. 218. But see later 
 case of R. v. Andrews, 12 0. R. 184. 
 
 The court of crown cases reserved cannot amend the 
 indictment : R. v. Garland, 11 Cox, 22i. Where an 
 amendment, without which the indictment was bad, had 
 been improperly made at the trial, after verdict, this court 
 ordered the record to be restored to its original state, and 
 a verdict of not guilty to be entered : R. v. Larkin, Dears. 
 365 ; see, now, s. 723, s-s. 5. 
 
 On the argument of a case reserved the counsel for the 
 defendant must begin : R. v. Gate Fulford, Dears. & B. 74. 
 
 On a motion for a new trial from a conviction for per- 
 jury : Held, that the trial (under a. 259 of the Procedure 
 Act, c. 174, R. S. C.) is not terminated until sentence is 
 rendered, and a " question which has arisen on the trial " 
 (which arises on the trial) does not necessarily mean a 
 question that was raised at the trial, but extends to one 
 that took its rise at the trial, and therefore a point not 
 raised by the defence may be reserved by the court : R. v. 
 Bain, 23 L. C. J. 327. 
 
 No reserved case can be had where no conviction: E. v, 
 Lalanne, 3 L. N. 16. 
 
 It is not necessary that the prisoner be present at the 
 he^nng of a reserved pase : R. v. Glass, 21 L. C. J. 245; 
 see Re Sproule, 12 S. C. R. 140. 
 
 Where the prisoner has been put on his trial on an 
 indictment containing six counts charging him with shoot- 
 ing with intent to murder, and was found guilty on the first 
 
[Sec. 746 
 
 it are apparent on 
 were reserved by 
 lis writ of error. 
 
 vict on the unaup- 
 le of practice only, 
 )f law only can be 
 irb. Lead. Cas. 12 ; 
 L8. But 8ee later 
 
 cannot amend the 
 224. "Where an 
 ment was bad, had 
 ir verdict, this court 
 I original state, and 
 a. V. Larkin, Dears. 
 
 I the counsel for the 
 ;ord, Dears. &B.74. 
 
 conviction for per- 
 ,9 of the Procedure 
 id until sentence is 
 .risen on the trial " 
 necessarily mean a 
 but extends to one 
 lerefore a point not 
 
 by the court : R. v. 
 
 no conviction: R. v. 
 
 |er be present at the 
 iss, 21 L. C.J. 245; 
 
 on his trial on an 
 7ing him with shoot- 
 fnd guilty on the first 
 
 Sec. 746] 
 
 APPEAL-CASE RESERVED. 
 
 871 
 
 count, which verdict was afterwards set aside on a reserved 
 case for insufficiency of that first count: held, that he could 
 not be tried again ou the other counts, as they all referred 
 to the same act of shooting; prisoner discharged on plea of 
 autrefois acquit: E. v. Bulmer, 5 L. N. 92. 
 
 Held, that when a case reserved for the consideration of 
 the full court does not contain a question which, in the 
 opinion of the full court, it is essential to decide in connec- 
 tion with such case, it may be sent back for amendment: 
 R. V. Provost, M. L. E. 1 Q. B. 473. 
 
 A reserved case may be amended at the request of the 
 defendant during the argument thereon before the full 
 court, by adding the evidence taken at the trial : E. v. Eoss, 
 M. L. E. 1 Q. B. 227. 
 
 If illegal evidence has been allowed to go to the jury, 
 though without objection from the prisoner, the verdict must 
 be quashed if that evidence might have affected the verdict, 
 though apart from it there is sufficient evidence to support 
 the verdict. The law on this in criminal cases is what it 
 was in civil cases before the Judicature Act. The case of 
 R. v. Ball, E. & E. 132, reviewed ; E. v. Gibson, 16 Cox, 
 181. But now by s. 746 (/), it is expressly enacted that the 
 illegal admission or rejection of evidence is no ground to 
 set aside a verdict unless the Court of Appeal finds that 
 some substantial wrong has been occasioned thereby to the 
 defendant. 
 
 Challenging the array of the jury panel is not a matter 
 which can be reserved under C. S. U. C. c. 112 : E. v. 
 O'Rourke, 32 U. 0. C. P. 388. 
 
 But otherwise, if the question is one relating to the 
 proper constitution of the petit jury : E. v. Kerr, 26 U. C. 
 C. P. 214. 
 
 The decision of the judge in directing certain jurors to 
 stand aside is a question of law arising at the trial which 
 he can reserve : E. v. Patteson, 36 U. C Q. B. 129. But see 
 
 ;- V 
 
872 
 
 PROCEDURE. 
 
 [Sec. 747 
 
 i' 5 J; 
 
 E. V. Smith, 38 U. C. Q. B. 218; see K. v. Mellor, Dears. & 
 B. 468, cited ante, and Morin v. R., 18 S. C. R. 407, and 
 cases there cited. 
 
 A police magistrate cannot reserve a case for the opiniou 
 of a superior court, under C. S. U. C. c. 112, as he is not 
 within the terms of that Act : R. v. Richardson, 8 0. R. 651; 
 see ss. 742 and 900. 
 
 Challenge to the array is a question of law arising on 
 the trial which may be reserved. If Crown demurs to the 
 challenge, and judgment on demurrer is given, it becomes a 
 matter of record and cannot be reserved : R. v. Plant 
 7 Man. L. E. 537. 
 
 New Trial. (Ncio). 
 
 '74'y. After the conviction of any person for anij indictable offence the 
 court before which the trial takes place may, either during the sitting or after- 
 wards, give leave to the person convicted to apply to the Court of Appeal for 
 a new trial on the ground that the verdict was against the weight of evidence. 
 The Court of Appeal may, upon hearing such motion, direct a new trial if it 
 thinks fit. 
 
 2. In the case of a trial before a Court of General or Quarter Sessions such 
 leave may be given, during or at the end of the session, by the judge or other 
 person who presided at the trial. 
 
 Under this clause a condition precedent to any appli- 
 cation for a new trial in all offences whatever is the per- 
 mission of the court befo'*e which the conviction took place, 
 and, that permission being obtained, the Court of Appeal 
 grants or rejects the application as it thinks proper : s. 
 745 applies to applications for new trials. No new trial is 
 allowed to the crown. The only ground for the application 
 mentioned in this section is that the verdict was against 
 the weight of evidence. The application to the court 
 before which the trial took place may be made during the 
 sitting of the court or afterwards. The rule heretofore has 
 been that the defendant or defendants must be present in 
 court when the motion is made for a new trial, unless 
 some special ground be laid for dispensing with the rule : 
 R. v. Caudwell, 2 Den., 7iote a, 372, 1 Chit. 658 ; E. v. 
 Parkinson, 2 Den. 459 ; R. v. Fraser, 14 L. C. J. 245; E. 
 V. Hollingberry, 4 B. & C. 329. 
 
Sees. 748-750] 
 
 " ^PEAL-NEW TRIAL, ETC. 
 
 87» 
 
 See R. V. Duncan, 7 Q. B. D. 198, Warb. Lead. Cas. 
 260, and cases there cited as to practice in England on 
 new trials. 
 
 New Trial by order op the Minister of Justice {New). 
 
 748. If "pon any application for the mercy of the Crown on behalf of 
 anv person convicted of an indictable offence, the ^linister of Justiee enter- 
 tains a doubt whether such person ought to have been convicted, he may, 
 instead of advising Her Alajesty to remit or commute the sentence, after such 
 inquiry as he thinks proper, by an order in writing direct a new trial at such 
 time and be/ore such court as he may think proper. 
 
 This is new. It virtually gives an appeal from the 
 courts to the Minister of Justice. The sentence, if for 
 imprisonment, is not suspended by the order of the 
 Minister of Justice under this clause, nor is provision made 
 to admit the person convicted to bail. 
 
 Intermediate Effects of Appe.\l. (New). 
 
 740« The sentence of a court shall not be suspended by reason of any 
 apjjeal, unless the court expressly so directs, except where the sentence is that 
 the accused suifer death, or whipping. The production of a certificate from 
 the officer of the court that a question has been reserved, or that leave has been 
 given to apply for a new trial, or of a certificate from the Attorney-General 
 that he has given leave to move the Court of Appeal, or of a certificate from 
 the Minister of Justice that he has directed a new trial, shall be a sufficient 
 warrant to suspend the execution of any sentence of death or whipping. 
 
 2. In all cases it shall be in the discretion of the Court of Appeal in 
 directing a new trial to order the accused to be admitted to bail. 
 
 Sub-section 2, it seems, applies as well to new trials 
 ordered under s. 746 as to new trials under s. 747. 
 
 Appeal to Supreme Court. 
 
 730. Any person convicted of any indictable offence, whose conviction 
 has been affinned on an appeal taken under section seven hundred and forty-two, 
 may appeal to the Supreme Court of Canada against the affirmance of such con- 
 viction; and the Supreme Court of Canada shall make such rule or order 
 thereon, either in affirmance of the conviction or for granting a new trial, or 
 otherwise, or for granting or refusing such application, as the justice of the 
 case requires, and shall make all other necessary rules and orders for carrying 
 such rule or order into effect : Provided that no such appeal can be taken if 
 the Court of Appeal is unanimous in affirming the conviction, nor unless 
 notice of apjjeal in writing has been served on the Attorney-General within 
 fifteen days after such affirmance or such further time as may be allowed by 
 the Supreme Court of Canada or a judge thereof. 
 
 2. Unless such appeal is brought on for hearing by the appellant at the 
 session of the Supreme Court during which sucii affirmance takes place, or the 
 
( , 
 
 I t-jTlRS ,1 
 
 < ( 
 
 if !' 
 
 %■■ 
 
 i 
 
 874 
 
 PROCEDURE. 
 
 [Sees. 751-753 
 
 seasion next thereafter if the said court is not then in session, the appeal xhall 
 be held to have been abandoned, unless otherwise ordered by the Supreme 
 Court or a judge thereof. 
 
 3. The judgment of the Supreme Court shall, in all cases, be final and 
 conclusive. 50-51 V. c. 50, s. 1. 
 
 See R. V. Cunningham, Cass. Dig. 107, and Amer v. 
 The Qaeen, 2 S. C. R. 592. 
 
 No Appeals to Privy Council. 
 
 Y«S1« Notwithstanding any royal prerogative, or anything contained in 
 The Interpretation Act or in The Suftreme and Exchequer Courts Act, no appeal 
 shall be brought in any criminal case from any judgment or order of any court 
 in Canadr, to any court of appeal or authority, by which in the United 
 Kingdom a,\.\ sals or petitions to Her Majesty in Council may be heard, ol V. 
 c. 43, s. 1. 
 
 The Privy Council has not hat! to pass yet on the 
 constitutionality of this clause. 
 
 PART LIII. 
 
 SPECIAL PROVISIONS. 
 
 732* Whenever any person in custody chartjed with an indictable ojfence 
 has taken proceedings before a judge or criminal court having jurisdiction in 
 the premises by way of certiorari, habeas corpus or otherwise, to have the 
 legality of his imprisonment inquired into, such judge or court may, with or 
 without determining the question, make an order for the further detention of 
 the ijerson accused, and direct the judge or justice under whose warrant lie is 
 in custody, or any other judge or justice, to take any proceedings, hear siicii 
 evidence, or do such further act as in the opinion of the court or judge may 
 best farther the ends of justice. 
 
 It is not clear what this enactment is intended for. It 
 seems to be out of place where it stands in the Act. 
 
 Decision 5Iay Be Reserved. 
 
 753. Any judge or other person presiding at the sittings of a court at 
 which any person is tried for an indictable offence under this Act, whether lie 
 is the judge of such court or is appointed by commission or otherwise to hold 
 such sittings, may reserve the giving of his final decision on questions raised 
 
[Seo8. 751-753 
 
 laion, the appeal shall 
 ered by the Supreme 
 
 lU cases, be final and 
 
 )7, and Amer v. 
 
 anything contained in 
 ■r Cimrts Ad, no appeal 
 nt or order of any court 
 which in the United 
 il may be heard. olV. 
 
 pass yet on the 
 
 Sees. 754-758] 
 
 PRACTICE IN 
 
 875 
 
 Iwith an iwUdable o-um 
 lirt having jurisdiction in 
 1 otherwise, to have the 
 [ge or court may, Kith or 
 
 the further detention of 
 fider whose warrant Ue is 
 [y proceedings, hear such 
 
 the court or judge may 
 
 Is intended for. It 
 in the Act. 
 
 Ithe sittings of a court at 
 \der this Act, whether he 
 Lion or otherwise to hold 
 
 Vision on questions raised 
 
 at the trial ; and his decision, whenever given, shall be considered as if given 
 at the time of the trial. R. S. C. o. 174, s. 209. 
 
 This, by the repealed clause, applied only to Ontario. 
 The words " under this Act " are new. 
 
 Practice in Ontario. 
 
 754. The practice and procedure in nil criminal cases and matters in the 
 High Court of Justice of Ontario which are net provided for in this Act, shall 
 be the same as the practice and procedure in similar cases and matters 
 heretofore. R. S. C. c. 174, s. 270. 
 
 It is not clear why a similar enactment for all the 
 provinces has been left out, though Parliament undoubt- 
 edly had grave reasons for it. 
 
 Courts in Ontario. 
 
 759. If any general commission for the holding of a court of assize and 
 nisijiriit", oyer and terminer or general gaol delivery is issued by the Governor- 
 General for any county or district in the province of Ontario, such commission 
 shall contain the names of the justices of the Supreme Court of Judicature for 
 Ontario, and may also contain the names of the judges of any of the county 
 courts in Ontario, and of any of Her Majesty's counsel learned in the law 
 duly appointed for the province of Upper Canada, or for the province of 
 Ontario, and if any such commission is for a provisional judicial district such 
 commisaion may contain the name of the judge of the district court of the said 
 district. 
 
 2. The said courts shall be presided over by one of the justices of the said 
 Supreme Court, or in their absence by one of such county court judges or by 
 one of such counsel, or in the case of any such district by the judge of such 
 district court. R. S. C. c. 174, s. 271. 
 
 756. It shall not be necessary for any court of General Sessions in the 
 province of Ontario to deliver the gaol of all prisoners who are confined upon 
 charges of theft, but the court may leave any such cases to be tried at the next 
 court of oyer and terminer and general gaol delivery, if, by reason of the 
 difficulty or importance of the case, or for any other cause, it appears to it 
 proper so to do. R. S. C. c. 174, s. 272. 
 
 757. If any person is prosecuted in .any division of the High Court of 
 Justice for Ontario for any indictable offence, by information there filed, or by 
 indictment there found or removed into such court, and appears therein in term 
 time in person, or, in case of a corixiration, by attorney, to answer to such infor- 
 mation or indictment, such defendant, upon being charged therewith, shall not 
 imparl to a f<jllowing term, but shall plead or demur thereto within four days 
 fnmi the time of his appearance ; and in default of his pleading or demurring 
 within four days as aforesaid judgment may be entered against such defendant 
 for want of a plea. R. S. C. c. 174, s. 273, 
 
 758. If such defendant appears to such information or indictment by 
 attorney, he shall not imparl to a following term^ but a rule, requiring him to 
 
 . iV7 ' f >|t 
 

 876 
 
 PROCEDURE. 
 
 [Sees. 769-701 
 
 ■<? I 
 
 i 11 i. 
 
 plead, may forthwith be (riven and server!, and a plea to such information or 
 indictment may be enforced, or judgment in default may be entered in the 
 same manner as might Imve been done formerly in canes in which the defend- 
 ant had appeared to such information or indictment 1' attorney in a previous 
 term ; but the court, or any judge thereof, upon sufficunt cause shown for that 
 pur|)ose, may allow further time for such defendant to plead or demur to sunh 
 information or indictment. R. S. C. o. 174, s. 274. 
 
 YSO. If any prosecution for an iiulictaUf offence, instituted by the 
 Attorney-General for Ontario in the said court, is not brought to trial within 
 twelve months next after the plea of not guilty has been pleaded thereto, the 
 court in which such prosecution is depending, upon application made on belmlf 
 of any defendant in such prosecution of which application twenty days' 
 previous notice shall be given to such Attorney-General, may make an order 
 authorizing such defendant to bring on the trial of such prosecution ; aud 
 thereupon such defendant may bring on such trial accordingly unless a nolk 
 prosequi is entered to such prosecution. R. S. C. c, 174, s. 275. 
 
 The necessity of these last three sections is not clear. 
 They applied heretofore only to misdemeanours. 
 
 Special Pnovisioxs fok Nova Scotia. 
 
 "760. In the province of Nova Scotia a calendar of the criminal cases 
 shall be sent by the clerk of the Crown to the grand jury in each term, together 
 with the depositions taken in each case and the names of the different witnesses. 
 and the indictments shall not be made out, except in Halifax, until the grand 
 Jury so directs. R. S. C. c. 174, s. 270. 
 
 701 • A judge of the Supreme Court of Nova Scotia may sentence con- 
 victed criminals on any day of the sittings at Halifax, as well as in term time. 
 R. S. C. c. 174, s. 277. 
 
Sees. 762-766] 
 
 SPEEDY TRIALS. 
 
 877 
 
 PART LIV. 
 
 SPEEDY TRIALS OF INDICTABLE OFFENCES. 
 
 708. The provisions of this part do not apply to the North-West Terri- 
 tories or the district of Keewatin. 52 V. o. 47, 8. 3. 
 
 703- In this part, unless the context otherwise requires, — 
 (rt) the expression " judge" means and includes, — 
 
 (i) in the province of Ontario, any judge of a count junior 
 
 judge or deputy judge authorized to act as chp nan i General 
 
 Sessions of the Peace, and also the judges of the pn stricts of 
 
 Algoma and Thunder Bay, and the judge of the distii *. ot ♦• 'iskoka 
 and Parry Sound, authorized i^espectively to act • ui the 
 
 General Sessions of the Peace ; 
 
 (ii) in the province of Quebec, in any district wherein there is a 
 judge of the sessions, such judge of sessions and in any district wherein 
 there is no judge of sessions but wherein there is a district magistrate, 
 such district magistrate, and in any district wherein there is neither a 
 judge of sessions nor a district magistrate, the sheriff of such district ; 
 
 (iii) in each of the provinces of Nova Scotia, New Brunswick and 
 Prince Edward Island, any judge of a county court ; 
 
 (iv) in the province of Manitoba the chief justice, or a puisne judge 
 of the Court of Queen's Bench, or any judge of a county court ; 
 
 (v) in the province of British Columbia the chief justice or a puisne 
 judge of the Supreme Court, or any judge of a county court ; 
 
 (h) the expression "county attorney" or "clerk of the peace " includes in 
 the provinces of Nova Scotia, New Brunswick and Prince Edward Island, any 
 clerk of a county court, and in the province of Manitoba, any Crown attorney, 
 the prothonotary of the Court of Queen's Bench, and any deputy prothonotary 
 thereof, any deputy clerk of the peace, and the deputy clerk of the Crown and 
 pleas for any district in the said province. 52 V. c. 47, s. 2. 
 
 764. The judge sitting on any trial under this part, for all the purposes 
 thereof and proceedings connected therewith or relating thereto, shall be a 
 court of record, and in every province of Canada, except the province of 
 C^uebec, such court shall be called " The County Court Judge's Criminal 
 Court " of the county or union of counties or judicial district in which the same 
 is heW. 
 
 2. The record in any such case shall be filed among the records of the 
 court over which the judge presides, and as part of such records. 52 V. c. 47, 
 
 S.4. 
 
 165. Every person committed to gaol for trial on a charge of being 
 guilty of any of the offences ivhich are mentioned in section Jlte hundred and 
 

 Hi 
 i 
 
 w 
 
 u 
 
 878 
 
 PROCEDURE. 
 
 [Sees, 766, 707 
 
 ■ft 
 
 thirtn-nine as bein[/ loithin the jurisdiction of the General or Quarter Sessions of the 
 Peace, may, with his own consent (of which consent an entry shall then be made 
 of record), and subject to the provisions herein, be tried in any province under 
 the following provisions out of sessions and out of the regular term or sittings 
 of the court, whether the court before which, but for such consent, the said 
 person would be triable ff>r theoITence charged, or the grand jury thereof, is or 
 is not then in session, and if such person is convicted he may be sentenced by 
 the judge. 52 V. c. 47, s. 5. 
 
 706. Every sheriff shall, within twenty-four hours after any prisoner 
 charged as aforesaid is committed to gaol for trial, notify the judge in writing 
 that such prisoner is so confined, stating his name and the nature of the charge 
 preferred against him, whereupon, with as little delay as possible, sucli judge 
 shall cause the prisoner to be brought before him. 52 V. c. 47, s. 6. 
 
 VO?* The judge, upon having obtained the depositions on which the 
 prisoner was so committed, shall state to him, 
 
 {a) that he is charged with the offence, describing it ; 
 
 (b) that he has the option to be forthwith tried before such judge without 
 the intervention of a jury, or to remain in custody or under bail, as the court 
 decides, to be tried in the ordinary way by the court having criminal juris 
 diction. 
 
 2. If the prisoner demands a trial by jury the judge shall remand hira to 
 gaol ; but if he consents to be tried by the judge without a jury the county 
 solicitor, clerk of the peace or other prosecuting officer shall prefer the charge 
 against him for which he has been committed for trial, and if, upon being 
 arraigned upon the charge, the prisoner pleads guilty, the prosecuting officer 
 shall draw uj) a record as nearly as may be in one of the forms MM or NX in 
 schedule one to this Act; such plea shall be entered on the record, and the 
 judge shall jiass the sentence of the law on such prisoner, which sliall liiive the 
 same force and effect as if passed by any court having jurisdiction to try the 
 offence in the ordinary way, 52 V. c. 47, s. C. 
 
 UM.—{Si'ctio7i 767). 
 
 FORM OF RECORD WHEN THE PRISONER PLEADS NOT 
 
 GUILTY. 
 Canada, ) 
 
 Province of , :> 
 
 County of . ) 
 
 Be it remembered that A. B. being a prisoner in the gaol of 
 the said county, committed for trial on a charge of having 
 on day of , in the year , stolen, etc., 
 
 {one cow, the property o/C. D., or as the case may be, statimj hrkjl]) 
 the ofcr.ce) and having been brought before me [describe the jmhj;) 
 on tlie day of , in the year . 
 
 and asked by me if he consented to be tried before me without 
 
[Sees. 766, 707 
 
 ■al or Quarter Scssioiis of the. 
 m entry shall then be made 
 ;ried in any province under 
 ;he regular term or sittings 
 for such consent, the said 
 he grand jury thereof, is or 
 ed he may be sentenced by 
 
 ir hours after any prisoner 
 
 notify the judge in writing 
 
 Find the nature of the charge 
 
 lelay as possible, such judge 
 
 52 V. c. 47, s. 6. 
 
 Sec. 767] 
 
 SPEEDY TRIALS. 
 
 879 
 
 16 
 
 depositions on which the 
 
 bing it ; 
 
 fd before such judge without 
 
 dy or under bail, as the court 
 
 court having criminal juris- 
 
 le judge shall remand him to 
 Ige without a jury the county 
 officer shall prefer the charge 
 for trial, and if, upon being 
 guilty, the prosecuting officer 
 te of the forms UU or NX m 
 itered on the record, and the 
 prisoner, which shall have tlie 
 having jurisdiction to trytl.e 
 
 SONER PLEADS NOT 
 
 a prisoner in the gaol of 
 
 on a charge of having 
 
 ,^^ , stolen, etc., 
 
 faseuMybe,sUttin<ibrieilii 
 
 loteme{desvriln'theMi^ 
 
 in the year 
 
 tried before me without 
 
 the intervention of a jury, consented to be so tried; and that 
 upon the day of , in the year , the said 
 
 A. B., being again brought before me for trial, and declaring 
 liimself ready, was arraigned upon the said charge and pleaded 
 not guilty ; and after hearing the evidence adduced, as well in 
 support of the said charge as for the prisoner's defence {or as the 
 cdsc may be) . I find him to be guilty of the offence with which he 
 IS charged as aforesaid, and I accordingly sentence him to {here 
 insert such sentence as the laic allows and the jiuhie thinks riyht), {or 
 I find him not guilty of the offence with which he is charged, 
 and discharge him accordingly). 
 
 Witness my hand at , in the county of , 
 
 this day of , in the year 
 
 0. K., 
 
 Judiie. 
 
 ^Is.— {Section 767). 
 
 FORM OF RECORD WHEN THE PRISONER PLEADS GUILTY. 
 
 Canada, ^ 
 
 Province of , }- 
 
 County of .J 
 
 Be it remembered that A. B. being a prisoner in the gaol of 
 the said county, on a charge of having on the day of 
 
 , in the year , stolen, etc., {one cow, the pro- 
 
 perty of C. D., or as the case niatj he, statinu briefly the ofence), 
 and being brought before me {describe thejudf/e) on the 
 day of , in the year , and asked by me if he 
 
 consented to be tried before me without the intervention of a 
 jury, consented to be so tried ; and that the said A. B. being 
 then arraigned upon the said charge, he pleaded guilty thereof, 
 whereupon I sentenced the said A. B. to {here insert such sentence 
 Its the law allows and the jiidye thinks riyht). 
 
 Witness my hand this day of 
 
 year 
 
 in the 
 
 0. K., 
 
 Judye. 
 
880 
 
 PROCEDURE. 
 
 [Sees. 708-773 
 
 \M 
 
 1 •*?' 
 
 708. If one of two or more prisoners charged with the same offence 
 demands a trial by jury, and the other or others consent to be tried by the 
 judge without a jury, the judge, in his discretion, may remand all the said 
 prisoners to gaol to await trial by a jury. 52 V. c. 47, s. 8. 
 
 769. If under Part LV. (sec. 782), or Part LVI. (sec. 809), any person 
 has been asked to elect whether he would be tried by the magistrate or justices 
 of the peace, as the case may be, or before a jury, and he has elected to be tiied 
 before a jury, and if such election is stated in the warrant of committal for 
 trial, the sheriff and judge shall not be required to take the proceedings directed 
 by this part. 52 V. c. 47, s. 9. 
 
 2. But if such person, after his said election to be tried by a jury, has been 
 committed for trial he may, at any time before the regular term or sittings of 
 the court at which such trial by jury would take place, notify the sheriff that 
 he desires to re-elect ; whereupon it shall be the duty of the sheriff to proceed 
 as directed by section seven hundred and sixty-six, and thereafter the person 
 so committed shall be proceeded against as if his said election in the first 
 instance had not been made. 53 V. c. 37, s. 30. 
 
 TTO. Proceedings under this part commenced before any judge may, 
 where such judge is for any reason imable to act, be continued before any 
 other judge competent to try prisoners under this part in the same judicial 
 district, and such last mentioned judge shall have the same powers with 
 respei-t to such proceedings as if such proceedings had been commenced before 
 him, and may cause such portion of the proceedings to be repeated before liim 
 as he shall deem necessary. 53 V. c. 37, s. 30. 
 
 771. If, on the trial under Part LV. (sec. 782), or Part LVI. (sec. 809), 
 of this Act of any person charged with any offence triable under the provisions 
 of this part, the magistrate or justices of the peace decide not to try the same 
 sunmiarily, but commit such person for trial, such person may afterwards, with 
 his own consent, be tried under the provisions of tliis part. 52 V. c. 47, s. 10. 
 
 772. If the prisoner upon being so arraigned and consenting as aforesaid 
 pleads not guilty the judge shall appoint an early day, or the same day, for his 
 trial, and the county attorney or clerk of the peace shall subpcena the witnesses 
 named in the depositions, or such of them and such other witnesses as he thinks 
 requisite to prove the charge, to attend at the time appointed for suoii trial, 
 and the judge may proceed to try such prisoner, and if he be found guilty 
 sentence shall be passed as hereinbefore mentioned ; but if he be found not 
 guilty the judge shall immediately discharge him from custody, so far as 
 respects the charge in question. 52 V. c. 47, s. 11. 
 
 773. The county attorney or clerk of the peace or other prosecuting 
 officer may, with the consent of the judge, prefer against the prisoner a charge 
 or c'^argen for any offence or offences for which he may be tried under the 
 provisions of this part other than the charge or charges for which he has been 
 cc Tiniitted to gaol for trial, although such charge or charges do not appear or 
 are not mentioned in the depositions upon wh'ch the prisoner was so com- 
 mitted. 52 V. c. 47, s. 12. 
 
[Sees. 708-773 
 
 with the same offence 
 sent to be tried by the 
 ay remand all the said 
 
 8.8. 
 
 I. (sec. 809), any person 
 he magistrate or justices 
 le has elected to be tiied 
 ■arrant of committal for 
 ! the proceedings directed 
 
 triedby ajury.hasbeen 
 ■egular term or sittings of 
 ce, notify the sheriff that 
 y of the sheriff to proceed 
 and thereafter the person 
 
 said election in the first 
 
 d before any judge may, 
 be continued before any 
 part in the same judicial 
 
 Sees. 774-781] 
 
 SPEEDY TRIALS. 
 
 881 
 
 ve the same powers 
 
 with 
 
 ad been commenced before 
 J to be repeated before him 
 
 2), or Part L VI. (sec. 809), 
 riable under the provisions 
 decide not to try the same 
 erson may afterwards, with 
 .part. 52V.c.47,s.lO. 
 
 ,xnd consenting as aforesaid 
 Ly.orthesameday, forliis 
 [hall subptena the witnesses 
 Vher witnesses as he thinks 
 ie appointed for such trial, 
 [and if he be found guilty 
 Id ; but if he be found not 
 from custody, so far as 
 
 jjeace or other prosecuting 
 tainst the prisoner a charge 
 
 L may be tried under the 
 [rges for which he has been 
 [r charges do not appear or 
 
 ^ the prisoner was w com- 
 
 774. The judge shall, in any case tried before him, have the same power 
 as to acquitting or convicting, or convicting of any other offence than that 
 charged, as a jury would have in case the prisoner were tried at a sitting of 
 any court mentioned in this part, and may render any verdict which may be 
 rendered by a jury upon a trial at a sitting of any such court. 52 V. c. 47» 
 s. 13. 
 
 775. If a prisoner elects to be tried by the judge without the interven- 
 tion of a jury the judge may, in his discretion, admit him to bail to appear for 
 his trial, and extend the bail, from time to time, in case the court be adjourned 
 or there is any other reason therefor ; and such bail may be entered into and 
 perfected before the clerk. 52 V. c. 47, s. 14. 
 
 IIG- If a prisoner elects to be tried by a jury the judge may, instead of 
 remanding him to gaol, admit him to bail, to appear for trial at such time and 
 place and before such court as is determined upon, and such bail may be 
 entered into and perfected before the clerk. 52 V. c. 47, s. 15. 
 
 TIT. The judge may adjourn any trial from, time to time until finally 
 terminated. 52 V. c. 47, s. 16. 
 
 778. The judge shall have all powers of amendment which any court 
 mentioned in this part would have if the trial was before such court. 52 V.. 
 
 c. 47, s. 17. 
 
 779. Any recognizance taken under section five hundred and ninety- 
 eight of this Act, for the purpose of binding a prosecutor or a witness, shall, if 
 the person committed for trial elects to be tried under the provisions of this 
 part, be obligatory on each of the persons bound thereby, as to all things 
 therein mentioned with reference to the trial by the judge under this part, as if 
 such recognizance had been originally entered into for the doing of such things 
 with reference to such trial : Provided, that at least forty-eight hours' notice in 
 writing shall be given, either personally or by leaving the same at the place of 
 residence of the persons bound by such recognizance as therein described, to 
 appear before the judge at the place where such trial is to be had, 53 V. c. 37,. 
 s. 29. 
 
 780. Every witness, whether on behalf of the prisoner or against him; • 
 duly summoned or subprenaed to attend and give evidence before such judge, 
 sitting on any such trial, on the day appointed for the same, shall be bound to 
 attend and remain in attendance throughout the trial ; and if he fails so to 
 attend he shall be held guilty of contempt of court, and may be proceeded 
 against therefor accordingly. 52 V. c. 47, s. 1 3. 
 
 Til. Upon proof to the satisfaction of the judge of the service of sub- 
 p<Bna upon any witness who fails to attend before him, as required by such 
 subpiena, and upon such judge being satisfied that the presence of such witness 
 before him is indispensable to the ends of justice, he may, by his warrant, 
 cause the said witness to be apprehended and forthwith brought before him to 
 give evidence as required by such subpoena, and to answer for his disregard of 
 the same ; and such witness may be detained on such warrant before the said 
 Crim. Law— 56 
 
882 
 
 PROCEDURE. 
 
 [Sec. 781 
 
 jucl)?e, or in the common gaol, with a view to secure his presence as a witness ; 
 or, in the discretion of the judge, such witness may be released on recogni- 
 zance with or without sureties, conditioned for his appearance to give evidence 
 as therein mentioned, and to answer for his default in not attending upon the 
 said subpoena, as for a contempt ; and the judge may, in a summary manner, 
 examine into and dispose of the charge of contempt against the said witness 
 who, if found guilty thereof, may ue fined or imprisoned, or both, such fine not 
 to exceed one hundred dollars, and such imprisonment to be in the common 
 gaol, with or without hard labour, and not to exceed the term of ninety daj's, 
 and he may also be ordered to pay the costs incident to the execution of such 
 warrant and of his detetition in custody. 
 
 2. Such warrant may be in the form 00 and the conviction for contempt 
 in the form PP in sched\ile one to this Act, and the same shall be authority to 
 the persons and officers therein required to act to do as therein they are resiiec- 
 •tively directed. 52 V. o. 47, a. 19. 
 
 The words in italics in s. 781 are new. 
 
 00.— {Section 781.) 
 
 WARRANT TO APPREHEND WITNESS. 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in 
 the said county of 
 
 Whereas it having been made to appear before me, that E. F., 
 of , in the said county of , was likely to give 
 
 material evidence on behalf of the prosecution {or defence, as the 
 case may be) on the trial of a certain charge of {as theft, or as the 
 case may he), against A. B., and that the said E. F. was duly 
 subpoenaed {or bound under recognizance) to appear on the 
 day of , in the year , at , in the said 
 
 county at o'clock (forenoon or afternoon, as the case way he), 
 
 before me, to testify what he knows concerning the said charge 
 against the said A. B. 
 
 And whereas proof has this day been made before me, upon 
 oath of such subpoena having been duly served upon the said 
 E. F., {or of the said E. F. having been duly bound under 
 recognizance to appear before me, as the case may he) j and 
 whereas the said E. F. ha« neglected to appear at the triaJ and 
 place appointed, and no just excuse has been offered for sucii 
 
[Sec. 781 
 
 i presence as a witness ; 
 be released on recogni- 
 jarance to give evidence 
 not attending upon the 
 , in a summary manner, 
 against the said witness 
 ed, or both, such tine not 
 ent to be in the common 
 the term of ninety days, 
 ! to the execution of such 
 
 ) conviction for contempt 
 ame shall be authority to 
 IS therein they are respec- 
 
 !W. 
 
 Sec. 781] 
 
 SPEEDY TRIALS. 
 
 888 
 
 WITNESS. 
 
 )tlier peace officers in 
 
 before me, thatE.F., 
 ,' was likely to give 
 ^tion (or defence, «s f/if 
 Te of (rts theft, nr as thf 
 ' said E. F. v?as duly 
 to appear on tbe 
 
 , in the said 
 oon, as the citse vunj he), 
 berning tlie said charge 
 
 made before me, upon 
 * served upon the said 
 [een duly bound under 
 \the case may he) ; and 
 
 appear at the trial and 
 
 ' been offered for such 
 
 neglect : These are therefore to command you to take the said 
 E. F. and to bring him and have him forthwith before me, to 
 testify what he knows concerning the said charge against the 
 said A. B., and also to answer his contempt for such neglect. 
 
 Given under my hand this day of , in the 
 
 year 
 
 0. K., 
 Jndye. , 
 
 Vl^.— {Sections 582, 781.) 
 
 CONVICTION FOR CONTEMPT. 
 Canada, 
 Province! of , - 
 
 County of , . 
 
 Be it remembered that on the day of , in 
 
 tbe year , in the county of , E. F. is convicted 
 
 before me, for that he the said E. F. did not attend before me to 
 give evidence on the trial of a certain charge against one A. B. 
 of {theft, or as the case may be), although duly subpoenaed {or 
 bound by recognizance to rppear and give evidence in that 
 behalf, as the case may he) but made default therein, and has not 
 shown before me any sufficient excuse for such default, and I 
 adjudge the said E. F., for the said offence, to be imprisoned in 
 tbe common gaol of the county of , at , for the 
 
 space of , there to be kept at hard labour {and in case a 
 
 fim is also intended to be imposed, then proceed) and I also adjudge 
 that the said E. F. do forthwith pay to and for the use of Her 
 Majesty a fine of dollars, an i in default of payment, 
 
 that the said fine, with the cost of coUe m, be levied by distress 
 and sale of the goods and chattels of the said E. F. (or in case a 
 fine alone is imposed, then the clause of imprisonment is to be 
 omitted.) 
 
 Given under my hand at , in the said county of 
 
 , the day and year first above mentioned. 
 
 O.K., 
 
 Judt/e, 
 

 884 
 
 PROCEDURE. 
 
 [Sees. 782, 78$ 
 
 PART LV. 
 
 SUMMARY TRIAL OF INDICTABLE OFFENCES. 
 
 78S« In this part, unless the context otherwise requires, (a) the expres- 
 sion " magistrate " means and includes — 
 
 (i) in the provinces of Ontario, Quebec and Manitoba, any recorder, judge 
 of a county court, being a justice of the peace, commissioner of police, judge of 
 the sessions of the peace, police magistrate, district magistrate, or other func- 
 tionary or tribunal, invested by the proper legislative authority, virith power to 
 do alone such acts as are usually required to be done by two or more justices of 
 the peace, and acting within the local limits of his or of its jurisdiction ; 
 
 (ii) in the provinces of Nova Scotia and New Brunswick, any recorder 
 judge of a county court, stipendiary magistrate or police magistrate, acting 
 within the local limits of his jurisdiction, and any commissioner of ponce and 
 any functionary, tribunal or person invested by the proper legislative authority 
 with power to do alone such acts as are usually required to be done by two or 
 more justices of the peace ; 
 
 (iii) in the provinces of Prince Edward Island and British Columbia and 
 in the district of Keewatin, any two justices of the peace sitting together 
 and any functionary or tribunal having the powers of two justices of the 
 peace ; 
 
 (iv) in the North-West Territories, any judge of the Supreme Court of 
 the said territories, any two justices of the peace sitting together, and any 
 functionary or tribunal having the powers of two justices of the peace; 
 
 {b) the expression "the common gaol or other place of confinement," in 
 the case of any offender whose age at the time of his conviction does not, in 
 the opinion of the magistrate, exceed sixteen years, includes any reformatory 
 prison provided for the reception of juvenile offenders in the province in which 
 the conviction referred to takes place, and to which by the law of that province 
 the offender may be sent ; and 
 
 (c) the expression "property" includes everything included under the 
 same expression or under the expression "valuable security," as defined by this 
 Act, and in the case of any "valuable security," the value thereof shall be 
 reckoned in the manner prescribed in this Act. R. S. C. c. 176, s. 2. 
 
 78S. Whenever any person is charged before a magistrate ; 
 
 {a) with having committed theft, or obtained money or property by false 
 pretenses, or unlawfully received stolen property, and the value of the property 
 alleged to have been stolen, obtained or received, does not, in the judgment of 
 the magistrate, exceed ten dollars ; or 
 
 {I) with having attempted to commit theft ; or 
 
 (c) with having committed an aggravated assault by unlawfully and 
 maliciously inflicting upon any other person, either with or without a weapon 
 
[Sees. 782, 783 
 
 Sec. 784] 
 
 SUMMARY TRIAL. 
 
 885 
 
 D OFFENCES. 
 
 le requires, (o) the expres- 
 
 litoba, any recorder, judge 
 issioner of police, judge of 
 magistrate, or other func- 
 e authority, with power to 
 by two or more justices of 
 r of its jurisdiction ; 
 r Brunswick, any recorder, 
 ,r police magistrate^acting 
 commissioner of ponce and 
 proper legislative authority 
 luired to be done by two or 
 
 i and British Columbia and 
 
 I the peace sitting together, 
 
 rers of two justices of the 
 
 of the Supreme Court of 
 sitting together, and any 
 
 ustices of the peace; 
 
 place of confinement," in 
 his conviction does not, in 
 1, includes any reformatory 
 
 lers in the province in which 
 by the law of that province 
 
 ything included under the 
 security," as defined by this 
 the value thereof shall be 
 ,S.C.c.l76, S.2. 
 
 :e a magistrate ; 
 money or property by false 
 md the value of the property 
 does not, in the judgment of 
 
 br 
 
 lassault by unlawfully and 
 ler with or without a weapon 
 
 or instrument, any grievous bodily harm, or by unlawfully and maliciously 
 wounding any other person ; or 
 
 {d) with having committed an assault upon any female whatsoever, or 
 upon any male child whose age does not, in the opinion of the magistrate, 
 exceed fourteen 'years, such assault being of a nature which cannot, in the 
 opinion of the magistrate, be suflficieritly punished by a summary conviction 
 before him under any other part of this Act, and such assault, if uiwn a female, 
 not amounting, in his opinion, to an assault with intent to commit a rape ; or 
 
 (e) with having assaulted, obstructed, molested or hindered any peace 
 officer orpubl'c officer in the lawful performance of his duty, or with intent to 
 prevent the performance thereof ; or 
 
 (/) with keeping or being an inmate, or habitual frequenter of any dis- 
 orderly house, house of ill-fame or bawdy-house : or 
 
 {<i) with using or knowingly allowmg any part of any premises under his 
 control to be used— 
 
 (i) for the purpose of recording or registering any bet or wager, or 
 selling any pool ; or 
 
 (ii) keeping, exhibiting, or employing, or knowingly allowing to be 
 kept, exhibited or employed, any device or apparatus for the purpose of 
 recording or registering any bet or wager, or selling any pool ; or 
 (h) becoming the custodian or depositary of any money, property, or valu- 
 able thing staked, wagered or pledged ; or 
 
 (i) recording or registering any bet or wager, or selling any pool, upon the 
 result of any political or municipal election, or of any race, or of any contest or 
 trial of skill or endurance of man or beast, — 
 
 the magistrate may, subject to the provisions hereinafter made, hear and 
 determine the charge in a summary way. R. S. C. c. 176, s. 3. 
 
 1'§4. The jurisdiction of such magistrate is absolute in the case of any 
 person charged with keeping or being an inmate or habitual frequenter of any 
 disorderly house, house of ill-fame or bawdy-house, and does not depend on the 
 consent of the person charf^ed to be triod by such magistrate, nor shall such 
 person be asked whether he consents to be so tried ; nor do the provisions of 
 this part affect the absolute summary jurisdiction given to any justice or 
 justices of the peace in any case by any other part of this Act. R. S. C. 
 c. i:6, 8. 4. 
 
 The words "within the police Hmits of any city in 
 Canada" were inserted in the repealed Act after the word 
 charged in the second line. 
 
 2. The jurisdiction of the magistrate is absolute in the case of any person 
 who, being a seafaring person and only transiently in Canada, and having no 
 permanent domicile therein, is charged, either within the city of Quebec as 
 hmited for the purjwse of the police ordinance, or within the city of Montreal 
 as 80 limited, or in any other seaport city or town in Canada where there is 
 such magistrate, with the commission therein of any of the offences hereinbe- 
 fore mentioned, and also in the case of any other jierson charged with any such 
 
 ^-^^ 
 
886 
 
 PROCEDURE. 
 
 [Sees. 785-787 
 
 i ! 
 
 offence on the complaint of any such seafaring person whose tewtimony is 
 essential to the proof of the offence ; and such jurisdiction does not depei'' -t 
 the consent of any such person to be tried by the magistrate, nor a\ \. such 
 person be asked whether he consents to be so tried. R. S. C, c. 176, s. 5. 
 
 3. The jurisdiction of a stipendary magistrate in the province of Prince 
 Edward Island, and of a magistrate in tlie district of Keewatin, under this 
 part, is absolute without the consent of the person charged. 52 V. c. 46, s, 1. 
 
 This sub-section extended to British Columbia by the 
 repealed Act. 
 
 ISS- If any person is charged, in the province of Ontario before a police 
 magistrate or before a stipendiary magistrate in any county, district or provi- 
 sional county in such province, with having committed any offence for which 
 he may be tried at a Court of General Sessions of the Peace, or if any person is 
 committed to a gaol in the county, district or provisional county, under the 
 warrant of any justice of the peace, for trial on a charge of being guilty of any 
 such offence, such person may, with his own consent, be tried before such 
 magistrate, and may, if found guilty, be sentenced by the magistrate to the 
 same punishment as he would have been liable to if he had been tried before 
 the Court of General Sessions of the Peace. R. S. C. c. 176, s. 7. 
 
 " 786. Whenever the magistrate, before whom any person is charged as 
 aforesaid, proposes to dispose of the case summarily under the provisions of 
 this part, such magistrate, after ascertaining the nature and extent of the 
 charge, but before the formal examination of the witnesses for the prosecution 
 and before calling on the person charged for any statement which he wishes to 
 make, shall state to such person the substance of the charge against him, and 
 (if the charge is not one that can be tried summarily without the consent of the 
 accused) shall then say to him these words, or words to the like effect : " Do 
 you consent that the charge against you shall be tried by me, or do you desire 
 that it shall be sent for trial by a iury at the (naniiny the court at which it can 
 probably soonest he tried) ; " and if the person charged consents to the ciiarge 
 being summarily tried and determined as aforesaid, or if the power of the 
 magistrate to try it does not depend on the consent of the accused, the magis- 
 trate shall reduce the charge to writing and read the same to such person, and 
 shall then ask him whether he is guilty or not of such charge. If the iierson 
 charged confesses the charge the magistrate shall then proceed to pass such 
 sentence upon him as by law may be passed in respect to such offence, subject 
 to the provisions of this Act ; but if the person charged says that he is not 
 guilty, the magistrate shall then examine the witnesses for the prosecution, 
 and when the examination has been completed, the magistrate shall inquire of 
 the person charged whether he has any defence to make to such charge, and if 
 he states that he has a defence the magistrate shall hear such defence, and 
 shall then proceed to dispose of the case summarily. R. S. C. c. 176, ss. 8 & 'i 
 
 78T. In the case of an offence charged under paragraph («) or (i) of sec- 
 tion seven hundred and eighty-three, the magistrate, after hearing the whole 
 case for the prosecution and for the defence, shall, if he finds the charge 
 proved, convict the person charged and commit him to tlie common gaol or 
 
[Sees. 785-787 
 
 •son whose testimony is 
 ction does not deperT" "n 
 lagistrate, nor si .. such 
 R. S. C. c. 176, s, 5. 
 
 n the province of Prince 
 
 of Keewatin, under this 
 
 harged. 52 V. c. 46, s. 1. 
 
 h Columbia by the 
 
 . of Ontario before a police 
 y county, district or provi- 
 tted any offence for which 
 le Peace, or if any person is 
 visional county, under the 
 large of being guilty of any 
 isent, be tried before such 
 1 by the magistrate to the 
 if he had been tried before 
 C, c. 176, 9. 7. 
 
 m any person is charged as 
 ily under the provisions of 
 nature and extent of the 
 itnesses for the prosecution 
 ;atement which he wishes to 
 ;he charge against him, and 
 y without the consent of the 
 rds to the like effect : " Do 
 ried by me, or do you desiie 
 iwj the court at which it cmi 
 •ged consents to the chavge 
 laid, or if the power of the 
 it of the accused, the inagis- 
 ;he same to such iwrson, and 
 iuch charge. If the ]xvm 
 then proceed to pass such 
 ^pect to such offence, subject 
 charged says that he is not 
 Itnesses for the prosecution, 
 e magistrate shall inquire of 
 make to such charge, and if 
 (hall hear such defence, and 
 R.S. C. c. 176,ss. 8&'J. 
 
 ^r paragraph («) or (M of ««• 
 fate, after hearing the whole 
 Vail, if he finds the charge 
 hrm to the common gaol jr 
 
 Sees. 788-792] 
 
 SUMMARY TRIAL. 
 
 887 
 
 other place of confinement, there to be imprisoned, with or without hard 
 labour, for any term not exceeding six months. R. S. C. c. 176, a. 10. 
 
 788. In any case summarily tried under paragraph (c), (d), (c), (f), (j), 
 (h) or {i) of section seven hundred and eighty-three, if the magistrate finds the 
 charge proved, he may convict the person charged and commit him to the 
 common gaol or other place of confinement, there to be imprisoned, with or 
 without hard labour, for any term not exceeding six months, or may condemn 
 him to pay a fine not exceeding, with the costs in the case, one hundred dol- 
 lars, or to both fine and imprisonment not exceeding the said sum and term ; 
 and such fine may be levied by warrant of distress under the hand and seal of 
 the magistrate, or the person convicted may be condemned, in addition to any 
 other imprisonment on the same conviction, to be committed to the common 
 gaol or other place of confinement for a further term not exceeding six months, 
 unless such fine is sooner paid. R. S. C. c. 176, s. 11. 
 
 7§9. When any person is charged before a magistrate with theft or with 
 having obtained property by false pretenses, or with having unlawfully re- 
 ceived stolen property, and the value of the property stolen, obtained or 
 received exceeds ten dollars, and the evidence in support of the prosecution is, 
 in the opinion of the magistrate, sufficient to put the iierson on his trial for the 
 offence charged, such magistrate, if the case appears to him to be one which 
 may properly be disposed of in a summary way, and may be adequately 
 punished by virtue of the iwwers conferred by this part, shall reduce the 
 charge to writing, and shall read it to the said person, and, unless such person 
 is one who can be tried summarily without his consent, shall then put to him 
 the question mentioned in section seven hundred and eighty-six, and shall ex- 
 plain to him that he is not obliged to plead or answer before such magistrate, 
 and that if he does not plead or answer before him, he will be cominitted for 
 trial in the usual course. R. S. C. c. 176, s. 12. 
 
 790. If the person charged as mentioned in the next preceding section 
 consents to be tried by the magistrate, the magistrate shall tiien ask him 
 whether he is guilty or not giiilty of the charge, and if such person says that 
 he is guilty, the magistrate shall '.hen cause a plea of guilty to be entered upon 
 the proceedings, and sentence hi n to the same punishment as he would have 
 been liable to if he had been convicted upon indictment in the ordinary way ; 
 and if he says that he is not guilty, the magistrate shall proceed as provided in 
 section seven hundred and eighty-six. 52 V. c. 46, a. 2. 
 
 791. If, in any proceeding under this part, it appears to the magistrate 
 that the offence is one which, owing to a previous conviction of the person 
 charged, or from any other circumstance, ought to be made the subject of pro- 
 secution by indictment rather than to be disjiosed of summarily, such maijis- 
 trate may, before the accused person has made his defence, decide not to 
 adjudicate summarily upon the case ; but a previous conviction shall not 
 prevent the magistrate from trying the offender summarily, if he thinks fit so 
 to do. R. S. C. 0. 176, 8. 14. 
 
 792. If, when liis consent is necessary, the iierson charged elects to be 
 tried before a jury, the magistrate shall proceed to hold a preliminary inquiry 
 
 .3: 
 
888 
 
 PROCEDURE. 
 
 [Sees. 793-800 
 
 aa provided in Parts XLIV. and XLV., and if the i)erson charged is commit- 
 ted for trial, shall state in the warrant of committal the fact of such election 
 having been made. R. S. C. c. 176, a. 15. 
 
 798* In every case of summary proceedings under this part the person 
 accused shall be allowed to make his full answer and defence, and to have all 
 witnesses examined and cross-examined by counsel or solicitor. R. S. C. c. 170, 
 
 8.16. 
 
 •704. Every court held by a magistrate for the puriwses of this part shall 
 be an open public court. 
 
 795. The magistrate before whom any person is charged under the 
 provisions of this part may, by summons, require the attendance of any iwrson 
 as a witness upon the hearing of the case, at a time and place to be named in 
 such summons, and such magistrate may bind, by recognizance, all persons 
 whom he considers necessary to be examined, touching the matter of such 
 charge, to attend at the time and place appointed by him and then and there 
 to give evidence upon the hearing of such charge ; and if any person so sum- 
 moned, or required or bound as aforesaid, neglects or refuses to attend in 
 pursuance of such summons or recognizance, and if proof is made of such 
 person having been duly summoned as hereinafter mentioned, or bound by 
 recognizance as aforesaid, the magistrate before whom such jierson should have 
 attended may issue a warrant to compel his a.ipearance as a witness. R, S. C. 
 c. 176, s. 18. 
 
 TOf*. Every summons i3.^ued under the provisions of this paipt may be 
 served by delivering a copy f.f the summons to the person summoned, or by 
 delivering a copy of the summons to some inmate of such person's usual place 
 of alxxle apparently over six'.ern years of age ; and every i)erson so requii-ed by 
 any writing under the hand of any magistrate to attend and give evidence 
 &9 aforesaid shall be deemed to have been duly summoned. R. S. C. c. I'G. 
 s. 19. 
 
 797, Whenever the magistrate finds the offence not provco, he shall 
 dismiss the oliarge, and make out and deliver to the person charged a 
 certificate under his hand stating the fact of such dismissal. R. 8. C. c. 176, 
 s. 20. • . 
 
 798. Every conviction under this part shall have the same effect as a 
 conviction upon indictment for the same offence. R. S. C. c. 17C, s. 22. 
 
 799- Every person who obtains a certificate of dismissal or is convicted 
 under the provisions of this part, shall be released fi'om all furtlier or other 
 criminal proceedings for the same cause. R. S. C. c. 176, s. 23. 
 
 800. No conviction, sentence or proceeding under the provisions of this 
 part shall be quashed for want of fonn ; and no warrant of commitment uiwn 
 a conviction shall be held void by reason of any defect therein, if it is therein 
 alleged that the offender has been convicted, and there is a good and valid 
 conviction to sustain the same. R. S. C. c. 176, s. 24. 
 
[Sees. 793-800 
 
 son charged it* commit - 
 le fact of such election 
 
 ier this part the person 
 defence, and to have all 
 )licitor. R. S. C. c. 17G, 
 
 urposes of this part shall 
 
 ti 19 charged under the 
 attendance of any person 
 and place to be named in 
 recognizance, all persons 
 jhing the matter of snch 
 y him and then and there 
 ,nd if any person so sum- 
 8 or refuses to attend in 
 if proof is made of such 
 : mentioned, or bound by 
 m such person should have 
 nee as a witness. R. S. C. 
 
 (ions of this pa?t maybe 
 person summoned, or by 
 
 If such person's usual place 
 
 very i)erson so requii-ed by 
 attend and give evidence 
 
 Immoned. R. S. C. c. lib. 
 
 [ence not provco, he shall 
 
 Ito the person charged^ a 
 
 lismissal. R- S. C. c. 176, 
 
 (have the same effect as a 
 S. C. c. 17C, s. 22. 
 
 [i dismissal or is convicted 
 from all further or other 
 , 176, 8. 23. 
 
 Inder the provisions of this 
 Irant of commitment n\m 
 
 Let therein, if it is theren. 
 
 (there is a good and valid 
 
 B4. 
 
 Sees. 801-806] 
 
 SUMMARY TRIAL. 
 
 889 
 
 801* The magistrate adjudicating under the provi.sion8 of this part shall 
 tran-tmit the conviction, or a duplicate of a certificate of dismissal, with the 
 written charge, the deiMsitions of witnesses for the prosecution and for the 
 defence, and th« statement of the accused, to the next court of General or 
 Quarter Sessions of the Peace or to the court discharging the functions of a 
 <!0\irt of General or Quarter Sessions of the Peace, for the district, county or 
 place, there to be kept by the proiier officer among the records of the court. 
 R. S. C. c. 176. 8. 25. 
 
 802. A copy of such conviction, or of such certificate of dismissal, 
 certified by the proiier officer of the court, or proved to be a true copy, shall be 
 sufficient evidence to prove a conviction or dismissal for the offence mentioned 
 therein, in any legal proceedings. R. S. C. c. 176, s. 26. 
 
 803< The magistrate by whom any person has been convicted under the 
 provisions of this part may order restitution of the property stolen, or taken 
 or obtained by false pretenses, in any case in which the court before whom the 
 |)er9on convicted would have been tried but for the provisions of this jjart, 
 might by law older restitution. R. S. C. c. 176, s. 27. 
 
 See s. 838, post. 
 
 §04* Whenever any person is charged before any justice or justices of 
 the peace, with any offence mentioned in section seven hundred and eighty, 
 three, and in the opinion of such justice or justices the case is proper to be 
 disposed cf summarily by a magistrate, as herein provided, the justice or 
 justices before whom such person is so charged may, if he or they see fit, 
 remand such person for further examination before the nearest magistrate in 
 like manner in all respects as a justice or justices are authorized to remand a 
 person accused for trial at any court, under Part XLV., section five hundred 
 and eighty-six ; but no justice or justices of the iieace, in any prdlince, shall 
 so remand any person for further examination or trial before any such magis- 
 trate in any other province. Any [jerson so remanded for examination before 
 a magistrate in any city, may be examined and dealt with by any other magis- 
 trate in the same city. R. S. C. o. 176, ss. 28, 29 & 30. 
 
 805. If any person suffered to go at large, upon entering into such 
 recognizance as the justice or justices are authorized, under Part XLV. , section 
 five hundred and eighty-seven, to take on the remand of a person accused, con- 
 ditioned for his appearance before a magistrate, does not afterwards appear, 
 pursuant to such recognizance, the magistrate before whom he should have 
 appeared shall certify, under his hand on the back of the recognizance, to the 
 clerk of the peace of the district, county or place, or other proper officer, as 
 tiio case may be, the fact of such non-appearance, and such recognizance shall 
 be proceeded upon in like manner as other recognizances ; and such certificate 
 shiUl heprivm facie evidence of such non-apijearance without proof of the signa- 
 t'lreoflhe magistrate thereto. R. S. C. c. 176, s. 31. 
 
 806. Every fine and penalty imposed under the authority of this part 
 shall be paid as follows, that is to say : — 
 
890 
 
 PROCEDURE. 
 
 [Sec. 807 
 
 (a) In the province uf Ontario, to the magistrate who imposed thr. same, or 
 to the clerk of the court or clerk of the peace, as the case may be, to be paid 
 over by him to the county treasurer for county purposes ; 
 
 ('') In any new district in the i>rovince of Quebec, to the sheriff of such 
 district, as treasurer of the building and jury fund for such district, to fonn 
 part of such fund, — and if in any other district in the said province, to the 
 prothonotary of such district to be applied by him, under the direction of the 
 Lieutenant-Governor in Council, towards the keeping in repair of the court- 
 house in such district, or to be added by him to the moneys and fees collected 
 by him for the erection of a court-house and gaol in such district, so long as 
 such fees are collected to defray the cost of such erection ; 
 
 (c) In the provinces of Nova Scotia and New Brunswick, to the county 
 treasurer for county purposes ; and 
 
 (d) In the provinces of Prince Edward Island, Manitoba and British 
 Columbia, to the treasurer of the province. R. S. C. c. 176, s. 32. 
 
 N07. Every conviction or certificate may be in the form QQ, RR, or SS 
 in schedule one hereto applicable to the case, or to the like effect ; and when- 
 ever the nature of the case requires it, such forms may be altered by omitting 
 the words stating the consent of the person to be tried before the magistrate, 
 and by adding the requisite words, stating the fine imposed, if any, and the 
 imprisonment, if any, to which the pers p convicted is to be subjected if the 
 fine is not sooner paid. R. S. C. c. 176, s. 33. 
 
 FORMS UNDER PART LV. 
 
 QQ.— {Section 807.) 
 
 CONVICTION. 
 
 Canada, '^ 
 
 Province of • , J- 
 County of .J 
 
 Be it remembered that on the day of , in the 
 
 year , at , A. B., being charged before me, 
 
 the undersigned, 
 
 , of the said {city) (and consenting to 
 
 my trying the charge summarily), is convicted before me, for 
 that he, the said A. B., {etc., utatimj the nfence, and the time and 
 place when and where committed), and I adjudge the said A. B., for 
 his said offence, to be imprisoned in the , (and there kept 
 
 to hard labour) for the term of 
 
 Given under rny hand and seal, the day and year first above 
 
 mentioned, a*'' aforesaid. 
 
 J. S., [seal.] 
 
 J. P., f Name of coxmUj.) 
 
Sec. 807] 
 
 sum:mary trial. 
 
 891 
 
 B.K—{Siftian 807.) 
 
 CONVICTION UPON A PLEA OF GUILTY, 
 
 Canada, ^ 
 
 province of , I- 
 
 County of . J 
 
 Be it remembered that on the day of , in 
 
 the year , at , A. B. being charged before me, 
 
 the undersigned, , of the said fcitijj (and consenting to 
 
 my trying the charge summarily), for that he, the said A. B., 
 (etc., stathifj the offence, and the, time and jdace uhen awl where 
 committed), and pleading guilty to such charge, he is thereupon 
 convicted before me of the said oti'ence ; and 1 adjudge him, the 
 said A. B., for hia said offence, to be imprisoned in the , 
 
 (and there kept to hard labour) for the term of 
 
 Given under my hand and seal, the day and year first above 
 mentiouod, at aforesaid. 
 
 J. S., [seal.] 
 
 J. P., ( Xame of county.) 
 
 .1* 
 
 day of , in the 
 
 ng charged before me, 
 
 \uj) (and consenting to 
 
 )nvicted before me, for 
 
 lence, and the time and 
 
 [dge the said A. B., for 
 
 , (and there kept 
 
 SS.—f Section 807.) 
 
 CERTIFICATE OF DISMISSAL. 
 
 Canada, 
 Province of 
 County of 
 
 I, the undersigned, , of the city (or us the case nunj 
 
 he) of , certify that on the day of , in 
 
 the year , at aforesair", A. B., being charged 
 
 before me (and consenting to my trying the charge summarily), 
 for that he, the said A. B., (etc.,statinti the o fence chart led, and the 
 time and place when and where alleged to have been comnntted), I 
 did, after having summarily tried the said charge, dismiss the 
 same. 
 
 Given under my hand and seal, this day of » 
 
 in the year , at aforesaid. 
 
 J. S., [seal.] 
 
 .7. P., (Xame of county.) 
 
892 
 
 PROCEDURE. 
 
 [Sees. 808-810 
 
 808. The provisions of this Act relating to preliminary inquiries before 
 justices, except as mentioned in sections eight hundred and four and eight 
 hundred and five and of Part LVIII., shall not apply to any proceedings 
 under this part. Nothing in this part shall affect the provisions of Part LVI., 
 and this part shall not extend to persons punishable under that part so far as 
 regards offences for which such persons may be punished thereunder. R. S. C- 
 c. 17C, ss. 34 & 35. 
 
 PART LVI. 
 
 TRIAL OF JUVENILE OFFENDERS FOR INDICTABLE 
 t OFFENCES. 
 
 800. In this part, unless the context otherwise requires — 
 
 (a) The expression *' two or more justices," or " the justices" includes,— 
 
 (i) in the provinces of Ontario and Manitoba any judge of the county 
 court being a justice of the peace, police magistrate or stipendiary magis- 
 trate, or any two justices of the peace, acting within their respective 
 jurisdictions ; 
 
 (ii) in the province cf Quebec any two or more justices of the peace, 
 the sheriff of any district, except Montreal and Quebec, the deputy sheriff 
 of Gasije, and any recorder, judge of the Sessions of the Peace, police 
 magistrate, district magistrate or stiiiendiary magistrate acting within the 
 limits of their resjjective jurisdictions ; 
 
 (iii) in the provinces of Nova Scotia, New Brunswick, Prince Edward 
 Island, and British Columbia, and in the district of Keewatin, any func- 
 tionary or tribunal invested by the proper legislative authority with iwwer 
 to do acts usually required to be done by two or more justices of the i)eace; 
 
 (iv) in the North-west Territories, any judge of the Supreme Court of 
 the said territories, any two justices of the peace sitting together, and any 
 functionary or tribunal having the lowers of two justices of the peace ; 
 
 (b) The expression "the common gaol or other place of confinement" 
 includes any reformatory prison provided for the reception of juvenile offen- 
 ders in the province in which the conviction referred to takes place, and to 
 which, by the law of that province, the offender may be sent. R. S. C. c. 17'i 
 B. 2. 
 
 810. Every person charged with having committed, or having attempted 
 to commit any offence which is theft, or punishable as theft, and wlioae age, at 
 the i)eriod of the commission or attempted commission of such offence, does 
 not, in the opinion of the justice before whom he is brought or api^ars, exceed 
 the age of sixteen years, shall, upon conviction thereof in oiien court, ui)on his 
 
[Sees. 808-810 
 
 inary inquiries before 
 1 and four and eight 
 V to any proceedings 
 ovisionsofPartLVL. 
 der that part so far as 
 thereunder. R- S. C- 
 
 Sees. 811-814] TRIAL OF JUVENILE OFFENDERS. 
 
 893 
 
 ,R INDICTABLE 
 
 I requires — 
 
 the justices" includes - 
 a any judge of the county 
 Krate or stipendiary inagis-, 
 g within their respective 
 
 bore justices of the i«ace 
 Quebec, the deputy shenff 
 
 Ins of the Peace poke 
 lagistrate acting within the 
 
 -Brunswick, Prince Edward 
 
 tct of Keewatin, any func- 
 \ative authority with iK)wet 
 [more justices of the Face; 
 U of the Supreme Court of 
 be sitting together, and any 
 1-0 justices of the peace; 
 
 Lr place of confinement" 
 Ireceptionof juvenile offen- 
 ■^red to takes place, and to 
 
 fy be sent. R.S.C.c.l.., 
 
 nitted, or having attemiited 
 
 Lb theft, and whose age. at 
 
 I- •„ of such offence, does 
 lission oi »u(-" , 
 
 I brought or appears, exceed 
 
 Ireof in oi^n court, upon his 
 
 own confession or upon proof, before any two or more justices, be committed 
 to the common gaol or other place of confinement within the jurisdiction of 
 such justices," there to be imprisoned, with or without hard labour, for any 
 term not exceeding three months, or, in the discretion of such justices, shall 
 iorfeit and pay such sum, not exceeding twenty dollars, as such justices adjudge. 
 R. S. C. c. 177, 8. 3. 
 
 811. Whenever any person, whose age is alleged not to exceed sixteen 
 years, is charged with any offence mentioned in the next preceding section, on 
 the oath of a credible witness, before any justice of the peace, such justice may 
 issue his summons or warrant, to summon or to apprehend the person so charged 
 to appear before any two justices of the peace, at a time and place to be named 
 in such summons or warrant. R. S. C. c. 177, s. 4. 
 
 813* Any justice of the peace, if he thinks fit, may remand "for further 
 examination or for trial, or suffer to go at large, upon his finding sufficient 
 sureties, any such person charged before him with any such offence as afore- 
 said. 
 
 2. Every such surety shall be bound by recognizance conditioned for the 
 appearance of such person before the same or some other justice or justices of 
 the peace for further examination, or for trial before two or more justices of the 
 peace as aforesaid, or for trial by indictment at the proper court of criminal 
 jurisdiction, as tlie case may be. 
 
 3. Every such recognizance may be enlarged, from time to time, by any 
 such justice or justices to such further time as he or they appoint ; and every 
 such recognizance not so enlarged shall be discharged without !fee or reward, 
 when the person has appeared according to the condition thereof. R. S. 0. 
 c. 177, ss. 5, 6 & 7. 
 
 813. The justices before whom any person is charged and proceeded 
 against under the provision of this part before such person is asked whether he 
 has any cause to show why he should not be convicted, shall say to the person 
 so charged, these words, or words to the like effect : 
 
 " We shall have to hear what you wish to say in answer to the charge 
 against you ; but if you wish to be tried by a jury, you must object now to our 
 deciding upon it at once." 
 
 2. And if such person, or a parent or guardian of such person, then objects, 
 no further proceedings shall be had under the provisions of this part ; but the 
 justices may deal with the case according to the provision set out in Parts 
 XLIV. and XLV., as if the accused were before them thereunder. R. S. C. 
 
 c. 177, s. 8. 
 
 814. If the justices are of opinion, before the person charged has made 
 his defence, that the charge is, from any circumstance, a fit subject for prose- 
 cution by indictment, or if the person charged, upon being called upon to 
 answer the charge, objects to the case being summarily disposed of under the 
 provisions of this part, the justices sliall not deal with it summarily, but may 
 proceed to hold a preliminary inquiry as provided in Parts XLIV. and XLV. 
 (Ss. 553, 577). 
 
894 
 
 PROCEDURE. 
 
 [Sees. 815-819 
 
 ! I' 
 
 
 2. In case the accused has elected to be tried by a jury, the justices shall 
 state in the warrant of commitment the fact of such election having been made. 
 R. S. C. c. 177, 8. 9. 
 
 SIS* Any justice of the peace may, by summons, require the attendance 
 of any person as a witness upon the hearing of any case before two justices, 
 under the authority of this part, at a time and place to be named in such 
 summons. R. S. C. c. 177, s. 10. 
 
 S10« Any such justice may require and bind by recognizance every 
 person whom he considers necessary to be examined, touching the matter of 
 such charge, to attend at the time and place appointed by him and then and 
 there to give evidence upon the hearing of such charge. R. S. 0. c. 177, s. U. 
 
 817. If any person so summoned or required or bound, as aforesaid, 
 neglects or refuses to attend in pursuance of such summons or recognizance, and 
 if proof is given of such person having been duly summoned, as hereinafter 
 mentioned, or bound by recognizance, as aforesaid, either of the justices before 
 whom any such person should have attended may issue a warrant to coijipel 
 his appearance as a witness. R. S. C. o. 177, s. 12. 
 
 818. Every summons is& eel >r*°v the authority of this part may be 
 served by delivering a copy thereci ' h person, or to some inmate, a/ipar- 
 ently over sixteen years of age, at si. h ^ -m's usual place of abode, and every 
 person so required by any writing under the hand or hands of any justice or 
 justices to attend and give evidence as aforesaid, shall be deemed to have been 
 duly summoned. R. S. C. c. 177, s. 13. 
 
 81JI. If the justices, upon the hearing of any such case, deem the offence 
 not proved, or that it is not expedient to inftict any punishment, they shi 
 dismiss the persoi. charged, — in the latter case on his finding sureties for his 
 future good behaviour, and in the former case without sureties, and then make 
 out and deliver to the person charged a certificate in the form TT in schedule 
 one to this Act, or to the like effect, under the hands of such justices, stating 
 the fact of such dismissal. R. S. C. c. 177. s. 14. 
 
 FORMS UNDER PART LVI. 
 
 TT.— {Section 819.) 
 
 CERTIFICATE OF DISMISSAL. 
 
 Canada, ^ , justices of 
 
 Province of , j- the peace for the of 
 
 County of . J , {or if a recorder, 
 
 etc., I, a , of tlie of , as tkcase 
 
 may be), do hereby certify that on the day of > 
 
[Sees. 815-819 
 
 a jury, the juBtioes shall 
 lection having been made. 
 
 ,n3, require the attendance 
 r case before two justices. 
 )laoe to be named in such 
 
 ind by recognizance every 
 ed, touching the matter of 
 ,inted by him and then and 
 vrge. R.S.0.0.177. S.11. 
 
 red or bound, as aforesaid, 
 immons or recognizance, and 
 y summoned, as hereinafter 
 1 eitherof the justices before 
 iV issue a warrant to coippel 
 12. 
 
 thority of this part may be 
 1 or to some inmate, a])par- 
 ual place of abode, and every 
 
 ,nd or hands of any justice or 
 'shall be deemed to have been 
 
 Ly such case, deem the offence 
 
 It any punishment, they shall 
 on his finding sureties for his 
 ithout sureties, and then make 
 se in the form TT in schedule 
 lands of such justices, stating 
 
 Sec. 820] 
 
 TRIAL OF JUVENILE OFFENDERS. 
 
 895 
 
 LVI. 
 
 Imissal 
 the 
 
 , justices of 
 
 o! 
 
 , {or if « recorder, 
 
 , as the crt«« 
 
 day of 
 
 in the year , at , in the said of , 
 
 A. B. was brought before us the said justices {or me, the said 
 ), charged with the following offence, that is to say 
 {here state briefly the particulars of the charge), and that we, the 
 said justices, {or I, the said ), thereupon dismissed the 
 
 said charge. 
 
 Given under our hands and seals {or my hand and seal) this 
 
 said. 
 
 day of 
 
 , in the year 
 
 , at 
 
 J. P, 
 J. rt. 
 
 or S. J. 
 
 afore- 
 
 [SEAL.] 
 
 [seal.] 
 [seal.] 
 
 830. The justices before whom any person is summarily convicted of any 
 offence hereinbefore mentioned, may cause the conviction to be drawn up in 
 the form UU in schedule one hereto, or in any other form to the same effect, 
 and the conviction shall be good and effectual to all intents and purposes. 
 
 2. No such conviction shall be quashed for want of form, or be removed by 
 ctriiorari or otherwise into any court of record ; and no warrant of commit- 
 ment shall be held void by reason of any defect therein, if it is therein alleged 
 that the person has been convicted, and there is a good and valid conviction to 
 sustain the same. R. S. C. c. 177, ss. 16 & 17. 
 
 1 
 
 ,in 
 A. B. 
 
 ■{J}].— {Section 820.) 
 
 CONVICTION 
 Canada, 
 Province of 
 County of » J 
 
 Be it remembered that on the day of 
 
 the year , at , in the county of 
 
 is convicted before us, J. P. and J. B., justices of the peace for 
 the said county {or me, S. J., recorder, of the , of , 
 
 or ai the case may he) for that he, the said A. B., did {specify the 
 ojf'ence and the time and place when and where tlie same was com- 
 mitted, as the case may be, but without setting forth the evidence), 
 and we, the said J. P. and J. B. {or I, the said S. J.), adjudge 
 the said A. B., for his said offence to be imprisoned in the 
 
 , {or to be imprisoned in the , and there kept at hard 
 
 labour), for the space of, {or we) {or I) adjudge the said 
 
 A. B., for his said offence, to foifeit and pay {hei'e state the penalty 
 
^Wffi^™ 
 
 896 
 
 PROCEDURE. 
 
 [Sees. 821-825 
 
 actualhj imposed), and in default of immediate payment of the 
 said sum, to be imprisoned in the , (or to be imprisoned 
 
 in the , and kept at hard labour) for the term of , 
 
 unless the said sum is sooner paid. 
 
 Given under our hands and seals {or my hand and seal) the 
 day and year first above mentioned. 
 
 J. P. [seal.] 
 
 J. B. [seal.] 
 
 or S. J. [seal.] 
 
 831. Every person who obtains such certificate of dismissal, or is so 
 convicted, shall be released from all further or other criminal proceedings for 
 the same cause. R. S. C. c. 177, s. 15. 
 
 832. The justices before whom any person is convicted under the pro- 
 visions of this part shall forthwith transmit the conviction and recognizances 
 to the clerk of the peace or other proper officer, for the district, city, county or 
 union of counties wherein the offence was committed, there to be kept by the 
 proper oflBcer among the records of the court of General or Quarter Sessions of 
 the Peace, or of any other court discharging the functions of a court of General 
 or Quarter Sessions of the Peace. R. S. C. o. 177, s. 18. 
 
 823. Every clerk of the peace, or other proper officer, shall transmit to 
 the Minister of Agriculture a quarterly return of the names, offences and 
 punishments mentioned in the convictions, wth such other particulars as are, 
 from time to time, required. R. S. C. c. 177, s. 19. 
 
 884. No conviction under the authority of this part shall be attended 
 with any forfeiture, except such penalty as is imposed by the sentence ; but, 
 whenever any person is adjudged guilty under the provisions of this part, the 
 presiding justice may order restitution of property in respect of which the 
 offence was committed, to the owner thereof or his representatives. 
 
 See s. 838, post. 
 
 2. If such property is not then forthcoming, the justices, whether they 
 award punishment or not, may inquire into and ascertain the value thereof in 
 money ; and, if they think proper, order payment of such sum of money to the 
 true owner, by the person convicted, either at one time or by instalments, at 
 such periods as the justices deem reasonable. 
 
 3. The person ordered to pay such sum may be sued for the same as a debt 
 in any court in which debts of the I'ko amount are, by law, recoverable, with 
 costs of suit, according to the practice of such court. R. S. C. c. 177, ss. 20, 21 
 &22. 
 
 [Parliament, by this enactment, assumes the right to give a right of actiw 
 in the civil courts against minors. 
 
 835. Whenever the justices adjudge any offender to forfeit and pay a 
 pecuniary penalty under the authority of this part, and such penalty is not 
 forthwith paid they may, if they deem it expedient, appoint some future day 
 
Seoa. 826-828] TRIAL OF JUVENILE OFFENDERS. 
 
 897 
 
 my hand and seal) the 
 
 of thi8 part shall be attended 
 imposed by the sentence; but, 
 
 the provisions of this part, the 
 [perty in respect of which the 
 his representatives. 
 
 Ing, the justices, whether they 
 I ascertain the value thereof in 
 Btof 8uch sun of money to the 
 [one time or by instalments, at 
 
 .be sued for the same as a debt 
 
 are, by law, recoverable, ^v.t 
 
 Ut. R.S.C.C. 177, 88.20,-1 
 
 right to give a right of adm 
 
 y offender to forfeit and pap 
 1 part, and such penalty IS n« 
 Ifent appoint some futnre day 
 
 for the payment thereof, and order the offender to be detained in safe custody 
 until the day so appointed, unless such offender gives security to'the satisfac- 
 tion of the justices, for his appearance on such day ; and the justice {justices ?) 
 may take such security by way of recognizance or otherwise in their discretion. 
 2. If at any time so <*ppolnted such penalty has not been paid, the same or 
 any other justices of the peace may, by warrant under the;, liands and seals, 
 commit the offender to the common gaol or other place of confinement within 
 their jurisdiction, there to remain for any time not exceeding three months> 
 reckoned from the day of such adjudication. R. S. 0. c. 177, ss. '23 & 24. 
 
 S26' The justices before whom any person is prosecuted or tried for any 
 offence cognizable under this part may, in their discretion, at the request of the 
 prosecutor or of any other person who appears on recognizance or summons to 
 prosecute or give evidence against such person, order payment to the prosecu- 
 tor and witnesses for the prosecution, of such sums as to them seem reasonable 
 and sufficient, to reimburse such prosecutor and witnesses for the expenses they 
 have severally incurred in attending before them, and in otherwise carrying on 
 Buch prosecution, and also to compensate them for their trouble and loss of 
 time therein, — and may order payment to the constables and other peace 
 officers for the apprehension and detention of any person so charged. 
 
 2. The justices may, although no conviction takes place, order all or any 
 of the payments aforesaid to be made, when they are of opinion that the per- 
 sons, or any of them, have acted in good faith. R. S. C. c. 177, ss. 25 & 26. 
 
 8^1- Every fine imposed under the authority of this part shall be paid 
 and applied as follows, that is to say : — 
 
 (a) In the Province of Ontario to the justices who impose the same or the 
 clerk of the county court, or the clerk of the peace, or other proper officer, as 
 the case may be, to be by him or them paid over to the county treasurer for 
 county purposes ; 
 
 (6) In any new district in the province of Quebec to the sheriff of such dis- 
 trict as treasurer of the building and jury fund for such district to form part oi 
 such fund, and in any other district in the province of Quebec to the protho- 
 notary of such district, to be applied by him, under the direction of the 
 Lieutenant-Governor in Council, towards the keeping in repair of the court- 
 house in such district or to be added by him to the moneys or fees collected by 
 hira for the erection of a court-house or gaol in such district, so long as such 
 fees are collected to defray the cost of such erection ; 
 
 (c) In the provinces of Nova Scotia and New Brunswick to the county 
 treasurer, for county purposes ; and 
 
 (d) In the provinces of Prince Edward Island, Manitoba and British 
 Columbia to the treasurer of the province. R. S. C. c. 177, s. 27. 
 
 828. The amount of expenses of attending before the justices and the 
 compensation for trouble an d loss of time therein, and the allowances to the 
 constables and other peace officers for the apprehension and detention of the 
 offender, and the allowances to be paid to the prosecutor, witnesses and con- 
 stables for attending at the trial or examination of the offender, shall be ascer- 
 tained by and certified under the hands of such justices ; but the amount of 
 Crim. Law — 57 
 
898 
 
 PROCEDURE. 
 
 
 .i...i. 
 
 [Sees. 829-832 
 
 the costs, charges and expenses attending any such prosecution, to be allowed 
 and paid as aforesaid, shall not in any one case exceed the sum of eight dollars. 
 2. Every such order of payment to any prosecutor or other person, after 
 the amount thereof has been certified by the proper justices of the peace as 
 aforesaid, shall be forthwith made out and delivered by the said justices or 
 one of them, or by the clerk of the peace or other proper officer, as the case 
 may be, to such prosecutor or other person, upon such clerk or officer bein<j 
 paid his lawful fee for the same, and shall be made upon the officer to whom 
 fines imposed "under the authority of this part are requi:-^ to ' paid over in 
 the district, city, county or union of counties in whi( .le . '3 was com- 
 mitted, or was supposed to have been committed, who, upon . ^ i of every 
 such order, shall forthwith pay to the person named therein, or to any other 
 person duly authorized to receive the same on his behalf, out of any moneys 
 received by him under this part, the money in such order mentioned, and he 
 shall be allowed the same in his accounts of such moneys. R. S. C. o. 177, ss. 
 28&29. 
 
 820* The provisions of this part shall not apply to any offence com- 
 mitted in the provinces of Prince Edward Island or British Columbia, or the 
 district of Keewatin, punishable by imprisonment for two years and upwards ; 
 and in such provinces and district it shall not be necessary to transmit any 
 recognizance to the clerk of the peace or other proper officer. R. S. C. c. 177, 
 8.30. 
 
 830* The provisions of this part shall not authorize two or more justices 
 of the peace to sentence offenders to imprisonment in a reformatory in the 
 province of Ontario. R. S. C. c. 177, s. 31. 
 
 S31. Nothing in this part shall prevent the summary conviction of any 
 person who may be tried thereunder before one or more justices of the peace, 
 for any offence for which he is liable to be so convicted under any other part 
 of this Act or under any other Act. R. S. 0. c. 177, s. 8, part. 
 
 PART LVII. 
 
 COSTS AND PECUNIARY COMPENSATION-RESTITUTION OF 
 
 PROPERTY. 
 
 83/8. Any court by which and any judge under Part LIV. or magistrate 
 under LV. by whom judgment is pronounced or recorded, upon the conviction 
 of any person for treason or any indictable offence, in addition to such sen- 
 tence as may otherwise by law be passed, may condemn such person to the 
 payment of the whole or any part of the costs or expenses incurred in and 
 about the prosecution and conviction for the offence of which he is convicted, 
 
[Sees. 829-832 
 
 aaecution, tobeaUowed 
 she sum of eight doUars. 
 
 ,r or other person, after 
 justices of the peace as 
 I by the said jvistices or 
 iroper officer, as the case 
 oh clerk or officer beins 
 upon the officer to whom 
 .ui:-Hjto' paid over in 
 • -^Q -3 was com- 
 
 wno, apon . _ i of every 
 d therein, or to any other 
 )ehalf , out of any moneys 
 1 order mentioned, and he 
 neys. R.S.C. 0.177, 88. 
 
 ,pply to any offence com- 
 r British Columbia, or the 
 or two years and upwards; 
 necessary to transmit any 
 >er officer. R. S. C. c. 177, 
 
 ithorize two or more justices 
 ,nt in a reformatory in the 
 
 summary conviction of any 
 rmore justices of the peace, 
 [victed under any other part 
 
 n, s. 8, part. 
 
 Sees. 833-834] 
 
 COSTS 
 
 899 
 
 ON-KESTITUTION 
 
 OF 
 
 der Part LIV. or magistrate 
 Uorded, upon the conviction 
 Le, in addition to such sen. 
 
 Condemn such person to 
 or expenses incurred in and 
 „ce of which he is convicted, 
 
 if to such court it seems fit so to do ; and the payment of such costs and 
 expenses, or any part thereof, may be ordered by the court to be made out of 
 any moneys taken from such person on his apprehension (if such moneys are 
 his own), or may be enforced at the instance of any person liable to pay or 
 who has paid the same in such and the same manner (subject to the provisions 
 of this Act) as the payment of any costs ordered to be paid by the judgment 
 or order of any court of competent jurisdiction in any civil action or proceed, 
 ing may for the time being be enforced : Provided, that in the meantime, and 
 until the recovery of such costs and expenses from the person so convicted as 
 ,,<. "ici, or from his estate, the same shall be paid and provided for in the 
 a_.ne manner as if this section had not been passed ; and any money which is 
 recovered in respect thereof from the person so convicted, or from his estate, 
 shall be applicable to the reimbursement of any person or fund by whom or out 
 of which such costs and expenses have been paid or defrayed : 33-34 V. (U. K.) 
 c. 23, s. 3. 
 
 Part LIV. is comprised between ss. 762 and 781, antey 
 speedy trials of indictable olfences ; and Part LV. between 
 88. 782 and 808, summary trial of indictable offences. 
 
 This section is new. The only case where costs could 
 previously be allowed in a criminal case was in assault by 
 8. 248, B. S. C. c. 174: see post, s. 834. 
 
 See K. V. Roberts, 12 Cox, 574. 
 
 Costs against a Prosecutor in a Case op Libel. 
 
 833* In the case of an indictment or information by a private prose- 
 cutor for the publication of a defamatory libel if judgment is given for the 
 defendant, he shall be entitled to recover from the prosecutor the costs incurred 
 by him by reason of such indictment or information either by warrant of 
 distress issued out of the said court, or by action or suit as for an ordinary 
 debt. R. S. C. c. 174, ss. 153 & 154. 
 
 See ante, under s. 302. The costs against a defendant 
 are provided for by the preceding section. 
 
 Costs on Conviction for Assault. 
 
 834. If a person convicted o- . an indictment for assault, whether with- 
 er \vithout battery and wounding, is ordered to pay costs as provided in section 
 eight hundred and thirty-two he shall be liable unless the said costs are sooner 
 paid, to three months' imprisonment, in addition to the term of imprisonment, 
 if any, to which he is sentenced for the offence, and the court may, by warrant 
 in writing, order the amount of such costs to be levied by distress and sale of 
 the goods and chattels of the offender, and paid to the prosecutor, and the 
 surplus, if any, arising from such sale, to the owner ; and if such sura is so 
 levied, the offender shall be released from such imprisonment, R. S. C. c. 174, 
 83. 248 & 249 24-25 V. c. 100, ss. 74, 75 (Imp.). 
 
 . •( 
 
 ,'!. 
 
900 
 
 PROCEDURE. 
 
 [Sees. 835, 836 
 
 Taxation of Costs. {Xew). 
 
 S3S. Any costs ordered to be paid by a court pursuant to the foregoing 
 provisions shall, in case there is no tariflf of fees provided with respect to 
 criminal proceedings, be taxed by the proper officer of the court according to 
 the lowest scale of fees allowed in such court in a civil suit. 
 
 2. If such court has no «!ivil jurisdiction the fees shall bo those allowed in 
 civil suits in a superior court of the province according to the loicest scale. 
 
 Compensation for Loss of Property. 
 
 S36< A court on the trial of any {lerson on an indictment may, if it 
 thinks fit, upon the application of a7ij/ person aggrieved and immediately after 
 the conviction of the offender, award any sum of money, not exceeding one 
 thousand dollars, by way of satisfaction or compensation for any loss of profjerty 
 suffered by tlie cqipUcant through or by means of the offence of which such 
 person is so convicted ; and the amount awarded for such satisfaction or com- 
 pensation shall be deemed a judgment debt due to the person entitled to 
 receive the oame from the person so convicted, and the order for payment of 
 such amount may be enforced in such and the same manner as in the case of 
 any costs ordered by the court to be paid under section eight hundred and 
 thirty-two. 33-34 V. (U.K.) c. 23, s. 4. 
 
 " Property " defined, s. 3. 
 
 This section is new. It enables any person aggrieved 
 to get a judgment from the court, without a jury, for any 
 amount up to one thousand dollars against the party con- 
 victed, even where that court has no jurisdiction in civil 
 matters. 
 
 " The discretionary power given by this section is far 
 more extensive than the power conferred by 24 & 25 V. c. 96, 
 s. 100 (s. 838, post), and if it is exercised in every case to 
 which it may in strictness be applicable, will compel a 
 criminal court at the close of many trials for felony to enter 
 upon complicated inquiries involving the expenditure of a 
 large amoin^t of time and labour." 
 
 "It is probable, however, that criminal courts will 
 decline to exercise the powers thus conferred upon them 
 except in very simple cases, and will, in the majority of 
 instances, leave the applicant to enforce his rights by the 
 ordinary civil procedure." 
 
 "In the case of serious personal injuries, caused by a 
 felonious act, no compensation could be awarded under this 
 section in respect of the personal injuries. Aud even 
 
mm 
 
 Sees. 837, 838] 
 
 COMPEN .iTION. 
 
 901 
 
 jy this section is far 
 led by 2-1 & 25 V.c. 96, 
 Iciaed in every case to 
 [cable, will compel a 
 ]ial8 for felony to enter 
 the expenditure of a 
 
 criminal courts will 
 conferred upon them 
 In, in the majority of 
 arce his rights by tlie 
 
 . injuries, caused by a 
 [be awarded under thi8 
 
 injuries. And even 
 
 where the personal injuries, caused by the felonious act, 
 had incapacitated the prosecutor from earning his liveli- 
 hood, it would seem that this would not be such a loss of 
 property as would form the subject of compensation under 
 this section " : Archbold. 
 
 Compensation to Purchaser op Stolen Property. 
 
 gSI' When any prisoner has been convicted, either summarily or other- 
 wise, of any theft or other offence, inohiding the stealinff or unlawfully obtain- 
 ing any property, and it appears to the court, by the evidence, that the prisoner 
 sold such property or part of it to any person who had no knowledge that it 
 was stolen or unlawfully obtained, and that money has been taken from the 
 prisoner on his apprehension, the court may, on application of such purch' ^er 
 and on restitution of the property to its owner, order that out of the money so 
 taken from the prisoner (if it is his) a sum not exceeding the amount of the 
 proceeds of the sale be delivered to such purchaser. R. S. C. c. 174, s. 251. 
 
 The words in italics are new. They are in conformity 
 with the remarks of the judges in R. v. Roberts, 12 Cox, 
 574. 
 
 The Imperial Act is 30 & 31 V. c. 35, a. 9. The 
 Imperial Act does not expressly provide for the case of 
 goods obtained by false pretenses. The section provides 
 frr the case of a sale only of the stolen property : see R. v. 
 Stancliffe, 11 Cox, 318 ; R. v. Roberts, 12 Cox, 574. . 
 
 Restitution ob" Stolen Property. {As amended in 1893). 
 
 838. If any person who is guilty of any indictable offence in stecding, or 
 hwwiii'jly rcceiciny, any property is indicted for such offence, by or on behalf 
 of the owner of the property, or his executor or administrator, and convicted 
 thereof, or is tried before a judge or justice for such offence under any of the 
 foregoing provisions and convicted thereof, the property shall be restored to 
 the owner or his representative. 
 
 2. In every such case the court or tribunal before which such person is 
 tried for any such offence shall have power to award, from time to time, writs 
 of restitution for the said property or to order the restitution thereof in a 
 summary manner ; and the court or tribunal may also, if it sees fit, a^vard 
 restitution of the property taken from th€ prosecutor, or any imtness for the 
 prosecution, by such offence although the person indicted is not convicted thereof if 
 the jury declares, as it may do, or if, in case the offender is tried without a jury, it 
 is proved to the satisfaction of the court or tribunal by whom he is tried, that such 
 prvperty belongs to such prosecutor or icitnesa, and that he was unlawfully deprived 
 (if it btj such offence. 
 
 3. If it appears before any award or order is made, that any valuable 
 security has been bi.ma fide paid or discharged by any person liable to the 
 
902 
 
 PROCEDURE. 
 
 [Sec. 838 
 
 payment thereof, or, being a negotiable instrument, has been bonajiile taken or 
 received by transfer or delivery, by any i)er8on, for a just and valuable coiwi. 
 deration, without any notice or without any reasonable cause to suspect that 
 the same had, fcy ani/ indictable offence, been stolen, or if it appears that the 
 property stolen has been trans/erred to t /i innocent purchaser for value ivho han 
 acquired a laviful title thereto, the court or tribunal shall not award or order tlie 
 restitution of such security or property. 
 
 4. Nothing in this section contamed shall apply to the case of any prose- 
 cution of any trustee, banker, merchant, attorney, factor, broker or other 
 agent intrusted with the possession of goods or documents of title to goods, fur 
 any indictable offence under sections three hundred and twenty or three 
 hundred and sixty-three of this Act. R. S. C. c. 174, s. 250. 
 
 Sections 803 and 824 ante also provide for restitution 
 of stolen property in certain cases. 
 
 The words in italics in s-s 2 are not in the English 
 Act, 24 & 25 V. c. 96, s. 100. 
 
 The repealed clause covered property obtained by false 
 pretenses. The words in italics in s-s. S are new. 
 
 The prisoners were convicted of feloniously stealing 
 certain property. The judge who presided at the trial 
 made an order, directing that property found in the posses- 
 sion of one of the prisoners, not part of the property stolen, 
 should be disposed of in a particular manner : held, that 
 the order was illegal, and that a judge has no power, either 
 b}' common law or by statute, to direct the disposal of 
 chattels in the possession of a convicted felon, not belong- 
 ing to the prosecutor: R. v. Pierce, Bell, 235; R. v. Corpora- 
 tion of London, E. B. & E. 509. 
 
 The case of Walker v. Mayor of London, 11 Cox, 280, 
 has no application in Canada. In R. v. Stancliffe, 11 Cox, 
 818, it was held that the repealed section applied to cases 
 of false pretenses as well as felony, and that the fact that 
 the prisoner parted with the goods to a bona fide pawnee 
 did not disentitle the original owner to the restitutiou of 
 the goods : see 2 Russ. 355. 
 
 The court was bound by the repealed statute to order 
 restitution of property obtained by false pretenses and the 
 subject of the prosecution, in whose hands soever it was 
 found ; and so likewise of property received by a person 
 
[Sec. 838 
 
 las been bona fide taken or 
 I just and valuable coiiHi. 
 ible cause to suspeci; that 
 or 1/ it appears that the 
 turchaser for value who km 
 lall not award or order the 
 
 J to the case of any prof<e- 
 r, factor, broker or other 
 ments of title to goods, fur 
 Ired and twenty or three 
 '4, 8. 250. 
 
 ovide for restitution 
 
 not in the English 
 
 rty obtained by false 
 i. 8 are new. 
 
 feloniously stealing 
 )re sided at the trial 
 V found in the posses- 
 )f the property stolen, 
 ,r manner : hdd, that 
 
 has no power, either 
 
 ivect the disposal of 
 I ted felon, not belong- 
 
 L235; R.v. Corpora- 
 
 jondon, 11 Cox, 280, 
 I V. StanclilYe, 11 Cox, 
 
 Btion applied to cases 
 Ind that the fact that 
 
 . a bona fide pawnee 
 to the restitution of 
 
 paled statute to order 
 
 [ise pretenses and the 
 
 hands soever it was 
 
 Uccived by a person 
 
 Sec. 838] RESTITUTIOX OF STOLEN PROPERTY. 
 
 903 
 
 knowing it to have been stolen or obtained by fals^ pre- 
 tenses; but the order was strictly limited to property 
 identified at the trial as being the subject of the chhrge ; 
 therefore it did not extend to property in the possession of 
 innocent third persons which was not produced and identi- 
 fied at the trial as being the subject of the indictment : R. 
 V. Goldsmith, 12 Cox, 594. 
 
 An order of restitution of property stolen will extend 
 only to such property as is produced and identified in the 
 course of the trial, and not to all the articles named in the 
 indictment, unless so produced and ideiitified and in the 
 possession of the court : R. v. Smith, 12 Cox, 597. 
 
 It was held, on this clause : R. v. Atkin, 18 L. C. J. 213 ; 
 that the court will not give an order for the restitution of 
 stolen goods where the ownership is the subject of a dis- 
 pute in the civil courts : see R. v. Macklin, 5 Cox, 216. 
 
 Restitution can be ordered to the owner only : R. v. 
 Jones, 14 Cox, 528. 
 
 See 1 Hale, 543; 4 Blacks. 363. 
 
 A. Blenkarn took premises at 37 Wood street, and 
 wrote to the plaintiffs at Belfast ordering goods of them. 
 The letters were dated 37 Wood street, and signed A. Blen- 
 karn & Co. in such a way as to look like " A. Blenkiron & 
 Co.," there being an old established firm of Blenkiron & 
 Sons at 123 Wood street. One of the plaintiffs knew 
 something of that firm, and the plaintiffs entered into a 
 correspondence with Blenkarn, and ultimately supplied the 
 goods ordered, addressing them to "A. Blenkiron & Co., 37 
 Wood street." 
 
 The fraud having been discovered Blenkarn was indict- 
 ed and convicted for obtaining goods by falsely pretending 
 that be was Blenkiron & Sons. 
 
 Before the conviction the defendant had purchased some 
 of the goods bona fide of Blenkarn without notice of the 
 fraud, and resold them to other persons. The plaintiffs 
 
904 
 
 PROCEDURE. 
 
 [Sec. 83i 
 
 a ' 
 
 m ]&■ J 
 
 haviDg brought an action for the conversion of the goods : 
 Held, tha* the plaintiffs intended to^deal with Blenkiron & 
 Sons, and therefore there was no contract with Blenkarn ; 
 that the property of the goods never passed from the plain- 
 tiffs ; and that they were accordingly entitled to recover 
 in the action : Lindsay v. Cundy, 13 Cox, 583, 2 Q. B. D. 
 96, 3 App. Cas. 459. 
 
 The plaintiff had stolen money of the defendant, and 
 had been prosecuted for it but acquitted on a technical 
 ground. The plaintiff had, previously to the prosecution, 
 converted the money into goods, which were now in the 
 possession of the defendant as being the proceeds of the 
 money stolen from him by the plaintiff. The plaintiff 
 brought an action to claim the said goods. Held, that he 
 had no right of action : Cattley v. Loundes, 34 W. R. 139. 
 
 A thief's money in the hands of the police after his con- 
 viction is not a debt of the police to the thief, and cannot 
 be attached under garnishee proceedings : Bice v. Jarvis, 
 49 J. P. 264. 
 
 Under this section the court can order the restitution 
 of the proceeds of the goods as well as of the goods them- 
 selves, if such proceeds are in the hands of the criminal or 
 of an agent who holds them for him : R. v. The Justices, 
 16 Cox, 143, 196. 
 
 A man was convicted of stealing cattle, which he had 
 sold since in market overt and had been resold immediately 
 also in market overt, the purchasers being in good faith. 
 Restitution ordered to the person from whom they had 
 been stolen : R. v. Horan, 6 Ir. R. C. L. 293 ; but see now 
 8-s. 3 of 8. 838 ante. 
 
 M. was indicted for stealing $95 in bank notes and 
 acquitted. He applied to have ^37 in notes, found on his 
 person when arrested, returned to him which the prose- 
 cutor resisted. The statute of P. E. I., 6 Wm. IV. c. 22, 
 8. 38, enacts that " when a prisoner is not convicted the 
 court may, if it sees fit, order restitution of the property 
 
Sec. 838] 
 
 RESTITUTION OF STOLEN PROPERTY. 
 
 005 
 
 [g cattle, which he had 
 
 j)een resold immediately 
 
 rs being in good faith. 
 
 from whom they had 
 
 3. L. 293; but see now 
 
 where it clearly appears to have been stolen from the 
 owner. When arrested prisoner had the money sewed up 
 in his trousers, and among the notes was a $5 note, bank 
 of N. B., $5 note, bank of Halifax, and a $5 note, bank of 
 Montreal. Prisoner said he put the money there to hide 
 it from the police. Prosecutor had sworn that he had 
 carefully counted the money before the robbery, and that 
 it included a $5 bank of N. B. note, and a $5 bank of Hali- 
 fax note. 
 
 Held, that the evidence was not sufficient to identify 
 , le notes as the prosecutor's, and the application must be 
 granted : The Queen v. Mclntyre, 2 P. E. I. Piep. 154. 
 
 A leading case on th's section in England is now Vil- 
 mont V. Bontley, 1 i; App. Cas. 471, Warb. Lead. Clas. 256» 
 which, however "i nuot be followed in Canada under s-s. S 
 of 8. 838, 'Uite. 
 
 }5 in bank notes aud 
 in notes, found on his 
 him which the prose- 
 J. I., 6 Wm. 1V.C.22, 
 [r is not convicted the 
 kution of the property 
 

 906 
 
 PROCEDURE. 
 
 [Sees. 839-841 
 
 
 ■■) 
 
 PART LVIII. 
 
 SUMMARY CONVICTIONS. 
 
 8 39. In this part, unless the context otherwise requires — 
 
 (a) the expression " justice" means a justice of the peace and includes two 
 or more justices if two or more justices act or have jurisdiction, and also a 
 XX)lice magistrate, a stipendiary magistrate and any person having the power 
 or authority of two or more juscices of the peace ; 
 
 (b) the expression "clerk of the peace" includes the proper officer of the 
 court having jurisdiction in appeal under this part, as provided by section 
 eight hundred and seventy-nine ; 
 
 (c) the expression "territorial division" means district, county, union of 
 counties, township, city, town, parish or other judicial division or place ; 
 
 (d) the expression "district" or "county" includes any territorial or 
 judicial division or place in and for which there is such judge, justice, justice's 
 court, officer or prison as is mentioned in the context : 
 
 (e) the expression "common gaol" or "prison" means any place otiier 
 than P' penitentiary in which persons charged with offences are usually kept 
 and detained in custody. R. S. C. c. 178, s. 2. 
 
 S40. Subject to any special provision otherwise enacted with respect to 
 such offence, act or matter, this part shall apply to — 
 
 (a) every case in which any person commits, or is suspected of having 
 committed, any offence or act over which the Parliament of Canada has legis- 
 lative authority, and for which such person is liable on summary conviction to 
 imprisonment, fine, penalty or other punishment ; 
 
 {b) every case in which a complaint is made to any justice in relation to 
 any matter over which the Parliament of Canada has legislative authority, 
 and with respect to which such justice has authority by law to make any 
 order for the payment of money or otherwise. R. S. C. c. 178, s. 3. 
 
 841. In the case of any offence punishable on summary conviction if no 
 time is specially limited for making any complaint, or laying any information 
 in the Act or law relating to the particular case, the complaint shall be made, 
 or the information shall be laid within six months from the time when the 
 matter of complaint or information arose, except in the North-west Territories, 
 where the time within which such complaint may be made, or such information 
 may be laid, shall be extended to twelve months from the time when the 
 matter of the complaint or information arose. 52 V. c. 45, s. 4. 
 
 The repealed clause extended the limitatiou of twelve 
 months to the territory east of Portneuf on the north shore 
 of the St. Lawrence. 
 
[Sees. 839-841 
 
 Sees 842,843] 
 
 SUMMARY CONVICTIONS. 
 
 907 
 
 3 requires— 
 
 he peace and includes two 
 ve jurisdiction, and also a 
 r person having the power 
 
 s the proper officer of the 
 rt, as provided by section 
 
 3 district, county, union of 
 
 cial division or place ; 
 
 ncludes any territorial or 
 
 inch judge, justice, justice's 
 
 xt: 
 
 on " means any place other 
 
 ih offences are usually kept 
 
 nse 
 
 enacted with resjiect to 
 
 L or is suspected of having 
 lament of Canada has legis- 
 e on summary conviction to 
 
 lo any justice in relation to 
 la has legislative authority, 
 
 lority by law to make any 
 
 S. C. c. 178, s. 3. 
 
 Ln summary conviction if no 
 t, or laying any information 
 ho complaint shall be made, 
 hs from the time when the 
 1 the North-west Territories, 
 ye made, or such information 
 hs from the time when the 
 |V. c. 45, 8. 4. 
 
 limitation of twelve 
 luf on the north shore 
 
 §43. Every complaint and information shall be heard, tried, determined 
 and adjudged by one justice or two or more justices as directed by the Act or 
 law upon which the complaint or information is framed or by any other Act or 
 law in that behalf. 
 
 2. If there is no such direction in any Act or law then the complaint or 
 information may be heard, tried, determined and adjudged by any one justice 
 for the territorial division where the matter of the complaint or information 
 arose : Provided that every one who aids, abets, counsels or procures the com- 
 mission of any offence punishable on summary conviction, may be proceeded 
 against and convicted either in the territorial division or place where the prin- 
 cipal offender may be convicted, or in that in which the offence of aiding, 
 abetting, counselling or procuring was committed. 
 
 3. Any one justice may receive the information or complaint, and grant a 
 summons or warrant thereon, and issue his summons or warrant to comi^el the 
 attendance of any witnesses for either party, and do all other acts and matters 
 necessary preliminary to the hearing, even if by the statute in that behalf it is 
 provided that the information or complaint shall be heard and determined by 
 two or more justices. 
 
 4. After a case has been heard and determined one justice may issue all 
 warrants of distress or commitment thereon. 
 
 5. It shall not be necessary for the justice who acts before or after the 
 hearing to be the justice or one of the justices by whom the case is to be or was 
 heard and determined. 
 
 G. If it is required by any Act or law that an information or complaint 
 shall be heard and determined by two or more justices, or that a conviction or 
 order shall be made by two or more justices, such justices shall be present and 
 acting together during the whole of the hearing and determination of the case. 
 
 8. No justice shall hear and determine any case of assault or battery, in 
 which any question arises as to the title to any lands, tenements, heredita- 
 ments, or any interest therein or accruing therefrom, or as to any bankruptcy 
 or insolvency, or any execution under the process of any court of justice. 
 R. S. C. c. 178, ss. 4, 5, 6, 7, 8, 9, 12, and 73. 
 
 See s. 864, post, as to cases of assault. 
 
 t*43. The provisions of Parts XLIV. and XLV. of this Act relating to 
 compelling the appearance of the accused before the justice receiving an infor- 
 mation under section five hundred and fifty -eight, and the provisions resjiecting 
 the attendance of witnesses on a preliminary inquiry and the taking of evidence 
 thereon, shall, so far as the same are applicable, except as varied by the sec- 
 tions immediately following, apply to any hearing under the provisions of this 
 part : Provided that whenever a warrant is issued in the first instance against 
 a person charged with an offence punishable under the provisions of this part, 
 the justice issuing it shall furnish a copy or copies thereof, and cause a copy to 
 be served on the person arrested at the time of such arrest. 
 
 2. Nothing herein contained shall oblige any justice to issue any summons 
 |to procure the attendance of a t)er8on charged with an offence by information 
 laid before such justice whenever the application for any order may, by law, be 
 made ex parte. R. S. C. c. 178, ss. 13 to 17 and 21. Qucvve i 
 
 *>■'' 
 
 n^ 
 
i.r^ 
 
 ■<■,■ i 
 
 908 
 
 PROCEDURE. 
 
 [Sees. 844-847 
 
 
 M*;':. 
 
 844. The provisions of section five hundred and sixty-five relatinj? to the 
 endorsement of warrants shall apply to the case of any warrant issued under 
 the provisions of this part against the accused, whether before or after convic- 
 tion, and whether for the apprehension or imprisonment of any such person. 
 R. S. C. c. 178, s. 22. 52 V. c. 45, s. 4. 
 
 845. It shall not be necessary that any complaint upon which a justice 
 may make an order for the payment of money or otherwise shall be in writing, 
 unless it is so required by some particular Act or law upon which such com- 
 plaint is founded. 
 
 2. Every complaint upon which a justice is authorized by law to make an 
 order, and every information for any offence or act punishable on summary 
 conviction, may, unless it is herein or by some particular Act or law otherwise 
 provided^ be made or had without any oath or affirmation as to the tinith 
 thereof. 
 
 3. Every complaint shall be for one matter of complaint only, and not for 
 two or more matters of complaint, and every information shall be for one 
 offence only, and not for two or more offences ; and every complaint or infor- 
 mation may be laid or made by the complainant or informant in person, or by 
 his counsel or attorney or other perscm authorized in that behalf. R. S. C. 
 c. 178, ss. 23, 24 and 26. 
 
 New. 
 
 840. No information, complaint, warrant, conviction or other proceeding 
 under this part shall be deemed objectionable or insufficient on any of the followiwj 
 grounds ; that is to say : 
 
 (a) that it does not contain the name of the person injured, or intended or 
 attempted to be injured ; or , 
 
 (b) that it docs not state who is the owner of any property therein mentioned; 
 or 
 
 (c) that it docs not specify thevieans by which the offence was committed; or 
 
 (d) that it dots not name or describe with precision any person or thing : 
 
 Providcil that the justice may, if satisfied that it is necessary for a fair trial, 
 order that a part'cular further describing such means, person, place or thitvibe 
 furnished by the prosecutor, 
 
 847. No objection shall be allowed to any information, complaint, sum- 
 mons or warrant for any alleged defect therein, in substance or in form, or for 
 any variance between such information, complaint, summons or warrant and 
 the evidence adduced on the part of the informant or complainant at the hearin? 
 of such information or complaint. 
 
 2. Any variance between the information for any offence or act punishable 
 on summary convicticm and the evidence adduced in supjjort thereof as to the 
 time at which such offence or act is alleged to have been con>mitted, shall not 
 be deemed material if it is proved that such information was, in fact, laid 
 within the time limited by law for laying the same. 
 
 3. Any variance between the information and the evidence adduced in^ 
 support thereof, as to the place in which the offence or act is alleged to have 
 been committed, shall not be deemed material if the offence or act is proved to 
 
[Sec8. 844-847 
 
 id sixty-five relating to the 
 
 any warrant issued under 
 
 bher before or after convic- 
 
 inment of any such person. 
 
 plaint upon which a justice 
 therwise shall be in writing, 
 law upon which such com- 
 
 thorized by law to make an 
 act punishable on summary 
 ticular Act or law otherwise 
 affirmation as to the truth 
 
 ; complaint only, and not for 
 information shall be for one 
 ,nd every complaint or infor- 
 or infonnantin person, or by 
 sed in that behalf. R. S. C. 
 
 conviction or other proceeding 
 tufficient on any of the foUowiwj 
 
 wrson injured, or intciuled or 
 
 \ny property therein vientioM; 
 
 the offence ^eas committed ; or 
 [sion any person or thing : 
 
 it is iieccssary for a fair trial, 
 [earn, person, place or thitvtU 
 
 i information, complaint, sum- 
 L substance or in form, or for 
 tint, summons or warrant and 
 t or complainant at the hearini; 
 
 Ir any offence or act punishable 
 Id in support thereof as to the 
 Jave been committed, Bhall not 
 Information was, in fact, laid 
 
 line. 
 
 land the evidence adduced in^ 
 
 VnceoractisalleRedtohave 
 
 : the offence or act is proved to 
 
 Sees. 848-853] 
 
 SUMMARY CONVICTIONS. 
 
 909 
 
 have been committed within the jurisdiction of the justice by whom the 
 information is heard and determined. 
 
 4. If any such variance, or any other variance between the information, 
 complaint, summons or warrant, and the evidence adduced in support thereof, 
 appears to the justice present and acting at the hearing to be such that the 
 defendant has been thereby deceived or misled, the justice may, upon such . 
 terms as he thinks fit, adjourn the hearing of the case to some future day. 
 R.S.C. c. 178, 8. 28. 
 
 848» A summons may be issued to procure the attendance, on the head- 
 ing of any charge under the provisions of this part, of a witness who resides 
 out of the jurisdiction of the justices before whom such charge is to be heard, 
 and such summons and a warrmit issued to procure the attendance of a witness, 
 whether in consequence of refusal by such witness to appear in obedience to a 
 summons or otherwise, may be resijcctively served and executed by the con- 
 stable or other peace officer to whom the same is delivered or by any other 
 person, as well beyond aw within the territorial division of the justice who 
 issued the same. 51 V. c. 45, ss. 1 & 3. 
 
 849« The room or place in which the justice sits to hear and try any 
 complaint or information shall be deemed an open and public court, to which 
 the public generally may have access so far as the same can conveniently 
 contain them. R. S. C. c. 178, s. 33. 
 
 850. The person against whom the complaint is made or information 
 laid shall be admitted to make his full answer and defence thereto, and to have 
 the witnesses examined and cross-examined by counsel or attorney on his 
 behalf. 
 
 2. Every complainant or informant in any such case shall be at liberty to 
 conduct the complaint or information, and to have the witnesses examined 
 and cross-examined, by counsel or attorney on his behalf. R. S. C. c. 178, 
 8s. 34 & 35. 
 
 851. Every witness at any hearing shall be examined upon oath oi- 
 affirmation, and the justice before whom any witness appears for the purpose 
 of being examined shall have full power and authority to administer to every 
 witness the u.sual oath or aflirmation. R. S. C. c. 178, s. 30. 
 
 Sections 37 and 38 of c. 178 are left out. 
 
 853. If the information c complaint in any case negatives any exemp- 
 tion, exception, proviso or condition in the statute on which the same is 
 founded it shall not be necessary for the prosecutor or complains^ut to prove 
 such negative, but the defendant may prove the affirmative t.. ■eof in his 
 defence if he wishes to avail himself of the same. R. S. C. c. 178, 47. 
 
 §53. In case the accused does not appear at the time and place appointed 
 by any summons issued by a justice on information before him of the com- 
 mission (if an offence punishable on summary conviction, then if it apiiears to 
 the satisfaction of the justice that the summons was duly served u reasonable 
 time before the time apiwinted for appearance, such justice may proceed w 
 parte to hear and detennine the case in the absence of the defendant, as fully 
 
*Li 
 
 910 
 
 PROCEDURE. 
 
 [Sees. 854-8 
 
 and effectually, to all intents and purposes, aj if the defendant had personal 
 appeared in obedience to such summons, or the justice may, if he thinks fi 
 issue his warrant as provided by section five hundred and sixty-throe of th 
 Act and adjourn the hearing of the complaint or information until the defem 
 ant is apprehended. R. S. C. c. 178, s. 39. , 
 
 854- If, upon the day and at the place so appointed, the defendat 
 appears voluntarily in obedience to the summons in that behalf served upo 
 him, or is brought before the justice by virtue of a warrant, then, if the con 
 plainant or informant, having had due notice, does not appear by himself, hi 
 counsel or attorney, the justice shall dismiss the complain': or informatioi 
 unless he thinks proper to adjourn the hearing of the same until some other da 
 upon such terms as he thinks fit. R. S. C. c. 178, s. 41. 
 
 855. If both parties appear, either personally or by their respectiv* 
 counsel or attorneys, before the justice who is to hear and determine the com 
 plaint or information, such justice shall proceed to hear and determine the same. 
 R. S. C. c. 178, s. 42. 
 
 856- If the defendant is present at the hearing the substance of the 
 information or complaint shall be stated to him, and he shall be asked if he has 
 any cause to show why he should not be convicted, or why an order should not 
 be made against him, as the case may be. 
 
 2. If the defendant thereupon admits the truth of the information or com- 
 plaint, and shows no sufiBcient cau /? why he should not be convicted, or why 
 an order should not be made against him, as the case may be, the justice 
 present at the hearing shall convict him or make an order against him accord- 
 ingly. 
 
 3. If the defendant does not admit the truth of the information or com- 
 plaint, the justice shall proceed to inquire into the charge and for the purposes 
 of such inquiry shall take the evidence of witnesses both fo" the complainant 
 and accused in the manner provided by Part XL V. in the case of a prelimimry 
 inquinj ; Provided that the prosecutor or complainant is not entitled to ghe 
 evidence in rejJly if the defendant has not adduced any evidence other than aslo 
 his general character; provided further, that in a hearing under this section the 
 ioitnesses need not sign tlieir depositions. R. S. C. c. 178, ss. 43, 44, 45 & 46. 
 
 857. Before or during the hearing of any information or complaint the 
 justice may, in his discretion, adjourn the hearing of the same to a certain time 
 or place to be then appointed and stated in the presence and hearing of the 
 party or parties, or of their resijective solicitors or agents then present, but no 
 such adjournment shall be for more than eight days. 
 
 2. If, at the time and place to which the hearing or further hearing is 
 adjourned, either or both of the parties do not appear, personally or by his or 
 their counsel or solicitors resiiectively, before the justice or such other justice 
 as shall then be ther«, the justice who is then there may proceed to the hearing 
 or further hearing as if the party or parties were present. 
 
 3. If the prosecutor or complainant does not appear the justice may dismiss 
 the information, with or without costs, as to him seems tit. 
 
[SeoB. 854-857 
 
 the defendant had personally 
 justice may, if he thinks fit, 
 idred and sixty-throe of this 
 information until the defend- 
 
 so appointed, the defendant 
 18 in that behalf served upon 
 f a warrant, then, if the com- 
 068 not appear by himself, his 
 the complain': or information 
 the same until some other day 
 8, 8. 41. 
 
 sonally or by their respective 
 o hear and determine the com- 
 lo hear and determine the same, 
 
 , hearing the substance of the 
 ,, and he shall be asked if he has 
 (ted, or why an order sViouldnot 
 
 ;ruth of the information or com- 
 ihould not be convicted, or why 
 s the case may be, the justice 
 [ke an order against him accord- 
 
 rath of the information or com- 
 the charge and for the purposes 
 lesses both fo' the complainant 
 \LV. in the ca.se of a preKmiMPj 
 \plainant is not entitled to jiie 
 led any evidence other than ask 
 \i a hearing under this section ifo 
 |C. c. 178, ss. 43, 44, 45 & 46. 
 
 ly information or complaint the 
 Ing of the same to a certain time 
 Tthe presence and hearing of the 
 Is or agents then present, but no 
 |dayB. 
 
 hearing or further hearing is 
 ,,; appear, personally or by his ot 
 
 Ihe justice or such other jnstice 
 
 Ihere may proceed to the heamg 
 
 Ire present. 
 
 It appear the justice may disffiUs 
 
 |m seems tit. 
 
 Sees. 858, 859] 
 
 SUMMARY CONVICTIONS. 
 
 911 
 
 4. Whenever any justice adjourns the hearing of any case he may suffer 
 the defendant to go at large or may commit him to the common gaol or other 
 prison within the territorial division for which such justice is tlien acting, or 
 to such other safe custody as such justice thinks fit, or may discharge the 
 defendant upon his recognizance, with or without sureties at the discretion of 
 such justice, conditioned for his appearance at the time and place to which 
 such hearing or further hearing is adjourned. 
 
 5. Whenever any defendant who is discharged upon recognizance, or 
 allowed to go at large, does not appear at the time mentioned in the recog- 
 nizance, or to which the hearing or further hearing is adjourned, the justice 
 may issue his warrant for his apprehension. R. S. C. c. 178, ss. 48, 49, 50 & 51. 
 
 858. The justice, having heard what each party has to say, and the 
 witnesses and evidence adduced, shall consider the whole matter, and, unless 
 otherwise provided, determine the same and convict or make an order against 
 the defendant, or dismiss the information or complaint, as the case may be. 
 R. S. C. c. 178, 8. 52. 
 
 850* If the justice convicts or makes an order against the defendant a 
 minute or memorandum thereof shall then be made, for which no fee shall be 
 paid, and the conviction or order shall afterwards be drawn up by the justice 
 on parchment or on paper, under his hand and seal, in such one of the forms 
 of conviction or of orders from VV to AAA inclusive in schedule one to this 
 Act as is applicable to the case or to* the like efif act. R. S. C. c. 178, s. 53. 
 
 FORMS UNDER PART LVIII. 
 
 \\, ^(Section 859). 
 
 CONVICTION FOR A PENALTY TO BE LEVIED BY DISTRESS 
 AND IN DEFAULT OF SUFFICIENT DISTRESS, BY 
 IMPRISONMENT. 
 
 Canada, ") 
 
 Province of 
 County of 
 
 Be it remembered that on the day of , in 
 
 the year , at , in the^said county, A. B. is con- 
 
 victed before the undersigned, a justice of the peace for the said 
 county, for that the said A. B. (etc., statmj the o fence, and the 
 time and place when and uhere committed ), and I adjudge the said 
 A. B. for his said o£fence to forfeit and pay the sum of :$ 
 istutintj the penalty, and also the compensation, if any), to be paid 
 
 :| 
 
'I ^ 
 
 :fti 
 
 912 
 
 PROCEDURE. 
 
 [Sec. 85f 
 
 and applied according to law, and also to pay to the said C. D. 
 the sum of , for his costs in this behalf ; and if the 
 
 said several sums are not paid forthwith, (or on or before the 
 of next), * I order that the same be levied bv 
 
 distress and sale of the goods and chattels of the said A. B., and 
 in default of sufficient distress, ''' I adjudge the said A. B. to be 
 imprisoned in the common gaol of the said county, at 
 in the said county of , (there to be kept at hard labour, 
 
 if such is the sentence) for the term of , unless the said 
 
 several sums and all costs and r harges of the said distress (and 
 of the commitment and conveying of the said A. B. to the said 
 gaol) are sooner paid. 
 
 Given under my hand and seal, the day and year first above 
 mentioned, at , in the county aforesaid. 
 
 J. S., [seal] . 
 
 J. P., ( Name of counUj , . 
 
 * Or tvhen the issuing of a distress tear rant would be ruinom to 
 the defendant and his famihj, or it appears he has no goods whereun 
 to levij a distress, then instead of the words between the asteriskn * ''• 
 say, "inasmuch as it is now made to appear to me that the 
 issuing of a warrant of distress in this behalf would be ruinous to 
 the said A. B. and his family," (or, " that the said A. B. has no 
 goods or chattels whereon to levy the said sums by distress "). 
 
 WW.— (Section 859.) 
 
 CONVICTION FOR A PENALTY, AND IN DEFAULT OF PAY 
 MENT IMPRISONMENT. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on the day of in the 
 
 year , at , in the said county, A. B. is convicted 
 
 before the undersigned, ^ a justice of the peace for the 
 
 said county for that he the said A. B. etc., stating the offenct, 
 and the time and place when and where it was committed J , and I 
 adjudge the said A. B. for his said offence to forfeit and pay the 
 sum of (stating the penalty and the compensation, if any) 
 
 to be paid and applied according to law ; and also to pay to the 
 
Sec. 859] 
 
 SUMMARY CONVICTIONS. 
 
 918 
 
 •' ^ . [Sec. 850 
 
 pay to the said C. D. 
 his behalf ; and if the 
 h, {or on or before the 
 t the same be levied by 
 ts of the said A. B., and 
 Ige the said A. B. to be 
 iid county, at 
 be kept at hard labour, 
 , unless the said 
 of the said distress (and 
 lie said A. B. to the said 
 
 day and year first above 
 
 county aforesaid. 
 ., [seal] . 
 
 r. P., (NameofcoitnUi>. 
 arrant would be ndnom to 
 rs he has no goods whereon 
 •ds between the asterish * '' 
 
 o appear to me that tlie 
 lehalf -would be ruinous to 
 
 hat the said A. B. has uo 
 
 laid sums by distress"). 
 
 IN DEFAULT OF PAY 
 ,IENT. 
 
 day of "^t^>^ 
 
 (county, A. B. is convicted 
 
 Itice of the peace for the 
 [b. etc., .strttiHV the o/t'H«, 
 L it was committed), mil 
 jnce to forfeit andpaytiie 
 \lthecompemation,ifmi) 
 ■ ; and also to pay to the 
 
 said C. D. the sum of for his costs in this behalf ; and 
 
 if the said sevei .1 sums are not paid forthwith {or, on or before 
 next), I adjudge the said A. B. to be imprisoned in the 
 common gaol of the said county, at , in the said county 
 
 of (and there to be kept at hard labour) for the term of 
 
 , unless the said sums and the costs and charges of 
 conveying the said A. B. to the said common gaol are sooner 
 paid. 
 
 Given under my hand and seal, the day and year first above 
 mentioned at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P., (Name of county ). 
 
 ^i^.— {Section 859.) 
 
 CONVICTION WHEN THE PUNISHMENT IS BY IMPRISONMENT, 
 
 ETC. 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on the day of , in 
 
 the year , at , in the said county, A. B. is con- 
 
 victed before the undersigned, , a justice of the peace in 
 
 and for the said county, for that he the said A. B. {dc, stating-, 
 the offence, and the time and place when and where it tvas com- 
 mitted) ; 'and I adjudge the said A. B., for his said offence, to be 
 imprisoned in the common gaol of the said county, at , . 
 
 in the county of , (and there to be kept at hard labour)- 
 
 for the term of ; and I also adjudge the said A. B. ta^ 
 
 pay to the said C. D. the sum of , for his costs in this: 
 
 behalf, and if the said sum for costs are not paid forthwith {or 
 on or before next,) then * I order that the said sum be 
 
 levied by distress and sale of the goods and chattels of the said 
 A. B. ; and in default of sufficient distress in that behalf, '^ I 
 adjudge the said A. B. to be imprisoned in the said common gaol 
 (and kept there at hard labour) for the term of , to 
 
 commence at and from the term of his imprisonment aforesaid » 
 unless the said sum for coats is sooner paid. 
 Crim. Law — 58 
 

 ','' ' 
 
 
 
 > 
 
 
 r-f..,.; 
 
 
 J 
 
 914 
 
 PROCEDURE. 
 
 [Sec. 859 
 
 Given under my hand and seal, the day and year first above 
 mentioned at , in the county aforesaid. 
 
 J. S. [seal.] 
 
 J. P., (Name of county.) 
 
 *0r when the iasmnij of a distress warrant would be ruinous to 
 the defendant and his family, or it appears that he has no <joods 
 Khereon to levy a distress, then, instead of the words between the 
 asterisks * * say, " inasmuch as it is now made to appear to me 
 that the issuing of a warrant of distress in this behalf would be 
 ruinous to the said A. B. and his family," {or, " that the said 
 A. B. has no goods or chattels whereon to levy the said sum for 
 costs by distress "). 
 
 YY.— Section 859.) 
 
 ORDER FOR PAYMENT OF MONEY TO BE LEVIED BY DISTRESS 
 AND IN DEFAULT OF DISTRESS IMPRISONMENT. 
 
 Canada, 
 
 Province of 
 
 County of 
 
 Be it remembered that on , complaint was made 
 
 before the undersigned, , a justice of the peace in and 
 
 for the said county of , for that {stating the facts entitlimj 
 
 the complainant to the order, with the time and place wlien and 
 
 where they occurred), and now at this day, to wit, on , 
 
 at , the parties aforesaid appear before me the said 
 
 justice {or the said C. D. appears before me the said justice, but 
 
 the said A. B.. although duly called, does not appear by himself, 
 
 his counsel or attorney, and it is now satisfactorily proved to me 
 
 on oath that the said A. B. was duly served with the summons 
 
 in this behalf, which required him to be and appear here on this 
 
 day before me or such justice or justices of the peace for the 
 
 county, as should now be here, to answer the said complaint, 
 
 and to be further dealt with according to law) ; and now having 
 
 heard the matter of the said complaint, I do adjudge the said A. 
 
 B. to pay to the said C. D. the sum of forthwith {or on or 
 
 before next, or as the Act or law requires), and also to pay to 
 
 the said said C. D. the sum of for his costs in this 
 
 behalf ; and if the said several sums are not paid forthwith (or 
 
[Sec. 859 
 
 and year first above 
 
 laid. 
 
 'seal.] 
 
 {Name of county.) 
 
 nt would be ndnous to 
 that he has no (joods 
 the tcords hetveen the 
 
 made to appear to me 
 
 1 this behalf would be 
 " lor, •* that the said 
 
 I levy the said sum for 
 
 ; LEVIED BY DISTRESS 
 IMPRISONMENT. 
 
 , complaint was made 
 |tice of the peace in and 
 [stating the facts entitlwj 
 le and place tchen and 
 I, to wit, on > 
 
 ,pear before me the said 
 jme the said justice, but 
 snot appear by himself, 
 tisfactorily proved to me 
 ,rved with the summons ^ 
 , and appear here on this 
 es of the peace for the 
 ,er the said complaint, 
 plaw); and now having 
 k do adjudge the said A. 
 forthwith (or on or 
 ,Mim), and also to pay to 
 
 for his costs m this 
 :e not paid forthwith (or 
 
 Sec. 859] 
 
 SUMMARY CONVICTIONS, 
 
 915 
 
 on or before next), then, =■' I hereby order that the same 
 
 be levied by distress and sale of the goods and chattels of the 
 said A. B. and in default of sufficient distress in that behalf * I 
 adjudge the said A. B. to be imprisoned in the common gaol of 
 the said county, at , in the said county of , 
 
 and there kept at hard labour) for the term of , unloss 
 
 the said several sums, and all costs and charges of the said dis- 
 tress (and the commitment and conveyance of the said A. B.Jo 
 the said common gaol) are sooner paid. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P., (Name of count ij.) 
 '^Or, H'lmi the ismintf of a distretis irarrant would he ruinous to 
 the defendant and his family, ur it apjwars he has no yoods wliereon 
 to levy a distress, tlien, instead of the words between the asterisks * * 
 my " inasmuch as it is now made to appear to me that the 
 issuing of a warrant of distress in this behalf would be ruinous 
 to the said A. B. and his family," (or •' that the said A. B. has 
 no goods or chattels whereon to levy the said sums by distress "). 
 
 ZZ.— {Section «59.) 
 
 ORDER FOR PAYMENT OF MONEY, AND IN DEFAULT OF PAY- 
 MENT IMPRISONMENT. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on complaint was made 
 
 before the undersigned, , a justice of the peace in and 
 
 for the said county of . , for that {statiny the facts entitliny 
 the voiiiplainant to the order, with the time and place when and 
 where they occurred), and now on this day, to wit, on , at 
 
 , the parties aforesaid appear before me the said justice 
 {or the said CD. appears before me the said justice, but the said 
 A. B., although duly called, does not appear by himself, his 
 counsel or attorney, and it is now satisfactorily proved to me 
 upon oath that the said A. B. was duly served with the summons 
 in this hehalf, which required him to be and appear here this 
 
fiil 
 
 916 
 
 PROCEDURE. 
 
 rSeo. Hb'J 
 
 day before me, or 3«ch justice or justices of the peace for the 
 said county, as should now be here, to answer to the said com- 
 plaint, and to be further dealt with according to law), and now 
 having heard the matter of the said complaint, I do adjudge the 
 said A. B. to pay to the eaid C. D. the sum of forthwith 
 
 {or on or before next, or as the Act or law requires), and 
 
 also to pay to the said CD. the sum of for his costs in 
 
 tkis behalf ; and if the said several sums are not paid forthwith 
 (or on or before next), then I adjudge the said A. B. to 
 
 be imprisoned in the common gaol of the said county at 
 in the said county of , (there to be kept at hard labour 
 
 if the Act ur Imv authorizes this) for the term of unless 
 
 the said several sums (and costs and charges of commitment 
 and conveying the said A. B. to the said common gaol) are 
 sooner paid. 
 
 Given under my hand and seal this day of 
 
 , in the year , at , in the county 
 
 aforesaid. 
 
 J. S., [seal. J 
 
 J. P., {Name of coxinUj). 
 
 AAA.— {Section 859.) 
 
 ORDER FOR ANY OTHER MATTER WHERE THE DISOBEYING 
 OF IT IS PUNISHABLE WITH IMPRISONMENT. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on , complaint was made 
 
 before the undersigned, , a justice of the peace in and 
 
 for the said county of 
 
 , for that {statin;/ the facts vntitlmj 
 
 tlie complainant to the order, with the tiwe and place where and ivkn 
 tlu'u occurred) ; and now on this day, to wit, on , at 
 
 , the parties aforesaid appear before me the said justice 
 {or the said C. D. appears before me the said justice, but the 
 said A. B., although duly called, does not appear by himself, bis 
 counsel or attorney, and it is now satisfactorily proved to me, 
 upon oath, that the said A.B. was duly served with the summons 
 in this behalf, which required him to be r.nd appear here this 
 day before me, or such justice or justices of the peace for the said 
 
rSec. HW 
 
 3 of the peace for the 
 9wev to the said com- 
 aing to law), and now 
 iaint, I do adjudge the 
 ^ q{ forthwith 
 
 [it or law requires), and 
 for hi8 costs in 
 1 are not paid forthwith 
 Ijudge the said A. B. to 
 said county at , 
 
 , be kept at hard labour 
 term of "»less 
 
 charges of commitment 
 said common gaol) are 
 
 J day of 
 
 in the county 
 
 ,., [SEAL. J 
 
 p., (X«H?(i of county). 
 
 [here THE DISOBEYING 
 IMPRISO^'MENT. 
 
 , complaint was made 
 astice of the peace in and 
 lt(stathvj the fndH entitling 
 
 \e and pl<tce where and uia 
 
 to wit, on . at 
 
 before me the said justice 
 
 e the said justice, but the 
 
 [not appear by himself, his 
 
 ktisfactorily proved to me, 
 served with the summons 
 
 , be f.nd appear here this 
 .es of the peace for the said 
 
 Sees, 800, 861] 
 
 SUMMARY CONVICTIONS. 
 
 917 
 
 county, as should now be here to answer to the said complaint 
 and to be further dealt with according to law ; and now having 
 heard the matter of the said complaint, I do adjudge the said 
 A. B. to {ftere ntnte the matter required to he dime), and if, upon a 
 copy of the minute of this order being served upon the said A.B., 
 either personally or by leaving the same for him at his last or 
 most usual place of abode, he neglects or refuses to obey the 
 game, in that case I adjudge the said A. B., for such his dis- 
 obedience, to be imprisoned in the common gaol of the said 
 county, at in the said county of , (there to be 
 
 Icept at hard labour, if the stutute ttiithorize.s this), for the term of 
 unless the said order is sooner obeyed, and I do also 
 adjudge the said A. B. to pay to the said C. D. the sum of 
 
 for his costs in this behalf, and if the said sum for costs ia 
 not paid forthwith (or on or before next), I order the 
 
 same to be levied by distress and sale of the goods and chattels 
 of the said A. B., and in default of sufficient distress in that 
 behalf I adjudge the said A. B. to be imprisoned in the said 
 common gaol (there to be kept at hard labour) for the space of 
 , to commence at and from the termination of his 
 imprisonment aforesaid, unless the said sum for costs is sooner 
 paid. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 ./. P., (Xauie of count I/.) 
 
 860. When aevei-al persons join in the commission of the same offence, 
 and uiK)u toiiviction thereof each is adjudged to pay a penalty which inchides 
 the value of the property, or the amount of the injury done, no further sum 
 shall l<' paid to the person agKrieved than such amount or value, and costs, if 
 any, and the residue of the penalties imposed shall be applied in the same 
 manner rs other penalties imposed by a justice are directed to be applied. 
 R. S. C. c. 178, 8. 5i. 
 
 861. Whenever any person is summarily convicted before a justice of 
 any offence against Parts XX. to XXX. inclusive or Part XXXVII. of this 
 Act and it is a first conviction, the justice may, if he thinks tit, discharge the 
 offender from his conviction ujxyn his making such satisfaction to the i)erson 
 aggrieved, for damages and costs, or either of them, as are ascertained by the 
 jiwtice. R. S. C. c. 178, s. 65. 
 
918 
 
 PROCEDURE. 
 
 [Sfcc. W2 
 
 S09' If thn justice dismisHes the information or complaint he may, when 
 required so to do, make an order of diHrnisBal in the form BBB in schedule one 
 hereto, and he shall give the defendant a certificate in the form CCC in the 
 Naid schedule, which certificate, u|)on being afterwards produced, shall, with- 
 out further protif, be a bar to any subsequent information or complaint for tlm 
 same matter, against the same defendant. R. S. C. c. 178, s. 56. 
 
 BBB.— (Section 862.) 
 
 FORM OF ORDER OF DISMISSAL OF AN INFORMATION OR 
 
 COMPLAINT. 
 
 Canada, ^ 
 
 Province of , [ 
 
 County of . ) 
 
 Be it remembered that on , information was laid 
 
 {or complaint was made) before the undersigned, , a 
 
 justice of the peace in and for the said county of , for 
 
 that fttc, as in the fiwiniwns of the defcwhintj and now at 
 
 this day, to wit, on , at , ( if at any ailjouniiiunt 
 
 insert liere : "to which day the hearing of this case was duly 
 adjourned, of which the said C. D. had due notice,") both 
 the said parties appear before me in order that I should hear aud 
 determine the said information {or complaint) {or the said A. B. 
 appears before me, but the said C. D., although duly called, does 
 not appear) ; [whereupon the matter of the said information [m- 
 complaint) being by me duly considered, it manifestly appears to 
 me that the said information {or complaint) is not proved, and] 
 ( if the infoniKint or cotnpbtinant does not ajijieor, these wonl.s iimii 
 he oinitteil,) I do therefore dismiss the same, and do adjudge that 
 the said C. D. do pay to the said A. B. the sum of , for 
 
 his costs incurred by him in defence in his behalf ; and if the 
 said sum for costs is not paid forthwith {or on or before ), 
 
 I order that the same be levied by distress and sale of the oioods 
 and chattels of the said C. D., and in default of sufficient distress 
 in that behalf, I adjudge the said C. D. to be imprisoned in the 
 common gaol of the said county of , at , in the 
 
 said county of (and there kept at hard labour) for tlie 
 
 term of , unless the said sum for costs, and all costs aud 
 
 charges of the said distress (and of the commitment and convey- 
 ing of the said C. D. to the said common gaol) are sooner paid. 
 
MMMMaHMHi 
 
 [Sec. H<)2 
 
 complaint he may, wlun 
 irm BBB in schedule one 
 
 in the form CCC in thu 
 du vroduoed, shall, with- 
 ition or complaint for the 
 c. 178, 8. 56. 
 
 Sf INFORMATION OR 
 
 SecH. ma-tm] 
 
 SUMMARY CONVICTIONS. 
 
 919 
 
 , information was laid 
 signed, - ^ 
 
 anty of » ^°^' 
 
 M/^Aw/'«Ht; andnowat 
 
 , (if id nnii tuljounumnt 
 ' of this case was duly 
 lad due notice,") both 
 that I should hear antl 
 laint) ("'• the said A. B. 
 hough duly called, does 
 ^he said information ("i 
 [it manifestly appears to 
 int) is not proved, and] 
 apju'iir, these iv<mh vw;! 
 ,Q, and do adjudge that 
 |he sum of > ^^'^ 
 
 his behalf; and if the 
 or on or before )> 
 
 ,8 and sale of the goods 
 ^ult of sufficient distress 
 to be imprisoned in the 
 , at . i" the 
 
 at hard labour) fertile 
 
 costs, and all costs and 
 jmmitment and convey- 
 fn gaol) are sooner paid. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.] 
 
 J. P., (Name of county ). 
 
 CCC— {Section 802.) 
 
 FORM OF CERTIFICATE OF DISMISSAL. 
 
 Canada, 
 Province of 
 County of 
 
 I hereby certify that an information {or complaint) preferred 
 by C. D. against A. B. for that f<ir., (is in the mmmonsi was this 
 day considered by me, a justice of the peace in and for the said 
 
 county of 
 
 Dated at 
 year. 
 
 , and was by me dismissed (with costs) 
 
 , this day of , in the 
 
 J. S., 
 
 ./. P.y (N<ime of county ). 
 
 863. Whenever, by any Act or law, authority ia f<iven to commit a 
 person to prison, or to levy any sum upon his goods or chattels by distress, for 
 not obeying an order of a justice, the defendant shall be served with a copy of 
 the minute of the order before any warrant of commitment or of distress is. 
 issued in that behalf ; and the order or minute shall not form any part of the 
 warrant of commitment or of distress. R. S. C. c. 178. s. 57. 
 
 864. Whenever any person unlawfully assaults or beats any other 
 person, any justice may summarily hear and determine the charge, unless at 
 the time iif entering upun t/ie investigatiim the jjerson agijrieoed or Vie person 
 accused objects thereto. 
 
 2. If such justice is of opinion that the assault or battery complained of is, 
 frwn any other circumstance, a fit subject for prosecution by indictment, he 
 shall abstain from any adjudication thereujwn, and shall deal with the case in 
 all resixicts in the same manner as if he liad no authority finally to hear and 
 determine the same. R. S. C. c. 178, s. 73. 
 
 See s. 842, s-s. 8, ante. 
 
 H65. If the justice, upon the hearing of any case of assault or battery 
 uiwn the merits where the complaint is preferred by or on behalf of the person 
 aggrieved, under the next preceding section, deems theotfence not to be proved, 
 or finds the assault or battery to have been justified, or so trifling as not to 
 merit any punishment, and accordingly dismisses the complaint, he shall 
 forthwith make out a certificate under his hand stating the fact of such dis- 
 
920 
 
 PROCEDURE. 
 
 [Sees. 866-87 J 
 
 ■m 
 
 a. • 
 
 t :, 
 
 missal, and shall deliver such certificate to the person against whom the 
 complaint was preferred. R. S. C. c. 178, s. 74. 
 
 §00. If the person against whom any such complaint has been preferred, 
 by or on the behalf of the person aggrieved, obtains such certificate, or, having 
 been convicted, pays the whole amount adjudged to be paid or suffers the 
 imprisonment, or imprisonment with hard labour, awarded, he shall be 
 released from all further or other proceedings, civil or criminal, for the same 
 cause. R. S. C c. 178, s. 75. 
 
 S07> In every case of a summary conviction, or of an order made by a 
 justice, such justice may, in his discretion, award and order in and by the 
 conviction or order that the defendant shall pay to the prosecutor or com- 
 plainant such costs as to the said justice seem reasonable in ;hat behalf, and 
 not inconsistent with the fees established by law to be taken on proceedings 
 had by and before justices. R. S. C. c. 178, s. 58. 
 
 8G8. Whenever the justice, instead of convicting or making an order, 
 dismisses the information or complaint, he may, in his discretion, in and by 
 his order of dismissal, award and order that the prosecutor or complainant 
 shall pay to the defendant such costs as to the said justice seem reasonable 
 and consistent with law. R» S. C. c. 178, s. 59. 
 
 SOO. The sums so allowed for costs shall, in all cases, be specified in the 
 conviction or order, or order of dismissal, and the same shall be recoverable in 
 the same manner and under the same warrants as any penalty, adjudged to be 
 paid by the conviction or order, is to be recovered. R. S. C c. 178, s. CO. 
 
 S70. Whenever there is no such iwnalty to be recovered such costs shall 
 be recoverable by distress and sale of the goods and chattels of the party, and 
 in default of distress, by imprisonment, with or without hard labour, tor any 
 term not exceeding one month. R. S. C. c. 178, p. 61. 
 
 811. The fees mentioned in the following tariff and no others shall be 
 and constitute the fees to be taken on proceedings before justices in proceed- 
 ings under this part : — 
 
 Fees to be taken by Justices of the Peace or tlieir Clerks. 
 
 I 0. 
 
 1. Information or complaint and warrant or summons 50 
 
 2. Warrant where summons issued in first instance 10 
 
 3. Each necessary copy of summons or warrant 10 
 
 4. Each summons or warrant to or for a witness or witnesses. (Only 
 
 one summons on each side to be charged for in each case, which 
 may contain any number of names. If the justice of the case 
 requires it, additional summonses shall be issued without 
 
 charge) 10 
 
 5. Infiivmatioii for U'arrant for witness and warrant 50 
 
 6. Each necessary copy of suvmvms or warrant for witness 10 
 
 7. For every recognizance 25 
 
 8. For hearing and deterniining case 50 
 
 9. // case lasts over two hours 1 00 
 
[Sees. 866-87 1 
 Xierson against whom the 
 
 .mplaint has been preferred, 
 , such certificate, or, having 
 d to be paid or suffers the 
 ,our, awarded, he shall be 
 ril or criminal, for the same 
 
 n, or of an order made by a 
 rd and order in and by the 
 y to the prosecutor or com- 
 easonable in ihat behalf, and 
 f to be taken on proceedmgs 
 i. 
 
 nvicting or making an order, 
 ■ in his discretion, in and by 
 tie prosecutor or complainant 
 B said justice seem reasonable 
 
 in all cases, be specified in the 
 sesame shall be recoverable m 
 ,s any iJenalty, adjudged to be 
 id. R. S. C. c. 178, s. CO. 
 
 to be recovered such costs shall 
 and chattels of the party, and 
 without hard labour, tor any 
 
 , f. 61. 
 
 , tariff and no others shall be 
 Us before justices in proceed- 
 
 [icc or tlieir Clerks. 
 
 O50 
 1'""^°"" 010 
 
 ^"'=^'---;;;;;;;;;;;;;;; ow 
 
 ess or witnesses. (Only 
 for in each case, which 
 the justice of the case 
 
 Ull be issued without ^^^^^ 
 
 . 050 
 
 f'"«"' 10 
 
 Yor witness 
 
 y... 50 
 
 100 
 
 Sec. 872] SUMMARY CONVICTIONS. 921 
 
 10. Where one justice alone cannot lawfully hear and determine the $ c. 
 
 case, the same fee for hearing and determining to be allowed to 
 the associate justice. 
 
 11. For each warrant of distress or commitment o 25 
 
 12. For making up record of conviction or order where the same is 
 
 ordered to be returned to sessions or on certiorari l OO 
 
 But in all cases which admit of a summary proceeding before a 
 single justice and wherein no higher penalty than 820 can 
 be imposed, there shall be charged for the record of convic- 
 tion not more than o 50 
 
 13. For copy of any other paper connected with any case, and the 
 
 minutes of the same if demanded per folio of 100 words 05 
 
 14. For every bill of costs when demanded to be made out in detail 10 
 
 (Items 13 and 14 to be chargeable only when there has been an 
 adjudication). 
 
 Constables' Fees. 
 
 1. Arrest of each individual upon a warrant 1 00 
 
 2. Serving summons 25 
 
 3. Mileage to serve summons or warrant, per mile (one way) necessarily 
 
 travelled 10 
 
 4. Same mileage when service cannot be affected, but only upon proof 
 
 of due diligence. 
 
 5. Mileage taking prisoner to gaol, exclusive of disbursements neces- 
 
 sarily exi>ended in his conveyance 10 
 
 7. Attending justices on trial in one or more cases, per hour 25 
 
 8. Mileage travelled to attend trial (when public conveyance can be 
 
 taken only reasonable disbursements to be allowed) one wa>j per 
 
 ■iiile 10 
 
 9. Serving warrant of distress and returning same 1 00 
 
 10 Advertising under warrant of distress 1 00 
 
 11, Travelling to make distress or to search for goods to make distress, 
 
 when no goods are found (one loay) per mile 10 
 
 12, Appraisements, whether by one appraiser or more, 2 cents in the 
 
 dollar on the value of the goods. 
 
 13, ConiHiissioii on sale and delivery of goods, 5 cents in the dollar on 
 
 the net produce of the goods. 52 V. c. 45, s. 2 & Sch. 
 
 Witnesses' Fees. 
 
 1, Each iay attending trial 75 
 
 2. Milta'je travelled to attend trial (one tvay) per mile 10 
 
 87?J. Whenever a conviction adjudges a pecuniary jjenalty or comixinsa- 
 tion to be paid, or an order requires the payment of a sum of money, whether 
 the Act or law authorizing such conviction or order does or does not provide a 
 mode of raising or levying the penalty, compensation or sum of money, or of 
 enforcing the payment thereof, tlie justice by his conviction, or order after 
 adjudging payment of such penalty, compensation or sum of money, with or 
 without costs, may order and adjudge — 
 
 (a) that in default of payment thereof forthwith, or within a limited time, 
 such penalty, compensation or sum ef money shall be levied by distress and 
 
922 
 
 PROCEDURE. 
 
 [Sec. 87^ 
 
 sale of the tfoods and chattels of the defendant, and. if sufficient distress can- 
 not be found, that the defendant be imprisoned in the common (?aol or other 
 prison of the territorial division for whicli the justice is then acting, in the 
 manner and for the time directed by the Act or law authorizing such convic- 
 tion or order or by this Act, or for any period not exceeding three months, if 
 the Act or law authorizing the conviction or order does not specify imprison- 
 ment, or does not specify any term of imprisonment, unless such penalty, 
 compensation or sum of money and costs, if the conviction or order is made 
 with costs, and the expenses of the distress and of conveying the defendant to 
 gaol are sooner paid ; or 
 
 (b) that in default of payment of the said penalty, comiiensation or sum of 
 money, and costs if any forthwith or within a limited time, the defendant be 
 imprisoned in the common gaol or other prison of the said territorial division 
 in the manner and for the time mentioned in the said Act or law, or fur any 
 period not exceeding three months if the Act or law authorizins' the conviction 
 or order does not specify imprisonment, or does not specify any term of im- 
 prisonment, unless the said sums with the like costs and expenses are sooner 
 paid. 
 
 2. The justice making the conviction or order mentioned in the paragraph 
 lettered (a) of sub-section one of this section may issue a warrant of distress in the 
 form DDD or EEE, as the case requires ; and in the case of a conviction or 
 order under the paragraph lettered (&) of the said sub-section, a warrant in one 
 of the forms FFF or G(iG may issue ; 
 
 (a) if a warrant of distress is issued and the constable or peace officer 
 charged with the execution thereof returns (form III) that he can find no gtxxis 
 or chattels whereon to levy thereunder, the justice may issue a warrant of com- 
 mitment in the form JJJ. 
 
 3. Where by virtue of an Act or law so authorizing the justice by his con- 
 viction adjudges against the defendant payment of a penalty or compensation, 
 and also imprisonment, as punishment for an offence, he may, if he thinks fit, 
 order thai, the imprisonment in default of distress or of payment, as provided 
 for in this section, shall commence at the expiration of the imprisonment 
 awarded as a punishment for the offence. 
 
 4. The like proceeding may be had upon any conviction or order made a.< 
 provided by this section as if the Act or law authorizing the same had expressly 
 provided for a conviction or order m the above terms. R. S. C. c. 178, ss. 02. 
 fi6, 67 & 68. 
 
 BDD.—iSfction 872.) 
 
 WARRANT OF DISTRESS UPON A CONVICTION FOR A 
 
 PENALTY. 
 
 Canada, \ 
 
 Province of , [ 
 
 County of .) 
 
 To all or any of the constables and other peace officers in the 
 said county oi 
 
Sec. 872] 
 
 SUMMARY CONVICTIONS. 
 
 923 
 
 sizing the justice by his con- 
 |f a penalty or compensation, 
 
 ice, he may, if he thinks fit, 
 Is or of payment, as provided 
 
 •ation of the imprisonment 
 
 conviction or order made as 
 Lingthe same had expressly 
 
 Irms. R. S. C. c. 178, ss. 62. 
 
 loNVICTION ¥0R A 
 
 Whereas A. B., late of , (labourer), was on this day 
 
 {or on last past) duly convicted before , a justice 
 
 of the peace, in and for the said county of , for that {stating- 
 
 tha offence, as in tlie conviction), and it was thereby adjudged that 
 the said A. B. should, for such his offence, forfeit and pay {dc, 
 (IK in the conviction), and should also pay to the said C. D. the 
 sum of , for his costs in that behalf ; and it was thereby 
 
 ordered that if the said several sums were not paid (forthwith) 
 the same should be levied by distress and sale of the goods and 
 chattels of the said A. B., and it was thereby also adjudged that 
 the said A. B., in default of sufficient distress, should be impri- 
 soned in the common gaol of the said county, at , in 
 the said county of (and there kept at hard labour) for 
 
 the space of 
 
 unless the said several sums and all costs 
 
 and charges of the said distress, and of the commitment and 
 conveying of the said A, B. to the said common gaol were sooner 
 paid ; * And whereas the said A. B., being so convicted as 
 aforesaid, and being (now) required to pay the said sums of 
 
 and has not paid the same or any part thereof, but 
 
 therein has made default : These are, therefore, to command 
 
 you, in Her Majesty's name forthwith to make distress of the 
 
 goods and chattels of the said A. B. ; and if within 
 
 days next after the making of such distress, the osaid sums, 
 
 icjether with the reasonable charges of taking and keeping the 
 
 distrc3s, are not paid, then to sell the said goods and chattels so 
 
 by you distrained, and to pay the money arising from such sale 
 
 unto me t'le convicting justice {or one of the convicting justices), 
 
 that I may pay and apply the same as by law directed, and may 
 
 render the overplus, if any, on demand, to the said A, B. ; and 
 
 if no such distress is found, then to certify the same unto me, 
 
 that such further proceedings may be had thereon as to law 
 
 appertain. 
 
 Given under ray hand and seal, this day of , 
 
 in the year 
 
 at 
 
 in the county aforesaid. 
 J. S., [seal.] 
 
 ,/. P., {Xilllli' i)f ntimUj). 
 
 ler peace officers in 
 

 924 
 
 PROCEDURE. 
 
 [Sec. 872 
 
 EEE.—{Sectiim 872.) 
 
 WARRANT OF DISTRESS UPON AN ORDER FOR THE 
 PAYMENT OF MONEY. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the peace officers in the said county of , 
 
 Whereas on , last past, a complaint was made before 
 
 , a justice of the peace in and for the said county, for 
 that (I'tr., OS in the order), and afterwards, to wit, on , 
 
 at , the said parties appeared before {as in the 
 
 order), and thereupon the matter of the said complaint having 
 been considered, the said A. B, was adjudged to pay to the said 
 C. D. the sum of , on or before then next, and 
 
 also to pay to the said C. D. the sum of , for his costs in 
 
 that behalf ; and it was ordered that if the said several sums 
 were not paid on or before the said then next, the same 
 
 should be levied by distress and sale of the goods and chattels of 
 the said A. B, ; and it v/as adjudged that in default of sufficient 
 distress in that behalf, the said A. B. should be imprisoned in 
 the common gaol of the said county, at , in the said 
 
 county of (and there kept at hard labour) for the term of 
 
 , unless the said several sums and all costs and charges 
 of the distress (and of the commitment and conveying of the said 
 A. B. to the said common gaol) were sooner paid ; "^^ And whereas 
 the time in and by the said n-der appointed for the payment of 
 the said several sums of , and has elapsed, but 
 
 the said A. B. has not paid the same, or any part thereof, but 
 therein has made default : These are, therefore, to command 
 you, in Her Majesty's name, forthwith to make distress of the 
 goods and chattels of the said A. B. ; and if within the space of 
 
 days after the making of such distress, the said last 
 mentioned sums, together with the reasonable charges of taking 
 and keeping the said distress, are not paid, then to sell the said 
 goods and chattels so by you distrained, and to pay the money 
 arising from such sale unto me {or some other of the concietiniijin^- 
 tires, as the ease may he), that I ' >r he) may pay or apply the 
 same as by law directed, and may render the overplus, if any, on 
 demand to the said A. B. ; and if no such distress can be found, 
 
[Sec. 872 
 
 Sec. 872] 
 
 SUMMARY CONVICTIONS. 
 
 925 
 
 RDER FOR THE 
 
 id county of . 
 
 plaint was made before 
 :or the said county, foi- 
 ls, to wit, on 
 3fore («« '■» ^'" 
 
 said complaint having 
 ^dged to pay to the said 
 then next, and 
 , for his costs in 
 ^i the said several sums 
 then next, the same 
 he goods and chattels of 
 ,i in default of sufficient 
 should be imprisoned in 
 , in the said 
 „ labour) for the term of 
 md all costs and charges 
 nd conveying of the said 
 lerpaid; '^^ And whereas 
 inted for the payment of 
 has elapsed, but 
 or any part thereof, but 
 therefore, to command 
 to make distress of the 
 lid if within the space of 
 h distress, the said last 
 inable charges of taking 
 id, then to sell the said 
 |d, and to pay the money 
 Ltherofthi'concivtiHiiJii^- 
 \) may pay or apply the 
 |r the overplus, if any, on 
 )h distress can be found, 
 
 then to certify the same unto me, to the end that such proceed- 
 ings may be had therein, as to law appertain. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [SEAL.J 
 
 J. P., {Name of county.) 
 
 FFF.— {Section 872.) 
 
 WARRANT OF COMMITMENT UPON A CONVICTION FOR A 
 PENALTY IN THE FIRST INSTANCE. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in the 
 said county of , and to the keeper of the common 
 
 gaol of the said county of , at in the said 
 
 county of 
 
 Whereas A. B., late of , {luboiirer), was on this day 
 
 convicted before the undersigned , a justice of the 
 
 peace in and for the said county, for that {stating the ofence, as in 
 the conviction), and it was thereby adjudged that the said A. B.^ 
 for his offence, should forfeit and pay the sum of 
 {etc., Its in the conviction), and should pay to the said C. D. the 
 sum of , for his costs in that behalf ; and it was thereby 
 
 further adjudged that if the said several sums were not paid 
 (forthwith) the said A. B. should be imprisoned in the common 
 gaol of the county, at , in the said county of 
 
 (and there kept at hard labour) for the term of , unless 
 
 the said several sums (and the costs and charges of conveying 
 the said A. B. to the said common gaol) were sooner paid ; And 
 whereas the time in and by the said conviction appointed for the 
 payment of the said several sums has elapsed, but the said A. B. 
 has not paid the same, or any part thereof, but therein has made 
 default ; These are, therefore, to command you, the said peace 
 officers, or any one of you, to take the said A. B., and him safely 
 to convey to the common gaol at aforesaid, and there to 
 
 deUver him to the said keeper thereof, togetlier with this pre- 
 cept ; And I do hereby command you, the said keeper of the 
 
me 
 
 PROCEDURE. 
 
 [Sec. 8; 
 
 SKI 
 
 
 « ' 
 
 said common gaol, to receive the said A. B. into your custod 
 in the said common gaol, there to imprison him (and keep hit 
 at hard labour) for the term of , unless the said severe 
 
 sums (and costs and charges of carrying him to the said commoi 
 gaol, amounting to the further sum of ), are soone 
 
 paid unto you, the said keeper ; and for your so doing, this shal 
 be your sufficient warrant. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 
 J. P,, (Name of county.) 
 
 GGG.—(Sectmi 872.) 
 
 WARRANT OF COMMITMENT ON AN ORDER IN THE FIRST 
 
 INSTANCE. 
 
 Canada, ) 
 
 Province of , I 
 
 County of . ) 
 
 To all or any of the constables and other peace oflficers in the 
 said county of , and to the keeper of the common 
 
 gaol of the county of , at , in the said 
 
 county of 
 
 Whereas, on last past, complaint was made before 
 
 the undersigned , a justice of the peace in and for the 
 
 fiaid county of , for that (etc., an in the order), and after- 
 
 wards, to wit, on the day of , at A. B, 
 
 and C. D. appeared before me, the said justice (or as it /s in th 
 order) t and thereupon having considered the matter of the com- 
 plaint, I adjudged the said A. B. to pay the said C. D. the sum 
 of , on or before the day of then next, 
 
 and also to pay to the said C. D. the sum of , for his 
 
 costs in that behalf ; and I also thereby adjudged that if the 
 said several sums were not pa id on or before the day ot 
 
 , then next, the said A. B. should be imprisoned in 
 the common gaol of tl\5 county of , at , in the 
 
 said county of (and there be kept at hard labour) for 
 
 the term of , unless the said several sums (and the costs 
 
 and charges of conveying the said A. B. to the said common 
 
 
 
[Sec. 872 
 
 L B. mto your custody 
 Lson him (and keep him 
 unless the said several 
 him to the said common 
 jf ), are sooner 
 
 your so doing, this shall 
 
 day of 
 e county aforesaid. 
 
 ., [seal.] 
 
 \P„ {Name of county.) 
 
 ^ ORDER IN THE FIRST 
 
 Sec. 872] 
 
 SUMMARY CONVICTIONS. 
 
 927 
 
 Other peace officers in the 
 the keeper of the common 
 
 at 
 
 in the said 
 
 pmplaint was made before 
 [f the peace in and for the 
 rts- in tlie order), and after- 
 ,at A.B, 
 
 dd justice {or as it (n in f/" 
 ted the matter of the com- 
 ay the said C. D. the sum 
 day of then next, 
 
 lesumof ^^^'^^ 
 
 Leby adjudged that if the 
 
 before the ^^P' 
 
 should be imprisoned in 
 
 , at . i" ^^' 
 
 . kept at hard labour) for 
 
 everal sums (and the costs 
 
 B. to the said commou 
 
 jraol as the case may hr) were sooner paid; And whereas the 
 time in and by the said order appointed for the payment of the 
 said several sums of money has elapsed, but the said A. 3. has 
 not paid the same, or any part thereof, but therein has made 
 default ; These are, therefore, to command you, the said peace 
 officers, or any of you, to take the said A. B. and him safely to 
 convey to the said common gaol, at aforesaid, and 
 
 there to deliver him to the keeper thereof, together with this pre- 
 cept ; And I do hereby command you, the said keeper of the 
 said common gaol, to receive the said A. B. into your custody in 
 the said common gaol, there to imprison him (and keep him at 
 hard labour) for the term of , unless the said several 
 
 sums (and the costs and charges of conveying him to the said 
 common gaol, amounting to the further sum of ), are 
 
 sooner paid unto you the said keeper ; and for your so doing, this 
 shall be your sufficient warrant. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 -/. P., (Name of county.) 
 
 III.— {Section 872.) 
 CONSTABLE'S RETURN TO A WARRANT OF DISTRESS. 
 
 I, W. T., constable, of , in the county of , 
 
 hereby certify to J. S., Esquire, a justice of the peace in and for 
 the county of , that by virtue of this warrant I have 
 
 made diUgent search for the goods and chattels of the within 
 mentioned A. B., and that I can find no sufficient goods and 
 chattels of the said A. B. whereon to levy the sums within 
 mentic'ned. 
 
 Witness my hand, this day of , one thousand 
 
 eight hundred and 
 
 W. T. 
 
928 
 
 PROCEDURE. 
 
 [Sec. 8 
 
 333.— {Section 872.) 
 WARRANT OF COISIMITMENT FOR WANT OF DISTRESS. 
 
 Canada, 
 Province of 
 County of 
 
 To all or any of the constables and other peace officers in tt 
 county of , and to the keeper of the commo: 
 
 gaol of the said county of , at , i; 
 
 the said county. 
 
 Whereas (dc, as in either of the foreijointj distresH watranu 
 DDD or EEE, to tlie asterisk, "■' ami tJven thus) : And whereas 
 afterwards on the day of , in the year aforesaid 
 
 I, the said justice, issued a warrant to all or any of the peact 
 officers of the county of , commanding them, or any ol 
 
 them, to levy the said sums of and by distress 
 
 and sale of the goods and chattels of the said A. B. ; And whereas 
 it appears to me, as well by the return of the said warrant of 
 distress, by the peace officer who had the execution of the same, 
 as otherwise, that the said peace officer has made diligent searcli 
 for the goods and chattels of the said A. B., but that no sufficieut 
 distress whereon to levy the sums above mentioned could be found: 
 These are, therefore, to command you, the said peace officers, 
 any one of you, to take the said A. B., and him safely to convey 
 to the common gaol at , aforesaid, and there deliver him 
 
 to the said keeper, together with this precept : And I do hereby 
 command you, the said keeper of the said common gaol, to 
 receive the said A. B. into your custody, in the said common 
 gaol, there to imprison him (and keep him at hard labour) for 
 the term , unless the said several sums and all the costs 
 
 and charges of the said distress (and of the commitment and 
 conveying of the said A. B. to the said common gaol) amounting 
 to the further sum of , ar.; sooner paid unto you, the 
 
 said keeper : and for so doing this shall be your sufficient 
 warrant. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 J. S., [seal.] 
 J. P., {Name of county.) 
 
 or 
 
[Sec. m 
 
 Sec. 873] 
 
 SUMMARY CONVICTIONS. 
 
 929 
 
 ANT OF DISTRESS. 
 
 ev peace officers in the 
 B keeper of the commou 
 
 at 
 
 in 
 
 roioinu distresH icanunts, 
 uin thius) : And whereas. 
 in the year aforesaid, 
 3 all or any of the peace 
 imanding them, or any of 
 and by distress 
 
 esaidA.B.; And whereas 
 rn of the said warrant of 
 the execution of the same, 
 ,r has made diligent search 
 \ B., but that no sufficient 
 mentioned could be found; 
 , the said peace officers, or 
 ' and him safely to convey 
 laid, and there deliver him 
 cept: And I do hereby 
 he said common gaol, to 
 tody in the said common 
 L him at hard labour) for 
 eral sums and all the costs 
 d of the commitment and 
 1 common gaol) amounting 
 sooner paid unto you, the 
 
 ghall be your sufficient 
 [the county aforesaid. 
 
 Is., [SEAL-^ 
 I/. P., (^'"'"^ '^^' '^"""''''* 
 
 873. When any information or complaint is dismissed with costs the 
 iuntioe may issue a warrant of distress on the goods and chattels of the prose- 
 cutor or complainant, in the form KKK, for the amount of such oosta ; and, 
 in default of distress, a warrant of commitment in the fonn LLL may issue : 
 Pa)vided that the term of imprisonment in such case shall not exceed one 
 month. R- S. C. o. 178, s. 70. 
 
 KKK.— {Section 873.) 
 
 WARRANT OF DISTRESS FOR COSTS UPON AN ORDER FOR 
 DISMISSAL OF AN INFORMATION OR COMPLAINT. 
 
 Canada, 
 Province of 
 District of 
 
 To all or any of the constables and other peace officers in the 
 said county of 
 
 Whereas on last past, information was laid {or com- 
 
 plaint was made) before , a justice of the peace in and 
 
 for the said county £of , for that {dc, as in the order of 
 
 disinissal) and afterwards, to wit, on , at , both 
 
 parties appearing before , in order that (I) should hear 
 
 and determine^the same, and the several proofs adduced to (me) 
 in that behalf, being by (me) duly heard and considered, and it 
 manifestly appearing to (me) that the said information {or com- 
 plaint) was not proved, (I) therefore dismissed the same and 
 adjudged that^the said C. D. should pay to the said A. B. the 
 sum of , for his][costs incurred by him in his defence in 
 
 that behalf ; and (I) ordered that if the said sum for costs was. 
 not paid (forthwith);the same should be levied on the goods and 
 chattels of the said C. D., and (I) adjudged that in default of 
 sufficient distressjin that behalf the said C. D. should be im- 
 prisoned in|the common gaol of the said county of , 
 at , in" the^said county of , (and there kept 
 at hard labour) for the space of , unless the said sum 
 for costs, and all costs and charges of the said distress, and of 
 the commitmtnt and conveying of the said A. B. to the said 
 common gaol.^were sooner paid ; '* And whereas the said C. D. 
 being now required to pay to the said A. B. the said sum for 
 costs, has not paid the same, or any part thereof, but therein 
 has made default : These are, therefore, to command you, in 
 Grim. Law — 59 
 
930 
 
 PROCEDURE. 
 
 [Sec. 873 
 
 Her Majesty's name, forthwith to make distress of the goods and 
 chattels of the said C. D., and if within the term of days 
 
 next after the making of such distress, the said last mentioned 
 sum, together with the reasonable charges of taking and keeping 
 the said distress, shall not be paid, then to sell the said goods 
 and chattels so by you distrained, and to pay the money arising 
 from such sale to (me) that (I), may pay and apply the same as 
 by law directed, and may render the overplus (if any) on demand 
 to the said C. D., and if no distress can be found, then to certify 
 the same unto we (or to any other justice of the peace for the 
 same county), that such proceedings may be had therein as to 
 law appertain. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , in the county aforesaid. 
 
 I J. S., [seal.] 
 
 J. P., (Name of county.) 
 
 ItLL.— (Section 873.) 
 WARRANT OF COMMITMENT FOR WANT OF DISTRESS. 
 Canada, 
 Province of 
 County of 
 To all or any of the constables and other peace officers in the 
 
 said county of , and to the keeper of the common 
 
 gaol of the said county of , at , in the said 
 
 county of 
 Whereas {dc, as in foiin KKK to the asterisk, '^' and then 
 thus) : And whereas afterwards, on the day of , 
 
 in the year aforesaid, I, the said justice, issued a warrant to all 
 or any of the peace officers of the said county, commanding 
 them, or any one of them, to levy the said sum of , for 
 
 costs, by distress and sale of the goods and chcttels of the said 
 C. D. ; And whereas it appears to me, as well by the return to 
 the said warrant of distress of the peace officer charged with the 
 execution of the same, as otherwise, that the said peace officer 
 has made diligent search for the goods and chattels of the said 
 C. D., but that no sufficient distress whereon to levy the sum 
 above mentioned could be found : These are, therefore, to corn- 
 
 it. 
 
[Sec. 873 
 
 .83 of the goods and 
 
 erm of ^aya 
 
 said last mentioned 
 
 taking and keeping 
 
 sell the said goods 
 y the money arising 
 i apply the same as 
 3 (if any) on demand 
 bund, then to certify 
 
 of the peace for tht 
 be had therein as to 
 
 day of > 
 
 ounty aforesaid. 
 
 [seal.] 
 '., {^Name of county.) 
 
 ANT OF DISTRESS. 
 
 jr peace officers in the 
 
 fkeeper of the common 
 
 ^1; , in the said 
 
 \he asterisk, '' and then 
 
 day of ' 
 
 issued a warrant to all 
 
 county, commanding 
 
 lid sum of ' ^°^ 
 
 Ld chattels of the said 
 
 Is well by the return to 
 [officer charged with the 
 It the said peace officer 
 Vnd chattels of the said 
 Lreon to levy the sum 
 are. therefore, to com- 
 
 Sec. 874] 
 
 SUMMARY CONVICTIONS. 
 
 931 
 
 mand you, the said peace officers, or any one of you, to take the 
 said CD., and him safely convey to the common gaol Df the 
 said county, at aforesaid, and tlioie deliver him to 
 
 the keeper thereof, together with this precept; And I hereby 
 command you, the said keeper of the said common gaol, to 
 receive the said C. D. into your cutorly in the said common 
 gaol, there to imprison hira (and k<<.^ \\;,:\ at hard labour) for 
 the term of , unless tV;^ ,aid si; n, and all the costs 
 
 and charges of the said distrep ; (and of the commitment and 
 conveying of the said C. D. to the said common gaol, amounting 
 to the further sum of ), are sooner paid unto you the 
 
 ^aid keeper ; and for you so doing, this shall be your sufficient 
 warrant. 
 
 Given under my hand and seal, this day of , 
 
 in the year , at , iu the county aforesaid. 
 
 J. S., [Seal.] 
 , ./. P., {Xame of County.) 
 
 §74. If after delivery of any warrant of distress issued under this part 
 to the constable or constables to whom the same has been directed to be 
 executed, sufficient distress cannot be found within the limits of the juris- 
 diction of the justice granting the warrant, then upon proof being made upon 
 oath or affirmation of the handwriting of the justice granting the warrant, 
 before any justice of any other territorial division, such justice shall thereupon 
 make an endorsement on the warrant, signed with his hand, authorizing the 
 execution of the warrant within the limits of his jurisdiction, by virtue of 
 which warrant and endorsement the jjenalty or sum and costs, or so much 
 thereof as has not been before levied or paid, shall be levied by the person 
 bringing the warrant, t)r by the person or persons to whom the warrant was 
 originally directed, or by any constable or other peace officer of the last 
 mentioned territorial division, by distress and sale of the goods and chattels 
 of the defendant therein. 
 
 2. Such endorsements shall be in the form HHH in schedule one to this 
 Act. R. S. C. c. ITS, s. 63. 
 
 HHH.— (.S«f/on 874.) 
 
 ENDORSEMF T IN BACKING A WARRANT OF DISTRESS. 
 
 Canada, ) 
 
 Province of , l 
 
 County of . ) 
 
 Whereas proof upon oath has this day been made before me 
 , a justice of the peace in and for the said county, that 
 
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 WEBSTER, N.Y. MSSO 
 
 (716) 872-4b03 
 
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932 
 
 PROCEDURE. 
 
 [Sees. 875-878 
 
 the name of J. S. to the within warrant subscribed is of the 
 handwriting of the justice of the peace within mentioned, I 
 do therefore authorize W. T., who brings me this warrant, 
 and all other persons to whom this warrant was originally 
 directed, or by whom the same may be lawfully executed, and 
 also all peace officers in the said county of , to execute 
 
 the same within the said county. 
 
 Given under my hand, this day of , one 
 
 thousand eight hundred and 
 
 O.K., 
 J. P., {Name of county.) 
 
 S79. Whenever it appears to any justice that the issuinf? of a distress 
 warrant would be ruinous to the defendant and his family, or whenever it 
 appears to the justice, by the confession of the defendant or otherwise, that 
 he has no fj^oods and chattels whereon to levy such distress, then the justice, 
 if he deems it fit, instead of issuing a warrant of distress, may commit the 
 defendant to the common gaol or other prison in the territorial division, there 
 to be imprisoned, with or without hard labour, for the time and in the manner 
 he would have been committed in case such warrant of distress had issued and 
 no sufficient distress had been found. R. S. C. o. 178, s. 64. 
 
 S70. Whenever a justice issues a warrant of distress as hereinbefore 
 provided, he may suffer the defendant to go at large, or verbally, or by a 
 written warrant in that behalf, may order the defendant to be kept and 
 detained in safe custody, until return has been made to the warrant of distress 
 unless the defendant gives sufficient security, by recognizance or otherwise, 
 to the satisfaction of the justice, for his appearance, at the time and place 
 appointed for the return of the warrant of distress, before him or before such 
 other justice for the same territorial division as shall then be there. R. S. C. 
 0. 178, 8. 65. 
 
 87T. Whenever a justice, upon any information or complaint, adjudges 
 the defendant to be imprisoned, and the defendant is then in prison under- 
 going imprisonment upon conviction for any other offence, the warrant of 
 commitment for the subsequent offence shall be forthwith delivered to the 
 gaoler or other officer to whom it is directed ; and the justice who issued the 
 same, if he thinks fit, may award and order therein that the imprisonment for 
 the subsequent offence shall commence at the expiration of the imprisonment 
 to which the defendant was previously sentenced. R. S. C. c. 178, s. 69. 
 
 878. Whenever a defendant gives security by or is discharged upon 
 recognizance and does not afterwards appear at the time and place mentioned 
 in the recognizance, the justice who took the recognizance, or any justice 
 who is then present, having certified upon the back of the recognizance the 
 non-appearance of the defendant, may transmit such recognizance to the 
 proper officer in the province appointed by law to receive the same, to be 
 
[Sees. 875-878 
 
 ubscribed is of the 
 within mentioned, I 
 3 me this warrant, 
 rant was originally 
 wfuUy executed, and 
 , to execute 
 
 Sec. 870] 
 
 SUMMARY CONVICTIONS. 
 
 lay of 
 
 one 
 
 >., (Name of county.) 
 
 ,at the isBuinK of a distress 
 hia family, or whenever It 
 Bfendant or otherwise, that 
 .h distress, then the iustice, 
 ,{ distress, may commit the 
 he territorial division, there 
 • the time and in the manner 
 ,n. of distress had issued and 
 
 178, 8. 64. 
 
 t of distress as hereinbefore 
 large, or verbally, or by a 
 defendant to be kept and 
 le to the warrant of distress 
 recognizance or oth« 
 ^nce, at the time and plac^ 
 psB, before him or before such 
 
 jhall then be there. R.».^- 
 
 bation or complaint, adjudges 
 Lt is then in prison unde ■ 
 Ler offence, the warrant 
 £e forthwith delivered to h 
 
 f„d the justice who issued th 
 lein that the imprisonment for 
 
 a. R. S. C. c. 178, 8. ow. 
 bitv by or is d,.,charged upon 
 ^SetLeandpl^.-^^ 
 B recognizance, or any ]u 
 ^ack of the recognizance J 
 
 'it euch recognizance to tn 
 C, to receive the same, to be 
 
 proceeded upon in like manner as other recognizances ; and such certificate 
 shall he prima facie evidence of the non-appearance of the said defendant 
 
 2. Such certificate shall be in the form MMM in schedule one to this 
 Act. The proper officer to whom the recognizance and certificate of default 
 are to be transmitted, in the province of Ontario, shall be the clerk of the 
 peace of the county for which such justice is acting, except in the district of 
 Nipissing as to which district the proper officer shall be the clerk of the peace 
 for the county of Renfrew ; and the Court of Gener:^! Sessions of the Peace 
 for such county shall, at its then next sitting, order all such recognizances to 
 be forfeited and estreated, and the same shall be enforced and collected in 
 the same manner and subject to the same conditions as any fines, forfeitures 
 or amercements imposed by or forfeited before such court ; and in the other 
 provinces of Canada, the proper officer to whom any such recognizance and 
 certificate shall be transmitted, shall be the officer to whom like recognizances 
 have been heretofore accustomed to be transmitted under the law in force 
 before the passing of this Act ; and such recognizances shall be enforced and 
 collected in the same manner as like recognizances have heretofore been 
 enforced and collected. R. S. C. c. 178, ss. 71 & 72. 
 
 UUU.— {Section 878.) 
 
 CERTIFICATE OF NON-APPEARANCE TO BE ENDORSED ON 
 THE DEFENDANT'S RECOGNIZANCE. 
 
 I hereby certify that the said A. B. has not appeared at the 
 time and place in the said condition mentioned, but therein 
 has made default, by reason whereof the within written recog- 
 nizance is forfeited. 
 
 J. S., [seal.] 
 
 J. P., {Name of county.) 
 
 §79. Unless it is otherwise provided in any special Act unde- ' 'ioh a 
 conviction takes place or an order is made by a justice for the p.;wyment of 
 money or dismissing an information or complaint, any person who thinks him- 
 self aggrieved by any such conviction or order, the prosecutor or complainant, 
 as well as the defendant, may appeal, in the province of Ontario, to the Court 
 of General Sessions of the Peace ; in the province of Quebec, to the Court of 
 Queen's Bench, Crown side ; in the provinces of Nova Scotia, New Brunswick 
 and Manitoba, to the county court of the district or county where the cause of 
 the information or complaint arose ; in the province of Prince Edward Island, 
 to the Supreme Court ; in the province of British Columbia, to the county or 
 district court, at the sitting thereof which shall be held nearest to the place 
 where the cause of the information or complaint arose ; and in the North-west 
 Territories, to a judge of the Supreme Court of the said territories, sitting 
 without a jury, at the place where the cause of the information or complaint 
 arose, or the nearest place thereto where a court is appointed to be held. 
 
 2. In the district of Nipissing such person may appeal to the Court of Gen- 
 err,! Sessions of the Peace for the county of Renfrew. 51 V. c. 46, s. 7. 52 V. 
 c. 45, 8. 6. 
 
 
 m.i 
 
934 
 
 PROCEDURE. 
 
 [Sec. 880 
 
 Sub-section 2 extended by the repealed clause to the 
 district of Muskoka and others. 
 
 880. Every right of appeal shall, unless it is otherwise provided in any 
 special Act, be subject to the conditions following, that is to say : — 
 
 (a) If the conviction or order is made more than fourteen days before the 
 sittings of the court to which the appeal is given, such appeal shall be made to 
 the then next sittings of such court ; but if the conviction or order is made 
 within fourteen days of the sittings of such court, then to the second sittings 
 next after such conviction or order ; 
 
 (6) The appellant shall give to the respondent, or to the justice who tried 
 the case for him, a notice in writing, in the form NNN in schedule one to ihis 
 Act, of such appeal, within ten days after such conviction or order ; 
 
 (c) The appellant, if the appeal is from a conviction adjudging imprison- 
 ment, shall either remain in custody until the holding of the court to which the 
 appeal is given, 9r shall enter into a recognizance in the form OOO in the said 
 schedule with two suflScient sureties, before a justice, conditioned personally to 
 appear at the said court, and to try such appeal, and to abide the judgment of 
 the court thereupon, and to pay such costs as are awarded by the court ; or, if 
 the appeal is against any conviction or order, whereby only a penalty or sum 
 of money is adjudged to be paid, the appellant (although the order directs im- 
 prisonment in default of payment), instead of remaining in custody as aforesaid, 
 or giving such recognizance as aforesaid, may deposit with the justice convict- 
 ing or making the order such sum of money as such justice deems sufficient t» 
 cover the sum so adjudged to be paid, together with the costs of the conviction 
 or order, and the costs of the appeal ; and upon such recognizance being given, 
 or such deposit being made, the justice before whom such recognizance is 
 entered into, or deposit made, shall liberate such person, if in custody ; 
 
 {d) In case of an appeal from the order of a justice, pursuant to nection 
 five hundred and seventy-one, for the restoration of gold or gold-bearing quartz, 
 or silver or silver ore, the appellant shall give security by recognizance to the 
 value of the oaid property to prosecute his appeal at the next sittings of tlie 
 court and to pay such costs as are awarded against him ; 
 
 (e) The court to which s' • appeal is made shall thereupon hear and deter- 
 mine the matter of appeal a*- ice sucii order therein, with or without cost? 
 to either party, including cc ^ of the court below, as seems meet to the 
 court, — and, in case of the dismissal of an appeal by the defendant and the 
 aflSrmance of the conviciicn or order, shall order and adjudge the appellant to 
 be punished according to the conviction or to pay the amount adjudged by the 
 said order, and to pay such costs as are awarded,— and shall, if necessary, issue 
 process for enforcing the judgment of the court ; and whenever, after any such 
 deposit has been made as aforesaid, the conviction or order is affirmed, the 
 court may order the sum thereby adjudged to be paid, together with the costs of 
 the conviction or order, and the costs of the appeal, to be paid out of the money 
 deposited, and the residue, if any, to be repaid to the appellant ; and when- 
 ever, after any such deposit, the conviction or order is quashed, the court shall 
 order the money to be repaid to the appellant ; 
 
[Sec. 880 
 
 aled clause to the 
 
 herwise provided in any 
 lat is to say :— 
 
 fourteen days before the 
 ,h appeal shaU be made to 
 nviction or order is made 
 hen to the second sittmgs 
 
 or to the juatioe who tried 
 NN in schedule one to this 
 viotion or order ; 
 
 ddion adjudging inprum- 
 OK of the court to which ihe 
 a *he form 000 in the said 
 je.conditioned personally to 
 ad to abide the judgment of 
 awarded by the court; or, It 
 ,reby only a penalty or Sinn 
 though the order dii^cts im- 
 ining in custody as afor&said, 
 osit with the justice convict- 
 ch justice deems sufficient to 
 th the costs of the conviction 
 ich recognizance being given, 
 whom such recognizance w 
 [person, if in custody ; 
 
 justice, pursuant to nection 
 of gold or gold-bearing quartz, 
 surity by recognizance to the 
 a at the next sittings of the 
 
 [st him ; 
 lall thereupon hear and deter. 
 
 .herein, with or withoucc«^^ 
 elow as seems meet to the 
 .albi the defendant and th^ 
 
 , and adjudge the appellant J. 
 y the amount adjudged by th 
 
 -and shall, if necessary, issue 
 'and whenever, after any su* 
 btion or order is affirmed, the 
 Ctogetherwiththecostso 
 ftbe'paidoutofthemon 
 I to the appellant; and wto 
 rder is quashed, the court shall 
 
 Sec. 880] 
 
 SUMMARY CONVICTIONS. 
 
 936 
 
 (/) The said court shall have power, if necessary, from time to time, by 
 order endorsed on the conviction or order, to adjourn the hearing of the appeal 
 from one sittings to another, or others, of the said court ; 
 
 (g) Whenever any conviction or order is quashed on appeal, as aforesaid, 
 the clerk of the peace or other proper officer shall forthwith endorse on the 
 conviction or order a memorandum that the same has been quashed ; and when- 
 ever any copy or certificate of such conviction or order is made, a copy of such 
 memorandum shall be added thereto, and shall, when oeriiified under the hand 
 of the clerk of the peace, or of the proper officer having the custody of the 
 same, be sufficient evidence, in all courts and for all purposes, that the convic- 
 tion or order has been quashed. .51 V. c. 45, s. 8. 53 V. c. 37, s. 24. 
 
 NNN.— (Section 880.). 
 NOTICE OF APPEAL AGAINST A CONVICTION OR ORDER. 
 
 To C. D., of , and , [tlie names and additions of the 
 
 paHies to tchom the notice of appeal is required to be given.) 
 
 Take notice, that I, the undersigned, A. B., of , 
 
 intend to enter and prosecute an appeal at the next General 
 Sessions of the Peace {or other court, as the case may be), to be 
 holden at , in and for the county of , against a 
 
 certain conviction [or order) bearing date on or about the 
 day of , instant, and made by (you) J. S., Esquire, a justice 
 of the peace in and for the said county of , whereby I» 
 
 the said A. B. was convicted of having {or was ordered) to pay 
 , {here state the offence as in the conviction, information,, 
 or summons, or the amount adjudged to be paid, as in the order, a& 
 correctly as possible.) 
 
 Dated at , this day of , one thou- 
 
 sand eight hundred and 
 
 A. B. 
 
 Memorandum. — If this notice is ffiven by several defendants, or by 
 an attorney, it may be adapted to the case. 
 
 000.— {Section 880.) 
 
 FORM OF RECOGNIZANCE TO TRY THE APPEAL, 
 
 Canada, | 
 
 Province of , J« 
 
 County of . ) 
 
 Be it remembered that on , A.B., of 
 
 and L. M., of , {rp-ocer), and N. 0., of 
 
 , {labourer), 
 , {yeoman), 
 
936 
 
 PROCEDURE. 
 
 [Sec. 880 
 
 personally came before the undersigned , a justice of 
 
 the peace in and for the said county of , and severally 
 
 acknowledged themselves to owe to our Sovereign Lady the 
 Queen, the several sums following, that is to say, the said A.B. 
 the sum of , and the said L.M. and N.O. the sum of , 
 
 each, of good and lawful money of Canada, to be made and 
 levied of their several goods and chattels, lands and tenements 
 respectively, to the use of our said Lady the Queen, Her heirs 
 and successors, if he the said A. B. fails in the condition 
 endorsed {or hereunder written). 
 
 Taken and acknowledged the day and year first above men- 
 tioned at , before me. 
 
 J. S., 
 
 J. P. [Name of county). 
 
 The comdition of the within {or the above) written recogniz- 
 ance is such that if the said A.B. personally appears at the 
 (next) General Sessions of the Peace {or other court discharijincj 
 the functions of the Court of General Sessions, as the case may he), 
 to be holden at , on the day of , next, 
 
 in and for the said county of , and tries an appeal against 
 
 a certain conviction, bearing date the day of 
 
 {instant), and made by (me) the said justice, whereby he, the 
 said A. B., was convicted, for that he, the said A.B., did, on the 
 day of , at , in the said county of 
 
 , {here set out the offence as stated in tlie conviction) ; and 
 also abides by the judgment of the court upon such appeal and 
 pays such costs as are by the court awarded, then the said 
 recognizance to be void, otherwise to remain in full force and 
 virtue. 
 
 FORM OF NOTICE OF SUCH RECOGNIZANCE TO BE GIVEN TO 
 THE APPELLANT AND HIS SURETIES. 
 
 Take notice, that you, A. B., are bound in the sum of 
 and you L. M. and N. 0. in the sum of , each, that you 
 
 the said A. B. will personally appear at the next General Ses- 
 sions of the Peace to be holden at , in and for the said 
 county of , and try an appeal against a conviction {or 
 order) dated the day of , {instant) whereby you A. B. 
 were convicted of {or ordered, &c.), (stating nff'ence or the subject 
 
[Sec. 880 
 
 , a justice of 
 , and severally 
 Sovereign Lady the 
 s to say, the said A.B. 
 N.O. the sum of 
 uada, to be made and 
 8, lands and tenements 
 y the Queen, Her heirs 
 fails in the condition 
 
 id year first above men- 
 
 I. P. {Name of county). 
 
 above) written recogniz- 
 
 ersonally appears at the 
 
 or other court dischariiinn 
 
 mions, as the case may he), 
 
 day of . ^^ext, 
 
 ad tries an appeal agains^ 
 
 day of > 
 
 justice, whereby he, the 
 
 the said A.B., did, on the 
 
 , in the said county of 
 
 ted in tlui conviction) ; and 
 
 art upon such appeal and 
 
 awarded, then the said 
 
 remain in full force and 
 
 IzANCE TO BE GIVEN TO 
 IS SURETIES. 
 
 lound in the sum of 
 If , each, that you 
 
 lat the next General Ses- 
 1 , in and for the said 
 
 Isal against a conviction {or 
 histant) whereby you A. B. 
 lating offence or the .su6;<d 
 
 Sees. 881-883] 
 
 SUMMARY CONVICTIONS. 
 
 987 
 
 of the order shortly), and abide by the judgment of the court upon 
 such appeal and pay such costs as are by the court awarded, and 
 unless you the said A. B. personally appear and try such appeal 
 and abide by such judgment and pay such costs accordingly, the 
 recognizance entered into by you will forthwith be levied on you 
 and each of you. 
 
 Dated at , this day of , one thou- 
 
 sand eight hundred and 
 
 881- When an appeal against any summary conviction or decision has 
 been lodged in due form, and in compliance with the requirements of this part 
 the court appealed to shall try, and shall be the absolute judge, as well of the 
 facts as of the law, in respect to such conviction or decision ; and any of the 
 parties to the appeu^l may call witnesses and adduce evidence, whether such 
 witnesses were called or evidence adduced at the hearing before the justice or 
 not, either as to the credibility of any witness, or as to any other fact material 
 to the inquiry ; but any evidence taken before the justice at the hearing below, 
 signed by the witness giving the same and certified by the justice, may be read 
 on such appeal, and shall have the like force And effect as if the witness was 
 there examined : Provided, that the court appealed to is satisfied, by afHdavit 
 or otherwise, that the personal presence of the witness cannot be obtained by 
 any reasonable efforts, 53 V. c. 37, s. 25. 
 
 88S. No judgment shall be given in favour of the appellant if the appeal 
 is based on an objection to any information, complaint or summons, or to any 
 Warrant to apprehend a defendant issued upon any such information, com- 
 plaint or summons, for any alleged defect therein, in substance or in form, or 
 for any variance between such information, complaint, summons or warrant 
 and the evidence adduced in support thereof at the hearing of such information 
 or complaint, unless it is proved before the court hearing the appeal that such 
 objection was made before the justice before whom the case was tried and by 
 whom such conviction, judgment or decision was given, or unless it is proved 
 that notwithstanding it was shown to such justice that by such variance the 
 person summoned and appearing or apprehended had been deceived or misled, 
 such justice refused to adjourn the hearing of the case to some further day, as 
 herein provided. R. S. C. c. 178, s. 79. 
 
 883* In every case of appeal from any summary conviction or order had 
 or made before any justice, the court to which such appeal is made shall, not- 
 withstanding any defect in such conviction or order, and notwithstanding that 
 the punishment imix)8ed or the order made may be in excess of that which 
 might lawfully have been imposed or made, hear and determine the charge or 
 complaint on which such conviction or order has been had or made, ujion the 
 merits, and may confirm, reverse or modify the decision of such justice, or may 
 make such other conviction or order in the matter as the court thinks just, 
 and may by such order exercise any power which the justice whose decision is 
 appealed from might have exercised, and such conviction or order shall have 
 the same effect and may be enforced in the same manner as if it had been made 
 
938 
 
 PROCEDURE. 
 
 [Sees. 884-88* 
 
 "fPfS. 
 
 ]'i 3 1 
 
 by Huch justice. The court may also make such order us to costs to be paid by 
 either party as it thinks fit. 
 
 2. Any conviction or order made by the court on apiieal may ako be 
 enforced by process of the court itself. 53 V. c. 37, s. 26. 
 
 884* The court to which an appeal is made, upon proof of notice of the 
 appeal to such court havinpr been given to the person entitled to receive the 
 same, though such appeal was not afterwards prosecuted or en ten d, may, if 
 such appeal has not been abandoned according to law, at the same sittings for 
 which such notice vns given, order to the party or parties receiving the same 
 such costs and charges as are thought reasonable and just by the court, to be 
 paid by the party or parties giving such notice ; and such costs shall be recover- 
 able in the manner provided by this Act for the recovery of costs uiwn an 
 appeal against an order or conviction. R. S. C. o. 178, s. SI. 
 
 K85* If an appeal against a conviction or order is decided in favour uf 
 the respondents, the justice who made the conviction or order, or any other 
 justice for the same territorial division, may issue the warrant of distress or 
 commitment tor execution of the same, as if no appeal had been brought. 
 R. S. C. c. 178, s. 82. 
 
 880> No conviction or«order affirmed, or affirmed and ainended, in 
 appeal, shall be quashed for want of form, or be removed by certiorari into any 
 superior court, and no warrant or commitment shall be held void by reason of 
 any defect therein, provided it is therein alleged that the defendant has been 
 convicted, and there is a good and valid conviction to sustain the same. 
 R. S. C. c. 178, s. 83. 
 
 88T. No writ of certiorari shall be allowed to remove any conviction or 
 order had or made before any justice of the peace if the defendant has ajJiiealed 
 from such conviction or order to any court to which an appeal from such 
 conviction or order is authorized by law, or shall be allowed to remove any 
 conviction or order made upon such appeal. R. S. C. c. 178, s. 84. 
 
 888- Every justice before whom any person is summarily tried, shall 
 transmit the conviction or order to the court to which the appeal is herein 
 given, in and for the district, county or place wherein the offence is alleged to 
 have been committed, before the time when an appeal from such conviction or 
 order may be heard, there to be kept by the projier officer amcmg the records of 
 the court ; and if such conviction or order has been appealed against, and a 
 deposit of money made, such justice shall return the deposit into the said 
 court ; and the conviction or order shall be presumed not to have been appealed 
 against, until the contrary is shown. 
 
 2. Upon any indictment or information against any person for a subsequent 
 offence, a copy of such conviction, certified by the prop^ officer of the court, or 
 proved to be a true copy, shall be sufficient evidence to prove a conviction for 
 the former oflFence. R. S. C. c. 178, s. 8G. 51 V. c. 45, s. 9. 
 
 889. No conviction or order made by any justice of the peace and no 
 warrant for enforcing the same, shall, on being removed by certiorari be held 
 invalid for any irregularity, informality or insufficiency therein, provided that 
 
[Sec8. 884-88* 
 .a9toco8t»tobepaidby 
 
 , on appeal may aUo be 
 J. 26. 
 
 ipon proof of notice of the 
 unentitled to receive the 
 ,ecuted or entered, may, If 
 .w.attbesaroeBittmKufor 
 parties receiving the same 
 ,nd just by the court, to be 
 such costs shall be recover- 
 recovery of costs uixjn an 
 178, 8. 81. 
 
 rder is decided in favour of 
 ction or order, or any other 
 ;« the warrant of distre-m- 
 „ appeal had been brought. 
 
 . affirmed and a.nended, in 
 iemoved by certiorari mto any 
 fall be held void by reason of 
 that the defendant has been 
 fiction to sustain the same. 
 
 d to remove any conviction or 
 if the defendant has appealed 
 thich an appeal from su^ 
 ai be allowed to remove anj 
 S. C. c. 178, 8. 84. 
 
 Ln is summarily tried, shall 
 
 T which the apW is bere,n 
 
 Lein the offence is alleged to 
 
 pal from such conv^- 
 Lr officer among the reco 
 
 I been appealed -S^"- ^f^. 
 Lm the deposit into the ^^ 
 Led not to have been appealed 
 
 Inst any person for a subsequent 
 tepro^ officer of the court 
 rdenceTp-veaconvict>onfor 
 
 ■-, c. 45, 8.9. 
 
 Ljusticeofthepeax^eandio 
 
 removed by cc.no.«rj^;^ 
 Uciencytherem, provided 
 
 Sees. 890-892] 
 
 SUMMARY CONVICTIONS. 
 
 939 
 
 the court or judge before which or whom the question is raised is, upon perusal 
 of the depositions, satisfied that an oifence of the nature described in the 
 conviction, order or warrant, has been committed, over which such justice has 
 jurisdiction, and that the punishment imposed is not in excess of that which 
 might have been lawfully imposed for the said offence ; and any statement 
 which, under this Act or otherwise, would be sufficient if contained in a 
 conviction, shall also be sufficient if contained in an information, summons, 
 order or warrant : Provided that the court or judge, where so satisfied a» 
 aforesaid, shall, even if the punishment imposed or the order made is in excess 
 of that which might lawfully have been imijosed or made, have the like 
 powers in all respects to deal with the case as seems just as are by section eight 
 hundred and eighty-three conferred upon the court to which an appeal is taken 
 under the provisions of section eight hundred and seventynine. R. S. C. 
 c. 178 s. 87. 53 V. c. 37, s. 27. 
 
 890> The following matters amongst others shall be held to be within 
 the provisions of the next preceding section : — 
 
 (a) The statement of the adjudication, or of any other matter or thing, in 
 the past tense instead of in the present ; 
 
 (b) The punishment imposed being less than the punishment by law 
 assigned to the offence stated in the conviction or order, or to the offence which 
 appears by the depositions to have been committed ; 
 
 (c) The omission to negative circumstances, the existence of which would 
 make the act complained of lawful, whether such circumstances are stated by 
 way of exception or otherwise in the section under which the offence is laid, or 
 are stated in another section. 
 
 2. But nothing in this section contained shall be construed to restrict the 
 generality of the wording of the next preceding section. R. S. C. c. 178, 
 
 s. 88. 
 
 891- If an application is made to quash a conviction or order ma:^. '',y 
 a justice, on the ground that such justice has exceeded his jurisdiction, t.ie 
 court or judge to which or whom the application is made, may, as a conditipn 
 uf quashing the same, if the court or judge thinks fit so to do, provide that no 
 iiction shall be brought against the justice who made the conviction, or against 
 any officer acting under any warrant issued to enforce such conviction or order. 
 R, S. C. c. 178, 8. 89. 
 
 803. The court having authority to quash any conviction, order or other 
 proceeding by or before a justice may prescribe by general order that no 
 motion to quash any conviction, order or other proceeding by or before a 
 justice and brought before such court by certiorari, shall be entertained unlesa 
 the defendant is shown to have entered into a recognizance with one or more 
 sufficient sureties, before a justice or justices of the county or place within 
 which such conviction or order has been made, or before a judge or other officer, 
 as may be prescribed by such general order, or to have made a deposit to be 
 prescribed in like manner, with a condition to prosecute such writ of certiorari 
 at his own costs and charges, with effect, without any wilful or affected delay,, 
 and, if ordered so to do, to pay the person in whose favour the conviction, 
 order or other proceeding is affirmed, his full costs and charges to be taxed 
 
 ,v V 
 
■ f 
 
 940 
 
 PROCEDURE. 
 
 [SecH. 893- 
 
 9 ' ? 
 
 
 > !' 
 
 
 I 
 
 3 -,: 
 
 according to the course of the court where such conviction, order or proceed 
 i8 affirmed. R. S. C. o. 178, s, 90. 
 
 803< The Heoond section of the Act of the Parliament of the Uni 
 Kingdom, passed in the fifth year of the reign of His Majesty King George 
 Second, and chaptered nineteen, shall no longer apply to any conviction, or 
 or other proceeding by or before a justice in Canada, but the next precerl 
 section of this Act shall be substituted therefor, and the like proceedings n 
 be had for enforcing the condition of a recognizance taken under the » 
 flection as might be had for enforcing the condition of a recognizance tal 
 under the said Act of the Parliament of the United Kingdom. R. S. C. c. I 
 8. 91. 
 
 See R. V. Nunn, 10 P. R. Ont., 396, and R. v. Swalwe 
 12 0. R. 891, and preceding section. 
 
 894. No order, conviction or other proceeding shall be quashed or 
 aside, and no defendant shall be discharged, by reason of any objection tl 
 evidence has not been given of a proclamation or order of the Governor 
 Council, or of any rules, regulations, or by-laws made by the Governor in Com 
 in pursuance of a statute of Canada or of the publication of such proclamatii 
 order, rules, regulations or by-laws in the Canada Gazette ; but such proclaii 
 tion, order, rules, regulations and by-laws and the publication thereof shall 
 judicially noticed. 51 V. o. 45, s. 10. 
 
 80S* If amotion or rule to quash a conviction, order or other proceed! 
 is refused or discharged, it shall nut be necessary to issue a writ of proceden 
 but the order of the court refusing or discharging the application shall h 
 sufficient authority for the registrar or other officer of the court forthwith 
 return the conviction, order and proceedings to the court or justice from wh 
 or whom they were removed, and for proceedings to be taken thereon for 
 enforcement thereof, as if a procedendo had issued, which shall forthwith 
 done. R. S. C. o. 178, s. 93. 
 
 800* Whenever it appears by the conviction that the defendant I 
 appeared and pleaded, and the merits have been tried, and the defendant I 
 not appealed against the conviction, where an appeal is allowed, or if ap[)ea 
 against, the conviction has been affirmed, such conviction shall not afterwa 
 be set aside or vacated in consequence of any defect of form whatever, but ' 
 construction shall be such a fair and liberal construction as will be agreeabh 
 the justice of the case. R. S. C. o. 178, s. 94. 
 
 897. If upon any appeal the court trying the appeal orders either pa 
 to pay costs, the order shall direct the costs to be paid to the clerk of the ii«< 
 or other proper officer of the court, to be paid over by him to the pen 
 entitled to the same, and shall state within what time the costs shall be pa 
 R. S. C. 0. 178, 8. 95. 
 
 898. If such costs are not paid within the time so limited, and I 
 person ordered to pay the same has not been bound by any recognizance o 
 ditioned to pay such costs, the clerk of the (leace or his deputy, on applicati 
 of the person entitled to the costs, or of any person on his behalf, and on pi 
 
[Sees. 893-898 
 onviction, order or proceeding 
 
 he Parliament of the United 
 His Majesty King George the 
 
 apply to any conviction, order 
 anada, but the next preceding 
 
 and the like proceedings may 
 mizance taken under the Haul 
 edition of a recognizance taken 
 lited Kingdom. R.S.C.c.1.8, 
 
 )95, aud B. v. Swalvvell, 
 [1. 
 
 needing shall be quashed or set 
 bv reason of any objection that 
 ,on or order of the Governors 
 
 ,s made by the Governor xn Coumi 
 publication of such proclamation, 
 
 ruuU^ Gazette :hMt^nchvr^\m^^ 
 ,d the publication thereof shall b. 
 
 eviction, order or other proceeding 
 Lrytoissueawritofpro««o, 
 Urging the application shaU be a 
 or officer of the court forthwith to 
 L to the court or justice from ^vh J 
 edings to be taken thereon for tk 
 ' issued, which shall forthwith b. 
 
 lonviction that the defendant h»* 
 Cn tried, and the defendant, 
 an appeal is allowed. orifappeaW 
 tch ^nviction shall not aftem> 
 fj defect of form whatever, but tfe 
 fconstructionaswillbeagreeableto 
 
 ving the appeal orders either party 
 
 fobepaidtotheclerkofthepeace 
 
 1^ o^er by him to the perso. 
 
 .^hat t^eSle costs shall beM 
 
 Lin the time so limited, and the 
 I abound by any recognizance.. 
 Ca«e or his deputy, on applicaw 
 fcon on his behalf, and onW 
 
 S^-c. 898] 
 
 SUMMARY CONVICTIONS. 
 
 941 
 
 ment of any fee to which he is entitled, shall grant to the person so applying, 
 a certificate that the costs have not been paid ; and upon production of the 
 certificate to any justice in and for the same territorial divioion, such justice 
 may enforce the payment of the costs by warrant of distress in manner afore- 
 said, and in default of distress may commit the person against whom the 
 warrant has issued in manner hereinbefore mentioned, for any .arm not 
 exceeding one month, unless the amount of the costs and all costs and charges 
 of the distress and also the costs of the commitment and conveying of the 
 party to prison, if the justice thinks fit so to order (the amount thereof being 
 ascertained and stated in the commitment), are sooner paid. The said certifi- 
 cate shall be in the form PPP and the warrants of distress and commitment in 
 the forms QQQ and RRR respectively in schedule one to this Act. R. S. C. 
 c. 178, 8. 96. 
 
 PP?.— {Section 898.) 
 
 CERTIFICATE OF CLERK OF THE PEACE THAT THE COSTS OP 
 AN APPEAL ARE NOT PAID. 
 
 Office of the clerk of the peace for the county of 
 
 Title of the Appeal, 
 I hereby certify that at a Court of General Sessions of the 
 Peace,, {or ' other court dischaniinij the functions of the Court of 
 (kneral Sessions, as the case may be), holden at , in and 
 
 for the said county, on last past, an appeal by A. B. 
 
 against a conviction (or order) of J. S. Esquire, a justice of the 
 peace in and for the said county, came on to be tried, and was 
 there heard and determined, and the said Court of General Ses- 
 sions {or other court, as the case may be) thereupon ordered that 
 the said conviction (or order), should be confirmed (or quashed), 
 and that the said (appellant) should pay to the said (respondent) 
 the sum of , for his costs incurred by him in the said 
 
 appeal, and which sum was thereby ordered to be paid to the 
 clerk of the peace for the said county, on or before the 
 day ot {instant), to be by him handed over to the said 
 
 (respondent), and I further certify that the said sum for costs 
 has not, nor has any part thereof, been paid in obedience to the 
 said order. * 
 
 Dated at , this day of , one thousand 
 
 eight hundred and 
 
 G.H., 
 
 Clerk of the Peace. 
 
942 
 
 PROCEDURE. 
 
 [Seo. m 
 
 
 ', 4 ' 
 
 ■;4 ■ 
 i^ 1 
 
 QQQ.— (5er<ton 898.) 
 
 WARRANT OF DISTRESS FOR COSTS OF AN APPEAL AOAINSl 
 A CONVICTION OR ORDER. 
 
 » 
 
 Canada, \ 
 
 Province of , > 
 
 County of , ) 
 
 To all or any of the constables and other peace officers in tin 
 said county of 
 
 Whereas (&c., as in the nurranU of distress, DDD or EKE, 
 and to the end of the statement of the conviction or order, and thei 
 thus) : And Tvhereas the said A. B. appealed to the Court oi 
 General Sessions of the Peace {or other cotirt discharginy tht 
 Junctions of the Court of General Sessions, as the case may be), for 
 the said county, against the said conviction or order, in which 
 appeal the said A. B. was the appellant, and the said C. D. (or 
 J. S., Esquire, the justice of the peace who made the said con- 
 viction or order) was the respondent, and which said appeal 
 came on to be tried and was heard and determined at the last 
 General Sessions of the Peace {or other court, as the case may he) 
 for the said county, holden at , on , and the said 
 
 court thereupon ordered that the said conviction (or order) 
 should be confirmed (or quashed) and that the said (appellant) 
 should pay to the said (respondent) the sum of for his 
 
 costs incurred by him in the said appeal, which said sum was to 
 be paid to the clerk of the peace for the said county, on or be- 
 fore the day of , one thousand eight huudret 
 and , to be by him handed over to the said CD.; am 
 whereas the clerk of the peace of the said county has, on the 
 day of {instant), duly certified that the said 
 sum for costs had not been paid:* These are, therefore, to 
 command you, in Her Majesty's name, forthwith to make dis 
 tress of the goods and chattels of the said A. B., and if, within 
 the term of days next after the making of such distress, the 
 said last mentioned sum, together with the reasonable charges 
 of taking and keeping the said distress, are not paid, theu 
 to sell the said goods and chattels so by you distrained, and to 
 pay the money arising from such sale to the clerk of the peace 
 for the said county of , that he may pay and apply the 
 same as by law directed ; and if no such distress can be found, 
 
[Sec. 898 
 
 AN APPEAL AGAINST 
 DER. 
 
 aer peace officers in the 
 
 distress, l>m or EKE., 
 
 aiction or order, and tim 
 
 appealed to the Court of 
 
 her court discliargmi th^ 
 
 ,g, a$ the case may be), for 
 
 iction or order, in which 
 
 at, and the said C. D. (<»• 
 
 5 who made the said con- 
 
 and which said appeal 
 
 id determined at the last 
 
 ,r court, as the case may be) 
 
 r,n , and the said 
 
 1 , on » 
 
 aid conviction (or order) 
 that the said (appellant) 
 the sum of for his 
 
 ,al, which said sum was to 
 
 he said county, on or he- 
 thousand eight hundre 
 ver to the said CD.; and 
 
 ,e aaid county has, on the 
 ly certified that the saul 
 These are, therefore, to 
 ^e, forthwith to make dis- 
 said A. B.. and if, withiu 
 aaking of such distress, the 
 
 th the reasonable charges 
 
 .tress. are not paid, theu 
 
 bvyou distrained, and to 
 
 to the clerk of the peace 
 
 he may pay and apply lh« 
 
 (uch distress can be found, 
 
 Sec. 898] 
 
 SUMMARY CONVICTIONS. 
 
 943 
 
 then to certify the same unto me or any other justice of the 
 peace for the same county that such proceeding (proceedings) 
 may be had therein as to law appertain. 
 
 Given under my hand and seal, this day of 
 
 in the year , ftt , in the county aforesaid. 
 
 0. K., [SEAI..] 
 
 J. P., {Xttnie of county.) 
 
 RRR. {Section 898.) 
 
 WARRANT OF COMMITMENT FOR WANT OF DISTRESS IN 
 
 THE LAST CASE. 
 
 Canada, | 
 
 Province of , J- 
 
 County of . ) 
 
 To all or any of the constables and other peace officers in the 
 said county of 
 
 Whereas {dr., as inform QQQ, to the asterisk '^'- and then thus) : 
 
 day of , in the 
 
 And whereas, afterwards, on the 
 
 year aforesaid, I, the undersigned, issued a warrant to all or any 
 of the peace officers in the said county of , commanding 
 
 them, or any of them, to levy the said sum of , for costs, 
 
 by distress and sale of the goods and chattels of the said A. B. ; 
 And whereas it appears to me, as well by the return to the said 
 warrant of distress Of the peace officer who was charged with the 
 execution of the same, as otherwise, that the said peace officer 
 has made diligent search for the goods and chattels of the said 
 A. B., but that no sufficient distress whereon to lew the said 
 sum above mentioned could be found : These are, therefore, to 
 command you, the said peace officer, or any one of you, to take 
 the said A. B., and him safely to convey to the common gaol of 
 the said county of , at aforesaid, and there 
 
 deliver him to the said keeper thereof, together with this 
 precept : And I do hereby command you, the said keeper of the 
 said common gaol, to receive the said A. B. into your custody in 
 the said common gaol, there to imprison him (and keep him at 
 hard labour) for the term of , unless the said sum and 
 
 all costs and charges of the said distress (and for the commit- 
 ment and conveying of the said A. B. to the said common gaol. 
 
\ 
 
 944 
 
 PROCEDURE. 
 
 [Sees. 899-9 
 
 amounting to the further sum of ), are sooner paid un 
 
 you, the said keeper ; and for so doing this shall be yoi 
 sufficient warrant. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid. 
 
 0. K., [seal] 
 J. P., {Name of county.) 
 
 r 
 
 ! 
 
 
 / 
 
 "1 
 
 - 
 
 «<; \ 
 
 \ 
 
 ^U i 
 
 (• 
 
 /■ I 
 
 
 800* -^M appellant may abandon his appeal by giving to the oppost 
 jmHi) notice in writing of his intention six clear days before the sitting of the cou 
 appealed to, and thereupon the costs of the appeal shall be added to the sum ifai 
 adjudged against the appellant by the conviction or order, and the justice ska 
 proceed on the conviction or order as if there had been no appeal, R. S. 0. {188} 
 c. 74, s. 8. 
 
 000- In this section the expression " the court " means and includes at 
 superior court of eriminal jurisdiction for the province in which the proceo 
 ings herein referred to are carried on. 
 
 2. Any person aggrieved, the prosecutor or complainant as well as tt 
 defendant, who desires to question a conviction, order, determination or othi 
 proceeding of a justice under this part, on the ground that it is erroneous i 
 point of law, or is in excess of jurisdiction, may apply to such justice to stal 
 and sign a case setting' forth the facts of the case and the grounds on which tl 
 proceeding is questioned, and if the justice declines to state the case, ma 
 apply to the court for an order requiring the case to be stated. 
 
 3. The application shall be made and the case stated within such time an 
 in such manner as is, from time to time, directed by rules or orders under se 
 tion five hundred and thirty-three of this Act. 
 
 4. The appellant at the time of making such application, and before a cai 
 is stated and delivered to him by ti>e justice, shall in every instance, enter in 
 a recognizance before such justi^o w any other justice exercising the san 
 jurisdiction, with or without surety or sureties, and in such sum as to the ju 
 tice seems meet, conditioned to prosecute his appeal without delay, and I 
 submit to the judgment of the court and pay such costs as are awarded by tl 
 same ; and the appellant shall, at the same time, and before he shall be entith 
 to have the case delivered to him, pay to the justice such fees as he is entitli 
 to ; and the appellant, if then in custody, shall be liberated upon the recogi 
 zance being further conditioned for his appearance before the same justice, i 
 such other justice as is then sitting, within ten days after the judgment of tl 
 court has been given, to abide such judgment, unless the judgment appealf 
 against is reversed. 
 
 5. If the justice is of opinion that the application is merely frivolous, bi 
 not otherwise, he may refuse to state a case, and shall on the request of tl 
 applicant sign and deliver to him a certificate of such refusal ; provided th 
 the justice shall not refuse to state a case where the application for thatpurpo 
 is made to him by or under the direction of Her Majesty's Attorney-Genet 
 of Canada, or of any province. 
 
• [Sees. 899-900 
 
 ) are sooner paid unto 
 ng this shall be your 
 
 day of » 
 
 5 county aforesaid. 
 
 Km [seal] 
 
 P., {Name of county.) 
 
 ^ys before the sUting of the court 
 
 !haUheaddedtothesurn^fa.., 
 
 ^ or ord,r,arul the justue Ml 
 
 leen no appeal. It.S.O.(m\ 
 
 , court "means and includesany 
 prvince in which the proceed. 
 
 , or complainant as well aB the 
 'order, determination or other 
 ^'g^undthatitiserroneou-n 
 Hvanoly to such iuatice to state 
 SeTd the grounds on whichte 
 
 [declines to state the ca^e. may 
 [case to be stated. 
 
 1 . •» ,««relv frivolous.*'* 
 
 LpUcation^smere^l ^j^^^ 
 
 L, and shall on the req^^^^ 
 late of such refusal provi 
 
 Lethe application for^^^^^^^^ 
 I Her Majesty's Attorney 
 
 Sec. 90O] 
 
 SUMMARY CONVICTIONS. 
 
 945 
 
 6. Where the juotice refuses to state a case, it shall be lawful for the 
 appellant to apply to the court, upon an affidavit of the facts, for a rule calling 
 upon the justice, and also upon the respondent, to show cause why such case 
 should not be stated ; and such court may make such rule absolute, or discharge 
 the application, with or without payment of costs, as to the court seems meet ; 
 and the justice upon being served with such rule absolute, shall state a case 
 accordingly, upon the appellant entering into such recognizance as hereinbefore 
 provided. 
 
 7. The court to which a case is transmitted under the foregoing provisions 
 shall hear and determine the question or questions of law arising thereon, and 
 shall thereupon affirm, reverse or modify the conviction, order or determination 
 in respect of which, the case has been stated, or remit the matter to the justice 
 with the opinion of the court thereon, and may make such other order in rela- 
 tion to the matter, and such orders aa to costs, as to the court seems fit ; and 
 all such orders shall be final and conclusive upon all parties : Provided always^ 
 that any justice who states and delivers a case in pursuance of this section shall 
 not be liable to any costs in respect or by reason of such appeal against his 
 determination. 
 
 8. The court for the opinion of which a case is stated shall have power, if 
 it thinks fit, to cause' the case to be sent back for amendment ; and thereupon 
 the same shall be amended accordingly, and judgment shall be delivered after 
 it has been amended. 
 
 9. The authority and jurisdiction hereby vested in the court for the 
 opinion of which a case is stated may, subject to any rules and orders of court 
 in relation thereto, be exercised by a judge of such court sitting in chambers^ 
 and as well in vacation as in term time. 
 
 10. After the decision of the court in relation to any such case stated for 
 their opinion, the justice in relation to whose determination the case has been 
 stated, or any other justice exercising the same jurisdiction, shall have the same 
 authority to enforce any conviction, order or determination which has been 
 affirmed, amended or made by )«uah court as the justice who originally decided 
 the ca^ie would have had to enforce his determination if the same had not been 
 appealed against ; and no action or proceeding shall be commenced or had 
 against a justice for enforcing such conviction, order or determination by rear- 
 son of any defect in the same. 
 
 11. If the court deems it necessary or expedient any order of the court may 
 
 be enforced by its own process. 
 
 12. No writ of certiorari or other writ shall be required for the removal of 
 any conviction, order or other determination in relation to which a case i» 
 stated under this section or otherwise, for obtaining the judgment or determina- 
 tion of a superior court on such case under this section. 
 
 13. In all cases where the conditions, or any of them, in any recognizance' 
 I entered into in pursuance of this section have not been complied with, suohs 
 I fecognizance shall be dealt with in like manner as is provided by section eight 
 I hundred and seventy-eight with respect to recognizances entered into there- 
 
 1 under. 
 
 14. Any person who appeals imder the provisions of this section againstt 
 [ any determination of a justice from which he is entitled to an appeal under 
 
 Crim. Law— 60 
 
 1 
 
 « 
 
 i. 
 
\ 
 
 946 
 
 PROCEDURE. 
 
 [Sees. 901-9 
 
 section eight hundred and seventy-nine of this Act, shall be taken to ha' 
 Abandoned such last mentioned right of appeal finally and conclusively and 
 fiH intents and purposes. 
 
 15. Where, by any special Act, it is provided that there shall be no appei 
 from any conviction or order, no proceedings shall be taken under this sectio 
 in any case to which such provision in such special Act applies. 53 V. c. 3; 
 «. 28, 42-43 V. c. 49, (Imp.). 
 
 001. Whenever a warrant of distress has issued against any persoi 
 '&nd such person pays or tenders to the peace officer having the execution of th 
 same, the sum or sums in the warrant mentioned, together with the amoun 
 'Of the expenses of the distress up to the time of payment or tender, the peac 
 officer shall cease to execute the same. R. S. C. c. 198 (178), s. 97. 
 
 2. Whenever any person is imprisoned for non-payment of any penaltj 
 •or other sum, he may pay or cause to be paid to the keeper of the prison it 
 which he is imprisoned, the sum in the warrant of commitment mentioned, 
 together with the amount of the costs and charges and expenses therein also 
 mentioned, and the keeper shall receive the same, and shall thereupon dis- 
 •charge the' person, if he is in his custody for no other matter. He shall also 
 Jorthwith pay over any moneys so received by him to the justice who issued the 
 warrant. R. S. 0. c. 198 (178), s. 98. 
 
 OOSt* Every justice shall, quarterly, on or before the second Tuesday in 
 each of the months of March, June, September and December in each year, 
 make to the clerk of the peace or other proper officer of the court having! 
 jurisdiction in appeal, as herein provided, a return in writing, under his 
 hand, of all convictions made by him, and of the receipt and application by] 
 him of the moneys received from the defendants, — which return shall include I 
 all convictions and other matters not included in some previous return, and] 
 shall be in the form SSS in schedule one to this Act. 
 
 2. If two or more justices are present, and join in the conviction, theyj 
 shall make a joint return. 
 
 3. In the province of Prince Edward Island such return shall be made tol 
 the clerk of the court of assize of the county in which the convictions are| 
 made, and on or before the fourteenth day next before the sitting of the i 
 court next after such convictions are so made. 
 
 4. Every such return shall be made in the said district of Nipissing, id 
 the province of Ontario,' to the clerk of the peace for the county of Renfrew| 
 in the said province. R. S. C. c. 178, s. 99. {Amended.) 
 
 5. Every justice, to whom any such moneys are afterwards paid, i 
 make a return of the receipts and application thereof, to the court having 
 jurisdiction in appeal as hereinbefore provided, — which return shall be filw 
 by the clerk of the peace or the proper officer of such court with the records o| 
 his office. R. S. C. c. 178, s. 100. 
 
 6. Every justice, before'whom any such conviction takes place or wdJ 
 receives any such moneys, who neglects or refuses to make such return thereofi 
 or wilfully makes a false, partial or incorrect return, or wilfully receives f 
 larger amount of fees than by law he is authorized to receive, shall incurj 
 penalty of eighty dollars, together \vith costs of suit, in the discretion of I'm 
 
[SeOB. 901-902 
 
 ,f shall be tal'e" *° ^f 
 i';:nd conclusively and to 
 
 ,at there shall be no appeal 
 ^Valcen under this -Uon 
 ^ActapplieB. 53V.C.37, 
 
 ^'^^tierSth the amount 
 Jk^- tender, ..e peace 
 
 „„ oavment of any penal y 
 non-payni« prison m 
 
 - *^^ ^^r^l -e'ntioned, 
 ^^"'•'TS^^e therein alBO 
 
 ^^'''ndsS thereupon di. 
 ame. and snai ^^^^ ^j^^ 
 
 [tion thereof, to tne ^^ 
 
 I ? *«Afe8 place or * 
 
 U conviction takP^^^^^^^l, 
 
 Sec. 903] 
 
 ^TTMMARY CONVICTIONS. 
 
 947 
 
 court, which may be recovered by any person who sues for the same by action 
 of debt or information in any court of record in the province in which such 
 return ought to have been or is made. R. S. C. o. 178, s. 101. 
 
 7. One moiety of such penalty shall belong to the person suing, and the 
 other moiety to Her Majesty, for the public uses of Canada. 
 
 SSS.— (Section 902.) 
 
 Return of convictions made by me (or us as the case may he), 
 during the quarter ending 
 
 18 
 
 o 
 
 o 
 
 73 
 a 
 o 
 
 *- . 
 
 §1 
 
 so 
 < 
 
 2.1 
 
 o s 
 ■S-d 
 
 - » 
 
 •So 
 o2 
 
 
 '3 u 
 
 If not paid, why not, and general obBervations 
 if any. 
 
 J. S., Convicting Justice, 
 
 or 
 
 J. S. and 0. K., Convicting Justices {us the case may be.) 
 
 ttOJI The clerk of the peace of the district or county in which any such 
 returns are made, or the proper officer, other than the clerk of the peace, to 
 whom such returns are made, shall, within seven days after the adjournment 
 of the next ensuing General or Quarter Sessions, or of the term or sitting of 
 such other court as aforesaid, cause the said returns to be posted up in the 
 court-house of the district or county, and also in a conspicuous place in the 
 oice of such clerk of the peace, or other proper officer, for public inspection, 
 and the same shall continue to be so posted up and exhibited until the end of 
 the next ensuing General or Quarter Sessions of the Peace, or of the term or 
 ^ sittinsr of such other court as aforesaid ; and for every schedule so made and 
 exhibited by such clerk or officer, he shall be allowed such fee as is fixed by 
 competent authority. R. S. C. c. 178, s. 103. 
 
m ' 
 
 
 !*■< 
 
 
 vp" 
 
 ->\tf^ Ajlv.- 
 
 '•^ 
 
 ' t 
 f 
 
 J- 
 4 * 
 
 r • * 
 
 MJi 
 
 948 
 
 PROCEDURE. 
 
 [Sees. 904-90 
 
 2. Such clerk of the peace or other ofiBcer of each district or county 
 within twenty days after the end of each General or Quarter Sessions of thi 
 Peace, or the sitting of such court as aforesaid, shall transmit to the Miniate 
 of Finance and Receiver-Greneral a true copy of all such returns made withii 
 his district or county. R. S. C. c. 178, s. 104. 
 
 The repealed clause also required publication in a news 
 paper. 
 
 004- All actions for penalties arising under the provisions of sectioi 
 nine hundred and two shall be commenced within six months next after th 
 cause of action accrues, and the same shall be tried in the district, county o 
 place wherein such penalties have been incurred ; and if a verdict or judgmen 
 passes for the defendant, or the plaintiff becomes non-suit, or discontinue 
 the action after issue joined, or if, upon demurrer or otherwise, judgmen 
 is given against the plaintiff, the defendant shall, in the discretion of tk 
 court, recover his costs of suit, as between solicitor and client, and shal 
 have the like remedy for the same as any defendant has by law in other cases 
 R. S. C. fc. 178, 8. 102. 
 f 
 
 OOS. Nothing in the three sections next preceding shall have the e£Fecl 
 of preventing any person aggrieved from prosecuting, by indictment, any 
 justice, for any offence, the commission of which would subject him to indict 
 ment at the time of the coming into force of this Act. R. S. C. c. 178, s. 105. 
 
 000. No return purporting to be made by any justice under this Ac 
 shall be vitiated by the fact of its including, by mistake, any convictions o 
 orders had or made before him in any matter over which any Provincia 
 Legislature has exclusive jurisdiction, or with respect to which he acted unde 
 the authority of any provincial law. R. S. C. c. 178, s. 106. 
 
 907". No information, summons, conviction, order or other proceedinj 
 shall be held to charge two offences, or shall be held to be uncertain on accuun 
 of its stating the offence to having been committed in different modes, or i 
 respect of one or other of several articles, either conjunctively or disjunctively 
 for example, in charging an offence under section five hundred and eight ( 
 this Act it may be alleged that "the defendant unlawfully did cut, break, roc 
 up and otherwise destroy or damage a tree, sapling or shrub " ; and it shall m 
 be necessary to define more particularly the nature of the act done, or to stat 
 whether such act was done in respect of a tree, or a sapling, or a shrul 
 R. S. C. c. 178, B. 107. 
 
 The words " cut, break, root up " of the repealed s. If 
 c. 168, R. S. C. have been left out of s. 508, ante, and arj 
 consequently erroneously inserted in this clause. S. 109 
 relating to seal on documents by justices has not beej 
 re-enacted ; see Bond v. Conmee, 16 A. R. Ont. 398, coi[ 
 firmed in Supreme Court, Afarch 20, 1890. 
 
tS«=s. 904-907 I ■'''^' '^' «««J SUMMARY CONVICI.ons. 
 
 i publication in a news- 
 
 »08 E • ^^^ 
 
 diary .a.is.rate.{h:stT:^s:„^t^^^^^^^ '"^'^^ ^^^i:z;j 
 
 order in the said courts durinir th« h^u ^^^'^ *°'* authority to ZT 
 
 l.ke punx,ses by any court in CanX or hwl"''^ '" "'^^"-^^^^nd^^^^ 
 -ttings thereof. R. g. C. c. 178. s S "' ^^ *''« J^^fi^e^ thereof, during tl 
 
 stipendiary „.agistrate.wher;er:n; 4'^^^^^^^^^ diatric. LjJZl'H 
 
 *ny summons, warrant of execution or oZ " ^^^"^ *° *^« ''^ecution o 
 he due execution of the same bX^elt f ™"«^« »«»«! '^^ ^^^' '"ay erTri 
 
 theexecutionoftheprocessof^hetrurLrcts'^i^y-^ 
 
950 
 
 PROCEDURE. 
 
 [Sees. 910-914 
 
 PART LIX. 
 
 RECOGNIZANCES. 
 
 Render of Accused by Surety. 
 
 010. Any surety for any person charged with any indictable offence may 
 upon affidavit showing the grounds therefor, with a certified copy of the recog- 
 nizance, obtain from a judge of a superior court or from a judge of a county 
 court having criminal jurisdiction, or in the province of Quebec from a district 
 magistrate, an order in writing under his hand, to render such person to the 
 common gaol of the county where the offence is to be tried. 
 
 2. The sureties, under such order, may arrest such person and deliver him, 
 with the order, to the gaoler named therein, who shall receive and imprison 
 him in the: said gaol, and shall be charged with the keeping of such person 
 until he is discharged by due course of law. R. S. C. c. 179, ss. 1 & 2, 
 
 The words in italics are new. 
 
 Bail after Render. 
 
 911. The person rendered may apply to a judge of a superior court, or in 
 cases in which a judge of a county court may admit to bail, to a judge of a ] 
 county court, to be again admitted to bail, who may on examination allow or 
 refuse the same, and make such order as to the number of the sureties and the 
 amount of recognizance as he deems meet, — which order shall be dealt with in 
 the same manner as the first order for bail, and so on as often as the case 
 requires. R. S. C. o. 179, s. 3. 
 
 Discharge of Recognizance. 
 
 OlS. On due proof of such render, and certificate of the sheriff, proved 
 by the affidavit of a subscribing witness, that such person has been so rendered, 
 a judge of the superior or county court, as the case may be, shall order an 
 entry of such render to be made on the recognizance by the officer in charje 
 thereof, which shall vacate the recognizance, and may be pleaded or alleged in 
 discharge thereof. R. S. 0. c. 179, s. 4. 
 
 Render in Court. 
 
 013. The sureties may bring the person charged as aforesaid into the 
 court at which he is bound to appear, during the sitting thereof, and then, by 
 leave of the court, render him in discharge of such recognizance at any time 
 before trial, and such person shall be committed to gaol, there to remain until 
 discharged by due course of law ; but such court may admit such person to 1 
 for his appearance at any time it deems meet. R. S. C. c. 179, s. 5. 
 
 Sureties Not Discharged by Arraignment or Conviction. 
 
 014. The arraignment or conviction of any person charged and bound as 
 aforesaid, shall not discharge the recognizance, but the same shall be effectual 
 
Sees. 915, 916] 
 
 RECOGNIZANCES. 
 
 951 
 
 L 'charged an afo«>Baidin^;J; 
 
 [the Bitting thereo • and th r^^ . 
 
 ■ 8«ch recognizance at any 
 L^ to gaol, there to remain unti 
 K'ay^dUBUch person toU. 
 f R. S. C. c. 179, 8. 5. 
 
 [lONMKNT OR CONVICTIOJ!. 
 
 L„yper.onchargedan^^-i; 
 le, but the same shall been 
 
 for his appearance for trial or sentence, as the case may be ; nevertheless the 
 court may commit such person to fjaol upon his arraignment or trial, or may 
 require new or additional sureties for his appearance for trial or sentence, as 
 the case may be, notwithstanding such recognizance ; and such commitment 
 shall be a discharge of the sureties. R. S. C. c. 179, s. 6. 
 
 RlliHT OP SURKTY TO RENDER NOT AFFECTED. 
 
 9 IS. Nothing in the foregoing provisions shall limit or restrict any 
 right which a surety now has of taking and rendering to custody any person, 
 charged with any such offence, and for whom he is such surety. R. S. 0« 
 c. 179, 8. 7. 
 
 Entry of Fines, Etc., on Record and Recovery Thereop. 
 
 016. Unless otherwise provided, all fines, issues, amercementa and for- 
 feited recognizances, the disposal of which is within the legislative authority 
 of the Parliament of Canada, set, imposed, lost or forfeited before any court of 
 criminal jurisdiction shall, within twenty-one days after the adjournment of 
 such court be fairly entered and extracted on a roll by the clerk of the court, 
 or in case of his death or absence, by any other pe* 'on, under the direction of 
 the judge who presided at such court, which roll shall be made in duplicate 
 and signed by the clerk of the court, or in case of his death or absence, by such 
 judge. 
 
 2. If such court is a superior court of criminal jurisdiction one of such rolls 
 shall he filed with the clerk, prothonotary, registrar or other proper officer — 
 
 (a) in the province of Ontario, of a division of the High Court of Justice ; 
 (6) in the provinces of Nova Scotia, New Brunswick and British Columbia, 
 of the Supreme Court of the province ; 
 
 (c) in the province of Prince Edward Island, of the Supreme Court of 
 .Judicature of that province ; 
 
 (d) in the province of Manitoba, of the Court of Queen's Bench of that 
 province ; and 
 
 (e) in the North-west Territories, of the Supreme Court of the said terri- 
 tories, — 
 
 on or before the first day of the term next succeeding the court by or 
 before which such fines or forfeitures were imposed or forfeited. 
 
 3. If such court is a court of General Sessions of the Peace, or a county 
 court, one of such rolls shall remain deposited in the office of the clerk of such: 
 
 court. 
 
 4. The other of such rolls shall, as soon as the same is prepared, be sent by 
 the clerk of the court making the same, or in case of his death or absence, by 
 such judge as aforesaid, with a writ of fieri facias and capias, according to the 
 form TTT in schedule one to this Act, to the sheriff of the county in and for 
 which such court was holden ; and such writ shall be authority to the sheriff for 
 proceeding to the immediate levying and recovering of such fines, issues, 
 amercements and forfeited recognizances, on the goods and chattels, lands and 
 tenements of the several persons named therein, or for taking into custody 
 the bodies of such parsons respectively, in cas<e sufficient goods and chattels, 
 lands or tenements cannot be found, whereof the sums required can be made ; 
 
,4' 
 i. ■) 
 
 n 
 
 952 
 
 PROCEDURE. 
 
 [Sec. 
 
 and every person so taken shall be lodged in the common gaol of the count 
 until satisfaction is made, or until the court into which such writ is returfinl^l 
 upon cause shown by the party, as hereinafter mentioned, makes an ord«r 
 the case, and until such order has been fully compliKl with. 
 
 6. The clerk of the court shall, at the foot of each roll made out as here 
 directed, make and take an affidavit in the following form, that is to say : 
 
 "I, A. B. {describing his office), make oath that this roll is truly and careful 
 xaade up and examined, and that all fines, issues, amercements, recognizanc 
 and forfeitures which were set, lost, im))osed or forfeited, at or by the con 
 therein mentioned, and which in right and due course of law, ought to } 
 levied and paid, are, to the best of my knowledge and understanding, insertt 
 in the said roll ; and that in the said roll are also contained and expressed o 
 such fines as have been paid to or received by ni9, either in court or otlierwiw 
 without any wilful discharge, omission, misnomer or defect whatsoever, fl 
 help me God ; " 
 
 Which oath any justice of tiie peace for the county is hereby authorize 
 to administer. R. S. C. c. 179, ss. 8, & 15. 
 
 Not applicable to Quebec. 
 
 ^41 .: 
 
 II I ■^• 
 ti I. *■ 
 
 >i. = 
 
 ITT .—{Section 016.) 
 
 WRIT OF FIERI FACIAS. 
 
 Victoria, by the Grace of God, &c. 
 
 To the sheriflf of , Greeting : 
 
 You are hereby commanded to levy of the goods and chattels 
 lands and tenements, of each of the persons mentioned in tli 
 roll or extract to this writ annexed, all and singular the de 
 and sums of money upon them severally imposed and chargec 
 as therein is specified ; and if any of the said several debts can 
 not be levied, by reason that no goods or chattels, lands 
 tenements can be found belonging to the said persons, respec 
 tively, then, and in all such cases, that you take the bodies 
 such persons, and keep them safely in the gaol of your coun 
 there to abide the judgment of our court {as the case wan ' 
 upon any matter to be shown by them, respectively, or otherwia 
 to remain in your custody as aforesaid, until such debt 
 satisfied unless any of such persons respectively gives sufficiei 
 security for his appearance at the said court, on the return da 
 hereof, for which you will be held answerable ; and what you ( 
 in the premises make appear before us in our court {an the ca. 
 may be,) on the day of , term next, and have the 
 
 
 
[Sec. ok; 
 
 .ommongaolof thecmmty. 
 hichHUchwritUretuAable, 
 ^eutionerl. makes an order ,n 
 
 lied with, 
 each roll made out as herein 
 
 inKfomi,thati8tosay: 
 thU roll b truly and carefully 
 ,, ainei-cementH. rect,(n»7.ance. 
 forfeited, at or by the court 
 ;e course of law, oupht to he 
 e and understanding, laserted 
 ,o contained and expre^'-^d all 
 ..either in court or otherwise, 
 ,er or defect whatsoever. Ho 
 
 Sees. 917-!)li)] 
 
 RECOGNIZANCES. 
 
 953 
 
 16 
 
 county is hereby authorized 
 
 ACIAS. 
 
 ig- 
 
 ■ of the goods and chattels, 
 persons mentioned in tbe 
 all and singular the debts 
 ■ally imposed and charged, 
 the said several debts can- 
 
 oods or chattels, lands or 
 ■0 the said persons, respec- 
 .Uat you take the bodies of 
 n the gaol of your county. 
 ' court («.s the cnw mil H 
 a respectively, or otherwise 
 .rUaid. until such debt . 
 respectively gives sufficient 
 aid court, on the return day 
 .swerable; andvvhatyoudo 
 
 Ls in our court (.« the cm 
 ' , term next, and have then 
 
 and there this writ. Witness, &c., G. H., clerk {m the case 
 iiifiy bi'). 
 
 OrricEK TO Prepare Lists of Pkhsons Under Recoonizance Making 
 
 Defaclt. 
 
 917. If any person bound by recognizance for his appearance (or for 
 whose appearance any other person has become so bound) to prosecute or give 
 evidence on the trial of any indictable offnnce, or to answer for any common 
 assault, or to articles of the peace, makes default, the officer of the court by 
 whom the estreats are made out, shall prepare a list in writing, specifying the 
 name of every person so making default, and the nature of the offence in 
 respect of which such person, or his surety, was so bound, together with the 
 residence, trade, profession or calling of every such person and surety,— and 
 shall, in such list, distinguish the principals from the sureties, and shall state 
 the cause, if known, why each such iwrson did not appear, and whether, by 
 reason of the non-api^earance of such person, the ends of justice have been 
 defeated or delayed. R. S. C. c. 179, s..lO. 
 
 Proceeding on Forfeited Recoonizance not to be taken except on 
 
 Order of Judge, Etc. 
 
 91 8> Every such officer shall, before any such recognizance is estreated, 
 lay such list before the judge or one of the judges who presided at the court, or 
 if such court was not presided over by a judge, before two justices of the peace 
 who attended at such court, and such judge or justices shall examine such list, 
 and make such order touching the estreating or putting in process any such 
 recognizance as appears just, subject, in the province of Quebec, to the pro- 
 visions hereinafter contained ; and no officer of any such court shall estreat or 
 put in process any such recognizance without the written order of the judge or 
 justices of the peace before whom respectively such list has been laid. R. S. C. 
 c. 179, 8. 11. 
 
 Recognizance need not be Estreated in Certain Cases. 
 
 019. Except in the cases of persons bound by recognizance for their 
 appearance, or for whose appearance any other person has become bound to 
 prosecute or give evidence on the trial of any indictable offence, or to answer 
 for any common assault, or to articles of the peace, in every case of default 
 whereby a recognizance becomes forfeited, if the cause of absence is made 
 known to the court in which the person was bound to appear, the court, on 
 consideration of such cause, and considering also, whether, by the non-appear- 
 inoe of such person the ends of justice have been defeated or delayed, may 
 forbear to order the recognizance to be estreated ; and, with respect to all 
 recoprnizances estreated, if it appears to the satisfaction of the judge who 
 presided at such court that the absence of any person for whose appearance 
 any recognizance was entered into, was owing to circumstances which 
 rendered such absence justifiable, such judge may make an order directing 
 that the sum forfeited upon such estreated recognizance shall not oe levied. 
 
 2. The clerk of the court shall, for such purpose, before sending to the sheriff 
 any roll, with a writ of ,fieri facias and capias, as directed by section nine 
 hundred and sixteen, submit the same to the judge who presidec it the court, 
 
 :!' 
 
\ 
 
 954 
 
 PROCEDURE. 
 
 [SeoH. 920-9231 
 
 
 I •: 
 
 and such judge may make a minute on the said roll and writ of any Buch 
 forfeited recognizances and fines as he thinks fit to direct not to be levied ; 
 and the sheriff shall observe the direction in such minute written upon such 
 roll and writ, or endorsed thereon: and shall forbear accordingly to levy any 
 such forfeited recognizance or fine. R. S. C. o. 179, ss. 12 & 13. 
 
 Not applicable to Quebec. 
 
 Sale of Lands by Sheriff under Estreated Recognizance. 
 
 (ISO. If upon any writ issued under section nine hundred and sixteen, 
 the sheriff takes lands or tenements in execution, he shall advertise the name 
 in like manner as he is required to do before the sale of lands in execution in 
 other cases ; and no sale shall take place in less than twelve months from the' 
 time the writ came to the hands of the sheriff. R. S. C. c. 179, s. 14. 
 
 Not applicable to Quebec. 
 
 DiSCHAROE FROM CUSTODY ON GiVINO SECURITY. 
 
 021. If any person on whose goods and chattels a sheriff, bailiff or other 
 officer IS authorized to levy any such forfeited recognizance, gives security to 
 the said sheriff or other officer for his appearance at the return day mentioned 
 in the writ, in the court into which such writ is returnable, then and there to 
 abide the decision of such court, and also to pay such forfeited recognizance, or 
 sum of money to be paid in lieu or satisfaction thereof, together with all such 
 expenses as are adjudged and ordered by the court, such sheriff or officer shall 
 discharge such person out of custody, and if such person does not appear in 
 pursuance of his undertaking, the court may forthwith issue a writ of Jieri 
 facias and capias against such person and the surety or sureties of the person. 
 so bound as aforesaid. R. S. C. c. 179, a. 16. 
 
 Not applicable to Quebec. 
 
 Discharge of Forfeited Recognizance. 
 
 OSS. The court, into which any writ of fieri facias and capias issued 
 under the provisions of this part* is returnable, may inquire into the circum. 
 stances of the case, and may in its discretion, order the discharge of the whole 
 of the forfeited recognizance, or sum of money paid or to be paid in lieu or 
 satisfaction thereof, and make such order thereon as to such court appears just ; 
 and such order shall accordingly be a discharge to the sheriff, or to the party, 
 according to the oircumstances of the case. R. S. 0. c. 179, s. 17. 
 
 Not applicable to Quebec. 
 
 Return of Writ by Sheriff. 
 
 OSS. The sheriff, to whom any writ is dirpcted under this Act, shall 
 return the same on the day on which the same is made returnable, and shall 
 state, on the back of the roll attaohed to such writ, what has been done in the 
 execution thereof ; and. such return shall be filed in the court into which such 
 return is made. R. S. C. c. 170, s. 18. 
 
 Not applicable to Quebec. 
 
[Seen. 920-923 
 
 roll and writ of any such 
 to direct not to be levied; 
 minute written upon such 
 .ar accordingly to levy any 
 . »8. 12 & 13. 
 
 kTED RECOOSIZANCK. 
 nine hundred and sixteen, 
 he shall advertise the same 
 
 8ftle of lands in execution m 
 
 lan twelve months from the- 
 
 I. S. C. c. 179, «. 14. 
 
 visa Security. 
 attels a sheriff, bailitf or other 
 .ecognizance, gives security to 
 eat the return day mentioned 
 .returnable, then and there to 
 
 such forfeited recognizance, or 
 thereof, together with all such 
 art, such sheriff or officer shall 
 ch person does not appear in 
 forthwith issue a writ of .fter. 
 urety or sureties of the perm 
 
 KCOONIZANCE. 
 
 ieri facias and capias issued 
 
 may inquire into the crcum. 
 
 X the discharge of the .hole 
 
 . paid or to be paid in heu cr 
 „nasto9«chcourtappearH3«st, 
 
 to the sheriff, or to the party, 
 
 S. C. c. 179, 8, 17. 
 
 BHBBIFI''. 
 
 [dirpcted under this Act^Jall 
 Lis made returnable, and shaj 
 ■writ, what has been done mt 
 Vd in the court into which such 
 
 Sees. 924-926] 
 
 RECOGNIZANCES. 
 
 955 
 
 Roll and Return to be Thanbmitted to Minister op Finance. 
 
 984. A copy of such roll and return, certified by the clerk of the court 
 into which such return is made, shall be forthwith transmitted to the Minister 
 •)f Finance and Receiver-General, witli a minute thereon of any of the sums 
 therein mentioned, which have been remitted by order of the court, in whole 
 or in part, or directed to be forborne, under the authority of section nine 
 hundred and nineteen. R. S. C. c. 179, a. 19. 
 
 Not applicable to Quebec. 
 
 Appropriation op Monies Collected by Sherikk. 
 99fi. The sheriff or other officer shall, without delay, pay over all 
 moneys collected under the provisions of this part by him, to the Minister of 
 Finance and Receiver-General, or other person entitled to receive the same. 
 R. S. C. c. 179, H. 20. 
 
 Special Pkovihions for Quebec. 
 
 0S0> The provisions of sections nine hundred and sixteen and nine hun. 
 dred and nineteen to nine hundred and twenty-four, both inclusive, shall not 
 apply to the province of Quebec, and the following provisions shall apply to 
 that province only : 
 
 2. Whenever default is made in the condition of any recognizance lawfully 
 entered into or taken in any criminal case, proceeding or matter, in the pro- 
 vince of Quebec, within the legislative authority of the Parliament of Canada, 
 so that the penal sum therein mentioned becomes forfeited and due to the 
 Crown, such recognizance shall thereupon be estreated oi withdrawn from any 
 record or proceeding in which it then is— or where the recognizance lias been 
 entered into orally in open court— a certificate or minute of such recognizance, 
 under the seal of the court, shall be made from the records of such court. 
 
 («) Such recognizance, certificate or minute, as the case may be, shall be 
 transmitted by the court, recorder, justice of the peace, magistrate or other 
 functionary before whom the cognizor, or the principal cognizor, where there is 
 a surety or sureties, was bound to appear, or to do that, by his default to do 
 which the condition of the recognizance is broken, to the Sujierior Court in the 
 district in which the place where such default was made is included for civil, 
 purposes, with the certificate of the court, recorder, justice of the peace, 
 magistrate or other functionary as aforesaid, of the breach of the condition of 
 such recognizance, of which and of the forfeiture to the Crown of the penal sum 
 therein mentioned, such certificate shall be conclusive evidence ; 
 
 (I) The date of the receipt of such recognizance or minute and certificate 
 by the prothonotary of the said court, shall be endorsed thereon by him, and 
 he shall enter judgment in favour of the Crown against the cognizor for the 
 (jeual sum mentioned in such recognizance, and execution may issue therefor- 
 after the same delay as in other cases, which shall be reckoned from the time 
 when the judgment is entered by the prothonotary of the said court ; 
 
 (c) Such execution shall issue upon fiat or prwcipe of the Attorney-General,, 
 or of any per<ton thereunto authorized in writing by him ; and the Crown shall 
 be entitled to the costs of execution and to costs on all proceedings in the case 
 subsequent to execution, and to such costs, m the discretion of the court, for the 
 entry of the judgment, as are fixed by any tariff. 
 
in 
 
 \ 
 
 956 
 
 PROCEDURE. 
 
 [Sec. 
 
 li ■; 
 
 ;;<■■„ i 
 
 •■■• ( 
 
 -J . < 
 
 ■a 
 
 3. Nothing in this section contained »hall prevent the recovery of the hu 
 forfeited by the breach of any reougniicance from being recovered by Huit in tl 
 manner provided by law, whenever the sanie cannot, for any reaHon, I 
 recovered in the manner provided in thirf i«ection ; • 
 
 {a) In Buch cane the sum forfeited by the non-iierfonnance of the oont" 
 tions of Huch recognizance shall be recoverable, with cost^, by action in at 
 court having jurifidiction in civil oases to the amount, at the suit of the Attd 
 ney-6eneral of Canada or of Quebec, or other person or officer authorized 
 ■ue for the Crown ; and in any such action it shall be held that the \)eTiK 
 suing for the Crown is duly empowered su to do, and that the conditions of tl 
 recognizance were not performed, and that the sum therein mentioned i 
 therefore, due to the Crown, unless the defendant proves the contrary. 
 
 4. In this section, unless the context otherwise requires, the expreH^ir 
 " cognizor " includes any number of oognizors in the same recognizano 
 whether as principals or sureties. 
 
 6. When a person has lieen arrested in any district for an offence coinmii 
 ted within the limits of the province of Quebec, and a justice of the ))eace In 
 taken recognizances from the witnesses heard before him or another justice ( 
 the peace, for their api)earance at the next session or term of the court of con 
 petent criminal jurisdiction, before which such person is to undergo his tria 
 there to testify and give evidence on such trial, and such recognizances hav 
 been transmitted to the office of the clerk of such court, the said court ma 
 proceed on the said recognizances in the same manner as if they had bee 
 taken in the district in which such court is held. R. S. C. o. 170, ss. 21, i 
 and 23. 
 
 The mere failure of the party to answer, wheu called, i 
 the term subsequent to that in which he was arraigne 
 could not operate as a forfeiture of his bail: The Atty 
 General v. Beaulieu. 3 L. C. J. 117. 
 
 On an information against the bail or surety of a perso 
 charp;ed with subornation of perjury, held, that after th 
 accused has pleaded guilty to an indictment, no defau 
 can be entered against him, except on a day fixed for h 
 appearance, and that it is the duty of the court to estret 
 tld recognizances in cases like the present : K- v. Croteai 
 9 L. C. R. 67. 
 
 A recognizance taken before a police magistrate uQd( 
 82 & 33 V. c. 30, s. 44, (D.), omitted the words " to o^e' 
 Held, fatal, and that an action would not lie upon tl 
 instrument as a recognizance : R. v. Hoodless, 45 U. C Q. i 
 556. 
 
[Hec. «20 
 
 ivent the recovery of thi- huiu 
 
 jeinf? recovered by Kvut in th« 
 
 cannot, for wiy reason. In, 
 
 f 
 
 ion-l>erformance of the oimdi- 
 with cost*, by action in any 
 ,ount,atthe.uitoftheAttor. 
 
 ,,er«on or officer authorized to 
 Hhall be held that the i*rs.m 
 and that the condition* of the 
 ,e sum therein mentioned w, 
 It proves the contrary, 
 .rwise require., the expresnicm 
 ra in the same recognizance, 
 
 rdiHtrict for an offence commit. 
 „,andaju8ticeofthepeacelia« 
 before him or another justice of 
 ,io„ or term of the court of com. 
 ,h person is to undergo hi« trial, 
 
 Bl and such recognizances have 
 
 Buch court, the said court may 
 
 .e manner as if they had W^ 
 
 [held. R.S.C. 0.1(0, S9. -1,-K 
 
 3 answer, wbeu called, iu 
 which he was arraigned 
 , of bis bail: The Mty.- 
 
 I bail or surety of a person 
 ury. held, that after the 
 , indictment, no default 
 pt on a day fixed for his 
 iv of the court to estreat 
 |epre8ent:R.v. Croteau, 
 
 » police magistrate unaer 
 Ited the words " to ovse : 
 
 1 ^ould not lie upon the 
 v.Hoodles8,45U.C.Q.B. 
 
 Sec. !)2«1 
 
 recoonizaxcf.s. 
 
 957 
 
 Held, that the forfeiture of a recognizance to appear was 
 a debt sufficient to sup^ ^rt the application for an attach- 
 ment under the Absconding Debtor's Act, and that such 
 writ may be granted at the suit of the crown, where the 
 defendant absconds to avoid being arrested for a felony : R. 
 V. Stewart, 8 P. R. Ont. 297. 
 
 A recognizance of bail put in on behalf of a prisoner, 
 recited that he had been indicted at the court of general 
 sessions of the peace for two separate offences, and the con- 
 dition was, that he should appear at the next sitting of said 
 court, and plead to such indictment as might be found 
 against him by the grand jury; at the next of said sittings, 
 the accused did not appear, and no new indictment was 
 found against him : Held, that the recitals sufficiently 
 showed the intention to be that the accused should appear 
 and answer the indictments already found, and that an 
 order estreating the recognizance was properly made : Re 
 Gauthreaux's Bail, 9 P. R. Ont. 81. 
 
 If no indictment is found, the non-appearance of th& 
 defendant does not forfeit the recognizance : R. v. Ritchie,. 
 1 U. C. L. J. (N. S.) 272. 
 
■958 
 
 PROCEDURE. 
 
 [Sees. 927-930 
 
 PART LX. 
 
 FINES AND FORFEITURES. 
 
 Appropriation of Fixes, Etc. 
 
 037. Whenever no other provision is made by any law of Canada for 
 the application of any fine, penalty or forfeiture iini)osed for the violation of 
 a,ny such law, the same shall belong to the Crown for the public uses of 
 Canada. 
 
 2. Any duty, penalty or sum of money, or the proceeds of any forfeiture, 
 which is, by any Act, given to the Crown, shall, if no other provi-sion is made 
 respecting it, form part of the Consolidated Revenue Fund of Canada, and 
 shall be accounted for and otherwise dealt with accordingly. R. S. C. c. 180, 
 SS.2&4. 
 
 AppLio.vnoN OF Fines, Etc., by Order in Council. 
 
 9t(S« The Governor in Council may from time to time direct that any 
 fine, penalty or forfeiture, or any portion thereof, which would otlierwise 
 belong to the Crown for the public uses of Canada, be paid to any provincial, 
 municipal or local authority, which wholly or in part bears the exjienses of 
 administering the law under which such fine, jienalty or forfeiture is impo.^ed, 
 or that the same be applied in any other manner deemed best adapted to attain 
 the objects of such law and to secure its due administration. K. S. C. c. 180, 
 s. 3. 
 
 Recovery" of Penalty or Forfeitlke. 
 
 030' Whenever any pecuniary penalty or any forfeiture is imposed for 
 any violation of any Act, and no other mode is piv.scribed for the recovery 
 thereof, such penalty or forfeiture shall be recoverable or enforceable, witli 
 costs, in the discretion of the court, by civil action or proceeding at the i-uit of 
 Her Majesty only, or of any private party suing as well iar Her Majesty as 
 for himself — in any form allowed in such case by the law of that province in 
 which it is Ijrought — before any court having jurisdiction to the amount of the 
 penalty in cases of simiile contract — upon the evidence of any one credible 
 witness other than tlie jilaintiff or party interested ; and if no other provision 
 is made for tlie appropriation of any penalty or forfeiture so recovered or 
 enforced, one moiety shall belong to Her Majesty, and the other moiety shall 
 belong to the private party suing for the same if any, and if there is none, tlie 
 whole shall belong to Her Majesty. R. S. C. c. ISO, s. 1. 
 
 Limitation of Action. 
 
 030- No action, suit or information shall be brought or laid for any 
 penalty or forfeiture under any such Act except within two years after the 
 cause of action arises or after the offence is committed, unless the time is 
 otherwise limited by such Act. R. S. C. c. 160, s. 5. 
 
[Sect. 927-030 
 
 Sees. (©1-933] 
 
 PUNISHMENT. 
 
 959 
 
 RES. 
 
 Etc. 
 
 . by any law of Canada for 
 Lmix)sed for the violation of 
 own for the public uses of 
 
 e proceeds of any forfeiture, 
 f 110 other provision is made 
 /^nue Fund of Canada, and 
 .ccordirgly. R. S.C.C.1S0. 
 
 DER IN Council. 
 time to time direct that any 
 reof, which would otherwise 
 da, be paid to any provincial, 
 n part bears the expenses of 
 halty or forfeiture is impo.^ed, 
 deemed best adapted to attani 
 ninistration. U. S. C. c. ISU, 
 
 loKFF.rrUKE. 
 
 ■my forfeiture is imposed for 
 s prescribed for the recovery 
 pcverable or enforcea\)le, with 
 [on or proceeding at the suit ot 
 L as well for Her Majesty as 
 ,V the law of that province in 
 .•i.,liction to the amount of tlie 
 
 , evidence of any one credible 
 ted ; and if no other provision 
 
 or forfeiture so recovered or 
 ;y, and the other moiety sHa" 
 
 any, and if there is none, the 
 
 180, 8. 1. 
 
 llON. 
 
 ai be brought or laid fur .vny 
 ,,t within two years after tie 
 committed, unless the t.uie i» 
 
 s. r7. 
 
 TITLE VHI. 
 PROCEEDINGS AFTER CONVICTIOX. 
 
 PART LXI. 
 
 PUNISHMENTS GENERALLY. 
 
 Punishment After Conviction only. 
 931 Whenever a person doing a certain act is declared to be guilty of 
 any offence, and to be liable to punishment therefor, it shall be understood 
 that such iierson shall only be deemed guilty of such offence and liable to such 
 punisliment after being duly convicted of such act. R. S. C. c. 181, s. 1. 
 
 Degrees in Punishment. 
 
 03/S- Whenever it is provided that the offender shall be liable to dif- 
 ferent degrees or kinds of punishment, the punishment to be inflicted shall, 
 subject to the limitations contained in the enactment, be in the discretion 
 of the court or tribunal before which the conviction takes place. R. S. C. 
 c. 1«1, s. 2. 
 
 Liability under Different Provisions. 
 
 033- Whenever any offender is punishable under two or more Acta or 
 two or more sections of the same Act, he may be tried and punished under 
 any of such Acts or sections ; but no person shall be twice punished for the 
 same offence. R. S. C. c. 181, s. 3. 
 
 This section enacts that where an offender is punishable 
 under two or more Acts, or two or more sections of the same 
 Act, he may be punished under either. This is taken from 
 the Imperial Code, but the Imperial Code went further, and 
 enacted that thereafter no offence should be indictable at 
 common law. This s. 933 of this Code leaves the common 
 law in force. The rule is, that if a common law misde- 
 meanour is made subject to a greater punishment by statute 
 it may still be proceeded against as a common law misde- 
 meanour ; but if a common law misdemeanour is made a 
 felony the misdemeanour has ceased to exist; and where an 
 ofi'ence punishable at common law is made by statute 
 punishable by a summary conviction both remedies exist : 
 Hamilton v. Massie, 18 0. R. 585; 2 Hawk. c. 25, s 4; 
 
960 
 
 PROCEDURE. 
 
 [Sees. 934-93(j 
 
 R. V. Wigg, 2 Salk. 460; R. v. Wright, 1 Burr. 543 ; R. v. 
 Robinson, 2 Burr. 800; R. v. Carlile, 3 B. & Aid. 161; 
 R. V. Gregory, 5 B. & Ad. 555 ; R. v. Crawshaw, Bell, 303; 
 Bishop, Stat. Cr. par. 163 to 166 and s. 245 ; R. v. Dicken- 
 son, 1 Saiind. 135. Also per Williams, J., in Eastern 
 Archipelago Co. v. the Queen, 2 E. & B. 879 ; R. v. Adams, 
 Car. and M. 299; R. v. Dixon, 10 Mod. 335; R. v. 
 Buchanan, 8 Q. B. 883; R. v. Hall, 17 Cox, 278. 
 
 A prisoner should be able to gather from the indictment 
 whether he is charged with an otfence at the common law; 
 or under a statute or, if there should be several statutes 
 applicable to the subject under which statute he is charged, 
 per Esten, V.-C, R. v. Cummings, 15 U. C. Q. B. 16. 
 
 Fine Imposed Shall be in Discretion of Codrt. 
 
 034> Whenever a fine may be awarded or a penalty imposed for any 
 offence, the amount of such fine or penalty shall within such limits, if any, a$ 
 are prescribed in that behalf, be in the discretion of the court or person pass- 
 ing sentence ur convicting, as the case may be, R. S. C. c. 181, s. 33. 
 
 ^^1 
 
 PART LXII. 
 
 CAPITAL PUNISHMENT. 
 
 Punishment to be the Same on Conviction by Verdict or by Confessiox. 
 
 93>'S. Every one who is indicted as principal or accessory for any offence 
 made capital by any statute, shall be liable to the same punishment, whether 
 he is convicted by verdict or on confession, and this as locll in the case of acces- 
 sories as of principals. R. S. C. c. 181, s. 4. 
 
 Form of Sentence of Death. 
 
 036. In all cases where an offender is sentenced to death the sentenw 
 or judgment to be pronounced against him shall be, that he be hanged by tlie 
 neck until he is dead. R. S. C. c. 181, s. 5. 
 
 A judgment may be altered at any time during the 
 assizes ; and a reprieve may be granted or taken off by a 
 
MiriHii 
 
 [Sec3. 934-93G 
 
 1 Burr. 543 ; R. v. 
 
 3 B. & Aid. 161 ; 
 Irawshaw, Bell, 303 ; 
 , 245 -, R. V. Dicken- 
 ims, J., in Eastern 
 3. 879 ; B. v. Adams, 
 OMod. 335; B. v. 
 ,7 Cox, 278. 
 r from the indictment 
 5 at the common law; 
 d be several statutes 
 statute he is charged, 
 iU.C.Q.B. 16. 
 
 ETION OF COOKT. 
 
 or a penalty imposed for any 
 
 rwithin8«chlimitB,ifany,a. 
 
 on of the court or person pa... 
 
 R. S. C. c. 181. s. 33. 
 
 Sees. 937-942] 
 
 CAPITAL PUNISHMENT. 
 
 961 
 
 llENT. 
 
 .tVEBDICT OR BY CONFESSION. 
 
 Ll or accessory for any offence 
 
 rthesan.epunishrnent.wheh« 
 
 , this as well in the case of a.ca 
 
 Death. 
 Lenced to death the sentence 
 [l be, that he be hanged by the 
 
 It any time during the 
 [anted or taken off by a 
 
 judge, although the session may be adjourned or finished, 
 
 and this, by reason of common usage : 2 Hale, 4:12 ; Dyer, 
 
 205. 
 
 Report by the Ju::)ge. 
 
 937. In the case of any prisoner sentenced to the punishment of death, 
 
 the judge before whom such prisoner has been convicted shall forthwith make 
 
 a report of the case to the Secretary of State, for the information of the 
 
 Governor General ; and the day to be appointed for carrying the sentence 
 
 into execution shall be such as, in the opinion of the judge, will allow sufficient 
 
 time for the signification of the Governor's pleasure before such day, and if 
 
 the judge thinks such prisoner ought to be recommended for the exercise of 
 
 the royal mercy, or if, from the non-decision of any point of law reserved in 
 
 the case, or from any other cause, it becomes necessary to delay the execution, 
 
 he, or any other judge of the same court, or who might have held or sat in 
 
 such court, nuiy, from time to time, either in term or in vacation, reprieve 
 
 such offender for such period or periods beyond the time fixed for the execution 
 
 cif the sentence as are necessary for the consideration of the case by the Crown. 
 
 R. S. C. c. 181, s. 8. 
 
 Treatment of Persons Condemned to Death. 
 
 0S18- Every one who is sentenced to suffer death shall, after judgment, 
 be ccmfined in some safe place within the prison, apart from all other 
 lirisoners ; and no person except the gaoler and his servants, the medical 
 officer or surgeon of the prison and a chaplain or a minister of religion, shall 
 iiave access to any such convict, without the permission in writiusr of the 
 court or judge before whom such convict has been tried, or of the sheriff. 
 R. S. C. c. 181, s. 9. 
 
 Execution to be Private. 
 
 030- Judgment of death to lie executed on any prisoner shall be carried 
 into effect within the walls of the prison in which the offender is confined at 
 the time of execution. R. S. C. c. 181, s. 10. 
 
 Who May be Present. 
 
 tt-40. The sheriff charged with the execution, and the gaoler and medical 
 officer or surgeon of the prison, and such other officers of the prison and such 
 Iiersons as the sheriff requires, shall be present at the execution. R. S. C. 
 c. 181, s. U. 
 
 941. Any justice of the peace for the district, county or place to which 
 the prison belcmgs, and such relatives of the prisoner or other persons as it 
 seems to the sheriff proi^er to admit within tlie prison for the purpose, and any 
 minister of religion who desires to attend, may also be present at the execution.. 
 U. S. C, s. 181, 8. 12. 
 
 Certificate of Death. 
 
 9-42. As soon as may be after judgment of death has been executed oni 
 the offender, the medical officer or surgeon of the prison shall examine the 
 liody of the offender, and shall ascertain the fact of death, and shall sign a. 
 Criu. Law— CI 
 
962 
 
 PROCEDURE. 
 
 [Sec. 943 
 
 certificate thereof, in the form UUU in schedule one hereto, and deliver the 
 same to the sheriff. 
 
 2. The sheriff and the gaoler of the prison, and such justices and other 
 persons present, if any, as the sheriff requires or allows, shall also sipii a 
 declaration in the form VVV in the said schedule to the effect that judgment 
 of death has been executed on the offender. R. S. C. c. 181, ss. 13 & 14. 
 
 As to a false certificate of execution see s. ^68, ante. 
 
 FORMS UNDER TITLE VIII. 
 
 V\J\J. —{Sectio7i 942.) 
 
 CERTIFICATE OF EXECUTION OF JUDGMENT OF DEATH. 
 
 I, A. B., surgeon {or as the case may be) of the (describe the 
 
 prison), hereby certify that I, this day, examined the body of 
 
 G. D., on whom judgment of death was this day executed in the 
 
 said prison ; and that on such examination I found that the 
 
 said C. D. was dead. 
 
 (Signed), A. B. 
 
 Dated this day of , in the year 
 
 YYY.—iSectioti 942.) 
 
 DECLARATION OF SHERIFF AND OTHERS. 
 We, the undersigned, hereby declare that judgment of death 
 was this day executed on C. D., in the {describe the pmon) in our I 
 
 presence. 
 Dated this 
 
 day of 
 E. F., Sheriff of- 
 
 , in the year 
 
 L. M., Justice of the Peace for- 
 
 G. H., Gaoler of 
 
 &c», &c. 
 
 When Deputies mat Act. 
 
 943. The duties imposed upon the sheriff, gaoler, medical officer orl 
 surgeon by the two sections next preceding, may be and, in his absence, aliall 
 be performed by his Uwf«d deputy or assistant, or other officer or persbiil 
 ordinarily actinia for him, or co' iointly with him, or ditchargmg the duties of| 
 any such officer. R. S. Co. 181, s. 15. 
 
[Sec. 913 
 ,e hereto, and deliver the 
 
 i such justices, and other 
 
 allows, shall also sipu a 
 
 o the effect that judgment 
 
 3. c. 181, 88. 13 & W- 
 
 3ec3. 944-949] 
 
 CAPITAL PUNISHMENT. 
 
 Inquest by Coroner. 
 
 963 
 
 VIII- 
 
 DGMENT OF DEATH. 
 
 , be) of the {deserihe the 
 i examined the body of 
 'this day executed ^^^^« 
 Ration I found that the 
 
 (Signed), A- ^• 
 , in the year 
 
 AND OTHERS. 
 
 ethatiudg-ntofdeat^^ 
 
 ^Ae^mhe the prison) u. our 
 
 in the year 
 jace for 
 
 
 044. A coroner of a district, county or place to which the prison belongs, 
 wherein judgment of death is executed on any offender, shall, within twenty- 
 four hours after the execution, hold an inquest on the body of the offender ; 
 and the jury at the inquest shall inquire into and ascertain the identity of the 
 body, and whether judgment of death was duly e.xecuted on the offender; and 
 the inquisition shall be in duplicate, and one of the originals shall be delivered 
 to the sheriff. 
 
 2. No offioer of the prison and no prisoner confined therein shall, in any 
 case, be a juror on the inquest. R. S. C. c. 181, ss. 16 & 17. 
 
 Burial ov the Body. 
 
 943. The body of every offender executed shall be buried within the 
 walls of the prison within which judgment of death is executed on him, unless 
 the Lieutenant-Governor in Council orders otherwise. R. S. C. c. 181, s. 18. 
 
 Certificate. 
 
 046. Every certificate and declaration, and a duplicate of the inquest 
 required by this Act, shall in every case be sent with all convenient speed by 
 the sheriff to the Secretary of State, or to such other officer as is, from time to 
 time, appointed for the purpose by the Governor in Council ; and printed 
 copies of such several instruments shall, as soon a.s possible, be exhibited and 
 shall, for twenty-four hours at least, be kept exhibited on or near the principal 
 entrance of the prison within which judgment of death is executed. R. S. C. 
 c. 181, 8. 20. 
 
 As to false certificate see s. 158, ante. 
 
 No Illegality from Certain Omissions. 
 
 947. The omission to comply with any provision of the preceding 
 sections of this part shall not make the execution of judgment of death illegal 
 in any case in which such execution would otherwise have been legal. R. S. C. 
 c. 181, 8. 21. 
 
 948. Except in so far as is hereby otherwise provided, judgment of 
 death shall be carried into effect in the same manner as if the above provisions 
 had not been passed. R. S. C. c. 181, s. 22. 
 
 Rules and Regulations. 
 
 949. The Governor in Council may, from time to time, make such rules 
 and regulations to be observed on the execution of judgment of death in every 
 priaon, as he, from time to time, deems expedient for the purpose, as well of 
 guarding against any abuse in such execution, as also of giving greater solem- 
 nity to the same, and of making known without the prison walls the fact that 
 such execution is taking place. 
 
 2. All such rul«B and regulations sliall be laid upon the tables of both 
 Houses of Parliament within six weeks after the making thersof, or, if Parlia- 
 ment is not then sitting, within fourteen days after the next meeting thereof. 
 li. 8. C. c. 181, 8S. 44 & 46. 
 
 The Imperial Act on capital executions ii 31 Y. c. 24. 
 
964 
 
 PROCEDURE. 
 
 [Sees. 950, 951 
 
 
 Of course, when possible, it seems better that the sen- 
 tence of death, and, in fact, any sentence, be passed by the 
 judge who held the trial ; but it is not an absolute necessity, 
 and any judge of the same court may pronounce the 
 sentence : 2 Hale, 405 ; 1 Chit. 697 ; R. v. Camplin, 1 Den. 
 89, as cited in R. v. Fletcher, Bell, 65. 
 
 If a case reserved is undecided, or if a writ of error is 
 still pending, or if the Governor has not yet given his 
 decision upon the case, or if a woman sentenced to death is 
 pregnant, or if the prisoner becomes insane after the sen- 
 tence, a reprieve may be granted either by the Governor, 
 or any judge of the court where the trial was held, in term 
 or in vacation : 1 Chit. 758 ; 2 Hale, 412. 
 
 It is clear that if, from any mistake or collusion, the 
 criminal is cut down before he is really dead, and after- 
 wards revives, he ought to be hanged again, for the 
 judgment being " to be hanged by the neck till he be dead," 
 is satisfied only by the death of the criminal : 1 Chit. 788 ; 
 2 Hale, 412. 
 
 '4i 
 
 PART LXIII. 
 
 IMPRISONMENT. 
 
 050. Every one who is convicted of any ofifence not punishable with 
 death shall be punished in the manner, if any, prescribed by the statute 
 especially relating to such offence. R. S. C. c. 181, s. 23. 
 
 051. Every person convicted of any indictable offence for which noT 
 punishment is specially provided, shall be liable ' :, 'mprisonment for ,n'i'.| 
 years. 
 
 2. Every one who is summarily convicted of any offence for which nJ 
 punishment is specially provided, shall be liable to a penalty not exceediua 
 Jifty dollars, or to imprisonment, with or without hard labour, for a term noj 
 exceeding six months, or to both. R. S. C. c. 181, s. 24 (as amended in 1893). 
 
 Imprisonment for life was the penalty for felonies by tU 
 repealed clause. By the above clauses, such felonies 
 
[Sees. 950, 951 
 
 better that the sen- 
 ace, be passed by the 
 tn absolute necessity, 
 
 may pronounce the 
 R. V. CampUn, 1 Den. 
 
 jr if a writ of error is 
 las not yet given his 
 I sentenced to death is 
 , insane after the sen- 
 tther by the Governor, 
 trial was held, in term 
 , 412. 
 
 [stake or collusion, the 
 really dead, and after- 
 langed again, for the 
 de neck till he be dead, 
 . criminal: 1 Chit. 788; 
 
 Sec. 952] 
 
 IMPRISONMENT. 
 
 965 
 
 Int. 
 
 i„y Offence not P-i«l-ble with 
 
 181, 8. 23. 
 
 Indictable offence forjh^ - 
 Viable '. Imprisonment for n 
 
 Laofanyoffen^forv^;; 
 Lble to a penalty not e 
 thout hard labour, for a tern 
 
 %,«. 24 (as amended in 893.^ 
 
 penalty for felonies by tbe 
 clauses, such felomeB a, 
 
 those enacted by s. 212, e. 32, and s. 94. c. 34, R. S. C. 
 are now punishable only by five years or a mere fine; 
 8. 958, post. 
 
 Twenty dollars and three months was the maximum on 
 summary convictions in the repealed clause. 
 
 Imprisonment for one calendar month how computed : 
 Migotti V. Colville, 4 Cv P. D. 233, 14 Cox, 263, 305 ; 
 Henderson v. Preston, 16 Cox, 445. 
 
 OSS. Every one who is convicted of an indictable offence not punishable 
 with death, committed after a previous conviction for an indictable offence, is 
 liable to imprisonment for ten years, unless some other punishment is directed 
 by any statute for the particular oflFence,— in which case the offender shall he 
 liable to the punishment thereby awarded, and not to any other. R. S. C. 
 c. ISl, s. 25. {Amended). 
 
 This is a singular piece of legislation if it means any- 
 thing. All and every one of the indictable offences for 
 which no special statutory punishment is provided, 
 whether falling under this code or otherwise, are to be 
 punished more severely if committed by one who has pre- 
 viously been convicted of an indictable offence. But for 
 those falling under the code, and where the punishment 
 is provided for, that is for every one of them, except a 
 few, where the punishment has been " clerically " for- 
 gotten, (ss. 113, 137, 143, 501, for instances), a previous 
 conviction of an indictable offence does not, as a rule, 
 render an offender liable to a greater punishment. Sec- 
 tion 356, which amends the law so as to limit it to 
 previous convictions for theft, and ss. 418 & 478 as to bur- 
 glary and offences against the coin are the only ones that 
 provide for a greater punishment after a previous convic- 
 tion. Why such a distinction ? Evidently, we have here 
 another piece of legislation by inadvertence. Bribery, 
 undue influence and subornation of personation at federal 
 elections, for instance, are under ss. 951 and 952 punishable 
 by five years penitentiary, and, if the offender has been 
 previously convicted of an indictable offence, by ten years. 
 
966 
 
 PROCEDURE, 
 
 [Sees. 953-Oi 
 
 n 
 
 
 
 5 .ft, , 
 
 A train conductor drunk on duty, or who allows an; 
 baggage or freight car to be placed in the rear of th 
 passenger cars (51 V. c. 29, ss. 291, 292) is likewise punisl) 
 able by five years penitentiary, and, upon a second convic 
 tion, by ten years, whilst the forgery of a custom hous 
 mark or brand is only punishable upon summary convictio, 
 by a two hundred dollars fine : s. 210, c. 32, B. S. C. 
 
 Minimum tekm of Imprisonment. 
 
 053. Every one whci is liable to imprisonment for life, or for any ten 
 of years, or otlier term, may be sentenced to imprisonment for any shorK 
 term : Provided, that no one shall be .sentenced to any shorter term of in 
 prisonment thai: the minimum term, if any, prescribed for the offence of whic 
 he is convicted. R. S. C. c. 181, s, 20. 
 
 Cumulative Punishments. 
 
 054* Wlien an offender is convicted of more offences than one, befoi 
 the s.ame court or person at the same sitting, or when any offender, under .-iii 
 tence or undergoing punishment for one offence, is convicted of any otlie 
 offence, the court or V)erson pussing sentence may, on the last conviction, direc 
 that the sentences passed upon the offender for his several offence-s shall tak 
 effect one after another. R. S. C. c. 181, s. 27. 
 
 See it. V. Wilkes, 4 Burr. 2677; R. v. Williamti, 1 Lertcl 
 530 ; li. V, Orton, 14 Cox, 436 and 546. 
 
 Penitenti.vhy, Etc. 
 
 035. Every one who is sentenced to imprisonment for life, or for a ter 
 of year.s, not leas than two, sh.all be sentenced to imprisonment in the penite 
 tiary for the province in which the conviction takes place. 
 
 2. Every one who is sentenced to imprisonment for a term less than t 
 years shall, if no other place is expressly mentioned, be sentenced to iniprisc 
 ment in the common gaol of the district, county or place in which the sentei 
 is pronounced, or if there is no connnon gaol there, then in that coimnon g 
 whicii is nearest to such locality, or in some lawful prison or place of confil 
 ment, other than a penitentiary, in w'hich the sentence of imprisonment n| 
 be lawfully executed. 
 
 3. Provided tiiat where any one is sentenced to imprisonment in a iiij 
 tentiary, and at the same sittings or term of the court trying him is senteiil 
 for one or more otiier offences to a term or terms of iui[)risonnient less tluiii f 
 years each, he may be sentenced for such sliorter terms to imprisonment in I 
 same penitentiary, such sentences to take effect from the termination of| 
 other sentence. 
 
 4. Provided further that any prisoner sentenced for iiny term by any il 
 tary, navnl or militia court-martial, or by atiy military or naval autli'f 
 under any Mutiny Act, may be sentenced to imprisonment in a iieniteiitil 
 and if such prisoner is sentenced to a term le.«s than two years, he may bef 
 
[Sees. 953-955' 
 
 , or who allows any 
 I in the rear of the 
 c)2) is likewise punish- 
 upon a second convic- 
 y of a custom house 
 )'n summary conviction 
 
 0. c. 32. B. S. C. 
 
 iONMENT. 
 
 „nent for life, or for any tem 
 imprisonment for any Hhovter 
 ;ed to any shorter term of un- 
 «cribed for the otfeuce of which 
 
 HEN'TS. 
 
 ,nure offences than one before 
 r when any offender, under s.n. 
 
 .„ee, in convicted of any othe 
 ,av, on the kst conviction clu-e 
 ;„;U, several offence, shall take 
 
 K. V. Williams, 1 Leach, 
 
 I 5-16. 
 
 Etc. 
 ..risonmentforlife.orforatem 
 
 J to imprisonment in the pemten. 
 
 II takes place. 
 
 sonment for a term less than t«-o 
 'toned, be sentenced to impnBon. 
 
 ror.lacei"wl»ehthesentenc 
 
 there then in that common gaol 
 
 S«l prison or place of c.u^ 
 ;h« sentence of imprisonment ma; 
 
 tencedtoimprisonnientinal* 
 ,Uhe cc.urt trying hmi IS sc e 
 
 ,,,„,, of iuiprisonment less tu 
 „rter terms to imprisonment, t 
 W from the termination of L- 
 
 ,,tencedforanytermYanyj; 
 Iv any military or naval autWM 
 
 Li„^,risonmentinapeni^'-^ 
 le;.stlian two years, he ma>i3t 
 
 Sec. 956] 
 
 REFORMATORIES. 
 
 967 
 
 tenced to impnsontnent in the common gaol of the district, county or place in 
 wliich the sontenco is pronounced, or in such other prison or place of confine- 
 nieiit as is pi-ovided by sub-section two of this section with respect to iwrsona 
 sentenced thereunder. 
 
 5. Imprisonment in a penitentiary, in the Central Prison for the province 
 of Ontario, in the Andrew Mercer Ontario Refonnatory for feuniles, and in 
 any reformatory i)ris(in for females in the province of Quebec, slmll bti with 
 hard labour, whether so directed in the sentence or not. 
 
 (i. Imprisonment in a common gaol, or a public prison, other than those 
 last mentioned, shall be with or witliuut hard labour, in the discretion of the 
 court or person passing sentence, if the offender is convicted on indictment, or 
 under the provisions of Parts LIV. or LV. (Ss. 762, 782), or before a judge 
 of tlie Supreme Court of the North-west Territories, and in otlier cases may be 
 with hard lalwur, if hard labour is part of the punishment for the offence of 
 which such offender is convicted —and if such imprisonment is to be with hard 
 labour, the sentence shall so direct. 
 
 7' The tenn of imprisonment, in pursuance of any sentence, shall, unless 
 otherwise directed in the sentence, commence on and from the day of passing 
 such sentence, but no time durinj,' which tlie convict is out on bail shall be 
 reckoned as part of the term of imprisonment to which he is sentenced. 
 
 8. Every one who is sentenced to imprisonment in any penitentiary, gaol, 
 or other public or reformatory prison, shall \w subject to the provisions of the 
 statutes relating to such penitt-utiary, gaol or prison, and to all rules and 
 regulations lawfully made witli respect thereto. R. S. C. c. 181, s. 28 ; 53 V. 
 c. 37, 8. 31. 
 
 Under s-s. 7, a confinement in a lunatic asylum does 
 
 not interrupt the sentence : Ev parte Armellini, 1-1 R. L. 
 
 311. 
 
 Reformatories. 
 
 030. The court or person before whom any offender whose age at the 
 time of his trial does not, in the opinion of the court, exceed sixteen years, is 
 convicted, whether summarily or otiicrwise, of any offence I'unishable by 
 iiiiprisonmeiit, may sentence such offender to imprisonment in any reformatory 
 prison in the province in which such conviction takes place, subject to the 
 provisions of any Act respecting imprisonment in such reformatory ; and such 
 iiujn-isonment shull be substituted, in sucli caie, for the imprisonment in the 
 penitentiary or other place of confinement by which the offender would 
 otherwise be punisliable under any Act or law relating thereto : Provided, that 
 in no case shall the sentence be less than two years' or more than five years' 
 confinement in such reformatory prison ; and in every case where the term of 
 iniiirisonment is fixed by law to be more than five years, then such imprison- 
 ment shall be in the penitentiary. 
 
 ■-. Every person imprisoned in a reformatory sliall be liable to perform 
 such labour as is required of such person. R. S. C. c. 181, s. 29. 
 
 f 
 
968 
 
 PROCEDURE. 
 
 [Sec^. 057, 938 
 
 1 
 
 PART LXIV. 
 
 WHIPI'ING. 
 
 957. Whenever wliii)i)ing may be awarded for any offence, the court 
 may sentence the offender to be once, twice or thrice whijjped, witliin the 
 limits of the prison, under the supervision of the medical officer of tiie j)riN'jn ; 
 and the number of strokes and tiie instrument with which tliey shall Ixj 
 inflicted shall be 8i)ecified liy the court in the'sentence : and, whenever 
 practicable, every whipping shall take i)lace not less than ten d,\ys before the 
 expiration of any term of imprisonment to which the offender )« sentenced for 
 the offence. 
 
 2. Whipping shall not be itiflicted on any female. R. S. C. c. ISl, s. 30. 
 
 PART LXV. 
 
 SURETIES FOR KEEPING THE PEACE, AND FINES. 
 
 ©58. Every court of criminal jurisdiction and every magistrate uiid^T 
 Part LV. (s. 782) before whom any i)er.son shall be convicted of an offence and 
 shall not be sentenced to death, shall have power in addition to any sentence 
 i mposed ujwn such person, to require him forthwith to enter into his own 
 recognizances, or to give security to keep the peace, and be of good behaviour 
 for anil term not exceeding two years, and that such person in default shall be 
 imprisoned for not more than one year after the expiry of his imprisonnieiit 
 under his sentence, or until such recognizances are sooner entered into or sucli 
 security sooner given, and any person convicted of an indictable offence pun- 
 ishable with imprisonment for five years or less may be fined in addition to or 
 iin lieu of any punishment otherwise authorized, in v:hich case the stntinee 
 mail direct that in default of paijmtnt of his fine, the person so convicted situll 
 ■be imprisoned \intil such fine is paid, or for a period not exccediwj live pcnn, 
 to commence at the end of the term of iviprisonment axmrded lij the sentinK 
 or forthwith as the case mail require. R. S. C. c. 181, s. 31. {As amendnlin 
 1S93). 
 
 The words in italics are new: see s. 934;, ante, as to 
 amount of fine when speciiiecl. " Security " defined by 
 Interpretation Act, E. S. C. c. 1. 
 
[8tcs. t>57, OJii 
 
 Sec. 950] RECOGNIZANCE TO KEEP THE PEACE. 
 
 9G9 
 
 r any offence, the court 
 ice whippecl, within the 
 ical officer of the pris'ju ; 
 ith which they «hall !« 
 entence : and, whenever 
 than ten d:\ys before the 
 3 offender »« sentenced for 
 
 > R. S. C. c. ISl, ». 30. 
 
 Ice, and riNES. 
 
 ad every magistrate under 
 convicted of an offence and 
 
 ^n addition to any sentence 
 •ith to enter into his own 
 ■ and be of pood behaviour 
 
 person in default shall be 
 •xpiry of his iniprisoniueut 
 sooner entered into or such 
 
 i an indictable offence pun- 
 av be fined in addition to or 
 
 ' ;•„ u-hich case the scnUnce 
 he person so convicted «/-«(( 
 \iod not cxcccdinr, iive mnn, 
 ent awarded h!> the senta^^ 
 ISl.s. 31. (Asamendidui 
 
 lec s. 93i, ante, as to 
 Security " defined by 
 
 Recounizanck to Keep the Peacu— Articles of the Peace. (.V-i'.-). 
 
 {A» amended in ISfi.J.) 
 
 030. Whenever any person is charged liefore a justice with an offenco 
 triable under Part LVIII. which, in the cpinion of such justice in directly 
 apainst the peace, and the justice after hearing tiie ease is watinfied of the guilt 
 of the .iccUHcd, and that the offence was committed under circumstances which 
 render it probable that the person convicted will be ag'ain guilty of the same or 
 some other offence against the peace unless he is bound over tu go(xl Ix'haviour, 
 such justice may, in addition to, or in lieu of, any other sfutencu which may 
 be imp<)!«ed upon the accused, require him furthwitii to enter int<i his own 
 recognizances {ncoijnizancc), or to give security to keep the peace and be of 
 good behaviour for any term not e.\ceediiig twelve months. 
 
 2. Ui)on complaint by or <jn behalf of any person that on account of 
 threats made by some other person or on any other .nccount, he, the com- 
 plainant, is afraid that such otlier person will do him, his wife or ciiild >.ome 
 personal injury, or will bum or set tire to his property, the justice before whom 
 such complaint is made may, if he is satisfied that the complainant has reason- 
 able grounds for his fears, require such other pers<jn to enter into his own 
 recognizances (rccofjnizance), or to give security, to keep the peace, and to be 
 of good behaviour, for a tenn not exceeding twelve months. 
 
 3 The provisions of Part LVIII. shall apply so far as the same are 
 applicable to proceedings under this section, and the complainant and defend- 
 ant and witnesses maj* be called and examined, and cro.ss-examined, and the 
 ccimi)lainant and defendant shall bo subject to costs as in the case of any other 
 complaint. 
 
 4. If any person so required to enter into his own recc^gnizances (recoimiz- 
 aace) or give security as aforesaid, refuses or neglects so to do, the same or any 
 other justice may order him to be imprixtmed fur anij term not cxcerdinij twelve 
 vi'mth.i. 
 
 o. The forms WWW, XXX and YYY, with such variations and 
 additions as the circumstances may require, may be used in proceedings under 
 this section. 
 
 The forms XXX and YYY, taken originally from 16 V. 
 c. 178 (for Upper Canada), are not in conformity with this 
 enactment. 
 
 As to articles of the peace, see Bacon's Abr. v. surety 
 of the peace ; Archbold's Quart. Sess. 2G8 ; Magisterial 
 Guide, Greenwood & Martin, 758 ; Clarke's Magistrates' 
 Manual, 2nd edit., 542. 
 
 No provision is made for the recourse against the sure- 
 ties where the principal breaks the peace within the time 
 specified. 
 
 " Security " defined. Interpretation Act, R. S. C. c. 1. 
 
970 
 
 PROCEDURE. 
 
 [Sec. 95!) 
 
 1 
 
 WWW.— (.SVcf/V^i 959.) 
 
 COMPLAINT BY THE PARTY THREATENED, FOR SURETIES 
 
 FOR THE PEACE. 
 
 Canada, 
 Province of 
 County of 
 
 The information {or complaint) of C. D., of , in the 
 
 said county of , (hibnurer), {if pre/ern-d bi/ an attorney 
 
 oraffent, sin/ — by D. E., his duly authorized agent {or attorney), 
 in this behalf, taken upon oath, before me, the undersigned, a 
 justice of the peace, in and for the said county of , at 
 
 in the said county of , this day 
 
 of , in the year , who says that A. B., of 
 
 , in the said county, did, on the day of^ 
 
 i (instant or last past), threaten the said C. D, in the 
 words or to the effect following, that is to say : {set them out, 
 with the circuimtunces under irhich t/ietf were ii.se<l) ; and that from 
 the above and other threats used by the said A. B. towards the 
 said C. D., he, the said C. D., is afraid that the said A. B. will 
 do him some bodily injury, and therefore prays that the said 
 A. B. may be required to find sufficient sureties to keep the 
 peace and be of good behaviour towards him, the said C. D. ; 
 and the said C. D. also says that he does not make this com- 
 plaint against nor require such sureties from the said A. B. from 
 any malice or ill-will, but merely for the preservation of his^ 
 person from injury. 
 
 XXX.— {Section 959.) 
 
 FORM OF RECOGNIZANCE FOR THE SESSIONS. 
 
 Canada, 
 Province of 
 County of 
 
 Be it remembered that on the day of , in the 
 
 year . A. B. of {labourer), L. M. of 
 
 and N. 0. of , {butcher), personally came before (««) the 
 
 undersigned, {two) justices of the peace for the county of 
 and severally acknowledged themselves to owe to our Lady the 
 Queen the several sums following, that is to say : the said A. B. 
 
[Sec. 959 
 , FOR SURETIES 
 
 Sec. 959] 
 
 RECOGNIZANCE TO KEEP THE PEACE. 
 
 971 
 
 , in the 
 ■)V({ by an (tttonii'ii 
 igent (or attorney), 
 the undersigned, a 
 ,y of » ^^ 
 
 this 'lay 
 
 says that A. B., of 
 
 le ^ay 0** 
 
 he said C. D, in the 
 say : {set them out, 
 u<ed) ; and that from 
 id A. B. towards the 
 t the said A. B. will 
 1 prays that the said 
 uireties to keep the 
 lim, the said CD.; 
 not make this cora- 
 a the said A. B. from 
 
 preservation of his 
 
 E SESSIONS. 
 
 tyof .i»t^« 
 
 L. M. of 
 
 came before (««) the 
 
 the county of 
 
 owe to our Lady the 
 
 ;o say : the said A. B. 
 
 the sum of , and the said L. M. and N. 0. the sum of 
 
 each, of good and lawful money of Canada, to be 
 made and 1. vied of their goods and chattels, lands and tenements 
 respectively, to the use of our said Lady the Queen, Her heir* 
 and successors, if he, the said A. B., fails in the condition en- 
 dorsed {or hereunder written). 
 
 Taken and acknowledged tho day and ye.^r first above men- 
 tioned, at . before us. 
 
 J. S., 
 J. T., 
 J. i'.'s {Xtiuie of' countif.) 
 
 The condition of the within {<»• above) written recognizance' 
 is such that if the within bound A. B., (of, ifcc), '■'■ appears at 
 the next Court of General Sessions of the Peace, {or other I'uurt 
 dischari/hifi the functions of the Court of General Semona), to be 
 holden in and for the said county of , to do and receive 
 
 what is then and there enjoined him by the court, and in the 
 meantime''^ keeps the peace and is of good behaviour towards Her 
 Majesty and her liege people, and specially towards C. D. (cf 
 &c.) for the term of now next ensuing, then the said 
 
 recognizance to be void, otherwise to stand in full force and 
 
 virtue. 
 
 The words between the asterisks ** to be used only where the priu- 
 cipal is recjiiired to appear at the sessions of such other court. 
 
 YYY.— {Section 959.) 
 
 FORM OF COMMITMENT IN DEFAULT OF SURETIES. 
 
 1 
 
 U 
 
 Canada, 
 Province of 
 County of . J 
 
 To all or any of the other peace otlicers in the county of 
 
 and to the keeper of the common gaol of the said county^ 
 at , in the said couutv. 
 
 Whereas on the day of {inxtuHt), complaint 
 
 on oatli was made before the undersigned {or J. L., Esquire, a 
 justice of the peace in and for the said county of , by 
 
 C. D., of , in the said county, {labourer), that A. B., of 
 
 (i.<:c.), on the day of , at aforesaid, did 
 
972 
 
 PROCEDURE. 
 
 1 
 
 [Sec. 960 
 
 threaten {d-c, follow to the end of complaint, as in form above, in 
 the past tense, then) : And whereas the said A. B. was this day 
 brought and appeared before me, the said justice {or J. L. Es- 
 quire, a justice of the peace in and for the said county of ), 
 to answer unto the said complaint ; and having been required 
 by me to enter into his own recognizance in the sum of , 
 
 with two sufficient sureties in the sum of each, * as 
 
 well for his appearance at the next General Sessions of the 
 Peace (or other court dischanjiny the functions of the Court of 
 General Sessions, or as the case may he), to be held in and for the 
 said county of , to do what shall be then and there en- 
 
 joined him by the court, as also in the meantime '^^ to keep the 
 peace and be of good behaviour towards Her Majesty and her 
 liege people, and especially towards the said C. D., has refused 
 and neglected, and still refuses and neglects, to find such sure- 
 ties : These are, therefore, to command you, and each of you, to 
 take the said A. B., and him safely to convey to the (common 
 gaol) at aforesaid, and there to deliver him to the keeper 
 
 thereof, together with this precept : and I do hereby command 
 you, the said keeper of the said (common gaol), to receive the 
 said A. B. into your custody in the said (common gaol), there to 
 imprison him until the said next General Sessions of the Peace 
 (or the next term or sittiny of the said court discharyiny the functions 
 of the Court of General Sessions, or as the case may be), unless he, 
 in the meantime, finds sufficient sureties as well for his appear- 
 ance at the said Sessions (or court) as in the meantime to keep 
 the peace as aforesaid. 
 
 Given under my hand and seal, this day of 
 
 in the year , at , in the county aforesaid, 
 
 J. S., [seal.] 
 
 J. P., {Name of county,) 
 
 The words between the asterisks ** to be used when the recognizance 
 is to be so conditioned. 
 
 Notice When any one is Imprisoned for Want or Subetie^j. 
 
 000. Whenever any person who has been reqtiired to enter into a 
 recognizance with sureties to keep the peace and be of good behaviour has, on 
 account of his default therein, remained imprisoned for two weeks, the sheriff, 
 .gaoler or warden shall give notice, in writing, of the facts to a judge of a 
 
[Sec. 960 
 
 , as in form above, in 
 I A. B. was this day 
 1 justice {or J. L- Es- 
 ! said county of ), 
 having been required 
 in the sum of . 
 
 each, * as 
 >neral Sessions of the 
 nctions of the Court of 
 be held in and for the 
 1 be then and there en- 
 meantime - to keep the 
 s Her Majesty and her 
 said C. D., bas refused 
 ;lects, to find such sure- 
 you, and each of you, to 
 convey to the (common 
 leliver him to the keeper 
 i I do hereby command 
 Lion gaol), to receive the 
 (common gaol), there to 
 I Sessions of the Peace 
 ,diseharnin!i the functions 
 
 ,e case may be), unless he, 
 ,s as well for his appear- 
 n the meantime to keep 
 
 day of > 
 
 [e county aforesaid. 
 
 '., {Xawe of coiintii.) 
 lusedwhen the recognizance 
 
 Sec. 061] 
 
 DISABILITIES. 
 
 973 
 
 Superior Ccmrt, or to a judge of the County Court of the county or district in 
 which such gaol or prison is situate, and in the cities of Montreal and Quebec 
 tu a judge of the sessions of the peace for the district, or, in the North-west 
 Territories to a stipendiary magistrate,— and such judge or magistrate may 
 order tlie discharge of such person, thereuiwn or at a subsequent time, upon 
 notice to the complijinant or otherwise, or may make such other order as he 
 sees fit, respecting the number of sureties, the sum in which they are to be 
 bound and the length of time for which such person may be bound. R. S. C. 
 c. 181, s. 32. 51 V. c. 47. s. 2. 
 
 PART LXVI. 
 
 DISABILITIES. {Neiv). 
 
 061. If any person hereafter convicted of treason or any indictable 
 offence for which he is sentenced to death or imprisonment for a term exceeding 
 five years, holds at the time of such conviction any office under the Crown or 
 other public employment, or is entitled to any pension or superannuation 
 allowance payable by the public, or out of any public fund, such oflSce or 
 employment shall forthwith become vacant, and such pension or superannua- 
 tion allowance or emolument shall forthwith determine and cease to be 
 payable, unless such person receives a free i^ardon from Her Majesty, within 
 two months after such conviction, or before the filling up of such office or 
 employment, if given at a later period ; and such person shall become, and 
 (until he suffers the punishment to which he is sentenced, or such other 
 punishment as by competent authority is substituted for the same, or receives 
 a free pardon from Her Majesty) shall continue thenceforth incapable of 
 holding any office under the Crown, or other public employment, or of being 
 elected, or sitting, or voting, as a member of either House of Parliament, or of 
 exercising any^ight of suffrage or other parliamentary or municipal franchise. 
 33-34 V. (U. k.)c. 23, s. 2. 
 
 2. The setting aside of a conviction by competent authority shall remove 
 the disability herein imposed. 
 
 i-:l' 
 
 k'OR Want ov Suueties. 
 
 leen required to enter into a 
 Id be of good behaviour has,™ 
 Led for two weeks, the sbeitf. 
 I of the facts to a judge of a 
 
974 
 
 PROCEDURE. 
 
 [Sees. 902-90^ 
 
 PART LXVII. 
 
 PUNISHMENTS ABOLISHED. 
 003- Outlawry iu criminal cases is abolished. (Nov). 
 
 003. Tlie punishment of solitary confinement or of the pillory shall not 
 \» awarded by any court. R. S. C. c. 181, s. 34. 
 
 904. There shall be no forfeiture of any chattels, which have moved to 
 or caused the death of any human being, in respect of such death. R. S. C. 
 «. 181, 8. 35. 
 
 By the common law, omnia qiue movent ad mortem sunt 
 Deo danda. Hence the word " deodand," which signified 
 a personal chattel which had been the immediate occasioQ 
 of the death of any reasonable creature, and which, in con- 
 sequence, was forfeited to the Crown, to be applied to pious 
 uses, and distributed in alms by the High Almoner. 
 Whether the death were accidental or intended, whether 
 the person whose chattel had caused the death participated 
 in the act or not, was immaterial. The cart, the horse, 
 the sword, or anything which had occasioned the death of 
 a human being, or the value thereof, was forfeited, if the 
 party died within a year and a day from the wound received. 
 And for this object the coroner's jury had to inquire what 
 instrument caused the death, and to establish the valae of 
 it. But the jury used to find a nominal value only, and 
 confine the deodand to the very thing or part of the thing 
 itself which caused the death, as, if a waggon, to one of the 
 wheels only: R. v. Eolfe, Fost. 266; 1 Hawk. 74; 1 
 Blacks. 300. This forfeiture, " which seemeth to have been 
 originally founded rather iu the superstition of an age of 
 extreme ignorance than in the principles of sound reason 
 and true policy," Fost. 266, was abolished in England on 
 the 1st day of September, 1846, by the 9 & 10 V. c. 62. 
 
^■■■■iiaiip 
 
 [Sees. 9G2.9r,4 
 
 Sec. 905] 
 
 ATTAINDER ABOLISHED. 
 
 975 
 
 SHED. 
 
 Bd. (New)- 
 
 ent or of the pillory shall not 
 
 chattels, which have moved to 
 pect of such death. R. S. C. 
 
 movent ad mortem sunt 
 dand," which signified 
 ;he immediate occasion 
 ure, and which, in con- 
 I, to be applied to pious 
 'f the High Almoner. 
 I or intended, whether 
 the death participated 
 The cart, the horse, 
 occasioned the death of 
 of, was forfeited, if the 
 ■om the wound received. 
 ry had to inquire what 
 ,0 establish the value o{ 
 )minal value only, and 
 ■ng or part of the thing 
 a waggon, to one of tbe 
 , 266; 1 Hawk. 71; 1 
 Ichseemeth to have been 
 
 iperstition of an age of 
 •cipi 'S of sound reason 
 olished in England on 
 tUe9i&10V.c.62. 
 
 Attainder Abousmed. (Neiv.) 
 003. From and after the passing of this Act no confession, verdict, 
 inquest, conviction or judpinent of or for any treason or indictable offence or 
 felo cle se shall cause any attainder or corrujjtion of blood, or any forfeiture or 
 escheat ; Provided that nothing in this section shall affect any fine or penalty 
 imposed on any person by virtue of his sentence, or any forfeiture in relation 
 to which special provision is made by any Act of the Parliament of Canada. 
 33-34 V. (U. K.) c. 23, ss. 1, G & 5. R. S. C. c. 181, ss. 30-37. 
 
 By the common law, a man convicted of treason or 
 felony stands attaint. By this attainder, he loses his civil 
 rights and capacities, and becomes dead in law, civiliter 
 mortuiis : 1 Stephens' Comm. 141. He forfeits to the King 
 all his lands and tenements, as well as his personal estate, 
 his blood is corrupted, so that nothing can pass by inheri- 
 tance to, from or through him : 4 Blacks. 380, 387. But 
 the lands or tenements are not vested in the Crown during 
 the life of the offender, ivithout office or office-found which is 
 a finding by a jury of a fact which entitles the Crown to the 
 possession of such lands or tenements : Wharton's Law 
 Lexicon. 
 
 p- ■; ' 
 
 * 
 
976 
 
 PROCEDURE. 
 
 [Sees. 966-tiG 
 
 PART LXVIII. 
 
 PARDONS. 
 
 006. The Crown may extend the royal mercy to any person sentencec 
 to imprisonment by virtue of any statute, although such person is imprisoned 
 for non-payment of money to some person other than the Crown. 
 
 2. Whenever the Crown is pleased to extend the royal mercy to any 
 offender convicted of an indictable offence punishable with death or otherwise, 
 and grants to such offender either a free or a ccmditional pardon, by warrant 
 under the royal sign manual, countersigned by one of the principal Secretaries 
 of State, or by warrant under the hand and seal-at-arms of the Governor 
 General, the discharge of such offender out of custody, in case of a fret 
 pardon, and the performance of the condition in the case of a conditional 
 pardon, shall have the effect of a pardon of such offender, under the great seal, 
 as to the offence for which such pardon has been granted ; but no free pardon, 
 nor any discharge in consequence thereof, nor any conditional pardon, nor the 
 performance of the condition thereof, in any of the cases aforesaid, shall 
 prevent or mitigate the punishment to which the offender might otherwise be 
 lawfully sentenced, on a subsequent conviction for any offence other than that 
 for which the pardon was granted. R. S. C. c. 181, ss. 38 & 30. 
 
 Commutation. 
 
 96T. The Crown may commute the sentence of death passed upon aiij 
 person convicted of a capital offence to imprisonment in the penitentiary foi 
 life, or for any term of years not less than two years, or to imprisonment in 
 any gaol or other place of confinement ffir any period less than two years, with 
 or without hard labour ; and an instrument under the hand and seal-at-arms ui 
 the Governor General, declaring such commutation of sentence, or a letter oi 
 other instrument under the hand of the Secretary of State or of tlie Under 
 Secretary of State, shall be sufficient authority to any judge or justice, having 
 jurisdiction in such case, or to any sheriff or officer to whom such letter or 
 instrument is addressed, to give effect to such commutation, and to do all such 
 things and to make such orders, and to give such directions, as are requisite 
 for the change of custody of such convict, and for his conduct to and delivery 
 at such gaol or place of confinement or penitentiary, and liis detention therein, 
 according to the terms on which his sentence has been commuted. R. S. C 
 c. 181, 8. 40. 
 
 UxDEUGoixG Sentence. 
 
 068- When any offender lias been convicted of an offence not punishahit 
 with death, and has endured the punishment to which such offender was 
 adjudged, — or if such offence is punishable with death and the sentence has 
 been commuted, then if such offender has endured the ijunishment to which 
 his sentence was commuted, the punishment so endured shall, as to tlie 
 offence whereof the offender was so convicted, have the like effect and conse- 
 
[Sees. 966-110!;^ 
 
 Sees. 969-972] 
 
 PARDON. 
 
 977 
 
 lercy to any person sentenced 
 igU such person is imprisoned 
 than the Crown, 
 end the royal mercy to any 
 tiable with death or otherwise, 
 mditional pardon, by warrant 
 me of the principal Secretaries 
 seal-at-arms of the Governor 
 of custody, in case of a free 
 I in the case of a conditional 
 1 offender, under the great seal, 
 „ granted; but no free pardoii, 
 uiy conditional pardon, nor the 
 . of the cases aforesaid, shall 
 ;he offender might otherwise he 
 , for any offence other than that 
 . 181, ss. 33 & 39. 
 
 ;tence of death passed upon any 
 somnent in the penitentiary for 
 L years, or to imprisonment in 
 ,,eriod less than two years, with 
 der the hand and seal-at-arms ut 
 station of sentence, or a letter or 
 UaryofStateorof theLnder 
 toany judge or justice having 
 
 , officer to whom such letter or 
 commutation, and to do all ^uA 
 such directions, as are requisite 
 
 \\ for his conduct to and deliverv 
 itiary. and his detention therein, 
 
 has been commuted. K. &• ^ 
 
 bucE. 
 
 Led of an offence not pmiishahle 
 
 Int to which such offender «. 
 Lh death and the sentence ha. 
 
 Lured the punishment to win 
 
 Int so endured shall, as to the 
 Id have the like effect and come- 
 
 quences as a pardon under the great seal ; but nothing herein contained, nor 
 the enduring of such punishment, shall prevent or mitigate any punishment 
 to which the offender might otherwise be lawfully sentenced, on a subsequent 
 conviction for any other offence. R. S. C. c. 181, s. 41. 
 
 See Leyman v. Latimer, 14 Cox, 51. 
 
 Undergoing Punishment a Bab to Another Prosecution. 
 
 OOO. When any person convicted of any offence has paid the sum 
 adjudged to be paid, together with costs, if any, under such conviction, or 
 has received a remission thereof from the Crown, or has suffered the imprison- 
 ment awarded for non-payment thereof, or the imprisonment awarded in the 
 first instance, or has been discharged from his conviction by the justice of the 
 peace in any case in which such justice of the peace may discharge such 
 person, he shall be released from all further or other criminal proceedings 
 for the same cause. R. S. C. c. 181, s. 42. 
 
 See 8. 866, ante, and 24 & 25 V. c. 100, ss. 44, 45 (Imp.). 
 
 This enactment applies only to summary convictions, 
 and creates a bar to ulterior criminal, not to civil proceed- 
 ings. See R. V. Miles, 17 Cox, 9, 24 Q. B. D. 423, Warb. 
 Lead. Cas. 230, and cases there cited. 
 
 Royal Pperogative. 
 
 970. Nothing in this part shall in any manner limit or affect Her 
 Majesty's royal prerogative of mercy. R. S. C. c. 181, s. 43. 
 
 Conuitional Release op First Offenders. 
 
 ©Tl. In any case in which a person is convicted before any court of 
 any offence punishable with not more than two years' imprisonment, and no 
 previous conviction is proved against him, if it appears to the court before 
 which he is so convicted, that, regard being had to the youth, character, and 
 antecedents of the offender, to the trivial nature of the offence, and to any 
 extenuating circumstances under which the offence was committed, it is 
 expedient that the offender be released on probation of good conduct, the 
 court may instead of sentencing him at once to any punishment, direct that 
 he be released on his entering into a recognizance, with or without sureties, 
 and during such period as the court directs, to appear, and receive judgment 
 when called upon, and in the meantime to keep the peace and be of good 
 behaviour. • 
 
 2. The court may, if it thinks fit, direct that t'le offender shall pay the 
 costs of the prosecution, or some portion of the same, within such period and. 
 by such instalments as the court directs. 52 V. c. 44, s. 2. 
 
 972. The court, before directing the release of an offender under tli« 
 next preceding section, shall be satisfied that the offender or his surety has a 
 fixed place of abode or regular occupation in the county or place for which 
 the court acts, or in which the offender is likely to live during the period 
 named for the observance of the conditions. 52 V. c. 44, s. 4. 
 
 . Ckim. Law— G2 
 
 in'." 
 
 
 ''■i-. m 
 
 ;. ^r' 
 
978 
 
 PROCEDURE. 
 
 [Sees. 97; 
 
 073* If a court having power to deal with 8uch offender in resjx 
 his original offence or any justice of the peace is satisfied by informatic 
 oath that the offender has failed to observe any of tiie conditions o 
 recognizance, such court or justice of the peace may issue a warrant fo 
 ajjprehension. 
 
 2. An offender, when apprehended on any such warrant, shall, il 
 "brought forthwith before the court having power to sentence him, be bro 
 before the justice i.^suing such warrant or boforo some other justice in an 
 the same territorial division, and such justice shall either remand hii 
 ■warrant imtil the time at which he was required by his recognizance to a\ 
 for judgment, or until the sitting of a court having power to deal witi 
 original offence, or admit him to bail (with a sufficient surety) conditiom 
 his appearing for judgment. 
 
 3. The offender when so remanded may be committed to a prison, e 
 for the county or place in or for which the just'-^e remanding him acts, 
 the county or jjlace where he is bound to appear for judgment ; anc: 
 warrant of remand shall order that he be brought before the court b( 
 which he was bound to appear for judgment, or to answer as to his con 
 since his release. 52 V. c. 44, s. 3. 
 
 074l> In the three next preceding secti 'ns the expression "court" m 
 and includes any superior court of criminal jurisdiction, any " judge" or c 
 within the meaning of Part LV., and any "magistrate" within the mea 
 of Part LVI. of this Act, 52 V. c. 44, s. 1. 
 
 :l I; 
 
[Sees. 973, 974 
 
 V, offender in respect ot 
 '"^ fi rbv infcrmation on 
 '^^tcttncV.tion.^ 
 lay I.-, warrant for U. 
 
 '^*«^''"rrj-S;emancUor 
 f, some other 3" ^ ^,i„^ V,y 
 
 clby^u«^^-^";neaUvitMns 
 ^^'"'^Cety) conditioned on 
 
 •.,.r\ to a prison, either 
 becommittedto I ^^^^^j^^ 
 
 ' "^K, before the W' ^f" 
 
 ■ „ "court" means 
 .i-nstbeexpreB^«^^^^^^^^„„,eo.n 
 
 ^,u-isdicuon fny ^^ the meauiuj 
 "magistrate ^\l>' 
 
 .S.cs. 975-1)80] ACTIONS AGAINST JUSTICES, ETC. 
 
 979 
 
 TITLE IX. 
 
 ACTIONS AGAINST PERSONS ADMINISTERING THE 
 CRIMINAL LAW. 
 
 {)73. Every action and prosecution against any person for anything 
 imrpdrting to be dune in i)uvsuance of nny Act of the Parliament of Canada 
 relating to criminal law, shall, unless otherwise provided, bo laid and tried in 
 tlie district, county or other judicial division, where the act was committed 
 aiul not elsewhere, and shall not be commenced exct-pt within six months next 
 after the act committed. R. S. C. c. 185, s. 1. 
 
 976. Notice m writing of such action and of the cause thereof, shall be 
 given to the defendant one month at least before the commencement of the 
 action. R. S. C. c. 185, s. 2. 
 
 !)T7. In any such action the dfifendant may plead the general issue, 
 and give the provisions of this title and the sjjecial matter in evidence at any 
 trial had thereupon. R. S. C. c. 1;<5, s. 3. 
 
 018- No plaintiff shall recover in any such action if tender of sufficient 
 amends is made before such action brought, or if a sufficient sum of money is 
 paid into court by or on behalf of the defendant after such action brought. 
 R. S. C. c. 185, s." 4. 
 
 97f). If such action is commenced after the time hereby limited for 
 bringing tlie same, or is brought or tlie venue laid in any other place than 
 as aforesaid, a verdict shall be found or judgment shall be given for the 
 defendant ; and thereupon or if the jJaintiff becomes nonsuit, or discontinues 
 any such action after issue joined, or if upon demurrer or otherwise judgment 
 is given against the plaintiff, the defendant shall, in the discretion of the 
 1 court, recover his full costs as between solicitor and client, and shall have the 
 I like remedy for the same as any defendant has by law in other cases ; and 
 [although a verdict or judgment is given for tlie plaintiff in anj' such iiction, 
 [such plaintiff shall not have costs against the defendant, unless the judge, 
 Itefore whom the trial is had, certifies his approval of the action. R. S. C. 
 |c. 185, s. 5. 
 
 9§0. Nothing herein shall prevent the effect of any Act in force in any 
 province of Canada, for the protection of justices of the peace or other officers 
 Irom vexatious actions for things purporting to be done in the performance 
 If their duty. R. S. C. c. 185, s. 6. 
 
 I^i 
 
 ft 
 
 
980 
 
 PROCEDURE. 
 
 [Sees. 081, 
 
 TITLE X. 
 
 ■■&. 
 
 , >.,f 
 
 ,.1: 
 
 REPEAL, ETC. 
 
 9Sli The several Acts set out and described in schedule two to t 
 Act shall, from and after the date appointed for the coming into force of tl 
 Act, be repealed to the extent stated in the said schedule. 
 
 2. (As amended in 1893.) The provisions of this Act which relate to p 
 cedure shall apply to all prosecutions commenced on or after the day u]} 
 which this Act comes into force, in relation to any offence, whensoever co 
 mitted. The proceedings in resi^ect of any prosecution commenced before t 
 said date otherwise than under the Summary Convictions Act, shall, up 
 the time of committal for trial, be continued as if this Act had not be 
 passed, and after committal for trial shall be subject to all the i)rovisions 
 this Act relating to procedure, so far as the same are. applicable thereto. T 
 proceedings in respect of any prosecutions commenced before the said da 
 under the Summary Convictions Act, shall be continued and carried on as 
 this Act had not been passed. 
 
 Sub-section I of this a. 981 is intended to enact thi 
 the repeal of the divers Acts, described in schedule twi 
 shall come into force on the 1st of July, 1893, the da 
 fixed by s. 2, for the coming into force of the cod 
 A simple way to do so, and the usual way in statutor 
 language, would have been to merely enact that the seven 
 Acts mentioned in the schedule are repealed. The cod 
 and the repeal clause would then have come into fore 
 together; but, as the section reads, it is open to the construe 
 tion that whilst the code comes into force on the 1st c 
 July, the repeal of the divers Acts mentioned takes effec 
 only on the 2nd of July. 
 
 Forms. 
 
 9§2. The several forms in schedule one to this Act, varied to suit th 
 case or forms to the like effect, shall be deemed good, valid and sufticieut i 
 law. R. S. C. c. 174, a. 278 ; c. 178, s. 111. 
 
 These forms are inserted under the sections to wliicl 
 they respectively apply. 
 
 See also Interpretation Act: E. S. C. c. 1, s. 7, s-s. 44, 
 as to forms generally. 
 
[Sees. 981, 982 
 
 Sec. 983] 
 
 APPLICATION OF THE ACT, ETC. 
 
 981 
 
 jribed in schedule two to this 
 or the coming into force of this 
 id schedule. 
 
 of this Act which relate to i)ro- 
 need on or after the day upun 
 ;o any offence, whensoever com- 
 •osecution commenced before the 
 y Convictions Act, shall, up to 
 3d as if this Act had not been 
 , subject to all the jirovisions of 
 urne are. applicable thereto. The 
 commenced before the said day. 
 )e continued and carried on as if 
 
 intended to enact that 
 jcribed in schedule two, 
 of July, 1893, the date 
 into force of the code. 
 usual way in statutory 
 ,ly enact that the several 
 ^re repealed. The code 
 \n have come into force 
 it is open to the construe- 
 into force on the 1st of 
 iS mentioned takes effect 
 
 to this Act, varied to suit the 
 fmed good, valid and sufhcient in 
 
 ier the sections to wliicb 
 L S. C. c. 1, s. 7, s-8. ii' 
 
 Some of these forms ..e nothing but " snares to entrap 
 persons." The form of indictment, for instance, in sched- 
 ule one, FF d. {see under s. 611, ante), for the offence 
 provided for by s. 146, s-s. 2, cannot be followed. The 
 words " penal servitude " in it are nonsensical. There is 
 no such punishment in Canada. The form in the Imperial 
 draft Code of 1879 has been slavishly copied, without pay- 
 ing attention to the differences in the punishments in 
 England and Canada. The form for the offence provided 
 for by s. 241 is also totally wrong. There is no such 
 offence as doiiig actual bodily harm to any one with intent 
 to maim. 
 
 See R. V. Johnson, 8 Q. B. 102 ; R. v. Kimber, 3 Cox, 
 223. Compare Barnes v. White, 1 C. B. 192 ; in re Alli- 
 son, 10 Ex. 561; R. v. Sansome, 1 Den. 545 ; Egginton's 
 case, 5 E. & B. 100 ; Charter v. Greame, 13 Q. B. 216 ; R. 
 v. Bain, Ramsay's App. Cas. 191 ; R. v. Davis, 18 
 U. C. Q. B. 180; R. v. Shaw, 23 U. C. Q. B. 616; Mofifatt 
 V. Barnard, 24 U. C. Q. B. 498 ; R. v. Turner, 1 Moo. 239, 
 4 B. & Aid. 510 ; R. v. Bent, 1 Den. 157 ; R. v. Cox, 1 
 Leach 71 ; R. v. Ryan, 2 Moo. 15 ; R. v. Lewis, 2 Russ. 
 1067 ; R. V. Cummings, 16 U. C. Q. B. 15 ; R. v. McLaugh- 
 lin, 3 Allen, (N. B.), 159. 
 
 Appfjcation of the Act, Etc. 
 
 983. The provisions of this Act extend to and are in force in the Xorth- 
 West Territories and tlie district of Keewacin except in so far as they are 
 inconsistent with the provisions of the Xorth-West Territories Act or The 
 Keewatia Act and the amendments tliereto. 
 
 2. Nothing in this Act shall affect any of the laws relating to the govern- 
 ment of Her Majesty's land or naval force;>. 
 
 3. Nothing herein contained shall affect the Acts and parts of Acts in the 
 appendix to this Act. And in construinpr such parts reference may be liad to 
 the i'ei)ealed portions of tlie Acts of which respectively they form parts, as 
 well as to any sections of this Act which have be f a substituted therefor, or 
 whicli deal with like matters. 
 
 This s-8. 3 and the appendix, taken together, are not 
 always in accord with s. 981 atfd sched. 2. The latter one, 
 for instance, repeals the whole of c. 157 of the Revised 
 Statutes. The former enacts that one sub-section of it is 
 
 ll'*ft«i 
 
 
 .^|l 
 
982 
 
 rUOCKDURE. 
 
 [Hcc. 
 
 in force. (This has since been remedied by the Araendme 
 Act of 1893). Two sections of c. 158, and two of e. 1G3 a 
 left unrepealed by sched. 2, but are not to be found in tl 
 appendix, though it is headed ** Acts and parts of Ac 
 which are not affected by this Act." Seven sections 
 c. 167 are left unrepealed by sched. 2, but six only cou 
 find place in the appendix. One sub-section of c. 173 is k 
 unrepealed by sched. 2, but there is no trace of it in tl 
 appendix. To compensate for it it would seem only thr 
 sections of 51 V. c. 41, are left unrepealed by sched. 2, whil 
 five sections of it are in the appendix. One section out 
 thirteen of 53 V. c. 37, left unrepealed by sched. 2 is n 
 in the appendix. It clearly was erroneously left unr 
 pealed, but this one error added to the other ones bho\ 
 with what carelessness the whole work has been done. 
 
 Then the Act respecting the postal service is j'iven i 
 c. 36 of the Revised Statutes, iustead of c. 35 ; s. 86, ai 
 others of that Act have been left unrepealed whilst otli 
 penal sections have been repealed. S. 6 of 53 V. c. 37 
 left unrepealed, though re-enacted by s. 177 of the cod 
 Ss. 5, 6, 13, 1-1, & 15 of c. 151 E. S. C. are left unrei)eal 
 though re-enacted in ss. 117 & 118. S. 101 ot c. 
 R. S. C, is also left unrepealed, though re-enacted 
 8. 116. S. 102, c. 8, R. S. C, is left unrepealed, thoiu 
 re-enacted in ss. 329 and 503. S. 1 of c. 152, R. S. C, 
 left unrepealed though re-enacted by and clashing \\l 
 s. 113. S. 3 of c. 141, R. S. C. was left as unrepealed, b 
 it had been repealed in 181)0 by 53 V. c. 37, s. 41. Tl 
 Canada Evidence Act of 1893 has since repealed the who 
 of that c. 141. 
 
SOHEDULK ONK. 
 
 983 
 
 lietl by tbe Araemlment 
 3, and two of c. 1G3 are 
 not to be found in tbe 
 .cts and parts of Acts 
 t." Seven sections of 
 1 2, but six only couUl 
 ^b-sectionofc.misleft 
 
 is no trace of it in the 
 t would seem only tbree 
 3ealedby8cbed.2.wbilst 
 Idix. One section out of 
 lealed by sched. 2 is not 
 3 erroneously left unve- 
 to tbe other ones shows 
 work has been done, 
 postal service is «iven as 
 ,tead of c. 85 ; s. 8G, and 
 unrepen.led whilst ciu'.r 
 .a. S. 6 of 53 V. c, 37 is 
 a by s. 177 of the coae. 
 S. C. are left unreneakl 
 118. S. 101 ot c. 50 
 though re-enacted w 
 „ left unrepealed, though 
 :i. 1 of c. 15-2, R. S. 0., ^ 
 ,d by and clashing with 
 ■as left as unrepealed, but 
 , 53 V. c. 37, s. 41. le 
 since repealed the whole 
 
 SCHEDCJLB ONE. 
 FORMS. 
 
 See un<ler the various sections to which the forms 
 I'CKpectively apply. 
 
 SCHEDULE TWO. 
 ACTS REPEALED. 
 
 Acts 
 
 RKl'KALF.n. 
 
 Tiri,i:. 
 
 EXTECNT OP 
 KKI'KAIi. 
 
 C. S. li. c 
 
 r. 10 
 
 An 
 
 R S. C 
 
 c. ■^■rxn 
 
 a 
 
 34 All 
 
 '' 
 
 3U 
 
 An 
 
 it 
 
 38 
 
 An 
 
 (( 
 
 41; An 
 
 (( 
 
 43 An 
 
 i( 
 
 Ii5 An 
 
 li 
 
 hi: An 
 
 a 
 
 Ul An 
 
 i( 
 
 145 An 
 
 (( 
 
 H;i An 
 
 a 
 
 147 An 
 
 (( 
 
 148 An 
 
 <i 
 
 149 An 
 
 (( 
 
 l.'iirAn 
 
 u 
 
 V>2 
 
 All 
 
 Act rosi)i>i'tinK scHlitiims anil unl.iwful Asaocia- 
 
 tions iind nntUi 
 
 Act ri'spfiiinji tlic (lustonn. 
 
 Art ri'Sii'i'tiny tli'> Inl 'nl Ucvi^nue. 
 
 Act ro8iJ'.'jtiii)i; tlii! I'liatal S-'Vvi'jo. 
 
 of 
 
 Sees 1, 2, 3 A 4. 
 
 S.'C. il3. 
 
 Si'cs. 118 .t O'l. 
 
 Si'i'S. 7i( toyi. 83, 84, 
 SS, !)0, 91, !lii, l(i3, 
 107. 110 & 111. 
 
 Sec (12. 
 
 Act resppctiny (lovcriim iit Riilivnys 
 Act I'lSiiejtiii;^ till! Jtilitia laid Defouoo 
 Canailii 
 
 Act r. spcctins Indians 
 
 Act ri si)C(.'tini{ Immiiii'ation iinil Iinniiw. ints 
 Act rispi'ctinjf Wre. ks, t'asiiiltica iinil Salvage 
 Act respecting; Kxtra-jiulicial oatlw 
 Act ri'spee.timj Ai ' ■■:ior:es. 
 Act r S'.iectinR Trc. on and other OiTenccs against The whole \ct, ex- 
 the (Queen's aatli.uily. cept sees. A 7. 
 
 Act n'spoctiiij,' Riots, unlawful assjinblies and 
 l)reac!:"s of th- peace The whole .\ct. 
 
 Act respecting the improper usj of firearms and Tic wliole Act, ex- 
 o'her weapons, ecpt see. 7. 
 
 Act respectini? tlio aeiziire of arms kept for dan- The whole \ct, ex- 
 
 Sec. 109. 
 
 S.'cs. 100 iss, 2) Alll. 
 
 Sec 37. 
 
 Sees. ;>') to 37. 
 
 S.M'S, 1 A 2. 
 
 Die wli)l(! .Vet. 
 
 Keioiis pui'pini's. 
 
 A:t respeetini^ Kxplosive Substances 
 Act reMjiectin.; the preserve.tioil of 
 Piibli-,: Jleetiiiys. 
 
 153 An Act r.'Siicctiiig frize-fighting. 
 i 
 
 154 An Act respecting Perjury. 
 
 155 An Act respectini; Escapes and Rescues, 
 150 An Act respeetini.r olfeiu-es ai^ainst Kjliiiion. 
 157 An Act re^peetin:,' o(f mio'S against I'ublic 
 
 • and i'ublic C'onveni.'uco. 
 
 158 An Act respecting Gainins,' houses. 
 
 Betting and 
 
 159' An 
 
 Act r.'specting Lotteries 
 
 1 selling, 
 lliO An Act respecting (i.iinbling in public conveyances 
 llil'An Act r. spoctinij- olll'iices relating to the Jjaw of 
 
 I Alarriawe. Tli 
 
 ce))* sei'S. 5 it 7. 
 
 The whole Act. 
 peace at Tlie whole .\ct, ex- 
 cept si'cs 1, -2 & 3. 
 
 Tim wliole .\ct ex- 
 cei)t sees 0,7 4 10. 
 
 The whole .\ct, ex- 
 ee))t sec. 4. 
 
 The whole .\ct. 
 
 The whole \ct. 
 Morals The whole .\ct, ex- 
 cept sec. 8, sub- 
 sec. 4 I as amended 
 in 18,131. 
 
 The wliol" .Vet, ex- 
 cept sees, y & 10. 
 
 Pool- 
 
 Tlie wliole .\ct. 
 The wliol" .Vet. 
 
 whole .Vet. 
 
 m 
 
 I. 
 
 'A 
 
 m 
 
984 
 
 SCHEDULE TWO. 
 ACTS REVEkLED—Omdnuid. 
 
 R. 8. C. c. 102 
 
 <' 103 
 
 164 
 105 
 167 
 
 168 
 109 
 
 171 
 
 172 
 
 60-51 
 
 31 
 
 An Act reipecting ofTencet against the Person. 
 An Act rugpoctlug Llbrl. 
 
 An Act rospecting Larceny and similar otToncos. 
 
 An \ct respecting Forgery. 
 
 An Act 'especting otTunccs relating to the Coin. 
 
 An Act respecting irallcious injuries to Propertv. 
 
 An Act respecting oir'nces relating to the Army 
 and Navy 
 
 An Act respecting the protection of Property of Sea- 
 men in the Navy. 
 
 An Act respecting Cruelty to Animals. 
 
 173|An Act respecting Threats, Intimidation and other 
 otiences. 
 
 The whole Act. 
 
 The wliolo Act, ex- 
 cept sees. 6 it 7. 
 
 Thii whole Act, 
 
 The whole Act. 
 
 The whole Act, ex- 
 cept sues. 26 A 29 
 to 34 inclusive. 
 
 The whole Act 
 
 The whole Act, ex- 
 cept SBC. 9. 
 
 The whole Act. 
 
 The whole Act, ex- 
 cept sec. 7. 
 
 The whole Act, ex- 
 cept sec. 12 (8-8, 6), 
 
 174 An 
 
 176 An 
 
 177 An 
 
 178 An 
 
 179 An 
 
 180 An 
 
 181 An 
 
 Act respecting Procedure in Criminal Cases. 'The whole Act. 
 Act resp' cting the summary administration uf 
 
 Criminal Justice, 
 
 Act respecting Juvenile Ortenders. 
 
 Act respecting summary proceedings before 
 Justices of the Peace. 
 Act respecting Recognizances, 
 Act respecting Fines and Forfeitures. 
 Act respecting Punishments, Pardons and the| 
 
 I Commutation of Sentences 
 185 An Act respecting Actions against persons admin- 
 
 jThe whole .\ct. 
 iThe whole Act. 
 
 The whole Act. 
 The whole Act. 
 The whole Act. 
 
 IThe whole Act, 
 
 v. c. 33 An 
 4S|An 
 40^ An 
 
 48 An 
 
 49 An 
 
 The whole Act. 
 
 S 'C. 11. 
 
 The whole Act. 
 
 60 
 
 c. 29 
 
 40 
 
 41 
 
 42 
 43 
 44 
 45 
 
 47 
 
 An 
 
 An 
 An 
 
 An 
 
 An 
 An 
 An 
 An 
 
 An 
 
 istering the Criminal Law 
 Act to amend the Indian Act. 
 Act respecting Public Stores. 
 Act respecting the tconveyance of liquors on 
 board Her Majesty's Ships in Canadian Waters. |The whole Act. 
 Act to amend the Act respecting offences against 
 Public Morals and Public Convenience. [The whole Act. 
 
 Act to amend the Revised Statutes, Chapter one 
 hundred and seventy-three, respecting Threats, i 
 Intimidation and other oft'ences. ,The whole Act. 
 
 Act to amend the Law respecting Procedure in 
 Criminal Cases. The whole Act. 
 
 Act respocting Railways Sec. 297. 
 
 Act respecting the advertising of Counterfeit 
 Money. Tlie whole Act. 
 
 Act to amend the law relating to Fraudulenti 
 Murks on Merchandise. The whole Act, eX' 
 
 cept sees. 15, 
 I 18, 22 & 23. 
 Act respecting gaming in Stoci^s and Merchan-' 
 
 dise 
 
 The whole Act. 
 
 52 V. c. 22 An 
 " 25 An 
 
 " 40: An 
 
 Act further to amend the Law respecting Pro- 
 cedure in Criminal Cases. The whole Act, 
 Act furtlier to amend The Criminal Proce- 
 dure Act. The whole Act. 
 Act to amend Chapter one hundred and seventy- 
 eight of the Revised Statutes of Canada: The'' 
 Summary Convictions Act IThe whole Act. 
 Act to amend the Revised Statutes of Canada,! 
 Chapter one hundred and eiglity-one, respecting! 
 Punishments, Pardons and the Commutation of; 
 Sentences jThe whole .V.t. 
 Act to amend the Revised Statutes, Chapter, 
 seventy-seven, respecting the safety of Ships |Sec. 3. 
 Act to amend the Revised Statutes respecting tliej 
 North-west Mounted Police Force. iSec. 4, 
 Act respecting Rules of Court in relation to, 
 Criminal Matters. iThe whole .\.ct. 
 
 16, 
 
). 
 
 ntiuued. 
 
 orson. 
 
 irtVncoi. 
 e Coin. 
 
 EXTKNT OF 
 BKPKAIi. 
 
 Tho wholo Act. 
 
 Tho whole Act, ex- 
 cept mic8. U it 7. 
 
 Thi' whole Act, 
 
 Tho whole Act. 
 
 The whole Act, ex- 
 cept RUC8. 26 A 29 
 to 34 incluiivc. 
 
 The whole Act 
 ) the Army Tho whole Act, ex- 
 cept sec. 9. 
 
 Property 
 ) the A: 
 
 •erty of Sea- 
 
 The whole Act. 
 The wliole Act, ex- 
 cept sec. 7. 
 tn aud other The wholo Act, ex- 
 cept sec. 12 (s-8. 5). 
 
 a Cftses. The whole Act. 
 
 nistration of ^ , . t 
 
 ,ThG whole .\ct. 
 The whole Act. 
 
 lings before' , , . . 
 
 The whole Act. 
 
 The wholo Act. 
 ,, The whole Act. 
 
 ions and the. 
 
 The whole Act. 
 
 rsons admin-. 
 
 The whole Act. 
 
 S'C. 11. 
 
 'The vhole Act. 
 
 )f liquors on 
 
 dian Waters. jTho whole Act. 
 
 [■ences against , , . „. 
 
 'nee. iThe whole Act. 
 
 ., Chapter one 
 
 ting Threats,' .... 
 
 ' The whole Act. 
 
 Procedure In .... 
 
 The wholo Act. 
 Sec. 297. 
 f Counterfeit , , , » 
 
 llie whole Act. 
 Fraudulent! . i „. 
 
 ;The whole Act, ex- 
 cept sees. 15, 1*1 
 I 18, 22 & 23. 
 
 Ind Merchan- , , , i 
 
 The whole Act. 
 
 The whole Act. 
 Tho whole Act. 
 
 The wh 5le Act. 
 
 Ispectlng Pro- 
 
 linal Proce- 
 
 and seventy- 
 anada : The 
 
 Is of Canada, 
 lie, respecting 
 hiniutatiou of, , , , 
 
 'The whole \'i. 
 
 ites, Chapter; 
 
 ■ of Ships See. 3. 
 
 •espBctius? the 
 
 |Seo. 4. 
 relation to, . , . . 
 
 iThe whole .Act. 
 
 SCIIEDULK TWO. 
 ACTS REPEALED— r ontinutJ. 
 
 985 
 
 Acts 
 
 
 KxTENT or 
 
 Bepeale 
 
 Kei'kal. 
 
 r.i> V. 
 
 c. 
 
 41 An Act for tlie prevention nud suppresitiou of Com- 
 
 
 
 
 binations formed in restraint of Trudi>. 
 
 Tlie whole Act, ex- 
 coift sees. 4 A B. 
 
 (< 
 
 
 42 An Act respecting Corrupt I'ractieei in Municipal 
 
 
 
 
 ! Attairs. 
 
 The wholo Act. 
 
 II 
 
 
 44 An Act to permit thit conditional release of first 
 
 
 
 
 1 ott'enders in certain cases. 
 
 The whole Act, 
 
 II 
 
 
 45 An Act to amend The Summnrji Convlctionii 
 Act, Chapter one hundred and aeventy-eiglit of 
 the Itevised Statutes, and tlie Act amending tho 
 
 
 
 
 same. 
 
 The whole .\ct. 
 
 II 
 
 
 4G .An Act to amend The Suuimnrff Trials Act. 
 
 The whole Act. 
 
 II 
 
 
 47 An Act to make further ))roviBion respecting the 
 
 
 
 
 Speedy Trial of certain Indictable tJHences. 
 
 The wholo .\ct. 
 
 53 V. 
 
 e. 
 
 10 Au Act to prevent the disilosure of oHlcial docu- 
 
 
 
 
 ments and iniormation. 
 
 The whole Act. 
 
 II 
 
 
 31 An Act respecting Uanl(s and Hanking. 
 
 Sec. 03. 
 
 II 
 
 
 37. An Act further to amend tho Criminal Law. 
 
 1 
 
 Tho wholo Act, ex- 
 cept sees. 1, 2, 0, 
 32, to end 
 
 II 
 
 
 38 An Act to amend the Public Stores Act. 
 
 The whole Act. 
 
 54-55 V. 
 
 c. 
 
 23 An Act respecting Frauds upon tlie lioveniment. 
 
 t 
 
 Tho whole .Vet. 
 
 .f"^' 
 
 \M k.' 
 
986 
 
 APPENDIX. 
 
 
 :i K 
 
 '■■ ' i; ■ 
 
 ! r 
 
 j \ 
 
 I i 
 
 APPENDIX. 
 
 ACTS AND PARTS OF ACTS WHICH ARE NC 
 AFFECTED BY THIS ACT. 
 
 R. S. C. CHAPTER 50. 
 
 An Act respecting tlie North-west Territories. 
 
 101> In this section — 
 
 (a) The expression "improved arn." means and includes ; 
 arms except smooth bore shot guns ; 
 
 (<J) The expression "ammunition'' means fixed ammunition 
 ball cartridge. 
 
 2. Every person who, in the territories, — 
 
 (a) Witliout the pern\is:sion in wriiing (the proof of which sh; 
 be on him) of the Lieutenant-Governor, or of a commission 
 appointed by him to give sucli permission, has in his possession 
 sells, exchanges, trades, barters or gives to, or with any person, a 
 improved arm or ammuniiion, or — 
 
 (d) Having such permission, sells, exchanges, trades, barters 
 qives any such arm or ammunition to any person not lawfully auth( 
 ized to possess the same, — 
 
 Shall, on summary conviction before a judge of the Suprei 
 Court or two justices of the peace, be liable to a penalty not cxcef 
 ing two hundred dollars, or to imprisonment for any term not cxcce 
 ing six months, or to both. 
 
 3. All arms and ammunition which are in the possession of a 
 person, or whicli are sold, exchanged, traded, liartered or given to 
 with any person in violition of this section, shall be forfeited tot 
 Crciwn, and may be seized by any constable or otiier peace office 
 and any judge of the Supreme Court or justice of the peace may is; 
 a search warrant to search for and seize the same, as in the case 
 stolen goods. 
 
 4. The Governor in Council may, from time to time, make regu 
 tions respecting : — 
 
 {(i) The granting of perm:s.-.ion to sell, exchange, trade, hart 
 give or possess arms or ammunition ; 
 
 {^) The fees to be taken in respect thereof ; 
 
APPENDIX. 
 
 987 
 
 [X. 
 
 WHICH ARE NOT 
 IIS ACT. 
 
 :r 50- 
 
 h-west Territories. 
 
 n." means and includes all 
 means fixed ammunition or 
 
 ■les, — 
 
 ling (the proof of which shall 
 mov, or of a commissioner 
 ;ion, has in his possession or 
 s to, or with any person, any 
 
 exchanges, trades, barters or 
 ^ly person not lawfully author- 
 lore a judge of the Supreme 
 
 iable to a penalty not excee<r 
 Iment for any term not exceed- 
 
 li are in the possession of any 
 Iraded, bartered or given to or 
 ction, shall be forfeited to the 
 Ltable or other peace officer; 
 I- justice of the peace may issue 
 V^e the same, as in the case ot 
 
 lorn 
 
 time to time, make regula- 
 
 sell, exchange, trade, barter, 
 
 thereof ; 
 
 (c) The returns to be made respecting permissions granted j 
 and — 
 
 {(f) The disposition to be made of forfeited arms and ammuni- 
 tion. 
 
 5. The provisions of this section respecting the possession of 
 arms and ammunition shall not apply to any officer or man of Her 
 Majesty's forces, of the Militia force, or of the North-west Mounted 
 Police force. 
 
 6. The Governor in Council may, from time to time, declare 
 by proclamation tiiat upon and after a day therein named this section 
 shall be in force in the territories, or in any place or places therein in 
 such proclamation designated ; and upon and after such day but not 
 before the provisions of this section shall take effect and be in force 
 accordingly. 
 
 7. The Governor in Council may, in like manner, from time to 
 time, declare this section to be no longer in force in any such place or 
 places, and may again, from time to time, declare it to be in force 
 therein. 
 
 S. .\!! c Mirts, judges and justices of the peace shall take judicial 
 notice of any sir:h proclamation. 
 
 R. S. C. CH.'VPTER 146. 
 
 An Act respeetino- Treas(jn and other Offences against 
 the Queen's Authorit}'. 
 
 0- If any person, Jjeing a citizen or suliject of any foreign state 
 or country at peace with Her Majesty, is or continues in arms against 
 Her Majesty, within Canada, or commits any act of hostility therein, 
 or enters Canada with design or intent to levy war against Her 
 Majesty, or to commit any felony therein, for which any person 
 would, in Canada, be liable to suffer death, the Governor General may 
 order the assembling of a militia general court-martial for the trial of 
 such person, under T/ie Militia Act ; and upon being found guilty by 
 such court-martial of offending' against the provisions of this section, 
 such person shall l)c sentenced by such court-martial to suffer death, 
 or such other [)unishnient as the court awards. 
 
 7. Every subject of Her Majesty, within Canada, who levies war 
 against Her Majesty, in company with any of the subjects or citizens 
 of any foreign state or country then at peace with Her Majesty, or 
 enters Canada in company with any such subjects or citizens with 
 
988 
 
 APPENDIX. 
 
 intent to levy war on Her Majesty, or to commit any such act o 
 felony as aforesaid, or who, with the design or intent to aid and assist 
 joins himself to any person or persons whomsoever, whether subject: 
 or aliens, who have entered Canada with design or intent to levy wa 
 on Her Majesty, or to commit any such felony within the same, ma; 
 be tried and punished by a militia court-martial, in the same manne 
 as any citizen or subject of a foreign state or country at peace will 
 Her Majesty may be tried and punished under the next preceding 
 section. 
 
 R. S. C. CHAPTER 148. 
 
 An Act respecting the improper use of Firearms anc 
 
 other Weapons. 
 
 T. The court or justice before whom any person is convicted 
 any offence against the provisions of the preceding sections, shal 
 impound the weapon for carrying which such person is convicted, an( 
 if the weapon is not a pistol, shall cause it to be destroyed; and if th( 
 weapon is a pistol, the court or justice shall cause it to be handed ovei 
 to the corporation of the municipality in which the conviction takei 
 place, for the public uses of such corporation. 
 
 2. If the conviction takes place where there is no municipality, 
 the pistol shall be handed over to the Lieutenant-Governor of th( 
 province in which the conviction takes place, for the public uses thereol 
 in connection with the administration of justice therein. 
 
 R.S. C. CHAPTER 149. 
 
 An Act respecting the Seizure of Arms kept for danger- 
 ous purposes. 
 
 5. All justices of the peace in and for any district county, city, 
 town or place, in Canada, shall have concurrent jurisdiction as justices 
 of the peace, with the justices of any other district, county, city, lown 
 or place, in all cases with respect to the carrying into execution the 
 provisions of this Act, and with respect to all matters and tilings 
 relating to the preservation of the public peace under this Act, as 
 fully and effectually as if each of such justices was in the commission 
 of the peace, or was ex officio a justice of the peace for each of such 
 districts, counties, cities, towns or places. 
 
APPENDIX. 
 
 989 
 
 commit any such act of 
 or intent to aid and assist, 
 tnsoever, whether subjects 
 esign or intent to levy war 
 lony within the same, may 
 artial, in the same manner 
 
 or country at peace with 
 under the next preceding 
 
 7. The Governor in Council may, from time to time, by procla- 
 mation, suspend the operation of this Act in any province of Canada 
 or in any particular district, county or locality specified in the procla- 
 mation ; and from and after the period specified in any such procla- 
 mation, the powers given by this Act shall be suspended in, such 
 province, district, county or locality ; but nothing herein contained 
 shall prevent the Governor in Council from again declaring, by 
 proclamation, that any such province, district, county or locality shall 
 be again subject to this Act and the powers hereby given, and upon 
 such proclamation this Act shall be revived and in force accordingly. 
 
 ^I'b 
 
 I 148. 
 use of Firearms and 
 
 [18. 
 
 1 any person is convicted of 
 ,ie preceding sections, shall 
 iuch person is convicted, and 
 t to be destroyed ; and if tlie 
 all cause it to be handed over 
 which the conviction takes 
 tion. 
 
 :re there is no municipality, 
 Lieutenant-Governor of the 
 ce, for the public uses thereof 
 justice therein. 
 
 R 149- 
 Arms kept for danger- 
 
 for any district county, city, 
 
 urrent jurisdiction as justices 
 
 er district, county, city, lown 
 
 carrying into execution the 
 
 ;t to all matters and thingi 
 
 Ir.c peace under this Act, as 
 
 Istices was in the commission 
 
 If the peace for each of such 
 
 R. S. C. CHAPTER 151. 
 
 , ■ Act respecting the Preservation of Peace in the 
 vicinity of Public Works. 
 
 INTERPRETATION. 
 
 I. In this Act, unless the context otherwise requires, — 
 
 (a) The expression " this Act" means such section or sections 
 thereof, as are in force, by virtue of anv proclamation, in the place or 
 places with reference to which the Act is to be construed and 
 applied ; 
 
 (<^) The expression " commissioner" means a commissioner 
 under this Act ; 
 
 {c) The expression " weapon" includes any gun or other firearm, 
 or air-gun or any part thereof, or any sword, sword-blade, bayonet, 
 pike, pike-head, spear, spear-head, dirk, dagger, or other instrument 
 intended for cutting or stabbing, or any steel or metal knuckles or 
 other deadly or dangerous weapon, and any instrument or thing 
 intended to be used as a weapon, and all ammunition which may be 
 used with or for any weapon ; 
 
 {if) The expression "intoxicating liquor" means and includes 
 any alcoholic, spirituous, vinous, fermented or other intoxicating 
 liquor, or any mixed liquor, a part of which is spirituous or vinous, 
 fermented or otherwise intoxicating ; 
 
 {c) The expression "district county or place," includes any 
 division of any province for the purposes of the administration of 
 justice in the matter to which the context relates ; 
 
 (/) The expression " public work" means and includes any rail- 
 way, canal, road, bridge or other work of any kind, and any mining 
 
 ■4 
 
 ii 
 
 
990 
 
 APPENDIX. 
 
 hi' 
 
 operation constructed or carried on by the Government of Canada, or 
 • of any province of Canada, or by any municipal corporation, or by 
 any incorporated company, or by private enterprise. 
 
 PROCLAMATION. 
 
 t 
 
 8. The Governor in Council may, as often as occasion requires, 
 declare, by proclamation, that upon and after a day therein named, 
 this Act, or any section or sections thereof, shall be in force in any 
 place or places in Canada in such proclamation designated, within the 
 limits or in the vicinity whereof any public work is in course of con- 
 struction, or in such places as are in the vicinity of any public work, 
 within which he deems it necessary that this Act, or any section or 
 sections thereof, should be in force, and this Act, or any such section 
 or sections thereof, shall, upon and after the day named in such 
 proclamation, take effect within the places designated therein. 
 
 2. The Governor in Council may, in like manner, from time to 
 time, declare this Act, or any section or sections thereof, to be no 
 longer in force in any such place or places,— and may again, from 
 time to time, declare this Act, or any section or sections thereof, to be 
 in force therein. 
 
 3. No such proclamation shall have effect within the limits of 
 any city. 
 
 4. All courts, magistrates and justices of the peace shall take 
 judicial notice of every such proclamation. 
 
 WEAPONS. 
 
 3. On or before the day named in such proclamation, every 
 person employed on or about any public work, to which the same 
 relates, shall bring and deliver up, to some commissioner or officer 
 appointed for the purposes of this Act, every weapon in his possession^ 
 and shall obtain from such commissioner or officer a receipt for the 
 sime. 
 
 4. Every weapon found in the possession of any person employed, 
 as .aforesaid, after th: day named in any proclamation and within the 
 limits designated in such proclamation, may be seized by any justice 
 of the peace, commissioner, constable or other peace ofificer, — and 
 shall be forfeited to the use of her Majesty. 
 
 5. Every one employed upon or about any public work, within 
 the place or places in which this Act is then m force, who, upon or 
 after the day named in such proclamation, keeps or has in his 
 possession or under his care or control, within any such place, any 
 
APPENDIX. 
 
 991 
 
 ;ffect within the limits of 
 of the peace shall take 
 
 such proclamation, every 
 
 fvork, to which the same 
 
 commissioner or officer 
 
 weapon in his possession, 
 
 Ir officer a receipt for the 
 
 In of any person employed, 
 Vlamation and within the 
 be seized by any justice 
 ■other peace officer,— and 
 
 any public work, within 
 
 en m force, who, upon or 
 
 j)n, keeps or has in his 
 
 Ithin any such place, any 
 
 weapon, shall incur a penalty not exceeding four dollars and not less 
 than two dollars for every such weapon found in his possession. 
 
 Section 117 of the code. 
 
 6. Every one who, for the purpose of defeating this Act, receives 
 or conceals, or aids in receiving or concealing, or procures to be 
 received or concealed, within any place in which this Act is at the 
 liiue in force, any weapon belonging to or in the custody of any person 
 employed on or about any public work, shall incur a penalty not 
 exceeding one hundred dollars and not less than forty dollars, and a 
 moiety of such penalty shall belong to the informer and the other 
 moiety to Her Majesty, for the public uses of Canada. 
 
 Section 117 of the code. 
 
 7. Any commissioner or justice of the peace, constable or peace 
 officer, or any person acting under a warrant, in aid of any constable 
 or peace officer, may arrest and detain any person employed on any 
 public work, found carrying any weapon, within any place in which 
 this Act is, at the time, in force, at such time and in such manner as, 
 in the judgment of such commissioner, justice of the peace, constable 
 or peace officer, or person acting under a warrant, affords just cause 
 of suspicion that it is carried for purposes dangerous to the public 
 peace ; and every one so employed, who so carries any such weapon, 
 is guilty of a misdemeanour,— and the justice of the peace or com- 
 missioner arresting such person, or before whom he is brought under 
 such a warrant, may commit him for trial for a misdemeanour, unless 
 he gives sufficient bail for his appearance at the next term or sitting 
 of the court before which the ofifence can be tried, to answer to any 
 indictment to be then preferred against him. 
 
 8. Any commissioner appointed under this Act, or any justice of 
 the peace having authority within the place in which this Act is at the 
 time in force, upon the oath of a credible witness that he believes that 
 any weapon is in the possession of any person or in any house or 
 place contrary to the provisions of this Act, may issue his warrant to 
 any constable or peace officer to search for and seize the same, — and 
 he, or any person in his aid, may search for and seize the same in the 
 possession of any person, or in any such house or place, 
 
 9. If admission to any such house or place is refused after demand 
 such constable or peace officer, and any person in his aid, may enter 
 the same by force, by day or by night, and seize any such weapon 
 and deliver it to such commissioner ; and unless the person in whose 
 possession or in whose house or premises the same is found, within 
 four days next after the seizure, proves to the satisfaction of such com- 
 
 r."i': 
 
k 
 i 
 
 992 
 
 APPENDIX. 
 
 ^^■i 
 
 missioner or justice of the peace that the weapon so seized was not ir 
 his possession nor in his house nor place contrary to the meaning ol 
 this Act, such weapon shall be forfeited to the use of Her Majesty. 
 
 10. All weapons declared forfeited under this Act shall be sold 
 or destroyed under the direction of the commissioner by whom or by 
 whose authority the same are seized, and the proceeds of such sale, 
 after deducting necessary expenses, shall be received by such com. 
 missioner and paid over by him to the Minister of Finance and 
 Receiver-General, for the public uses of Canada. 
 
 11. Whenever this Act ceases to be in force within the place 
 where any weapon has been delivered and detained in pursuance 
 thereof, or whenever the owner or person lawfully entitled to any such 
 weapon satisfies the commissioner that he is about to remove imme- 
 diately from the limits within which this Act is at the time in force 
 the commissioner may deliver up to the owner or person authorized 
 to receive the same, any such weapon, on production of the receipt 
 given for it. 
 
 18. Every commissioner under this Act shall make a monthly 
 return to the Secretary of State of all weapons delivered to him, and 
 by him detained under this Act. 
 
 INTOXICATING LIQUOR. 
 
 13. Upon and after the day named in such proclamation and 
 during such period as such proclamation remains in force, no person 
 shall, at any place within the limits specified in such proclamation, 
 sell, barter or, directly or indirectly, for any matter, thing, profit or 
 reward, exchange, supply or dispose of, any intoxicating liquor ; nor 
 expose, keep or have in possession any intoxicating liquor intended to 
 be dealt with in any such way. 
 
 2. The provisions of this section shall not extend to any person 
 selling intoxicating liquor by wholesale, and not retailing the same, if 
 such person is a licensed distiller or brewer. 
 
 14. Every one who, by himself, his clerk, servant, agent or other 
 person, violates any of the provisions of the next preceding section, is 
 guilty of an offence against this Act, and, on a first conviction, shallbe 
 liable to a penalty of forty dollars and costs, and, in default of pay- 
 ment, to imprisonment for a term not exceeding three months,— and 
 on every subsequent conviction, to the said penalty and the said 
 imprisonment in default of payment, and also to further imprisonment 
 for a term not exceeding six months. 
 
 Section 118 of the code adds, with or without hard 
 labour. 
 
APPENDIX. 
 
 993 
 
 apon so seized was not in 
 intrary to the meaning of 
 le use of Her Majesty. 
 
 der this Act shall be sold 
 jmissioner by whom or by 
 he proceeds of such sale, 
 je received by such com. 
 
 Minister of Finance and 
 nada. 
 
 in force within the place 
 ,nd detained in pursuance 
 iwfuUyentitledtoanysuch 
 
 is about to remove imme- 
 A.ct is at the time in force, 
 wner or person authorized 
 ^ production of the receipt 
 
 Act shall make a monthlv 
 ipons delivered to him, and 
 
 }UOR. 
 
 m such proclamation and 
 •emains in force, no person 
 ified in such proclamation, 
 nny matter, thing, profit or 
 
 my intoxicating liquor ; nor 
 loxicating liquor intended to 
 
 I not extend to any person 
 nd not retailing the same, if 
 
 lerk, servant, agent o. other 
 e next preceding section, b 
 on a first conviction, shallbe 
 
 losts, and, in default of pay- 
 leeding three months,-ana 
 [said penalty and the said 
 llso to further imprisonment 
 
 with or without hard 
 
 15' Every clerk, servant, agent or other person who, being in 
 the employment of, or on the premises of another person, violates or 
 assists in violating any of the provisions of the thirteenth section of 
 this Act, for the person in whose employment or on whose premises he 
 is, shall be equally guilty with the principal offender, and shall be 
 liable to the penalties mentioned in the next precedmg section. 
 
 16. If any p"- or es oath or affirmation •■■<■■ j any commis- 
 
 sioner or justice o. .he p^ , that he has reason to believe, and does 
 believe that any intoxicating liquor with respect to which a violation 
 of the provisions of the thirteenth section of this Act has been com- 
 mitted or is intended to be committed is, within the limits specified ia 
 any proclamation by which this Act has been proclaimed to be in 
 force, on board of any steamboat, vessel, boat, canoe, raft or other 
 craft, or in or about any building or premises, or in any carriage* 
 vehicle or other conveyance, or at any place, the commissioner or jus- 
 tice of the peace shall issue a search warrant to any sheriff, police 
 officer, constable or bailiff who shall forthwith proceed to search the 
 steamboat, vessel, boat, canoe, raft, other craft, building, premises, 
 carriage, vehicle, conveyance or place described in such search war- 
 rant ; and if any intoxicating liquor is found therein or thereon the 
 person executing such search warrant shall seize the intoxicating 
 liquor and the barrels, casks, jars, bottles or other packages in which 
 it is contained and shall keep it and them secure until final action is 
 had thereon. 
 
 2. No dwelling-house in which, or in part of which or on the 
 premises whereof, a shop or a bar is not kept, shall be searched, 
 unless the said informant also makes oath or affirmation that some 
 offence in violation of the provisions of the thirteenth section of this 
 Act has been committed therein or therefrom within one month next 
 preceding the time of making his said information for a search war- 
 rant. 
 
 3. The owner, keeper or person in possession of the intoxicating" 
 liquor so seized, if he is known to the officer seizing the same, shall be- 
 summoned forthwith by the commissioner or justice of the peace who 
 issued the search warrant to appear before such commissioner or jus- 
 tice of the peace ; and if he fails so to appear, or if it appears to the 
 satisfaction of such commissioner or justice of the peace that a vio- 
 lation of the provisions of the thirteenth section of this Act has 
 been committed or is intended to be committed, with respect to such 
 intoxicating liquor, it shall be declared forfeited, with any package in 
 which it is contained, and shall be destroyed by authority of the writ- 
 ten order to that effect of such commissioner or justice, and in his pre- 
 sence or in the presence of some person appointed by him to witness 
 
 Crim. Law— 63 
 
 if''!. 
 
 
994 
 
 APPENDIX. 
 
 : 5 * 
 
 the destruction thereof ; and the commissioner or justice or the pers 
 so appointed by him, and the officer by whom the said intoxicati 
 liquor has been destroyed, shall jointly attest, in writing upon theba 
 of the said order, the fact thac it has been destroyed, 
 
 4. The owner, keeper or person in possession of any intoxicati 
 liquor seized and forfeited under the provisions of this section may 
 convicted of an offence against the thirteenth section of this Act wi: 
 out any further information laid or trial had, and shall be liable to t 
 penalties mentioned In the fourteenth section of this Act. 
 
 17. If the owner, keeper or possessor of intoxicating liqu 
 seized under the next preceding section is unknown to the ofific 
 seizing the same, it shall not be condemned and destroyed until t 
 fact of such seizure, with the number and description of the packaj;( 
 as near as may be, has been advertised for two weeks, by posting 1 
 a written or a printed notice and description thereof, in at least thr 
 public places of the place where it was seized. 
 
 2. If it is proved within such two weeks, to the satisfaction of tl 
 commissioner or justice by whose authority such intoxicating liqui 
 was seized, that with respect to such intoxicating liquor no violatit 
 of the provisions of the thirteenth section of this Act has been cor 
 mitted or is intended to be committed, it shall not be destroyed, b 
 shall be delivered to the owner, who shall give his receipt therefor 
 writing upon the back of the search warrant, which shall be returni 
 to the commissioner or justice who issued the same ; but if, after su( 
 advertisement as aforesaid, it appears to such commissioner or justii 
 that a violation of the provisions of the thirteenth section of this 
 has been committed or is intended to be committed, then such into 
 icating liquor, with any package in which it is contained, shall be 
 feited and destroyed, according to the provisions of the next prece 
 ing section. 
 
 18. Any payment or compensation, whether in money or secui 
 ties for money, labour or property of any kind, for intoxi eating liqu 
 sold, bartared, exchanged, supplied or disposed of, contrary to 
 provisions of the thirteenth section of this Act, shall be held to ha 
 been criminally received without consideration, and against la 
 equity and good conscience, and the amount or value thereof may 
 recovered from the receiver by the person making, paying or furnis 
 ing such payment or compensation ; and all sales, transfers, conve 
 ances, liens and securities of every kind, which either in whole 1 
 in part have been made or given for or on account of intoxicatir 
 liquor sold, bartered, exchanged, supplied, or disposed of contrary: 
 the provisions of the thirteenth section of this Act, shall be voi 
 
 
APPENDIX. 
 
 995 
 
 ,ner or justice or the person 
 
 ^hom the said intoxicating 
 St, in writing upon the back 
 
 Jestroyed. 
 
 ssession of any intoxicating 
 
 Bions of this section may be 
 ,th section of this Act wilh- 
 ,d, and shall be liable to the 
 ion of this Act. 
 ssor of intoxicating liquor 
 , is unknown to the officer 
 .ned and destroyed until the 
 description of the packages, 
 for two weeks, by posting up 
 Ition thereof, in at least three 
 
 sized. 
 
 eeks, to the satisfaction of the 
 
 rity such intoxicating liquor 
 
 oxicating liquor no violation 
 Jon of this Act has been com 
 it shall not be destroyed 
 
 ai give his receipt therefor . 
 ant, which shall be veturne 
 d the same; but if, after sud 
 
 such commissioner or just^ 
 ■^thirteenth section of this A 
 
 ,e committed, then such inm 
 chit is contained, shall be i^^ 
 provisions of the next preced. 
 
 n, whether in money or secur.- 
 .; kind, for intoxicating IKI 
 
 ^disposed of, contrary to * 
 I this Act, shall be held to h. 
 
 Isideration, and again^ a. 
 Lount or value thereo-^^ 
 
 je 
 
 against all persons, and no right shall be acquired thereby ; and no 
 action of any kind shall be maintained, either in whole or in part, for 
 or on account of intoxicating liquor sold, bartered, exchanged, sup- 
 plied or disposed of. contrary to the provisions of the said section. 
 
 19. In any prosecution under this Act for any offence with 
 respect to intoxicating liquor, it shall not be necessary that any wit- 
 ness should depose directly to the precise description of the liquor 
 with respect to which the offence has been committed, or to the precise 
 consideration therefor, or to the fact of the offence having been com- 
 mitted with his participation or to his own personal and certain know- 
 ledge ; but the commissioner or justice of the peace trying the case, 
 so soon as it appears to him that the circumstances in evidence 
 softiciently establish the offence complained of, shall put the defend- 
 ant on his defence, and in default of such evidence being rebutted, 
 shall convict the defendant accordingly. 
 
 GENERAL PROVISIONS. 
 
 30. Any commissioner or justice of the peace may hear and 
 determine, in a summary manner, any case arising within his juris- 
 diction under this Act ; and every person making complaint against 
 any other person for violating this Act, or any provision thereof, 
 before such commissioner or justice, may be admitted as a witness ; 
 and the commissioner or justice of the peace before whom the exam- 
 ination or trial is had, may, if he thinks there was probable cause for 
 the prosecution, order that the defendant shall not recover costs, 
 although the prosecution fails. 
 
 21. All the provisions of every law respecting the duties of 
 justices of the peace in relation to summary convictions and orders, 
 and to appeals from such convictions, and for the protection of justices 
 of the peace when acting as such, or to facilitate proceedings by or 
 before them in matters relating to summary convictions and orders, 
 shall, in so far as they are not inconsistent with this Act, apply to 
 every commissioner or justice of the peace mentioned in this Act or 
 empowered to try offenders against this Act ; and every such com- 
 missioner shall be deemed a justice of the peace within the meaning 
 of any such law, whether he is or is not a justice of the peace for 
 other purposes. 
 
 S3. On the trial of any proceeding, matter or question under 
 this Act, the person opposing or defending, and the wife or husband 
 of such person, shall be competent to give evidence. 
 
 28. No action or other proceeding, warrant judgment, order or 
 other instrument or writing, authorized by this Act or necessary to 
 
 I?'" 
 
 ■'>: siri i;f" I 
 
996 
 
 APPENDIX. 
 
 carry out its provisions, shall be held void or be allowed to fail for 
 defect of form. 
 
 /SI. Every action brought against any commissioner or justice of 
 the peace, constable, peace officer or other person, for anything done 
 in pursuance of this Acl, bhall be commenced within six months next 
 after the alleged cause of action arises ; and the venue shall be laid or 
 the action instituted in the district or county or place where the cause 
 of action arose ; and the defendant may plead the general issue and 
 give this Act and the special matter in evidence ; and if such action 
 is brought after the time limited, or the venue is laid or the action 
 brought in any other district, county or place than as above prescribed, 
 the judgment or verdict shall be given for the defendant ; and in such 
 case, or if the judgment or verdict is given for ihe defendant on the 
 merits, or if the plaintiff becomes nonsuited or discontinues after 
 appearance is entered, or has judgment rendered against him on de- 
 murrer, the defendant shall be entitled to recover double costs. 
 
 R.S.C. CHAPTER 152. 
 
 An Act respecting the Preservation of Peace at Public 
 
 Meetings. 
 
 1. Any justice of the peace within whose jurisdiction any public 
 meetmg is appointed to be held, may demand, have and take of 
 and from any person attending such meeting, or on his way to 
 attend the same, any offensive weapon, such as firearms, swords, 
 staves, bludgeons, or the like, with which any such person is so armed, 
 or which any such person has in his possession ; and every such person 
 who, upon such demand, declines or refuses to deliver up, peaceably 
 and quietly, to such justice of the peace, any such ofTensive weapon 
 as aforesaid, is guilty of a misdemeanour, and such justice may there- 
 upon record the refus,il of such person to deliver 'jn such weapon, and 
 adjudge him to pay a penalty not exceeding eight dollars, — which 
 penalty shall be levied in like manner as penalties are levied under 
 the Act respecting summary proceedings before Justices of the Peace^w 
 such person may be proceeded against by indictment or information, 
 as in other cases of misdemeanour ; but such conviction shall not 
 interfere with the power of such justice, or any other justice of the 
 peace, to take such weapon, or cause the same to be taken from suet 
 person, without his consent and against his will, by such force as iS 
 necessary for that purpose. 
 
APPENDIX. 
 
 997 
 
 ,r be allowed to fail for 
 
 ommissioner or justice of 
 ,erson, for anything done 
 ■d within six months next 
 the venue shall be laid or 
 
 , or place where the cause 
 ead the general issue and 
 dence; and if such action 
 
 .nue is laid or the action 
 .than as above prescribed, 
 
 he defendant ; and in such 
 1 for the defendant on the 
 lited or discontinues after 
 endered against him on de- 
 ecover double costs. 
 
 152. 
 
 on 
 
 of Peace at Public 
 
 .hose jurisdiction any public 
 demand, have and take of 
 
 Meeting, or on his way to 
 , such as firearms, swords, 
 any such person is so armed, 
 
 Uon; and every such person 
 
 ases to deliver up, peaceably 
 E any such offensive weapon 
 [,' and such justice may there- 
 I deliver un such weapon, an 
 [ceding eight dollars,--wh.h 
 
 L penalties are levied under 
 \before Justices of the PemM 
 L indictment or information, 
 Lt such conviction Shan no 
 I or any other justice oft 
 t same to be taken from sue 
 ft his will, by such force as IS 
 
 ? Upon reasonable request to any justice of the peace, to whom 
 any such weapon has been peaceably and quietly delivered as afore- 
 said, made on the day next after the meeting has finally dispersed, 
 and not before, such weapon shall, if of the value of one dollar or 
 upwards be returned by such justice of the peace to the person from 
 whom the same was received. 
 
 3. No such justice of the peace shall be held liable to return 
 any such weapon, or make good the value thereof, if the same, by 
 unavoidable accident, has been actually destroyed or lost out of the 
 possession of such justice without his wilful default. 
 
 ':t*i 
 
 L 1 
 
 R. S.C. CH.\PTER 153. 
 
 An Act respecting Prize-fiohtir^i'. 
 
 6t If, at any time the sheriff of any county, place or district in 
 Canada, any chief of police, any police officer, or any constable, or 
 other peace officer, has reason to believe that any person within his 
 bailiwick or jurisdiction is about to engage as principal in any prize- 
 fight within Canada, he shall forthwith arrest such person and take 
 him before some person having authority to try offences against this 
 Act, r.nd shall forthwith make complaint in that behalf, upon oath, 
 before such person ; and thereupon such pe'son shall inquire into the 
 charge, and if he ij satisfied that the person so brought before him 
 was, at the time of his arrest, about to engage as a principal in a prize- 
 fight, he shall require the accused to enter into a recognizance, with 
 sufficient sureties, in a sum not exceeding five thousand dollars and 
 not less than one thousand dollars, conditioned that the accused will 
 not engage in any such fight within one year from and after the date 
 of such arrest ; and in default of such recognizance, the person before 
 whom the accused has been brought shall commit the accused to the 
 gaol of the county, district or city within which such inquiry takes 
 place, or if there is no common gaol there, then to the common gaol 
 which is nearest to the place where such inquiry is had, there to 
 ren^iin until he gives such recognizance with such sureties. 
 
 ?■. If any sheriff has reason to believe that a prize-fight is taking 
 place or is about to take place within his jurisdiction as such sheriff, 
 or that any persons are about to come into Canada at a point within 
 his jurisdiction, from any place outside of Canada, with intent to 
 engage in, or to be concerned in, or to attend any prize-fight within 
 Canada, he shall forthwith summon a force of the inhabitants of his 
 district or county sufiRcient for the purpose of suppressing and pre- 
 

 998 
 
 APPENDIX. 
 
 venting such fight, — and he shall, with their aid, suppress and. prevent 
 the same, and arrest all persons present thereat, or who come into 
 Canada as aforesaid, and shall take them before some person having 
 authority to try offences against this Act, to be dealt with according to 
 law, and fined or imprisoned, or both, or compelled to enter into 
 recognizances with sureties, as hereinbefore provided, according to 
 the nature of the case. 
 
 10. Every judge of a superior court or of a county court, judge 
 of the sessions of the peace, stipendiary magistrate, police magistrate, 
 and commissioner of police of Canada, shall, within the limits of his 
 jurisdiction as such judge, magistrate or commissioner, have all the 
 powers of a justice of the peace with respect to offences against this 
 Act. 
 
 R. S. C. CHAPTER 154. 
 
 A.r Act respecting Perjury. 
 
 See p. gS ante. 
 
 R. S. C. CHAPTER 157. 
 
 An Act respecting Offences against Public Morals anJ 
 
 Public Convenience. 
 
 C4) If provision is made therefor by the laws of the province in 
 which the conviction takes place, any such loose, idle or disorderly 
 person may, instead of being committed to the common gaol or other 
 public prison, be committed to any house of industry or correction, 
 alms house, work house or reformatory prison. 
 
 R.S. C. CHAPTER 167. 
 
 An Act respecting Offences relating to the Coin. 
 
 30> Any two or more justices of the peace, on the oath of a 
 credible person, that any copper or brass coin has been unlawfully 
 manufactured or imported, shall cause the same to be seized and 
 detained, and shall summon the person in whose possession the same 
 is found, to appear before them ; and if it appears to their satisfaction, 
 
APPENDIX. 
 
 999 
 
 d, suppress and, prevent 
 real, or who come into 
 ore some person having 
 ; dealt with according to 
 rompelled to enter into 
 provided, according to 
 
 of a county court, judge 
 istrate, police magistrate. 
 1, within the limits of his 
 immissioner, have all the 
 :t to offences against this 
 
 154. 
 'erjury. 
 
 157- 
 
 }t Public Morals aivl 
 
 ice. 
 
 |he laws of the province m 
 
 :h loose, idle or disorderly 
 
 the common gaol or other 
 
 of industry or correction, 
 
 Ison. 
 
 167. 
 
 lating to the Coin. 
 
 ke peace, on the oath of a 
 f coin has been unlawfully 
 [he same to be seized and 
 1 whose possession the sa-ne 
 
 Lpears to their satisfaction, 
 
 on the oath of a credible witness, other than the informer, th.at such 
 copper or brass coin has been manufactured or imported in violation 
 of this Act, such justice shall declare the same forfeited, and shall 
 place the same in safe keeping to await the disposal of the Governor 
 General, for the public uses of Canada. 
 
 30. If it appears, to the satisfaction of such justices, that the 
 person in whose possession such copper or brass coin was found, 
 knew the same to have been so unlawfully manufactu ed or imported, 
 they may condemn him to pay the penalty aforesaid with costs, a.d 
 may cause him to be imprisoned for a term not exceeding two months, 
 if such penalty and costs are not forthwith paid. 
 
 31. If it appears, to the satisfaction of such justices, that the 
 person in whose possession such copper or brass coin was found was 
 not aware of it having been so unlawfully manufactured or imported, 
 the penalty may, on the oath of any one credible witness, othr . .':.\n 
 the plaintiff, be recovered, from the owner thereof, by any pers' -n w o 
 sues for the same in any court of competent jurisdiction. 
 
 33> Any ofificer of Her Majesty's customs may seize any copper 
 or brass coin imported or attempted to be imported into Canada in 
 violation of this Act, and may detain the same as forfeited, to await 
 the disposal of the Governor General, for the public uses of Canada. 
 
 33> Every one who utters, tenders or offers in payment any 
 copper or brass coin, other than current copper coin, shall forfeit 
 double the nominal value thereof. 
 
 2. Such penalty may be recovered, with costs, in a summary- 
 manner, on the oath of one credible witness, othe»* than the informer,, 
 before any justice of the peace, who, if such pena!:-, .' d costs are not 
 forthwith paid, may cause the offender to be imprisoned for a term 
 not exceeding eight days. 
 
 34. A moiety of any of the penalties imijosed by any of the five 
 sections next preceding, but not the copr ei or brass coins forfeited 
 under the provisions thereof, shall belong to the informer or person 
 who sues for the same, and the other moiety shall belong to Her 
 Majesty, for the public uses of Canada. 
 
 4'% 
 
 R.S.C. CHAPTER 169. 
 
 An Act respecting Oifences relating to the Army and Navy. 
 
 9. One moiety of the amount of any penalty recovered under 
 any of the preceding sections shall be paid over to the prosecutor or 
 
1000 
 
 APPENDIX. 
 
 % 
 
 person by whose means the offender has been convicted, and the othei 
 moiety shall belong to the Crown. 
 
 R.S.C. CHAPTER 172 
 
 An Act respecting Cruelty to Animals. 
 
 •7. Every pecuniary penalty recovered with respect to any such 
 ofTence shall be applied in the following manner, that is to say : one 
 moiety thereof to the corporation of the city, town, village, township, 
 parish, or place in which the offence was committed, and the other 
 moiety, with full costs, to the person who informed and prosecuted 
 for the same, or to such other person as to the justices of the peace 
 seems proper. 
 
 51 VICT. CHAPTER 41. 
 
 An Act to amend the Law relating to Fraudulent Marks on 
 
 Merchandise. 
 
 15* Any goods or things forfeited under any provision of this 
 Act, may be destroyed or otherwise disposed of in such a manner aa 
 the court, by which the same are declared forfeited, directs ; and thJ 
 court may, out of any proceeds realized by the disposition of sucH 
 goods (nil trade marks and trade descriptions being first obliterated! 
 award to any innocent party any loss he may have innocently susj 
 tained in dealing with such goods. 
 
 10. On any prosecution under this Act the court may ordel 
 costs to be paid to the defendant by the prosecutor, or to the proseT 
 cutor by the defendant, having regard to the information given by anj 
 the conduct of the defendant and prosecutor respectively. 
 
 18. On the sale or in the contract for the sale of any goods 
 which a trade mark or mark or trade description has been applied 
 the vendor shall be deemed to warrant that the mark is a genuiij 
 trade mark and not forged or falsely applied, or that the trade df 
 scription is not a false trade description within the meaning of th| 
 Act, unless the contrary is expressed in some writing signed by or ( 
 behalf of the vendor and delivered at the time of the sale or contra| 
 to and accepted by the vendee. 
 
APPENDIX. 
 
 1001 
 
 convicted, and the other 
 
 72. 
 
 to Animals. 
 
 with respect to any such 
 ianner.thatistosay: one 
 
 y town, village, township, 
 
 committed, and the other 
 
 informed and prosecuted 
 
 3 the justices of the peace 
 
 IK 41- 
 
 Fraudulent Marks on 
 
 lunder any provision of this 
 
 osed of in such a manner a 
 
 .d forfeited, directs ; and th 
 
 by the disposition of such 
 
 ^tions being first obliterated 
 
 ,e may have innocently sus- 
 
 s Act the court may order 
 
 K prosecutor, or to the prose^ 
 
 [the information given by and 
 
 Ltor respectively. 
 
 ft for the sale of any goods to 
 Idescription has been apphed, 
 
 fthatthemarkisagenuH 
 
 Lplied, or that the traded 
 
 In within the meanmg of b 
 some writing signed by or 
 L time of the sale or contract 
 
 2S. The importation of any goods which, if sold, would be for- 
 feited under the foregoing provisions of this Act, and of goods 
 manufactured in any foreign state or country which bear any name 
 or trade mark which is or purports to be the name or trade mark of 
 any manufacturer, dealer or trader in the United Kingdom or in 
 Canada, is hereby prohibited, unless such name or trade mark is 
 accompanied by a definite indication of the foreign state or country in 
 which the goods were made or produced ; and any person who 
 imports or attempts to import any such goods shall be liable to a 
 penalty of not more than five hundred dollars, nor less than two hun- 
 dred dollars, recoverable on summary conviction, and the goods so 
 imported or attempted to be imported shall be forfeited and may be 
 seized by any officer of the Customs and dealt with in like manner as 
 any goods or things forfeited under this Act. 
 
 2. Whenever there is on any goods a name which is identical 
 with or a colourable imitation of the name of a place in ihe United 
 Kingdom or in Canada, such name, unless it is accompanied by the 
 name of the state or country in which it is situate, shall, unless the 
 Minister of Customs decides that the attaching of such name is not 
 calculated to deceive (of which matter the said Minister shall be the 
 sole judge) be treated, for the purposes of this section, as if it was the 
 name of a place in the United Kingdom or in Canada. 
 
 3. The Governor in Council may, whenever he deems it exped- 
 ient in the public interest, declare that the provisions of the two 
 sub-sections next preceding shall apply to any city or place in any 
 foreign state or country ; and after the publication in the Canada 
 Gazette of the Order in Council made in that behalf, such provisions 
 shall apply to such city or place in like manner as they apply to any 
 place in the United Kingdom or in Canada, and may be enforced 
 accordingly. 
 
 4. The Governor in Council may, from time to time, make regu- 
 lations, either general or special,, respecting the detention and seizure 
 of goods, the importation of which is prohibited by this section, and 
 the conditions, if any, to be fulfilled before such detention and seizure, 
 and may, by such regulations, determine the information, notices and 
 security to be given, and the evidence necessary for any of the pur- 
 poses of this section, and the mode of verification of such evidence. 
 
 5. The regulations may provide for the reimbursing by the in- 
 formant to the Minister of Customs of all expenses and damages 
 incurred in respect of any detention made on his information, and of 
 any proceedings consequent upon such detention. 
 
 |S?| 
 
:fn:: 
 
 ■t, 
 
 lit 
 
 1002 
 
 APPENDIX. 
 
 6. Such regulations may apply to all goods the importation ol 
 which is prohibited by this section, or different regulations may be 
 made respecting different classes of such goods or of offences in rela- 
 tion to such goods. 
 
 7, All such regulations shall be published in the Canada Gaseth 
 and shall have force and effect from the date of such publication. 
 
 23. This Act shall be substituted for chapter one hundred and 
 sixty-six of the Revised Statutes, respecting the fraudulent marking 
 of merchandise, which is hereby repealed. 
 
 52 VICT. CHAPTER 41. 
 
 An Act for the Prevention and Suppression of Combination!' 
 formed in Restraint of Trade. 
 
 4. Where an indictment is found against any person for offences 
 provided against in this Act, the defendant or person accused shall 
 have the option to be tried before the judge presiding at the court at 
 which such indictment is found, or the judge presiding at any subse- 
 quent sitting of such court, or at any court where the indictment 
 comes on for trial, without the intervention of a jury; and in the even 
 of such option being exercised the proceedings subsequent theretc 
 shall be regulated, in so far as may be applicable, by The Speed) 
 Trials Act. 
 
 5. An appeal shall lie from any conviction under this Ar* by tli( 
 judge without the intervention of a jury to the highest court of appea 
 in criminal matters in the province where such conviction shall havi 
 been made, upon all issues of law and fact ; and the evidence taker 
 in the trial shall form part of the record in appeal, and for that pur 
 pose the court before which the case is tried shall take note of th( 
 evidence and of all legal objections thereto. 
 
 53 VICT. CHAPTER 37. 
 An Act further to Amend the Criminal Law. 
 
 ESCAPES AND RESCUES. 
 
 1. Section nine of chapter one hundred and fifty-five of th 
 Revised Statutes of Canada, An Act respecting Escapes and Rescues 
 is hereby repealed and the following section is substituted therefor:- 
 
APPENDIX. 
 
 1003 
 
 oods the importation of 
 ■rent regulations may be 
 )ds or of offences in rela- 
 
 ed in the Canada Gazette 
 : of such publication, 
 •hapter one hundred and 
 g the fraudulent marking 
 
 tl 41- 
 
 ression of Combinations 
 
 of Trade, 
 .inst any person for offences 
 ,nt or person accused shall 
 ge presiding at the court at 
 dge presiding at any subse- 
 -ourt where the indictment 
 n of a jury; and in the event 
 ■eedings subsequent thereto 
 applicable, by The Speedy 
 
 •iction under this Ac* by the 
 p the highest court of appeal 
 e such conviction shall have 
 ict ; and the evidence taken 
 in appeal, and for that pur- 
 tried shall take note of the 
 ;o. 
 
 IR 37- 
 Ihe Criminal Law. 
 
 kcUES. 
 
 [ndred and fifty-five of the 
 lectins Escapes and Resciics^ 
 lion is substituted therefor;- 
 
 "9. Every one who, being sentenced to imprisonment or deten- 
 tion in, or being ordered to be detained in, any reformatory prison, 
 reformatory' school, industrial refuge, industrial home or industrial 
 school, escapes or attempts to escape therefrom, is guilty of a misde- 
 meanour, and may be dealt with as follows : — 
 
 " The offender may, at any time, be apprehended without warrant 
 and brought before any magistrate, who, upon proof of his identity, — 
 
 "(^) In the case of an escape or attempt to escape from a reform- 
 atory prison or a reformatory school, shall remand him thereto for the 
 remainder of his original term of imprisonment oi detention ; or, — 
 
 "(^) In the case of an escape or attempt to escape from an 
 industrial refuge, industrial home, or industrial school, — 
 
 "(i) May re.nand him thereto for the remainder of his original 
 term of imprisonment or detention ; or, — 
 
 " (2) If the officer in charge of such refuge, home or school certi- 
 fies in writing that the removal of such offender to a place of safer or 
 stricter imprisonment is desirable, and if the governing body of such 
 refuge, home or school applies for such removal, and if sufficient 
 cause therefor is shown to the satisfaction of such magistrate, may 
 order the offender to be removed to and to be kept imprisoned, for 
 the remainder of his original term of imprisonment or detention, in 
 any reformatory prison or reformatory school in which by law such 
 offender may be imprisoned for a misdemeanour, — and when there is 
 no such reformatory prison or reformatory school, may order the 
 offender to be removed to and to be so kept imprisoned in any other 
 place of imprisonment to which the offender may be lawfully com- 
 mitted ; 
 
 "(<^) And in any case mentioned in the preceding paragraphs {a) 
 and {b) of this sub-section, or if the term of his imprisonment or 
 detention has expired, the magistrate may, after conviction, sentence 
 the offender to such additional term of imprisonment or detention, as 
 the case may be, not exceeding one year, as to such magistrate seems 
 a proper punishment for the escape or attempt to escape." 
 
 •2. Every one who, being sentenced to imprisonment or detention 
 in, or being ordered to be detained in any industrial refuge, industrial 
 home or industrial school, by reason of incorrigible or vicious conduct, 
 or with reference to the general discipline of the institution, is beyond 
 the control of the officer in charge of such institution, is guilty of a 
 misdemeanour, and may be dealt with as follows : — 
 
 
 
1004 
 
 APPENDIX. 
 
 ¥| 
 
 {a) The offender may, at any time before the expiration of hi 
 term of imprisonment or detention, be brought without warrant befoi 
 any magistrate, and if the officer in charge of such refuge, home c 
 school certifies in writing that the removal of such offender to a plac 
 of stricter imprisonment is desirable, and if the governing body ( 
 such refuge, home or school applies for such removal, and if sufiicier 
 cause therefor is shown to the satisfaction of such magistrate, he ma 
 order the offender to be removed to and to be kept imprisoned, for th 
 remainder of his original term of imprisonment or detention, in an 
 reformatory prison or reformatory school in which by law such offendt 
 may be imprisoned for a misdemeanour ; and when there is no sue 
 reformatory prison or school the magistrate may order the offender t 
 be removed to and to be so kept imprisoned in any other place ( 
 imprisonment to which the offender may be lawfully committed ; 
 
 (J>) The magistrate may, afttr conviction, sentence the offender t 
 such additional term of imprisonment, not exceeding one year, as t 
 such magistrate seems a proper punishment for the incorrigibl 
 conduct of the offender. 
 
 PUBLIC AND REFORMATORY PRISONS. 
 
 Certijiecl Industrial Schools, Ontario. 
 
 33« The Governor General, by warrant under his hand, may : 
 any time in his discretion (the consent of the Provincial Secretary 
 Ontario having been first obtained), cause any boy who is imprisonf 
 in a reformatory or gaol in that province, under sentence for an offen 
 against a law of Canada, and who is certified by the court, judge 
 magistrate, by whom he was tried to have been, in the opmion of su( 
 court, judge or magistrate, at the time of his trial, of or under 
 age of thirteen years, to be transferred for the remainder of his ter 
 of imprisonment to a certified industrial school in the province. 
 
 33. Where, under any law of Canada, any boy is convict( 
 in Ontario, whether summarily or otherwise, of any offence punisha 
 by imprisonment, and the court, judge, stipendiary or police mag 
 trate by whom he is so convicted is of opinion that such boy does 
 exceed the age of thirteen years, such court, judge or magistrate m 
 sentence such boy to imprisonment in a certifi »d industrial school 
 any term not e.xceeding five years and not less than two year 
 Provided, that no boy shall be sentenced to any such school uni( 
 public notice has been given in the Ontario Gazette and has not be 
 countermanded, that such school is ready to receive and maint: 
 boys sentenced under laws of the Dominion ; Provided also, that 
 
APPENDIX. 
 
 1005 
 
 fore the expiration of his 
 ■ht without warrant before 
 > of such refuge, home or 
 3f such offender to a place 
 if the governing body of 
 h removal, and if sufficient 
 jf such magistrate, he may 
 be kept imprisoned, for the 
 
 iment or detention, m any 
 which by law such offender 
 
 and when there is no such 
 ,e may order the offender to 
 
 oned in any other place of 
 je lawfully committed ; 
 ion, sentence the offender to 
 jt exceeding one year, as to 
 hment for the incorrigible 
 
 rORY PRISONS. 
 
 >ools, Ontario. 
 
 •rant under his hand, may at 
 
 ,f the Provincial Secretary of 
 
 36 any boy who is imprisoned 
 
 under sentence for an offence 
 
 Ttified by the court, judge or 
 ,e been, in the opinion of such 
 
 1 of his trial, of or under the 
 Ifor the remainder of his term 
 school in the province. 
 
 Lada, any boy is convicted 
 Use, of any offence pumshable 
 [ stipendiary or police magis- 
 Union that such boy does not 
 ourt, judge or magistrate may 
 certifi-d industrial school for 
 ,d not less than two years: 
 ted to any such school unless 
 ,„-^C:«r.//i^ and has not been 
 
 >ady to receive and maintain 
 •mion; Provided also, that no | 
 
 such boy shall be detained in any certified industrial school beyond 
 the age of seventeen years. 
 
 Halifax Industrial School. 
 
 34. Section sixty-one of chapter one hundred and eighty-three 
 of the Revised Statutes, intituled An Act respecting Public and 
 Reformatory Prisons, is hereby repealed and the following substituted 
 therefor : — 
 
 "61. Whenever any boy, who is a Protestant and a minor 
 apparently under the age of sixteen years, is convicted in Nova 
 Scotia of any offence for which by law he is liable to imprisonment, 
 the judge, stipendiary magistrate, justice or justices by whom he is so 
 convicted may sentence such boy to be detained in the Halifax 
 Industrial School for any term not exceeding five years, and not less 
 than two years." 
 
 35. Section sixty-two of the said Act is hereby repealed and the 
 following substituted therefor : — 
 
 "63. No such sentence shall be pronounced unless or until 
 provision has been made by the municipality within which such con- 
 viction is had, out of its funds, for the support of boys so sentenced, 
 at the rate of not less than sixty dollars per annum for each boy." 
 
 St. Patrick's Home, Halifax. 
 
 36. Section sixty-five of the said Act is hereby repealed and the 
 following substituted therefor : — 
 
 " 65. Whenever any boy, who is a Roman Catholic and appar- 
 ently under the age of sixteen years, is convicted in Nova Scotia of 
 any offence for which by law he is liable to imprisonment, the judge, 
 stipendiary magistrate, justice or justices by whom he is so convicted 
 may sentence such boy to be detained in Saint Patrick's Home at 
 Halifax for any term not exceeding five years, and not less than two 
 years ; but no such sentence shall be pronounced unless or until 
 provision has been made by the municipality within which such con. 
 viction is had, out of its funds, for the support of boys so sentenced 
 at the rate of not less than sixty dollars per annum for each boy." 
 
 37. Section sixty-six of the said Act is hereby repealed and the 
 following substituted therefor : — 
 
1006 
 
 APPENDIX. 
 
 I 
 
 "66. The superintendent, or head of the said home, may i 
 any time notify the mayor, warden or other chief magistrate of an 
 municipality, that no prisoners, beyond those already under sentenc 
 in such home, will be received therein ; and after such notification n 
 such sentence shall be pronounced in such municipality until notic 
 has been received by such mayor, warden or chief magistrate, froi 
 the said supermtendent or head, that prisoners will again be receive 
 jn the said home." 
 
 38. The six preceding sections shall not, nor shall any of then 
 come into force until the same shall have been proclaimed by th 
 Governor in Council. 
 
 39. The said Act is hereby further amended by adding at tli 
 end thereof the following sections : — 
 
 Part VI. 
 
 th 
 
 " MANITOBA. 
 
 "Manitoba Reformatory for Boys. 
 
 " 7§. If any boy, who, at the tune of his tiial, appears to th 
 court to be under the age of sixteen years, is convicted of any ofifenc 
 for which a sentence of imprisonment for a period of three months o 
 longer, but less than five years, may be imposed upon an adult cor 
 victed of the like ofifence, and the court before which such boy ts con 
 victed is satisfied that a due regard for the material and moral welfar 
 of the boy manifestly requires that he should be committed to th 
 Manitoba reformatory for boys, then such court may sentence 
 boy to be imprisoned in such reformatory for such term as the cou 
 thinks fit, not being greater than the term of imprisonment whic 
 could be imposed upon an adult for the like offence, and may furthe 
 sentence such boy to be kept in such reformatory for an indefinit 
 time after the expiration of such fixed term ; Provided, that the wlio 
 period of confinement in such reformatory shall not exceed five year 
 from the commencement of his imprisonment. 
 
 "79. If any boy, apparently under the age of sixteen years, 
 convicted of any offence, put»ishable by law on summary conviction 
 and thereupon is sentenced and committed to prison in any commo 
 gaol for a period of fourteen days at the least, any judge of any onec 
 the superior courts, or any judge of a county court, in any case occui 
 ing within his county, may examine and inquire into the circuni 
 stances of such case and conviction, and when he considers th 
 
APPENDIX. 
 
 1007 
 
 the said home, may at 
 jr chief magistrate of any 
 se already under sentence 
 I after such notification no 
 li municipality until notice 
 
 or chief magistrate, from 
 ners will again be received 
 
 lot, nor shall any of them, 
 B been proclaimed by the 
 
 amended by adding at the 
 
 'y for Boys. 
 
 of his ti-ial, appears to the 
 i is convicted of any offence 
 a period of three months or 
 imposed upon an adult con- 
 lefore which such boy ts con- 
 e material and moral welfare 
 lould be committed to the 
 ch court may sentence tbe 
 .-y for such term as the court 
 erm of imprisonment which 
 ,ike offence, and may further 
 
 •eformatory for an indefinite 
 m • Provided, that the whole 
 ry shall not exceed five years 
 
 iient. 
 
 . the age of sixteen years, is 
 
 law on summary conviction, 
 
 ted to prison in any common 
 
 least, any judge of any one Of 
 
 Lty court, in any case occur- 
 [nd inquire into the cucunv 
 Ind when he considers the 
 
 m 
 
 material and moral welfare of the boy requires such sentence, he may, 
 as an additional seritence for such offence, sentence such boy to be 
 sent either forthwith or at the expiration of his imprisonment in such 
 gaol, to such reformatory, to be there detained for the purpose of his 
 industrial and moral education for an indefinite period, not exceeding 
 in the whole five years, from the commencement of his imprisonment 
 in the common gaol. 
 
 80. Every boy so sentenced shall be detained in such reform- 
 atory until the expiration of the fixed term, if any, of his sentence, 
 unless sooner discharged by lawful authoritj', and thereafter shall, 
 subject to the provisions hereof and to any regulations made as here- 
 inafter provided, be detained in such reformatory for a period not to 
 exceed five years from the commencement of his imprisonment, for 
 the purpose of his industrial and moral education. 
 
 "§1. A copy of the sentence of the court, duly certified by the 
 proper officer, or the warrantor order of the judge or other magis- 
 trate by whom any boy is sentenced to confinement in such reform- 
 atory, shall be a sufficient authority to the sheriff, constable or other 
 officer who is directed, verbally or otherwise, so to do, to convey such 
 boy to the common gaol of the county where such sentence is pro- 
 nounced, and fo^ the gaoler of such gaol to receive and detain such 
 boy, until some person, lawfully authorized, requires the delivery of 
 such boy for removal to the reformatory. 
 
 • 
 
 " §3, If any boy sentenced to be confined in such reformatory is 
 in such a weak state of health that he cannot safely or conveniently 
 be removed to the reformatory, he may be detained in the common 
 gaol or other place of confinement in which he is, until he is 
 sufficiently recovered to be safely and conveniently removed to the 
 reformatory. 
 
 " 83. No boy shall be discharged from such reformatory at the 
 termination of his term of confinement, if then labouring under any 
 contagious or infectious disease, or under any acute or dangerous 
 illness, but he shall be permitted to remain in such reformatory until 
 he recovers from such disease or illness ; Provided that any boy 
 remaining in such reformatory for any such cause shall be under the 
 same discipline and control as if his term was still unexpired. 
 
 " 84. Any sheriff or other person having the custody of any 
 offender sentenced to imprisonment in the said reformatory, may 
 detain the offender in the common gaol of the county or district in 
 which such offender is sentenced, or other place of confinement in 
 
 '"A, 
 
1008 
 
 APPENDIX. 
 
 which such offender is, until some person lawfully authorized in that 
 behalf requires such offender's delivery for the purpose of being con- 
 veyed to such reformatory. 
 
 "85. Whenever the time of any offender's sentence in such 
 reformatory, under any law within the legislative authority of the 
 Parliament of Canada, expires on a Sunday. :iuJi offender shall be 
 discharged on the previous Saturday, unless such offender desires to 
 remain until the Monday following." 
 
 40. The provisions of this Act in respect to the Manitoba 
 reformatory for boys shall not come into force until the same shall 
 have been proclaimed by the Governor in Council. 
 
 4 ( 
 
INDEX. 
 
 looa 
 
 fully authorized in that 
 e purpose of being con- 
 
 der's sentence in such 
 slative authority of the 
 . 5aJi offender shall be 
 such offender desires to 
 
 .spect to the Manitoba 
 ,rce until the same shall 
 ouncil. 
 
 '4 
 
 0'} 
 
 INDEX. 
 
 (The figures in this index refer to the pagen). 
 
 A. 
 
 ABANDON— 
 
 child under two years of age, 149 
 definition of, in enactment, 149 
 
 ABATEMENT— 
 
 plea in, abolished, 752 
 
 ABDUCTION- 
 
 of woman for purpose of marriage or carnal knowledge, 289 
 
 form of indictment, 289 
 of heiress the same, 289 
 
 actual marriage or defilement not necessary to constitute offence, 290* 
 consent of heiress obtained by fraud, 291 
 
 detention against her will an offence though heiress consent at first, 291 
 offence not condoned by subsequent consent, 291 
 
 form of indictment, 290 
 of woman under twenty-one for purpose of marriage or carnal knowledge, 
 
 290 • 
 
 woman may be witness against offender though married, 292 
 
 form of indictment, 290 
 of girl under sixteen, 292 
 
 consent of girl and belief of offender as to her age immaterial, 292 
 offence may be committed by a woman, 293 
 
 form of indictment, 294 
 of children under fourteen, 295 
 
 form C'f indictment, 296 
 
 ABETTOR-28 
 
 See Aider and Abettor. 
 
 ABOLITION— 
 
 of distinction between felony and misdemeanour, 603 
 
 of plea in abatement, 752 
 
 of jury lie ventre inspiciendo, 850 
 
 of writ of error, 8G4 
 
 of outlawry, 974 
 
 of punishment by solitary confinement and the pillory, 974 
 
 of deodand, 974 
 
 of attainder, forfeiture and escheat as a conseriuence of conviction, etc., 974 
 
 ABOMINABLE CRIME— 
 
 committing, with human being, etc., 116 
 veiiiarks on, 117 
 
 fonn of indictment, 116 
 CiiiM. Law— 64 
 
'I i 
 
 1010 
 
 INDEX. 
 
 ABOMINAJiLE CmUE—Cwitinued. 
 for bestiality, 118 
 attemjit to con.init, 118 
 
 fonn of indictment, 118 
 assault with intent to commit, 253 
 
 consent of child under fourteen no defence, 2'3 
 ■extortion by threats to accuse of, 451 
 forms of indictment, 452, 453 
 
 ABORTION- 
 
 procuring, by administering drug, etc., 275 
 women procuring on herself, 27G » 
 
 6up|)lying means of procuring, 276 
 forms of indictment, 270-278 
 
 ABROAD- 
 
 offences committed, COC-611 
 
 ABSENCE- 
 
 of wife or husband for seven years, second marriage not bigamy, 279 
 
 ACCEPTA^X•E— 
 
 of bill of exchange, etc., forgery of, 512 
 
 ACCESSORY— 
 
 before the fact, a party to and guilty of offence, 28 
 defined, 30 
 may be indicted as principal, 28 
 
 alone or jointly with perpetrator, 29 
 
 may be convicted though principal acquitted, 29 
 •soliciting and inciting commission of offence indictable, though offenc 
 
 committed, 30 
 "oflftnce committed through innocent agent, 30 
 principals in second degree, 31 
 
 actual presence not necessary, 31 
 Abettor of person committing suicide guilty of murder as principal, 
 combining for unlawful purpose, 33 
 mere participation in the act not sufficient, 34 
 seconds to duel are principals in second degree, 35 
 all present abetting felony the like, 35 
 may be tried before principal is convicted, 35 
 distinction between aider and abettor and, 3() , 
 how commission of offence may be procured, 37 
 none in treason, 38 
 in manslaughter, 38 
 After the Fact, 40 
 defined, 40 
 
 offence by married person, 40 
 not by merely suffering principal to escape, 41 
 nor by attending on felon in prison, 41 
 wife not, by receiving, etc., husband or vice versa, 40, 41 
 applies to no other relationship, 41 
 must have notice that offence was committed, 41 
 
INDEX. 
 
 1011 
 
 fence, 253 
 
 ~o 
 
 not bigamy, 2T'J 
 
 ,gent, 
 
 30 
 
 guilty 
 
 tcient, 34 
 i\d degree, 35 
 
 5 
 
 icted, 35 
 and, 36 
 :ocuied, 37 
 
 ACCESSOR Y—Co»)«iH ue7. 
 
 no conviotum as, on indictment as principal, t2 
 may be indicted jointly with principal, 42 
 receiver of stolen goods not, at common law, 42 
 to treason, 47 
 to murder, 225 
 punishment, COO 
 indictment of, 007 
 
 ACCOMPLICE- 
 
 none in i^rjury, 1)7 
 
 that evidence of, requires corroboration not a question that can 
 reserved, 870 
 
 AC(.'OUNTING— 
 false, by clerk, 419 
 
 ACQUITTAL- 
 
 on jjlea of autrefois acquit or convict, 715 
 when a bar to subsequent indictment, 718 
 must be by verdict,, on a trial, to be a bar, 721 
 of accused for insanity, custody, 8(51 
 
 ACQUITTANCE- 
 
 for receipt of money, etc., forgery of, 513 
 
 ACT- 
 
 expressiun "any" and "any other" defined, 1 
 definition of, as to offences conaected with trade, 5S0 
 criminal, construction of, 603 
 offences )>unishable under two or more, 059 
 ACTIOX— * 
 
 compounding penal, 104 
 civil, not suspended, G02 
 _ against juvenile offender, 896 
 of murder as prii^cipal, . ■ against persons administering criminal law, 970 
 
 time and place of, 079 
 notice of, 979 
 defence to, 979 
 
 tender or payment into court, 979 
 costs, 979 
 
 other remedies saved, 979 
 CTION QUI TAM-104 
 CTUS NON FACIT REUM-11, 504 
 DDRESS OF COUXSEL- 
 to jury on trial, how regulated, 757 
 
 counsel acting for attorney or solicitor-general entitled to reply, 757 
 when no evidence for defence, 757 
 when defence adduces evidence, 758 
 ou opening for prosecution, 758 
 
 summing up by Crown counsel when no evidence for defence, 760 
 fordt<fLii:e, 701 
 
 be 
 
 ,nd marnage 
 
 2 
 
 \>l offence, 28 
 
 28 
 
 lescaije, 41 
 
 I4I 
 
 ^ or vice mrsa, 40, 41 
 
 pmmitted, 41 
 
 I 
 
■1... '9 
 
 i«HMl-lly|Mtf^Nftiri 
 
 1012 
 
 INDEX. 
 
 ADDRESS OF COUNSEL— Con<«rt«e(/. 
 bumnhng up by defence, TfJS 
 reply, 705 
 defendant's reply on evidence of proHecution in reply, 7(>0 
 
 ADJOURNMENT— 
 
 of preliminary inquiry, for variance, 044 
 of inquiry from time to time at discretion ot magistrate, G52 
 of trial, no formal necessary, 787 
 of trial, on amendment, 830 
 of speedy trial, 881 
 
 of trial on summary conviction proceedings, for variance, 900 
 of such trial in discretion of justice, 910 
 not for more tlian eight days, 910 
 
 ADMINISTRATION OF JUSTICE- 
 
 ConRUPTION AND DISOBEDIENCE— 
 
 corruption of judges or members of parliament, 77 
 
 peace officers, etc., 77 
 frauds upon the Government, 78 
 
 consequences of conviction, 80 
 breach of trust by public officer, 90 
 corruption in municipal affairs, 81 
 selling office, appointment, etc., 82 
 disobedience to statute law, 83 
 disobedience to orders of court, 83 
 neglccc of peace ofncei^ to supi^rese riot, 83 
 neglect to aid peace officer to suppress riot, 83 
 neglect to aid peace officer, 83 
 misconduct of officers, 84 * 
 
 obstructing peace officer, etc., 84 
 MisLKADiNG Justice— 
 perjury, 85 
 
 subornation of perjury, 86 
 pimishment for perjury, etc., 97 
 false oaths, 98 
 
 false affidavit out of province, 99 
 false statements, 99 
 fabricating evidence, 99 
 conspiracy to bring false accusation, 100 
 administering oaths without authority, 101 
 corrupting juries and witnesses, 104 
 
 attempting in any other way to obstruct course of justice, 104 
 compounding penal actions, 104 
 reward for recovery of stolon property, 105 
 unlawfully advertising reward, 106 
 false certificate of execution of sentence of death, 106 
 Escapes and Rescues — 
 
 being at large while under sentence, 107 
 assisting escajje of prisoners of war, 111 
 
INDEX. 
 
 1013 
 
 3n in reply, 70»i 
 ot magistrate, 052 
 
 ga, for variance, 
 
 90t> 
 
 larliament, 77 
 
 riot, 83 
 jress riot, 83 
 
 ion, 100 
 liority, 101 
 
 ll04 . ,,,. 
 
 Obstruct course of iustice, 104 
 
 Iperty, 105 
 
 lo6 
 
 Intence of death, 106 
 
 Ince, 107 
 Ivar, 111 
 
 ADMINISTRATION OF JVfiTICE-ContinueJ. 
 breaking priHon, 111 
 attempt to break prison, etc., Ill 
 escape from prison, etc.. Ill 
 escape from lawful custody, 1 12 
 assisting escape in certain cases, 112 
 
 in other cases, 112 
 aidinBf escaiie from prison, 112 
 unlawful discharge of prisoner, 113 
 punishment for escai)e, 113 
 
 ADMIRALTY- 
 
 ofTences committed within the jurisdiction of, leave of Governor General 
 
 required for prosecution, 006 
 jurisdiction of, G07 
 offences within jurisdiction of, warrant, 632 
 
 ADMISSION- 
 
 to bail by jjistice, 605 
 
 after committal, 660 
 by prisoner at trial, 800 
 to bail under provisions for sjieedy trial, 8S1 
 
 ADULTERER- 
 
 killing by husband when committing adultery with wife is manslaughter, 
 
 161 
 killing in revenge after the act, murder, 162 
 with wife, stealing husband's goods, 316 
 
 1 ADULTERY- 
 
 an indictable offence in New Brunswick, 129 
 
 conspiracy to induce woman to commit, 12!) 
 form of indictment, 129 
 
 wife committing, may be guilty of stealing husb.and's goods, 317 
 lADVERTISEMENT- 
 
 of reward for return of stolen property, 100 
 lAFFIDAVIT— 
 
 perjury by false statement in, 98 
 
 false, out of Province where used, 99 
 
 justice, etc., unlawfully taking, 101 
 form of indictment, 102 
 
 evidence of authority of justice, 103 
 
 VFFIRMATION— 
 See Affidavit. 
 
 ^FFRAY- 
 
 punishment for, 60 
 
 ^gp:nt— 
 
 innocent, commission of offence by, 30 
 theft by, 341 
 
 form of indictment, 343 
 conversion by, of proiierty entrusted, 342 
 
 ■'M 
 
1014 
 
 INDEX. 
 
 AGENT— Cont intieif. 
 
 form of indictment, 343 
 misappropriation of money, etc., entrusted, 342 
 
 form of indictment, 344 
 punishment, 3Gi) 
 
 AGGRAVATED A8SAULT, 254 
 See Assault. 
 
 AGGREySTON— 
 
 foreign, by subject of peaceful state, 47 
 
 by British subject in company with foreigner, 48 
 
 AIDER AND ABETTOR— 
 
 is a party to and guilty of offence, 28 
 principals in second degree defined as, 31 
 
 presence at commission of offence may be actual or constructive, 33 
 presence during whole transaction not necessary, 32 
 participation in act necessary, 32 
 in suicide, 33 
 ' unlawful combination, 33 
 seconds to duel, 35 
 
 may be tried before principal is convicted, 35 
 none in treason, 35 
 
 commission of offence, how procured, 37 
 in manslaughter, 38 
 assisting militiamen, etc., to desert, 50 
 at prize fight, G2 
 
 assisting escape of prisoners of war, 111 
 assisting escape from prison, 112 
 to suicide, 220 
 
 ALIEN— 
 
 not entitled to jury ik mtdidate liwjua', 771 
 
 ALLFGIANCE- 
 
 endeavour to seduce from, 49 
 
 ALLOC UTUS— 
 
 part of formal record, 84G 
 when to take place, 852 
 
 ALTER ATION- 
 
 of document, forgery, 510 
 
 ALTERNATIVE- 
 
 offences may be charged in the, 078 
 
 AMENDMENT- 
 
 on preliminary objections — "01 
 
 powers (if court for, 820 
 
 pr(»i>riety of mailing, may be reserved, 830 
 
 to be endorsed on record, S'.V^ 
 
 formal record in case of, c?;jO 
 
 remarks on, 830 
 
INDEX. 
 
 1015 
 
 e actual or constructive, 33 
 ecessary, 32 
 
 AMENDMENT— Con<i>iuc(/. 
 examples of, 836 
 test as CO prejudice by, 837 
 statute allowing to be liberally construed, 83'J 
 when it must be made, 830 
 decisions on the statute, 841 
 
 ANIMALS— 
 
 capable of being stolen, 337 
 
 killing, with intent to steal carcase, 341 
 
 stealing cattle, 373 
 
 stealing dogs, etc, 374 
 
 killing, 573-575 
 
 attempting to kill, etc., cattle, 579 
 
 other injuries to, 579 
 
 threats to injure cattle, 580 
 
 cruelty to, 587 
 
 See CliUELTY TO ANUfALS. 
 
 ANIMUS FURANDI, 325, 340 
 See Felonious Intent 
 
 APPEAL— 
 
 court of definition, 2 
 
 general provisions, 8G4 
 
 writ of error alxslished, 864 
 
 cases reserved, 804 
 
 when reserved ci|se refused, 805 
 
 evidence for court of, 865 
 
 powers of court of, 805 
 
 intermediate effects of, 873 
 
 to supreme court of Canada, S73 
 
 to privy council abolislied, 874 
 
 from summary convictioiii^, 933 
 
 APPEARANCE— 
 
 on preliminary inquiry, compelling, 627-629 
 
 APPREHENSION— 
 
 assault to resist or prevent, 254 
 
 of suspected deserter, 033 
 
 warrant in first instance for, on preliminary inquiry, 035 
 
 in one district for offence in another, 637 
 
 I APPRENTICE— 
 
 correction of by master, 27 
 duty iif master to provide for, 143 
 luniislnnent for neglect, 144 
 remarks t)n enai.'tuient, 145 
 
 form of indictment, 147 
 evidence on trial against master, 147 
 assault iiy master on, 151 
 
 form (jf indictment, 152 
 
 "''J'ii 
 
 
 '. .^i:'' 
 
 
1016 
 
 INDEX. 
 
 t- 
 
 ' <■; 
 
 ^iil 
 
 AQUEDUCT- 
 
 wilfully destroying or damaging, 573 
 
 ARMS- 
 
 loaded, defined, 3 
 
 producir2" near, or aiming at. Her Majesty, 49 
 
 unlawful drilling to use of, 59 
 
 ■carrying or selling, C5 
 
 selling or giving to minor, 66 
 
 having on person when arrested, 66 
 
 possessing with intent to do injury, 07 
 
 legal carrying of, 67 
 
 refusing to deliver, when attending public meeting, (iS 
 
 coming armed near meeting, 68 
 
 sale of, in North-west Territories, 69 
 
 And see Offensive Weapons. 
 
 FlKE-ARMS. 
 
 ARRAIGNMENT— 
 
 proceedings on, 751 
 
 refusal to plead, 752 
 
 siiecial provisions in treason, 755 
 
 ARRAY— 
 
 challenge to, 774 
 
 of grand jury, no challenge to, 752 
 
 ARREST— 
 
 of wrong person, justified, 15 
 
 by peace officer, justified, 10 
 
 without warrant, by any one of person found comiiutting offence, 17 
 
 by any one without warrant after commih.<ion of offence, 17 
 
 for major offence committed by night, 17 
 
 without warrant, by peace officer, or person found commii,ting offence, i; 
 
 without warrant, by any one, of person found committing offence by 
 
 night, 1,S 
 during flight, 18 
 
 statutory power of, not affected, 18 
 necessary force in making, li) 
 production of process or warrant if required, 19 
 notice of cause of arrest to be given, 19 
 consequence of failure to produce or give notice, 19 
 by peace officer, for major offence, necessary force to ])revent escape, 10 
 by private person the same, 20 
 by any one for minor offence, the like, 20 
 preventing escaiH; or rescue in major offence, 20 
 
 in minor offence, 20 
 of deserter, resisting execution of warrant for, 50 
 nssault to resist or i)revent, 254 
 
 form of indictment, 257 
 without warrant, for what offences lawful, 616 
 
 by private person, 619 
 
INDEX. 
 
 1017 
 
 :|!lfl 
 
 'iiii' 
 
 •III' 
 
 49 
 
 rteetin^f, (>8 
 
 id ct>nimitting offence, 17 
 [on of oSence, 17 
 
 found committing offence, 17 
 found ODnnnitting offence by 
 
 19 
 
 jtice, 19 
 |y force to ])revent escai'e, 10 
 
 20 
 lor, 50 
 
 ARREST— Continued. 
 
 for contempt of court, 623 
 time, place and manner of, 624 
 And see Warrant, 
 
 ARREST OF JUDGMENT— 
 
 formal defects, none for, 701 
 motion for, 852 
 
 ARSON- 
 
 settinsr fire to buildings, etc , 558 
 remarks on, 558 
 attempt to commit, 563 
 
 form of indictment, 563 
 setting fire to crops, trees, etc., 564 
 
 attempt, 564 
 setting fire to forests, etc., 565 
 
 form of indictment, 505 
 threats to burn, 565 
 
 ARTICLES OF THE PEACE— 
 
 estreating recognizance for, 953 
 when ordered, forms, etc., 969 
 ASPORTATION— 
 
 necessary in theft, 320, 338 
 
 ASSAULT- 
 
 self -defence against unprovoked, 22 
 
 provoked, 23 
 provocation irtay be by blows, words or gestures, 23 
 accompanied witli insult, defence aganist, 24 
 in defence of moveable property, 24 
 
 real i)roperty, 25 
 on person entering on property under claim oi tbW'. 2'i 
 with intent, is an attempt, 43 
 on the (^ueen, 49 
 in committing piratical act, 75 
 definition of, 252 
 indecent, on females, 252 
 
 form of indictment, 252 
 witli intent to connnit sodomy, 253 
 indecent on males, 253 
 
 consent of children under fourteen, no defence, 253 
 occasioning actual bodily harm, 253 
 
 form of indictment, 253 
 
 AciGiiAVATKi) Assaults— 
 
 with intent to conmiit indictable offence, 254 
 
 form of indictment, 255 
 on public (jr peace ofticer m execution of his duty, 25 f 
 
 form of indictment, 255 
 
 evidence at trial. 2.55 
 with intent to resist or prevent apprehension, 254 
 
 form of indictment, 257 
 
 'Si!' 
 
-.1 
 
 i 
 
 1018 
 
 INDEX. 
 
 H 
 
 ASSAULT— Continued. 
 
 on person executing process against lands, etc., 255 
 
 form of indictment, 257 
 at or near polling place, 255 
 
 form of indictment, 257 
 common, 259 
 
 form of indictment, 259 
 
 remarks on, 259 
 and battery, 260 
 mere words not an, 260 
 unlawful imprisonment an, 262 
 with intent to commit rape, 268 
 
 form of indictment, 272 
 with intent to carnally know, 27i 
 
 form of indictment, 274 
 by person armed with intent to rob, Hi 
 
 form of indictment, 445 
 with intent to rob, 447 
 form of indictment, 447 
 
 with intent to rape, etc., threatening to accuse of, 451 
 to pi-eventone working at trade, etc., 593 
 
 on ship, 595 
 
 buying grain, etc., 595 
 verdict of, on other charge, 819 
 costs on conviction for, 899 
 summary conviction, 919 
 
 ASSEMBLY— 
 
 for religious worship, disturbing, etc., 116 
 
 ASSEMBLY, UNLAWFUL— 52 
 See Unlawful Assembly. 
 
 ASSIGNMENT- 
 
 of property with intent to defraud creditors, 421 
 
 ASSIZES— 
 
 of Ontario, commission to judge of, S75 
 
 ATTAINDER- 
 
 abolishud, 974 
 
 ATTEMPT— 
 
 act done with intent to commit an offence is an, whether or not comniis 
 
 sion is possible, 42 
 sections of code relating to, 4i 
 remarks on, 43 
 to assault Her Majesty, 49 
 to induce person to take unlawful oath, 71 
 
 form ot indictment, 71 
 to iuHuence memlar of muuicipid council, ^2 
 to tib.-'.truct, etc., the Course of justice, 104 
 to break prison, 111 
 
1¥1 
 
 i1r 
 
 tc, '2iJi» 
 
 accuse of, 4i)l 
 )3 
 
 121 
 
 IS an, 
 
 whether or not ciunn.s- 
 
 b2 
 
 INDEX. lOlO* 
 
 ATTEMPT— Co>i*(ni(C(?. 
 to commit sodomy, 118 
 
 form of indictment, 118 
 by male to procure commission of indecent r.ot with a male, 121 
 
 form of indictment, 121 
 to defile women, 125 
 
 forms of indictment, 126 
 to carnally know idiot, etc., 130 
 
 form of indictment, 130 
 to commit murder, 212 
 
 forms of indictment, 213-223 
 to commit suicide, 228 
 to choke or drug, 239 
 
 forms of indictment, 230, 240 
 to injure by explosives, 241 
 
 forms of indictment, 242 
 to commit rape, 268 
 
 form of indictment, 268 
 to have carnal knowledge of girl under fourteen, 274 
 to commit arson, 563 
 
 form of indictment, 563 
 to set fire to crops, etc., 064 
 to damage by explosives, 565 
 to cast away hip, 570 
 to kill, etc., cattle, 579 
 to commit certain indictable offences, 'jOS 
 to commit statjitory offences, 5!18 
 verdict of, on indictment for offence, 811 
 full offence jn-oved, on indictment for, 817 
 to commit offence included in indictment, 818 
 
 ATTENDANCE— 
 
 ^if witness on preliminary inquiry, .summons to procure, 645 
 
 service of summons, 646 
 
 warrant of summons not obeyed, 646 
 
 warrant in first instance, 647 
 of witness out of province, procuring, 648 
 of witness at trial, 791-703 
 
 at summary trial, 888 
 
 ATTORNEY— 
 
 fraudulently selling, etc., jiroperty under power of attorney, or converting- 
 proceeds, 342 
 
 dispiising of money, etc., contrary to direction, 342 
 l>unishment, 369 
 
 ATTORNEY-GENERAL— 
 
 definition of as used in code, 1 
 
 consent of, to prosecution required in certain cases, 612 
 
 applies to preliminary inquiry, 613 
 power to give consent catmot )»' delegated, 613 
 may prefer indictment for any ott't nee, 729 
 niay grant fiat fnv appeal cin refusal to, to reserve ca.'-e, 8' ."i 
 
 I 
 
 'M 
 
 'ii"l 
 
 5 
 
 
 ,.*sU •■ 
 
 iflM|:.l 
 
1020 
 
 IXDEX. 
 
 m 
 
 TV^i 
 
 AUTREFOIS ACQUIT, AUTREFOIS CONVICT- 
 
 l)lea of, 714 
 
 direction of court on issue, 715 
 
 remarks on, 715 
 
 form of plea, 71') 
 
 trial of issue, 716 
 
 form of replication to plea, 717 
 
 AYERMENT-C78, OSO, 818 
 See Indictment. 
 
 AVOWTERER- 
 
 theft by, 31f> 
 
 B. 
 
 BAIL— 
 
 rule as to, (W,i) 
 
 after committal. Ofifi 
 
 by sui^erior court, GG7 
 
 application for, after committal, 667 
 
 idischarge of, warrunt of deliverance, 668 
 
 person under, arrest of when about to abscond, 668 
 
 when case reserved, 864 
 
 on order for new trial, 873 
 
 render of accused by surety, 950 
 
 BAILEE— 
 
 larceny by, 344 
 
 BALLOT- 
 
 stealing, etc., '373 
 forgery of election, 514 
 destroying, 580 
 
 B ANK- 
 
 stealing by officers of, 355 
 
 B ANKER- 
 
 expre-fsion in ode defined, 2 
 
 BANK OTJ- 
 
 forgi'.ig, 512 
 
 fou -iJ, possi'ssion of, 52') 
 
 engta ving, or making jtlate for engraving, 525 
 
 printing, etc., circular in likeness of, SS-i 
 
 BANK OlFICER- 
 
 stealing by, o.m 
 
 making out false dividend warrant, 532 
 
 BAPTISM- 
 
 forging register of, 512 
 destrcying, etc., registry of, 530 
 making false entry in register, i)30 
 
INDEX. 
 
 1021 
 
 BAPTISM— Co7itmue(l 
 
 giving false certificate of registry, 530 
 uttering false oeitificate, 531 
 
 BARRATRY— 
 
 of ship, 570 
 
 attempt to commit, 570 
 
 BASTARD— 
 
 evidence at trial for murder of, 805 
 
 BATHING- 
 
 in public, 120, 141 
 
 BATTERY— 
 
 what constitutes, 2C2 
 when justified, 263 
 
 BAWDY HOUSE- 
 common, defined, 133 
 punishment for keejung, 134 
 being keeper or inmate of, 140 
 summary trial for, jurisdiction of magistrate absolute, SS"?, 
 
 BEGGAR— 
 
 is a loose, idle or disorderly person or vagrant, 140 
 
 BENCH WARRANT— 
 
 to compel appearance at trial, 736 
 
 BESETTING HOUSE— 
 
 to prevent person carrying on business, 591 
 
 BESTIALITY— 118 
 
 See Abominable Crime. 
 
 BETTING— 
 
 and pool-selling, 137 
 
 BETTING HOUSE— 
 common, defined, 134 
 punishment for keeping, 134 
 
 BEYOND THE SEAS— 
 offences committed, 633 
 
 BIGAMY— 
 
 whii' constitutes, 270 
 banishment for, 280 
 
 form of indictment, 280 
 
 BILL OF EXCHANGE- 
 
 forRery of, 512 
 
 BILL OF LADTNCt— 
 
 mcluded in expression of " document; of title to goods, ' 2" 
 forgery of, 512 
 
 

 ^ 
 
 
 Jl 
 
 1 
 
 Hp^ 
 
 1 
 
 1022 INDEX. 
 
 BIRD— 
 
 Btealing, 374 
 injuring, 579 
 
 BIRTH- 
 
 neglect to obtain assistance in childbirth, 228 
 
 concealment of, 229 
 
 forging register, 512 
 
 destroying, etc., register of, 530 
 
 making false entry in registry, 530 
 
 giving false certificate of registry, 530 
 
 uttering false certificate, 531 
 
 verdict of concealment of, on indictment f t murder, 820 
 
 BLASPHEMOUS LIBEL— 
 punishment for, 114 
 triable at quarter sessions, 114 
 
 BOAT— 
 
 damaging by explosion, 573 
 
 BODILY HARM— 
 
 to apprentice, 1.51 
 
 causing, with intent to murder, 212 
 
 inflicting, with intent to maim, etc., 233 
 
 wounding, etc./ 237 
 
 by administering poison, 240 
 
 by explosives, 241 
 
 by setting man-traps, etc., 243 
 
 negligently causing, 249 
 
 causing, by furious driving, 240 
 
 assault occasioning, 253 
 
 BODILY INJURY— 
 
 negligence causing. 249 
 
 BODY CORPORATE- 
 
 officer, etc., of, destroying or falsifying b «iks, 418 
 promoter, etc., of, making fjtlse statement. 419 
 making or possessing means of forging bill paper of, 52r» 
 
 BOND— 
 
 included in definition of valuable seci'rity, 5 
 forging, 512 
 
 BOOKS OF ACCOUNT— 
 
 fraudulent entry in, 421 
 BOOM— 
 
 injuries to, 571 
 
 BOUGHT AND SOLD NOTES- 
 
 included in expression, "document of title to goods," 2 
 
 BREACH OF CONTRACT— 590 
 
INDEX. 
 
 1023 
 
 nuvder, 820 
 
 ks, 418 
 
 m 
 
 paper of, 52r» 
 5 
 
 [to goods,' 
 
 BREACH OF THE PEACE- 
 
 proventing continuance or renewal, 20 
 arrest of peraoii found committing, 21 
 inciting Indians to commit, 63 
 lying in wait to provoke commission of, 08 
 See Riot. 
 
 Unlawful Assembly. 
 
 BREACH OF TRUST— * 
 
 by public officer, 80 
 wlien indictable, 344 
 punishment for, 417 
 
 BREAKING PRISON— 109-111 
 
 BRIBERY- 
 
 of judges, etc., 77 
 
 of peace officers, 77 
 
 of Government official, 78, 
 
 consequences of conviction, 80 
 in municipal affairs, 81 
 at elections, triable at Quarter Sessions, 005 
 
 BRIDGE— 
 
 injuries to, 573 
 
 BRITISH COLUMBIA— 
 
 meaning of "judge" in, in speedy trial provisions, 877 
 
 meaning of "magistrate" in summary trials, 884 
 
 api)lication of fines on summary trial, 889 
 
 meaning of "justices " in provisions for trial of juvenile offenders, 892 
 
 siiecial provisions as to trial of juvenile offenders in, 898 
 
 appeal from summary convictions in, 933 
 
 provisions as to estreat of recognizances, 951 
 
 BUCKET SHOPS— 
 
 Act against, 130 
 
 BUGGERY— 
 
 See Abominable Crime. 
 
 BROTHEL— 
 
 enticing woi^n or girl into, 125 
 
 BUILDING— 
 
 riotous destruction of, 57 
 riotous damage to, 58 
 stealing things fixed to, 376 
 setting fire to, 1)58 
 
 attempt, 563 
 threats to burn, 505 
 attempt to damage by explosives, 505 
 injuries to, by tenants, 581 
 
 BULLION- 
 
 g( lid or silver, unlawful ixjssession of, 550 
 
 ;tjl' 'M 
 
 :i- 
 
fWZ. 
 
 "•yiiii I'lmiiiiii 
 
 %■ ^ 
 
 Jk 
 
 I 
 
 m m 
 
 1024 INDEX, 
 
 BUOY- 
 
 alterinff, removing, etc., 570 
 
 BURGLARY- 
 
 general remarks on, 436 
 
 definitions, 4(59 
 
 breaking place of worship, 470, 471 
 
 punishment for, 471 
 
 house-breaking, 475, 478 
 
 breaking shop, etc., 480, 4S3 
 
 being found in dwelling-house by night, 483 
 
 being found armed or disguised, etc., 484, 485 
 
 punishment after previous conviction, 488 
 
 local description in indictment, C72 
 
 BURIAL— 
 
 miscc.duct as to, 139 
 forging register of, or copy. 512 
 board, counterfeiting seal of, 522 
 destroying, or offences as to, 330, 531 
 
 C. 
 
 CALENDAR MONTH— 
 
 in computipg time for punishment, 965 
 
 CANAL— 
 
 injuries to bank of, etc., 573, 574 
 
 CAPACITY— 
 
 to commit any offence, child under seven none, 7 
 of child between seven and fourteen, 7 
 of person of fourteen and upwards, presumed, 8 
 of boy under fourteen to commit rape, 8, 2(59 
 
 CAPITAL OFFENCES— 
 what are, G 
 
 Capital punjshment- 
 
 provisions resi)ecting, 960 
 
 CAPTIOX- 
 
 of indictment, not necessary, 845 «| 
 
 what is, 846 
 
 CARCASE— 
 
 killing animal to steal, 341 
 
 CARDS— 
 
 cheating at, 430 
 
 CARNAL KNOWLEDGE— 
 
 comi)lete on proof of any penetration, 6 
 bj' under fourteen cannot be guilty of, 8 
 
 procuring, or attempting to procure, of woman or girl under twentj 
 125 
 
INDEX. 
 
 1025 
 
 53 
 
 485 
 
 ;n none, i 
 
 juineil, 8 
 |8, 269 
 
 >uian or girl, 130 
 
 CARNAL KNOWLEDGE— Continiud. 
 the Hame by threats or intimidation, 12.') 
 or by false pretenses or represi'ntations, 125 
 attempting to have by stupefying woman or girl, ILT) 
 torni of indictment for procurmg, etc., 12G 
 
 for procuring by threats, 127 
 by false pretenses, 127 
 by stupefying, 127 
 of ward, pan nt or guardian procuring, 127 
 of girl under sixteen, householder ixTii cti> 
 cf idiot or imbecile, insane or deaf and dm 
 consent in such case no defence, 130 
 
 form of indictment, 130 
 of girl under fourteen, 274 
 
 fonn of indictment, 274 
 
 attempt, 274 
 
 consent not material, 274 
 abduction of woman with intent to marry or have, 28!) 
 abduction of heiress the same, 289 
 
 or of woman under twenty-one, 200 
 
 CASE- 
 
 statement of, by justices, 944 
 
 CASE KESERVED— 
 
 questions of law may be reserved, 864 
 case to be stated for Court of Apiteal, 804 
 appeal when court refuses to reserve, 8(5r> 
 evidence for Court of Appeal, 8(55 
 powers of Court of Appeal, 8(55 
 intermediate effects, 873 
 appeal to Supreme Court of Canada, 873 
 general remarks, 806 
 
 ICAT- 
 
 killing, etc., 580 
 
 ICATTLE- 
 detinition, 2 
 stealing, 373 
 killinpr, etc., 573 
 
 form of indictment, 575 
 attemi)t to kill, 579 
 threats to kill, 580 
 conveyance by railways, care of, 587 
 cruelty to, 587 
 
 pERTIFIt'ATE— 
 
 of warehouse keeper, included in expression "document of title to goods, 
 
 li woman or 
 
 girl under twentyoiw 
 
 of registration, in "document of title to lands," 2 
 false, of execution of death sentence, 106 
 of stock, forging, 512 
 Crim. Law— 65 
 

 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
 1.0 
 
 I.I 
 
 
 |28 |2^ 
 2.0 
 
 im 
 
 ^ 111= ilM 
 
 $fk 
 
 
 %ys 
 
 ^ 
 
 Photographic 
 
 Sciences 
 
 Corporation 
 
 23 WIST MAIN SVREET 
 
 WEBSTER, N.Y. 14580 
 
 (716)872-4503 
 

 %0 
 
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 n 
 
 
 1026 
 
 INDEX. 
 
 CERTIFICATE— Cbn<m«ed. 
 
 of marriage, forging, 513 \' 
 
 of dockkeeper forging, 613 
 
 of registry of birth, etc., uttering false, 531 
 
 certified oot^ of dociunent, etc., forging, 631 
 
 of indictment for bench warrant, 736 
 
 of trial at which perjury was committed, 800 
 
 of previous conviction, 801 
 
 of witness, 802 
 of dismissal at summary trial, 888 ' ''- 
 
 at trial of juvenile offender, 894 
 
 rj,t summary conviction, 918, 919, 920 
 
 CERTIORARI— 
 
 court may make rules for, 602 
 
 not required in indictment ajgainst corporation, 727 
 
 not to lie when appeal is taken from summary conviction, 938 
 
 in summary conviction proceedings, 938, 939, 946 
 
 CHALLENGE- 
 
 by Crown, in libel, 305 
 
 to grand jury, not allowed, 752 
 
 to array, 774 
 
 to jurors, 777 
 
 in case of mixed juries, 786 
 
 in joint trial, 786 
 
 CHANCE MEDLEY- 
 
 what is, 2aV . 
 
 CHARGE- 
 
 by judge to jury, 767 
 
 CHASTISEMENT— 
 
 reasonable, by parent or master, justified, 27 
 
 CHEATING- 
 
 at play, 430 
 
 at common law, 430 
 
 CHEQUE- 
 
 forgery of, 512 
 
 CHILD- 
 
 under seven, cannot commit offence, 7 
 
 between seven and fourteen, when capable, 7 
 
 of fourteen and upwards, capacity presumed, 8 
 
 duty to provide necessaries for, 143 
 
 under two years of age, abandoning, 149 
 
 when, becomes a human being, 206 
 
 concealing birth of, 229 
 
 under fourteen, consent no defence to indecent assault, 263 
 
 under fourteen defiling, 274 
 
 attempt, 274 
 unborn, killing, 276 
 
INDEX. 
 
 1027 
 
 1 
 
 Aion, 727 
 
 lary conviction, 
 
 (39, 946 
 
 i,27 
 
 Lble, 7 
 lumed, 8 
 
 Indecent assault, 253 
 
 CHILD— Con«tn«<d. 
 
 under fourteen, stealing, 296 
 
 evidence of, not under ocUA, 796 , 
 
 bastard, trial for murder, 806 " ^ ti ; 
 
 trial for murder of, verdict may be for oonoeaUng birth, 826 
 
 CHILD MURDER- ,. 
 
 remarks on, 173 ' ' 
 
 CHLOROFORM- 
 
 drugging by, with intent, 239 i , 
 
 CHOKE— ' 
 
 with intent to commit indictable offence, 239 
 
 CHURCH- 
 
 preventing clergymen o£Bciating in, 116 
 breaking and entering, 470, 471 
 
 CHURCHY ARD- 
 
 preventing burial in, 116 
 
 CIVIL REMEDY- 
 
 not affected by criminal offence, 602 
 
 CLERGYMAN— 
 
 obstructing in discharge of duty, 116 
 
 CLERK— 
 
 and servants, stealing by, 366 
 falsification of accounts by, 419 
 issuing false dividend warrants, 532 
 
 CODICIL- 
 
 included in expression "testamentary instrument," 6 
 stealing, 370 
 forgery of, 612 
 obtaining by forged, 624 
 
 COCK-PIT— 
 keeping, 587 
 
 COERCION- 
 of wife, 11 
 See Compulsion. 
 
 COIN- 
 
 offences relating to, 641 
 
 interpretation of terms, 641 , 
 
 counterfeiting coins, etc., 642 
 
 dealing in and importing counterfeit, 644 
 
 copper, 645 
 
 exportation, 646 
 
 making instruments for coining, 666 
 
 bringing instrument into Canada, 649 
 
 clipi^ng current, 649 
 
 defacing current, 650 
 
 Ifi 
 
1028 
 
 INDEX. 
 
 COIif—Cotitinucd. 
 
 possessing clippings, etc., 550 
 
 possessing counterfeit, 551 
 
 copper, offences respecting, 551 
 
 foreign, 552 
 
 counterfeit, uttering, 552 . v 
 
 uttering light coins, 554 
 
 uttering defaced, 655 
 
 uncurrent copper, uttering, 555 
 
 punishment after previous conviction, 555 
 
 uttering defaced, consent of Atty.-Gen. required for prosecution, 612 
 
 counterfeit, found under search warrant, 639 
 
 false or counterfeit, evidence on trial of, 801 < 
 
 trial for coinage offences, 828 
 
 counterfeit, destroying oft trial, 829 
 
 COMBINATION— 
 
 in restraint of trade, 589 
 
 COMMENCEMENT— 
 
 of prosecution, what is, 615 
 
 COMMISSION- 
 
 to examine witnesses, y94 
 
 COMMON ASSAULT— 
 
 definition, 259 
 punishment, .259 
 
 COMMUTATION OF SENTENCE- 
 COMMON LAW— 
 
 rules of, adopted, 7 
 offences under, 959 
 
 COMMON NUI3ANCE- 
 deiinitiou, 131 
 criminal, 133 
 not criminal, 133 
 
 COMPENSATION- 
 
 for loss of propertj', 900 
 
 to purchaser of stolen property, 901 
 
 COMPOUNDING FELONY-105 
 
 C JLSION— 
 jj threats, 9 
 of wife, 11 
 
 CONCEALING- 
 
 birth of child, 229 
 
 treasure trove, 329, 430 
 
 gold or silver to defraud partner, 34j 
 
 timber found adrift, 3S0 ^ 
 
 documents of title, etc. , 393 
 
lired for prosecution, 612 
 
 INDEX. 
 
 CONCEALING— Co>Umi«c(/. 
 
 anything capable of being stolen, 396 
 leeds, etc., 421 
 
 CONFESSION— 
 
 of accused, may be given in evidence, 657 
 punishment on, same as on verdict, 960 
 
 CONJUNCTIVE OR DISJUNCTIVE AVERMENTS- 
 
 when allowed, 678 
 
 on summary convictions, 948 
 
 CONSENT— 
 
 to infliction of death on one's self unlawful, 27 
 to indecent acts, 117, 121, 130, 252, 269 
 tr) abduction, 292, 293 
 
 CONSERVATORY— 
 
 stealinp plants, etc., in, 381 
 destroying same, 584 
 
 CONSPIRACY- 
 
 to kill or do bodily harm to Her Majesty, 46 
 
 to levy war with to depose Her Majesty, etc., 46 
 
 when treason, overt act of is overt act of treason, 47 
 
 to commit treasonable offence, 48 
 
 to intimidate legislature, 48 
 
 seditious, 72 
 
 to bring false .accusation, 100 
 
 to defile women, 129 
 
 to murder, 224 
 
 to defraud, 429 
 
 in restraint of trade, 593 
 
 in other cases, 596 
 
 indictment for, 680 
 
 CONSTABLE— 
 
 is a peace officer, 4 
 
 CONTEMPT— 
 
 of court, arrest without warrant for, 623 
 bj' witness at speedy trial, 881 
 
 CONTRACT— 
 
 criminal breach of, 590 
 
 CONTRIBUTORY NEGLIGENCE- 
 
 in manslaughter, 192 
 
 .. CONVERSION— 
 
 fraudulent, of property is theft, 339 
 
 I CONVICTION— 
 
 See PREVIOC8 Conviction. 
 Summary Conviction. 
 
 ICOPARTNER- 
 
 in i.iine, concealing gold or silver, 345 
 
 1029 
 
 IS: 
 
 if'' ■ *i» 
 &. t 
 
 u m 
 
 I 
 
\ 
 
 Jf i 
 
 1030 
 
 INDEX. 
 
 CORONER- 
 
 inquisition of, 638, 732 
 
 inqueat after execution of death sentence, 963 
 
 CORPORATION- 
 
 indictment againat, 727 
 
 CORRECTION- 
 
 reasonable, of child, etc, 27 
 homicide by, 27, 190 
 
 CORROBORATION— 
 
 for what offences required, 795 
 
 CORROSIVE FLUIT>— 
 
 attempt to cause bodily injury by, 242 
 
 CORRUPTION- 
 
 of judges, etc., 77 
 ' of officers prosecuting, 77 
 in municipal affairs, 81 
 
 COSTS- 
 
 in case of libel, 306 
 
 on speedy trial, 881 
 
 on trial of juvenile offenders, 897 
 
 in proceedings for indictable offences, 898 
 
 on conviction for assault, 899 
 
 taxation of, 900 
 
 on summary conviction, 920 
 
 Uriff of fees, 920 
 
 COUNSEL-757 
 
 See Addbbss of Counsel. 
 
 COUNT— 
 
 of indictment, what expression includes, 3 
 joinder of, 686 j . 
 
 COUNTERFEITING- 
 great seal, 621 
 seal of court, etc., 522 
 
 OOUNTY- 
 defined, 2 
 
 COURSE OF JUSTICE- 
 
 attempt to obstruct, 104 
 
 COURT OF APPEAL- 
 
 definition of, 2 
 See Appbal. 
 
 CREDITOR- 
 
 assigning property with intent to defraud, 421 
 false entries in books with intent, 421 
 
I I 
 
 INDEX. 
 
 CRIMINAL RESPONSIBILITY- 
 
 proteotion from, for aote done, 12 
 
 See JUSTIWOATION AND EXOUSE. 
 
 CROPS— 
 
 setting fire to, 564 
 attempt, 664 
 
 CROWN CASES RESERVED-864 
 See Cask Reserved. 
 
 CUMULATIVE PUNlSHMENTS-96r> 
 CURTILAGE- 
 
 what 18, 469 
 
 CUSTOMS— 
 
 officer of. is a public officer, 4 
 forgmfir mark or brand, etc., of, 514 
 
 1031 
 
 DAM- 
 
 injuries to, 573 
 
 DEAD BODIES— 
 
 misconduct in respect of, 139 
 
 DEAF AND DUMB PERSON- 
 
 spduction of, 130 
 
 DEATH— 
 
 punishment of, when, 6 
 
 false entry in, 530 
 uttering false certificate of, 531 
 execution of sentence of, 960 
 DEBENTURES- 
 foiigery of, 612 
 
 [declaration- 
 
 voluntary, in lieu of oath, 98, 99 
 
 |deeds— 
 
 included in document of title to lands 2 
 concealing, 421 ' ^ 
 
 forgery of, 512 
 
 bEFAMATORY LlBEL-296 
 K>ee LiBEt. 
 
 bEFICIENCY- 
 
 I general, when evidence of larceny m 
 
 PEFILEMENT- 
 
 of women, 125 
 
 conspiracy for, 129 
 
 II, 
 Iff 
 
 P 
 
 fill 
 
 1 
 
 1 
 
 '11 
 
 ■]!i|. 
 
 
 jii,-: 
 
 •■|i|ii|i: 
 
 f 
 
 m 
 
 f 
 I 
 
 I,!, :ii 
 
 I ; 
 
 m 
 
1032 
 
 INDEX. 
 
 DEFINITIONS-1 
 
 DE MEDIETATE LIXGU^— 
 
 jury abolished, 771 
 
 DEMURRER- 
 
 to indictment, 701 
 
 DEODAXD— 
 
 abolished, 974 
 
 DEPOSITION— 
 
 accused entitled to inspect, and have copy of, 751 
 of sick iierson, how taken, 794 
 of person abroad, 794 
 may be used at trial, 796 
 
 DESERT-DESERTER-49, 50, 633 
 
 DETAINER— 
 
 I forcible entry and, 60 
 
 DIRECTORS— , 
 
 of company, offences by, 418, 419 
 
 DISABILITIES- 
 DISGUISE— '^ 
 
 being disguised, when indictable, 485 
 
 DISOBEDIENCE— 
 
 to statute, 83 
 
 to orders of court, 83 
 
 DISORDERLY HOUSE- 
 
 is common bawdy-house, etc, 134 
 keeping, etc., 134, 140 
 
 DISTRICT- 
 definition of, 2 
 
 DIVIDEND WARRANT— 
 
 false, clerks issuing, 532 
 
 divisible averments, 686, 818 
 DOCK— 
 
 presence of prisoner in, 756 
 DOCUMENT— 
 
 of title to goods and lands, defined, 2 
 
 defined for purposes of forffory. 50;> 
 DOG- 
 
 stealing, 374 
 
 injuries to. 579 
 
 DOMESTIC ANIMALS— 
 
 stealing, 374 
 injuries to, 579 
 
 DRILLING— 
 
 unl.-vwful, otffMices as to, 59 
 
of, 751 
 
 INDEX. 
 
 DRIVING- ■ ' -1) 
 
 furious, doing bodly harm by, 249 
 
 DROWN— 
 
 attempt to, 212 ' ' • . ; 
 
 DRUG- 
 
 administering to woman for purpose of carnal connection, 125 
 administering, with intent, 239 
 administering to procure abortion, 275 
 
 DRUNKENNESS- 
 no excuse for crime, 11 
 
 DUEL- 
 
 seconds to, are principals in second degree, 35 
 challenge to fight, 61 
 killing in, 179 
 
 DUTIES— 
 
 tending to preservation of life, neglect of, 143, 198 
 
 DWELLING-HOUSE— 
 
 preventing breaking and entering justified, 24 
 the like by night, 25 
 
 stealing in, 384 * 
 
 definition in burglary, 469 
 
 offences as to, 471, 475, 478, 483, 434 
 destroying, etc., 573 
 injuries to, by tenants, 581 
 
 DYING DECLARATION- 
 
 admissibility of, in evidence, 201 
 
 1033 
 
 ^m 
 
 E. 
 
 ELECTION— 
 
 day of, assault on, 254 
 
 indictment, 257 
 documents of, stealing, 373 
 
 destroying, 580 
 doctrine of, as to different charges of theft, 686 
 
 ELECTRIC TELEGUAPH- 
 iujuries to, 569 
 
 ELECTRICITY- 
 
 breach of contract to supply, 590 
 
 I EMBEZZLEMENT-339, 340, 344 
 
 EMBRACERY-104 
 
 I ENGINE— 
 
 of railways, 245. 567 
 
 for working in mine, injury to, 573 
 
 'ii! ;fi! 
 
 i!( ':■■■■; 
 
 !':!: M 
 
 I! r" 1 . 
 
 t ;' I' 
 
 1 1 
 
 W pi. 
 
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 <fi 
 
 r 
 
 i 
 
 1034 
 
 INDEX. 
 
 ENGRAVINO- 
 
 excheqner bill or note, 625 ^ 
 
 ENLISTMENT- 
 
 forei|^ act of, in force in Canada, 62 
 
 ENTRY- 
 
 forcible, and detainer, 60 
 
 ERROR 
 
 writ of, abolished, 864 
 remarks ou, 866 
 
 ESCAPES AND RESCUES- 
 after committing offence, 18 
 from arrest for major offence, peace officer preventing, 10 
 
 private person preventing, 20 
 from arrest for minor offence, preventing, 20 
 or rescue in major offence preventing, iO 
 
 in minor offenge, 20 
 offences by, 107 to 113 
 
 ESTREAT- 
 
 of recognizance, 051 
 
 in Quebec, 035 x 
 
 EVIDENCE- 
 
 when to be corroborated, 705 
 of child not under oath, 705 
 in certain cases, 801, 800 
 And see Deposition. 
 
 EXAMINATION- 
 
 personation at, 538 
 
 EXCHEQUER BILLS- 
 deiined, 610, 525 
 forgery of, 525 
 
 EXCUSABLE HOMICIDE- 
 remarks on, 202 
 
 EXCUSE-7 
 
 See Justification and Exocse. 
 
 EXECUTION— 
 
 of sentence of death, 060 
 
 EXPLOSIVE SUBSTANCE- 
 definition, 2 
 offences by, 63 
 bodily injuries by, 241 
 damage to building, etc., by, 565, 573 
 consent of Attorney-General required for prosecution, 612 
 seized under search warrant, 638 
 
 EXPOSURE- 
 
 of person, 120, 141 
 
INDEX. 
 
 1035 
 
 preventing, W 
 20 
 
 [or 
 
 prosecution, 612 
 
 EXTORTION— 
 
 by defamatory libel, 299 
 at oommon law, 422 
 robbery and, 444 
 by threats, 461, 454 
 EXTRA-JUDICIAL OATHS-101 
 
 F. 
 
 FACTOR- 
 
 fraudulent dealing with goods, 424 
 
 FALSE EVIDENCE- 
 
 proouring death by, 97, 208 
 
 FALSE NEWS— 
 spreading, 73 
 
 FALSE PERSONATION- 
 of owner of property, 638 
 at examinations, 538 
 of owner of stock, 639 
 
 FALSE PRETENCES- 
 
 obtaining property by, 397 , 
 
 punishment for, 398 
 
 remarks on, 398 
 
 obtaining valuable security by, 414 
 
 FALSE RECEIPTS- 
 
 in dealing with property, 421 
 
 FALSE SIGNALS- 
 
 exhibiting, to bring ship into danger, 570 
 
 1 FALSE WEIGHTS OR MEASURES- 
 aelling goods by, 430 
 
 I FEAR- 
 
 death caused by, 208 
 
 IFELO DE SE— 
 
 aiding and abetting, 226 
 
 FELONIOUS INTENT- 
 
 in theft, formerly required, 325 
 
 tELONY AND MISDEMEANOUR— 
 distinction between, abolished, 603 
 
 FEMALE— 
 
 seduction of, under promise of marriage, 124 
 passengers on vessels, seduction of, 124 
 idiot, etc., carnally knowing, 130 , 
 
 indecent assault on, 252 
 
 rSNCE- 
 stealing, 380 
 injuries to, 582 
 
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 m 
 
 
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 ! 
 
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 1030 
 
 INDKX. 
 
 FERAE NATUR/E- 
 
 aninialf), when capablu of being ttolon, 323, 337 
 
 FINDING- 
 
 Isroeny by, 32t) 
 
 FINDING OF INDICTMENT^ 
 expreHflion defined, 2 
 
 FINE- 
 
 in disoretion of court when not fixml, iHU) 
 in addition or in lieu of punishment, 068 
 
 FINES AND FORFEITURES- 
 
 provisions re8i)eoting, i)58 
 
 FIRE-ARMS- 
 
 pomting at any person, 07 
 
 FISH- 
 
 1 destroying, in private waters, 574, 670 
 
 FIXTURES- 
 
 on buildings, stealing, 370 
 injury by tenant, 581 
 FOOD- 
 
 selling things unfit for, 133 
 
 FORCIBLE ENTRY- 
 
 imd detainer, CO 
 
 FOREIGN AGGRESSIONS-47 
 
 FOREIGN ENLISTMENT ACT— 
 
 in force in Canada, 52 
 
 FOREIGN SOVEREIGNS- 
 libol on, 73 
 
 FOREST— 
 
 setting fire to by negligence, 505 
 
 FORFEITURE- 
 
 fines and, 958 
 
 on conviction, abolished, 974 
 
 FORGERY- 
 
 general remarks, 489 
 
 provisions respecting, 509 
 
 definition, 510 
 
 punishment, 511 
 
 uttering, 521 
 
 possessing forged bank notes, 523 
 
 demanding property on forged instrument, 524 
 
 preparations for, 525 
 
 of certificates, 531 
 
 uttering false certificates, 531 
 
 of tra:l« marks, 5;i3 
 
11 
 
 INDEX. 
 
 VOUGERY—Cuntiniied. 
 
 un trial for, evidence iniiat be corroborated, 795 
 
 oompariHon of writings on trial, 805 
 FORMAL OBJECTIONS- 
 
 to proceedings before indictment, 701 
 
 FORMALITIES- 
 
 previous to indictment, 729 
 
 FORM— 
 
 matters of, in summary convictions, 937 
 
 FORMS— 
 
 in schedule two to be valid, 980 
 
 FRAUD— 
 
 upon the Government, 78 
 in dealing with property, 418 
 in Government contracts, 690 
 
 FRAUDULENT INTENT- 
 remarks on, 493 
 
 FRAUDULENT MARKING OF MERCHANDISE-533 
 
 FRUIT- 
 
 stealing, 381 
 destroying, 584 
 
 FURIOUS DRIVING- 
 doing bodily harm by. 249 
 
 1037 
 
 I III' 
 II' 
 
 Lt, 524 
 
 G. 
 
 GAMBLING— 
 in Htucks, 136 
 in public conveyance, 136 
 in stocks, evidence, 809 
 
 I GAMING HOUSE— 
 common, defined, 133 
 playing in, etc., 135 
 
 IGAOL- 
 
 included in term "prison," 4 
 
 common, defined for summary conviction, 906 
 
 JARDEN- 
 8tealing in, 381 
 destroying vegetables, etc., in, 684 
 
 PAS- 
 
 stealing, 322, 695 
 
 criminal, breach of contract to supply, 590 
 
 SASPE- 
 
 speoial provisions as to, 630 
 
 
 
 111' 
 
 l^ti 
 
 
 I 
 
 
 I 
 
 1 . "' \ 
 
 i 'J 
 
 \ . .t 
 
 
 
 1 
 
 ll 
 

 i^ 
 
 ^W 
 
 -J^ , 
 
 C 
 
 -VJf 
 
 - '4? 
 
 1038 INDEX. 
 
 GATE- 
 
 stealing, 380 
 
 destroying or damaging, 682 \ 
 
 GENERAL DEFICIENCY— 
 
 when evidence of larceny, 835 
 
 GIRL— 
 
 between fourteen and sixteen, seduction, 123 
 
 unlawfully defiling, 126 
 
 defilement, parent or gruardian procuring, 127 ^ 
 
 householder permitting, 128 
 idiot, etc., carnally knowing, ISO 
 under fourteen, defiling, 274 
 
 attempt, 274 
 under sixteen, abduction, 292 
 
 GLASS— 
 
 fixed to building, stealing, 376 
 
 GOLD- 
 
 ofFences as to, 345, 382, 642 
 
 GOODS— 
 
 document of title to, defined, 2 
 
 in progress of manufacture, stealing, 1^9, 390 
 
 destroying, etc., 574 
 defined as to fraudulent marking of merchandise, 534 
 
 GOVERNMENT— 
 frauds upon, 78 
 frauds in contracts with, 590 
 
 GRAND JURY- 
 
 proceedii gs before, 729, 733 
 
 objections to constitution of, 762 
 
 no challe. ,,e to any of, 752 
 
 not to ignoie bill fur insanity of accused, 863 
 
 special provision as to Nova Scotia, 876 
 
 GRAND LARCENY- 
 
 and petit larceny, distinction abolished, 307 
 
 GRAIN— 
 
 false receipt for, 424 
 
 intimidation to prevent delay in, 595 
 
 GREAT SEAL- 
 
 forgery of, 521 
 
 GREENHOUSE- 
 
 stealing fruit, etc., in, 381 
 destroying, etc., same, 584 
 
 GRIEVOUS BODILY HARM- 
 • See Bodily Harm. 
 
• ) 
 
 "Sill 
 
 INDEX. 
 
 GUARDIAN— 
 
 seducing ward, 124 
 
 proouring defilement of ward, 127 
 
 duty to provide necessaries for ward, 143 
 
 GUILTY— 
 
 case can be reserved though prisoner pleads, 867 
 
 1039 
 
 123 
 127 
 
 H. 
 
 i9, 390 
 irchandise, 534 
 
 1,863 
 L307 
 
 HABEAS CORPUS- 
 
 ad testificandum, abolished, 793 
 special provision, 874 
 
 HANDWRITING— 
 
 disputed, comparison with genuine, 805 
 
 HARBOUR— 
 
 injuries to, 573, 583 
 
 HARD LABOUR— 
 
 imprisonment in penitentiary, etc., to be with, whether in sentence or 
 
 not, 966 
 in other prison must be in sentence, 967 
 
 HAVING IN POSSESSION— 
 definition, 2 
 
 HIGH COURT OF JUSTICE— 
 
 of Ontario, is "Court of Appeal" and "Superior Court of Criminal 
 Jurisdiction," 2, 4 
 
 HIGH SiiJAS— 
 
 ofiences comn<itted on, 606 
 
 warrant for offence committed on, 632 
 
 HIGH TREA30N-46 
 See Trbason. 
 
 HOLES- 
 
 in ice, leaving ungfuarded, 250 
 
 1 HOLIDAY— 
 
 warrant may be executed on, 637 
 
 IHOMICIDE- 
 
 by neglecting natural duties, 143, 198 
 
 Imperial Commissioners' report on, 153 
 
 remarks on, 156 
 
 definition, 205 
 
 culpable, 206 
 
 And see Murder, Manslacghtbr. 
 
 
 ii-ii 
 
 1 ''' 
 
 
1040 
 
 INDEX. 
 
 HOP-BINDS— 
 
 destroying, etc., 574 
 
 HORSE— 
 
 included in term "cattle," 2 
 
 HOT-HOUSE— 
 
 stealing fruit, etc., in, 381 
 destroying same, 584 
 
 HOUSE- ^ 
 
 See DWELLING-HOCSE. 
 
 HOUSE-BREAKING— 
 See Burglary. 
 
 HOUSE OF ILL-FAME- 
 See Bawdy-House. 
 
 HOUSEHOLDER- 
 
 permitting defilement of girl on premises, 128 
 
 HUSBAND AND WIFE— 
 
 compulsion of wife not presumed, 11 
 
 neither accessory after the fact for receiving, etc., the other after com 
 
 sion of oifence, 40 
 duty to provide necessaries, 143 
 search warrant for wife in house of ill-fame, 642 
 
 HUMAN REMAINS- 
 
 misconduct in respect of, 139 
 
 HYPOTHECATION- 
 
 fraudulent, of real property, 422 
 
 tf. :?. 
 
 I 
 
 I. 
 
 ICE- 
 
 leaving hole in, unguarded, 250 
 
 IDIOT- 
 
 girl, seduction of, 130 
 
 IGNORANCE OF LAW— 
 
 not an excuse for crime, 11 
 
 IMMORAL BOOKS- 
 publishing, etc., 121 
 posting, 122 
 
 IMPARL- 
 
 aocused nut entitled to, etc., 710 
 special provision as to Ontario, 875 
 
 IMPERIAL STATUTES- 
 
 offenoes against, 6 
 
INDEX. 
 
 1041 
 
 s,128 
 
 .ing. etc., the other after commis- 
 
 ftme, 642 
 
 IMPOUNDING DOCUMENTS- 
 procedure at trial, 828 
 
 IMPRISONMENT— 
 
 provisions as to, 964 
 
 INCEST— 119 
 
 provisions as to, 119 
 
 m Maritime Provinces, unrepealed statutes as to, 119 
 
 INCITING— 
 
 indictable, though o£Fence incited not committed, 30 
 
 to drive furiously whereby death is caused is manslaughter, 3S. 
 
 to mutiny, 49 
 
 Indian to riot, 63 
 
 or attempting to incite, 598 
 
 INDECENT ACTS— , n 
 
 punishment for, 120, 121 
 acts of gross indecency — 121, 141 
 
 i INDECENT ASSAULT— 
 on males, 121, 253 
 on females, 252 
 consent of child under fourteen no defence, 253 
 
 I INDECENT EXPOSURE— 120, 141 
 
 [indecent EXHIBITION-140 
 
 llNDIAN- 
 
 inciting to riot, 63 
 woman, prostitution of, 130 
 
 INDIAN GRAVES- 
 
 stealing things deposited in, 393 
 
 Indictment- 
 
 definition, 3 
 
 finding the, what expression includes, 2 
 
 provisions respecting, 070 
 
 in si^ecial oases, 681, 685-6 
 
 against corporations, 727 
 
 preferring, 728 
 
 special provision for^Nova Scotia, 876 t 
 
 ^DORSEMENT- 
 of bill of exchange, etc., forging, 512, 513 
 of warrant, 637 
 of warrant for^witness, 649 
 
 IJFAMOUS CRIME-116 
 See Abominable Crime. 
 
 
 m 
 
 m 
 
 
 Gbiu. Law— 66 
 
r 
 
 
 e,i-. 
 
 .■:,tf ;■ 
 
 
 ^ • 
 
 1042 
 
 INDEX. 
 
 INFANT— 
 
 child under seVetl cannot commit offence, 7 
 duty to provide necessaries for, 143 
 under two years of age, abandoning, 149 
 See Child. 
 
 INFEOTION- 
 
 oommunicating, ia not an assault, 263 
 
 INFORMATION— 
 
 included in expressions "indictment " and "finding the indictment," 2, 
 for common nuisance, 132, 133 
 biefore magistrate, 632 « 
 
 INLAND REVENUE- 
 
 officer of, is « public officer, 4 
 .fotging stamp of, 614, 526 
 
 INNOCENT AGENT— 
 
 For offence committed by, absent employer is principal in tUnt degree, 31 
 
 INNUENDO- 
 
 in libel, 305 
 
 INQUIRY- 
 
 preliminary, by magistrate, 627, 644 
 
 INQUISITION- 
 by coronor, 638, 732 
 
 INSANITY- 
 
 when an excuse for crime, 8 
 of prisoner, 860 
 
 INSULT- 
 
 repelling assault accompanied by, 24 
 provocation by, in homicide, 311 
 
 INTENT TO DEFRAUD- 
 in forgery, 493 
 
 INTERPRETATION- 
 of terms, 1 
 
 INTIMIDATION- 
 
 to prevent person doing lawful act, 591 
 
 and assault, 693 
 
 to prevent business, 596 
 
 INTOXICATING LIQUOR- 
 definition, 3 
 
 sale of, near public works, 69 
 taking on board Her Majesty's vessels, 70 
 giving to woman or girl in order to have carnal connection, 126 
 
n 
 
 INDEX. 
 
 1043 
 
 gndi°S 
 
 the indictment," 2, 3 
 
 ,i« principal in fitst degree. 30 
 
 leal 
 
 ,roal connection, 125 
 
 J. 
 
 JOINDER— ^ 
 
 of counts, 686 
 
 of defendants, 696 
 
 of accessory and principal, 697 
 
 of offences, none on summary conviction prrioeedings, 908 
 
 JEOPARDY- 
 
 necessary to make conviction a bar, 715 
 
 no one to be put in, twice for an offence, 715 
 
 JOINT TENANTS- 
 
 how de&cribed in indictment, 681 . 
 
 JUDGE- 
 
 judicial corruption, 77 
 
 forging document issued by, 513 
 
 charge to jury, 767 
 
 JUDICIAL CORRUPTION-77 
 
 JUDICIAL DOCUMENTS- 
 stealing, 371 
 forgery of, 513 
 
 JURISDICTION- 
 
 of superior courts, 604 
 
 of courts of general or quarter sessions, 60 
 
 of the admiralty, offences within, 606 
 
 magisterial, 627 
 
 of courts, 728 
 
 in cases of libel against newspapers, 728 
 
 JURORS— 
 
 corrupting, 104 
 grand, evidence by, 734 
 not to separate on trial, 787 
 to have fire, etc., 787 
 I JURY- 
 
 addresses to, 757 
 charge, 767 
 polling the, 770 
 who qualified to serve ota, TTl 
 de medietate liagus^ abolished, 771 
 mixed, in Quebec, 772 
 in Manitoba, 774 
 challenging array, 7H 
 calling panel, 776 
 
 challenges apd directions to stand by, 777 
 challenge by Crown in libel eases, 786 
 challenges in case of mixed, 786 
 challenges in joint trials, 786 
 ordering talesi 767 
 saving clause as to, 787 
 
 ilii 
 
 • 
 
 ■m 
 
 MW 
 'mm 
 
 Vii 
 
 i"i 
 
 ■mv 
 
 i'lll 
 
 !. 
 
 
1044 
 
 INDEX. 
 
 JURY— Continued. 
 
 discharge of, 788 \ 
 
 view by, 829 4 
 
 retiring to consider verdict, 849 
 
 unable to agree, 849 
 
 proceedings on Sunday, 850 
 
 de ventre inspioiendo abolished, 850 
 And see Gbans Jury. 
 JUSTICE- V 
 
 definition, 3 
 
 See Maqistrate. 
 
 JUSTICE OF THE PEACE— 
 term "justice " includes, 3 
 unlawfully administering oath, 101 
 functionaries exercising powers of two, 605< 
 And see Magistrate. 
 
 JUSTIFICATION OR EXCUSE— 
 common law rules as to, 7 
 children under seven, 7 
 
 between seven and fourteen, 7 
 insanity, 8 
 compulsion by threats, 9 
 
 of wife, 11 • 
 
 drunkenness, 11 
 ignorance of law, 11 
 
 "justified" and "criminal responsibility" explained^ 1? 
 execution of sentence, 12 
 
 process, 12 
 
 warrants, 14 
 
 erroneous sentence or warrant, 14 
 sentence or process without jurisdiction, 15 
 arresting wrong person, 15 
 irregular warrant or process, 16 
 
 arrest by peace officer for offence supposed to have been committed, 16 
 persons assisting peace officer, 17 
 arrest without warrant, 17 
 arrest after commission of offence, 17 
 arrest for major offence committed by night, 17 
 arrest by peace officer of person found committing offence, 17 
 arrest during flight, 18 
 necessary force may be used to arrest, 19 
 process or warrant to be produced if required and notice of cause of am 
 
 given, 19 
 effect of failure to produce or give notice, 19 
 peace officer preventing escape from arrest, 19 
 private person preventing escape, 20 
 necessary force may be used, 20 
 preventing escape or rescue in major offences — protection from criniini 
 
 responsibility, 20 
 
INDEX. 
 
 1015 
 
 " explained^ 1? 
 
 JUSTIFICATION OR HXCXJSIl— Continued. 
 
 the same as to minor offences, 20 i : - 
 
 preventing breach of the peace, 20 
 
 arrest of person found committing breach of the pe^/oe, 21 
 
 peace officer receiving into custody party to breach of the peace, 21 
 
 suppression of riot by magistrates, 21 
 by any one, 21 
 necessary force may be used, 22 
 
 protection of persons subject to military law, 22 
 
 necessary force may be used to prevent commission of major offence, 22 
 
 self-defence, unprnvcked assault, 22 
 provoked assault, 23 
 
 provocation may be by blows, words or gestures, 23 
 
 force may be used to prevent insult, 24 
 
 one in possession of moveable property may resist taking by trespassers, 24 
 
 protection from criminal responsibility in defending possession of move- 
 able property, 24 
 
 one in unlawful possession not protected against owner, 24 
 
 necessary force to prevr it breaking and entering of dwelling-house may be 
 used, 24 
 
 and to prevent breaking and entering by night, 23 
 
 defence of real property against trespassers, 25 
 
 entry on house or land under assertion to title, 20 
 
 discipline of child, pupil or apprentice, 27 
 on board ship, 27 
 
 protection from criminal responsibility in performing surgical operation, 27 
 
 using force in excess of what is authorized, 27 
 
 consent to infliction of death no excuse, 27 
 
 act done in obedience to de facto law, 28 
 
 JUVENILE OFFENDERS- 
 trial of, 892 
 conditional release of, on first offence, 977 
 
 ''ill 
 
 m 
 
 I m 
 
 f 
 
 
 'in 
 
 to have been committed, 16 
 
 E. 
 
 KEEPER- 
 
 of penitentiary or prison is a " peace officer," 4 
 
 Lired and notice of cause of arrest 
 
 KEEWATIN- 
 
 for proceedings in, expression "Attorney -General" means Attorney- 
 General of Canada, 1 
 no 8i)eedy trial in, 877 
 summary trial in 884, 885 
 trial of juvenile offenders in, 892, 898 
 
 II 1 
 
 
 B—protection from criminal 
 
 KEY- 
 
 used by post office department, stealing, 372 
 stealing by means of, 389 
 
1046 INDEX. 
 
 KIDNAPPINQ- 
 
 what oonatitutes, 268 
 remarks on, 258 
 
 form of indiotment, 268 
 
 KILLING- 
 
 by correction, 27,!190 
 
 by influence on the mind, 208 
 
 cattle, 341, 678 
 
 pigeons, 376 
 
 See Homicide, Mcbder. 
 
 ©• 
 
 a 
 
 
 
 4< 
 
 ji 
 
 if 
 
 LAND- 
 
 document of title to, defined, 2 
 
 included in " valuable security," 6 
 stealing things fixed to^ 336 
 document of title to, stealing, 370 
 things fixed to, stealing, 876 
 
 LAND MARKS— 
 
 offences as to, 582 
 
 LARCENY— 
 
 Gknbkal Reuarks on— 307 
 
 the taking, 308 
 
 the carrying away, 320 
 
 the goods taken, 323 
 
 must be against owner's will or consent, 324- 
 
 intent required, 325 
 
 by finding. 329 
 
 evidence, etc., 332 
 
 general deficiency in books of clerk, 336 
 Provisions Respectino— 336 
 
 what things can be stolen, 337 
 
 animals capable of being stolen, 337 
 
 definition of theft, 338 
 
 theft of things under seizure, 340 
 
 theft by agent, 341 
 by attorney, 342 
 of proceeds under direction, 342 
 by co-owner, 346 
 
 by co-partners in mining claims, 345- 
 by husband and wife, 346 
 by clerks or servants, 355 
 by agents, etc., punishment, 369 
 by tenants or lodgerti, 370 
 of testamentary inutruments, 370 
 of judicial documents, 371 
 of post letter bags, etc., 372 
 of letters and other mailable matter, 37i} 
 
INDEX. 
 
 1047 
 
 >nt, 32* 
 
 335 
 
 l,34!> 
 
 fttter, 372 
 
 LARCENY— Co»t<tnu«d. » 
 
 of election documents, 373 1 1 
 
 of railway tickets, 373 
 
 of cattle, 373 
 
 of dogs, birds, etc.. 374 
 
 of oysters, 375 
 
 of things fixed to buildings, 376 
 
 of trees, saplifigs, etc., 377, 378 ' 
 
 of timber found adrift, 380 
 > of fences, styles, etc., 380 
 
 unlawful possession of trees, fences, etc., 380 
 
 of plants in gardens, 381 
 not in gardens, 382 
 
 of ores, minerals, etc., :W2 
 stealing from the person, 383 
 stealing in a dwelling-house, 334 
 stealing by pick-looks, etc., from any receptacle, 389 
 stealing goods in process of manufacture, 389 
 stealing in ships or from wharves, etc., 390 
 stealing wrecks, 392 
 stealing on railways, 392 
 stealing things in Indian grave, 393 
 destroying documents, .393 
 stealing promissory notes, 393 
 concealing anything capable of being stolen, 396 
 thief bringing into Canada anything stolen abroad, 396 
 punishment for, when not provided for, 397 
 
 when value exceeds $200 : 397 
 search warrant for things stolen, 638 
 
 three acts of, committed within six months may be tried together, 686 
 on indictment for, no verdict for obtaining by false pretenses allowed, 
 
 and vice versa, 719 
 summary trial, 884 
 trial of juvenile offenders, 892 
 compensation to purchaser of stolen property, 901 
 restitution of stolen property, 901 
 
 LAUDANUM- 
 
 administering, with intent to commit indictable offence, 239 
 LAW OF MARRIAGE-279 
 
 See Marriaqe. 
 LEAD- 
 
 on buildings, stealing, 376 . 
 
 LEASE - 
 
 of mine, fraud by holder of, 423 
 LEGISLATURE- 
 
 conspiracy to intimidate, 48 
 1 LETTER— 
 
 threats by, to murder, 222 
 
 stealing, 372 
 
 !, iiS; 
 
 m 
 
 ; il 
 
 i ' ii 
 
 m 
 
 ■"'ml 
 'Sfm 
 
 mi 
 
 'Ml 
 
 ii 
 

 ■■f 
 
 ■»!- 
 
 •1 
 
 
 
 .1 
 
 ; ! 
 
 ' - ; 
 
 1048 
 
 INDEX. 
 
 *. 
 
 LETTER— CoTJtjni/ed. 
 
 falsely pretending to enclose money in, 417 
 demanding with menaces by, 449 
 causing person to receive, containing threat, 432 
 threatening by, to bum, 506 
 to injure cattle, 580 
 
 LETTERS PATENT- 
 
 forgery of, 513 
 
 LEVYING WAR- * 
 
 to depose Her Majesty or compel Her to change Her measures, 46 
 
 conspiring to, for such purpose, 46 
 
 subject of state at peace with Her Majesty, 47 
 
 British subject in company with same, 48 
 
 against Her Majesty, conspiring, 48 
 
 LIBEL- 
 
 seditious, 72 
 on foreign sovereign, 73 
 obscene, 121 
 
 defamatory, defined, 296 
 publishing, defined, 297 
 
 upon invitation, 297 
 
 in courts, etc., 297 
 
 parliamentary papers, 297 
 report of proceedings of parliament and courts, 297 
 
 public meetings, 297 
 fair discussion and comment, 298 
 seeking remedy for grievance, 298 
 answer to inquiries, 298 
 giving information, 298 
 
 responsibility of proprietor, etc., of newspaper, 298 
 selling libels, 299 
 when truth is a defence, 299 
 defamatory, extortion by, 29S 
 punishment, 300 
 general remarks and cases, 300 
 procedure on, 304, 305 
 former act unrepealed, 306 
 defamatory, not triable at quarter sessions, 605 
 indictments for, 679 
 against newspaiiers, jurisdiction, 728 
 evidence in certain cases, 810 
 
 LIME- 
 
 destroying fish in river by, 574 
 
 LIMITATION- 
 
 of time to commence proceedings in certain cases, 613 
 what is commencement of prosecution, 615 
 need not be pleaded in criminal cases, 615 
 
II 
 
 INDEX. 
 
 1049 
 
 m 
 
 ige Her measurea, 46 
 17 
 
 iirts, 297 
 
 iper, 298 
 
 LIMITATION— Confmued. , , 
 
 of time in uilenoes under Dominijn Elections Act, 615 
 in proceedings on summary conviction, 906 
 action against justice for not making returns of convictions, 948 
 action for penalty, 958 
 against persons administering the criminal law, 070 
 
 LIQUOR— 
 
 in package on railway, damaging, 567 
 See Intoxicating Liquor. 
 
 LOADED ARMS— 
 deKnition, 3 
 
 LODGER— 
 
 tenant or, stealing by, 370 
 
 LOOSE, IDLE AND DISORDERLY- 
 
 wliat persons are, 140 
 search \<rarrant, 644 
 
 LOST PROPERTY- 
 larceny by finding, 329 
 
 LOTTERIES- 
 
 pn)vi8ions respecting, 138 
 
 tickets for, etc., seized under search warrant, 643 
 
 LUCKI CAUSA- 
 
 alxluction of heiress, 289, 293 
 larceny need not be, 333 
 nor receiving, 351 
 
 LUNATIC— 8, 860 
 
 See Insanity. 
 
 M. 
 
 
 ! 
 
 m 
 
 111!! ' 
 
 -'111 
 
 III: 
 
 :: 
 
 605 
 
 In cases, 613 
 
 MACHINERY- 
 
 riotou* destruction of, 57 
 
 damage to, 58 
 wilful damage to, 674 
 
 remarks, 577 
 
 MAGISTRATE- 
 
 suppressing riot, 21 . 
 
 reading Riot Act, 56 
 
 duty of, if rioters do not disperse, 57 
 
 certain to have powers of two justices, 605 
 
 jurisdiction in indictable offences, 627 
 
 meaning of expression, in summary trial proceedings, 884 
 
 may try juvenile offenders, 892 
 
 jurisdiction in summary convictions, 906 
 
 actions against, 979 
 
 I 
 
 ;l! 8: 
 
 I' 1 : "; 
 
 'lif'li 
 
 ■■Ij!l 
 
 : !ih! 
 
 m 
 
 t 
 
 ■ pi'' 
 
Il> 
 
 1060 
 
 INDEX. 
 
 ^i 
 
 MAIL- 
 
 definition, 6 
 
 offenoM M to, 372 
 
 ■topping with intent to rob, 447 
 
 MAILABLE MATTER - 
 dt)finition,!6 
 ■tealinff. 372 
 
 MAIM- 
 
 woiinding with intent, 233 ^ 
 
 or wound a publio officer, 239 
 
 by explosivea, 241 
 
 one'B self to obtain charity, 432 
 
 cattle. 673 
 
 attempt, 679 
 
 MALE PERSON- 
 
 indecent assault by, 116, 121, 263 
 
 MALICE— 
 
 in murder, 153, 167 
 . in mischief, 667 
 
 MALICIOUS INJURIES-567 
 SeoMiaoHiKV. 
 
 MANSLAUGHTER— 
 
 remarks on, 181 
 
 provisions as to, 211 
 
 definition, 211 
 
 punishment for, 225 
 
 triable at Quarter Sessions, 605 
 
 conviction or acquittal for, a bar to subsequent indictment foe munder„7iri 
 
 coh>'iotion for, on indictment for murder, 819, 822 
 
 And see HotficiDE. 
 
 MURDBR. 
 
 MANTRAPS- 
 
 setting, with intent to do bodily harm, 243 
 
 MANUFACTORY- 
 
 destroying or damaging, 67, 58 
 stealing goods entrusted, etc., 389 
 fraudulently disposing of goods entrusted, 390 
 damaging goods in, 574, 577 
 
 MARINE STORES- 
 oifenoes respecting, 425 
 March warrant, 641 
 
 MARINE— 
 
 receiving, etc., regimental necessaries from, 428, 429 
 
INDEX. 
 
 1051 
 
 MARRIAGE - 
 
 ))igainy, 279 
 
 feigi."<l, 287 
 
 polygamy, 287 
 
 unlawfully Bolt<mnizing, 288 
 
 Bolemnizing an unlawful, 28S 
 
 abduction for purpose of, 280 
 
 lioenae or certificate, forging, 613 
 
 regiatfr of, destroying, etc., 530 
 
 false extracts and certificates of, .530, 531 
 
 MARRIED WOMEN- 
 
 See Husband and Wikk. 
 
 MASKED— 
 
 being, when indictable, 486 
 
 MASTER^ 
 
 of ship, taking unseaworthy ship to sea, 261 
 
 consent of Minister of Marine required for prosecution, 612 
 
 
 ill 
 
 mt indictment fon murder, .TIB 
 [9,822 
 
 MASTER AND SERVANT- 
 
 criminal liability of master for acts of servant, 12 
 
 master may use reasonable force in correction of apprentice, 2t 
 
 neglect by master of natural duties, 143 
 
 assaults by masters on servants, 161 
 
 master may justify battery in defence of servant, 26S< 
 
 MATRONS- 
 
 jitry of, abolished, 850 
 
 MAYHEM— 
 
 when justifiable, 263 
 
 MEDICAL PRACTITIONER- 
 
 Biirgical o)x)ration by, 27 
 killing by, 196 
 
 MEETINGS- 
 
 public, offences respecting, 08 
 religious, disturbing, 116 
 
 MENACES— 
 
 Htealing in dwelling-house with, 384 
 sending letter demanding property with, 449 
 demanding with, 460 
 
 MENS REA- ^ 
 
 necessary to offence, 11, 295 
 
 METAL- 
 
 on buildings, stealing, 376 
 stealing ore of, 382 
 
 Hi 
 
 iliii'li' 
 
 li 
 
 •iiiii 
 
 m 
 
 
 iilil 
 
 i.lllig 
 
1052 
 
 INDEX. 
 
 MILITARY LAW- 
 definition, 3 
 
 protection of persona subject to, 22 
 code cannot affect government of Her Majesty's forces, 
 
 MILITIA- 
 
 enticing members of, to desert, 50 
 purchasing, etc., regimental necessaries, 428 
 
 MILL POND- 
 
 destroving flood gate of, 574 ^ 
 
 MINERALS— 
 stealing, 382 
 
 MINES- 
 
 punishment for leaving unguarded, 250 
 concealing gold, etc., to defraud partner in, 345 
 stealing ore, etc., from, 382 
 fraud by lessee or licensee of, 423 
 mischief to, 572 
 search warrant, 642 
 
 MISADVENTURE— 
 
 homicide by, 205 
 
 MISBEHAVIOUR IN OFFICE-80 
 
 MISCARRIAGE— 
 
 attempt to procure, 275-276 
 
 MISCHIEF- 
 
 causing damage, 557 
 
 arson, 558 
 
 attempt to commit arson, 563 
 
 damage by explosives, 563 
 on railways, 567 
 injuries to telegraphs, 569 
 wrecking, etc., 570-571 
 to mines, 572 
 punishments, 573 
 injuries to cattle, etc., 579-580 
 
 to poll-books, 580 
 
 by tenants, 581 
 
 to land marks, 582 
 
 to fences, etc., 582 
 
 to harbours, 583 
 
 to trees, etc., 583-584 
 other injuries, 585 
 
 MISCONDUCT— 
 
 in office, 80 
 
 of officers entrusted with execution of writ, 84 
 
 -MISDEMEANOURS- 
 
 felony and, distinction abolished, 603 
 
I t 
 
 INDEX. 
 
 i05a^ 
 
 :n!nii 
 
 MISFEASANCE IN OFFICE— 80 , , 
 
 MISPRISION— 
 
 of treason, 47 
 
 MORALITY, OFFENCES AGAINST- 
 unnatural offences, 116, 118 
 incest, 119 
 
 inflecent acts, 120, 121 
 publishing obscene matter, 121 
 posting immoral books, 122 
 seduction, 123, 124 
 unlawfully defiling women, 125-129 
 carnally knowing idiots, etc., 130 
 prostitution of Indian women, 130 
 
 MORTGAGE— 
 
 making fraudulent, 422 
 fraudulently concealing, 422 
 
 MOTION IN ARREST OF JUDGMENT— 852 
 
 MOTIVE— 
 
 not the same as intent, in criminal law, 11 
 
 need not be proved, in case of disobedience to statute, 53Qt 
 
 MI^XICIPALITY— 
 definition, 3 
 
 corruption in municipal affairs, 81 
 stealing by employees of, 355 
 employee of, refusing to srive up books, 369 
 stealing documents of election in, 373 
 destroying, etc., same, 580 
 
 MURDER— 
 
 remarks on homicide, 153 
 
 definitions, 210 
 
 provocation to reduce to manslaughter, 211 
 
 punishment fir, 212 
 
 attempts to commit, 'A2 
 
 threats by letter to, 222 
 
 conspiracy to, 224 
 
 accessory after the fact to, 225 
 
 by suicide, 226 
 
 no other offence can be joined in indictment for, 686 
 
 on indictment for, conviction only for murder or manslaughter, 819'- 
 
 MUTE— 
 
 sfihiction of deaf, 130 
 
 on arraignment, standing, 752 
 
 MUTINY- 
 
 iuciting tt), 49 
 
 sentence under Act of imprisonment, 966 
 
 ! Illll! 1 
 
 
 111 
 ■13! 
 
 1 
 
 ■iiitH 
 
 ml 
 
 m. 
 
 ■ ?'i : '■ 
 
 , III: 
 
 i iiil i 
 
 m 
 
 :'::!!i(.. 
 
 ili'illli 
 
fi 
 
 1054 
 
 INDEX. 
 
 N. 
 
 NECESSARIES— 
 
 duty to provide wife, child, etc., with, 143 
 punishment for neglect, 144 
 
 NECESSITY— 
 
 homicide by, 10, 171 
 NEGATIVE AVERMENTS- 
 
 in indictments, 676, 677 
 
 on summary convictions, 909 
 
 JfEGLIGENCE— 
 
 death caused by, 144, 191, 198 
 contributory, in homicide, 192 
 causing bodily injury by, 245, 249 
 setting fire to forest by, 565 
 
 JfEW BRUNSWICK- 
 
 " Court of Appeal " in, 2 
 
 "Superior Court of Criminal Jurisdiction," 5 
 
 incest in, unrepealed statute, 119 
 
 adultery in , 129 
 
 speedy trials in, definitions, 877 
 
 summary trials, 884 
 
 trial of Juvenile offenders, 890 
 
 application of fines, 890 
 
 definitions, 892 
 application of fines generally, 897 
 appeal from summary convictions, 933 
 recovery of fines on estreated recognizance, 951 
 
 :new trial- 
 
 court may order, on case reserved, 865 
 
 when granted, 872 
 
 by order of Minister of Justice, 873 
 
 may be ordered by Supreme Court of Canada, 873 
 
 NEWS- 
 
 publishing false, 73 
 
 J^EWSPAPER— 
 
 defined in respect to libel, 3 
 
 advertising reward for return of stolen property in, 106 
 
 responsibility of proprietor of, 298 
 
 trial for libel must be in province where newipaper published, 305 
 
 indictment against, for libel must allege publication in the district, 845 
 
 :night- 
 
 or " night time " defined, 3 
 
 arrest of person committing offence by, 17, 18 
 
 defence of dwelling-house entered by^ 24 
 
 what is, in burglary, 457 
 
 breaking shop, etc., by, 480, 483 
 
 being found in dwelling house by, 483 
 
 'b«ing found armed at, withint«nt, 484 
 
INDEX. 
 
 1055 
 
 Btty in, 106 
 
 rtpaper published, 305 
 ijlication in the district, 845 
 
 IS 
 
 HflGWI— Continued. " 
 
 being masked or disguised, or in possession of house-breaking implements 
 
 at, 485 
 damaging any property by, 574 
 arrest without warrunt of person found committing oifence by, 618 
 
 of person loitering on highway by, 618 
 
 NIPISSING- 
 
 special provisions as to, in sections 878, 879, 902 
 
 NOLLE PROSEQUI— 851 
 
 NORTH WEST MOUNTED POLICE— 
 enticing members of, to desert, 50 
 
 NORTH-WEST TERRITORIES- 
 
 expression " Attorney -General " means Attorney-General of Canada 
 
 in, 1 
 Supreme Court of is a "Court of Appeal," 2 
 
 " Superior Court of Criminal Jurisdiction," 5 
 sale of arms in, 69 
 no speedy trials in, 877 
 summary trials, 884 
 trial of juvenile offenders, 892 
 application of fines, 951 
 
 limitation of time for proceedings on summary oonvictions, 906 
 imprisonment in, 967 
 code applies to, 981 
 
 NOT GUILTY- 
 
 plea of, on refusal to plead, 752 
 
 NOTARIAL ACTS— 
 forgery of, 511 
 
 NOTICE- 
 
 of cause of arrest, to be given on executing warrant or process, 19 
 
 in proceedings against receivers, 827 
 
 to surety in recognizance to prosecute, not required, 661 
 
 of indictment against corporation, 727 
 
 of motion for leave to appeal on case reserved, 865 
 
 of appeal to Supreme Court of Canada, 373 
 
 NOVA SCOTIA- 
 
 *' Court of Appeal " in, 2 
 
 " Superior Court of Criminal Jurisdiction," 6 
 
 incest, unre|)ealed statute in, 119 
 
 sijecial provisions as to indictable offences, 876 
 
 8i)eedy trial in. 877 
 
 summary trial, 884 
 
 trial of juvenile offenders, 892 
 
 application of fines, 890 
 
 definitions, 892 
 application of fines generally, 897 
 appeal from summary convictirns, 933 
 recovery of fines on estreated recognizance, 961 
 
 :i 3 „ 
 
 '1 ! i 
 
 ^11 
 
 m 
 
 ii%! 111! 
 
 m 
 
 11 
 
 i:*ls 
 
 
 !-':!il 
 
 ill 3' 
 'Mi 
 
tkl 
 
 $■1 ^ 
 
 i j'1 ' 
 
 I 
 
 i 
 
 t: 
 i. 
 
 t 
 
 ;5 ' 
 
 1066 
 
 INDEX. 
 
 NUISANCE- 
 
 common, defined, 131 
 
 penalty for common, 133 
 
 of particular character, 133 
 
 selling things unfit for food, 133 
 
 common bawdy-house defined, 133 
 
 common gaming-house, 133 
 
 common betting-house, 134 
 
 punishment for keeping bawdy-house, etc., 134 
 
 offences as to gaming-house, 135 
 
 gambling in stocks, 136 
 
 public conveyance, 136 
 betting and pool selling, 137 
 lotteries, 138 
 misconduct in respect of dead bodies, 139 
 
 O. 
 
 OATH- 
 
 to commit certain offences, 70, 72 
 administering without authority, 101 
 
 OBJECTION— 
 
 certain objections not fatal, €78 
 
 to indictment, how taken, 701 
 
 on summary convictions not fatal, 908 
 
 OBSCENE MATTER— 
 
 publishing, mailing, etc., 121, 122 
 
 OBSTRUCTION- 
 
 peace or public officer, etc., 84 
 
 of peace officer entering gaming house, 135 
 
 of railways, 567 
 
 OBTAINING— 
 
 by false pretenses, 397 
 passage by false ticket, 417 
 OFFENCES AGAISNT THE LAW OF MARRIAGE— 279 
 
 See Marriage. 
 OFFENCES AGAINST THE PERSON AND REPUTATION— 143 
 See Person. 
 
 OFFENCES AGAINST RIGHTS OF PROPERTY— 336 
 See Theft, False Pretenses, Forgery, Mischief. 
 
 OFFENCES AGAINST PUBLIC MORALS-IU. 
 See Public Morals. 
 
 OFFENCES AGAINST PUBLIC ORDER-46 
 
 See Public Order. 
 
 OFFENCES AGAINST RELIGION-114 
 
 F -e Religion. 
 
VRRIAGE-279 
 
 sID REPUTATI0N-1« 
 
 lpERTy-336 
 RV, Mischief. 
 
 1-46 
 
 INDEX. 
 
 OFFENSIVE WEAPON— 
 definition, 4 
 unlawful use and possession of, 63 
 
 possession, 64 
 
 oarryinfT, 65 
 
 smugglers carrying, 65 
 
 carrying about the person, 67 
 
 at public meetings, etc., 68 
 
 near public works, 69 
 
 OFFICE- 
 
 selling, appointment, etc., 82 
 ofkial corruption, 77 
 disabilities by conviction, 80, 973 
 
 OFFICER— 
 
 judicial corruption, 77 
 employed in prosecutions, corruption of, 77 
 entrusted with execution of writ, misconduct of, 84 
 of justice, killing, 176 
 killing by, 178 
 And see Peace Officers. 
 Public Officers. 
 
 OFFICIAL CORRUPTION-77 
 
 OFFICIAL SECRETS- 
 
 unlawfuUy communicating, etc., 50, 51, 52 
 
 OIL WELL- 
 
 conveying water, etc., into unlawfully, 572 
 
 OMISSION— 
 
 to provide necessaries of life, 143 
 dangerous to life, duty to avoid, 144 
 to perform legal duties, homicide by, 191, 199- 
 See Neolioence. 
 
 ONTARIO- 
 
 " Cou\;t of Appeal " in, 2 
 
 *' Superior Court of Criminal Jurisdiction,'* 5 
 
 offences in certain parts of, 629 
 
 practice in, 875 
 
 provisions as to courts in, 875 
 
 speedy trials in, definitions, 877 
 
 summary trials in, definitions, 884 
 
 by magistrate in, 886 
 
 application of fines, 890 
 trial of juvenile offenders, definitions, 892 
 
 application of fines, 397 
 summary convictions, appeal, 933 
 
 returns in certain parts, 946 
 recovery of fines on estreated recognizance, 951 
 imprisonment in, special provisions, 967 
 Ckim. Law — 67 
 
 1067 
 
 
 M 
 
 r;iij 
 
 iii! 
 
 m 
 
 $^ 
 
 
 '1'! I|, 
 
 ':!::!!!! 
 
 'I .'; ti i 
 
 .llll:' 
 
i 
 
 1068 
 
 INDEX. 
 
 *'/ 
 
 nil 
 
 .}' I" 
 
 ORCHARD- 
 
 stealing fruit, etc., from, 381, 382 
 destroying fruit, etc.. in, 684 
 
 ORDERS— 
 
 •of court, disobedience to, 83 
 for payment of money, forging, 512, 518 
 for delivery of goods, forging, 512, 518 
 for passage on railway, etc., 514 
 
 'ORE- 
 
 of metals, stealing irom mine, 382 
 indictment for stealing, 685 
 
 OUTLAWRY— 
 
 abolished, 974 
 
 OVERT ACTS— 
 in treason, 47 
 t limitation of time, 614 
 
 indictment must state, 679 
 
 special provisions as to indictment not to apply, 755 
 
 indictment not to apply, 755 
 
 OWNER— 
 
 definition,4 
 
 of any property against which offence is committed, may arrest offendei 
 
 618 
 
 OYSTER BEDS— 
 
 unlawful dredging, 337 
 indictment for, 681 
 
 OYSTERS- 
 
 capable of being stolen, 337 
 stealing, 375 
 indictment for, 681 
 
 P. 
 
 PANEL- 
 
 of Jury, stealing, 371 
 See Challenok. 
 
 JCHY. 
 
 PARDON- 
 
 provisions as to, 976 
 
 PARENT— 
 
 may use reasonable force in correction of child, 27 
 
 duty to provide necessaries, 143 
 
 may justify battery in defence of child, 263, 264 
 
 PARLIAMENT- 
 
 levying war to intimidate, 46 
 conspiring to levy war to mtimidate 48, 
 
11 
 
 committed, may arrest offender, 
 
 INDEX. 
 
 PARLIAMENT-Ccm<mMed. 
 disobeying act of, 83 
 
 publishing ^port of proceedings not libel. 297 
 PARTIES TO OFFENCES--28 
 See AocBssoRv. 
 
 Aiders and Abkttobs. 
 PARTNER— 
 theft by, 345 
 
 in mining claim, concealing gold, etc., 345 
 PAWNBROKER- 
 
 PEACE- " ' """' '" ''""'" ""' ''^'' ''' 
 breach of, 52 
 articles of, 969 
 
 See Abtiolks of the Peace 
 Riot. 
 
 PEACE OFFICER- 
 defined, 4 
 justification in making arrest. 16-21 
 
 negect of, to suppress riot, 83 
 neglect to aid, 83 
 
 obstructing, in execution of duty 84 
 assault on, 254 ^' 
 
 arrest by, without warrant, 617, 619 
 
 PENALTY— 
 
 limitation of action for, 958 
 
 PENETRATION- 
 
 in carnal knowledge, 6, 269 
 
 PENITENTIARY 
 
 included in term "prison," 4 
 escape from, 112 
 
 imprisonment in, 966 
 
 [peremptory CHALLENGE-777 
 I bee Challenge. 
 
 PERJURY- 
 
 provisions as to, 85 
 subornation, 86, 96 
 punishment for, 97 
 lawful oath necessary, 88 
 mdictment, 89 • 
 evidence, 90 
 false oath is, 98 
 
 ;:,3raS7'?'^'*'°''«Wal,98 
 lalse affidavit out of Province 99 
 false statements, 99 ^^'""^'^ 
 
 1059 
 
 I 
 
 
 5 
 
 
 11 
 
 m 
 
 m 
 
1060 
 
 INDEX. 
 
 TEUJIJBY— Continued. 
 fabricating evidence, 99 
 triable at Quarter SesBions, 605 
 provisions as to indictment, 680 
 when evidence must be corroborated, 795 
 evidence of child not under oath, 795 
 evidence of trial where committed, 800 
 
 PERSON- 
 
 definition, 4 < 
 
 stealing from the, 383 
 
 PERSON AND REPUTATION, OFFENCES AGAINST- 
 DuTiEs Tending to Preservation of Life— 
 
 duties — definition, 143 
 
 duty of parent, guardian, etc., 142 
 
 omissions dangerous to life, 144 
 ) punishments, 144 
 
 abandoning infants, etc., 149 
 
 assaults by masters on servants, etc., 151 
 Homicide— 
 
 remarks, 153 
 
 definition, 205 
 
 when child becomes a human being, 205 
 
 culpable homicide, 206 
 
 procuring death by false evidence, 208 
 
 death within a year and a day,r208 
 
 killing by influence on the mind, 208 
 
 acceleration of death, 209 
 
 that death might have been prevented no excuse, 209> 
 
 treatment of^injury causing death, 209 
 
 Murder, Manslaughter, Etc.— 
 
 See Murder and Manslaughter. 
 
 Bodily Injuries, Etc.— 233 
 See Bodily Harm. 
 
 Assaults— 252 
 
 See Assault. 
 
 Rape and Procuring Abortion— 268 
 
 See Rape. 
 Abortion. 
 Offences Against Conjugal Rights, Etc.— 279 
 
 See Bigamy, Marriage, Abduction. 
 
 Defamatory Libel— 296 
 See Libel. 
 
 PERSONATION— 
 
 to obtain property, 538 
 at examinations, 538 
 of owner of stock, 539 
 
h 
 
 INDEX. 
 PETIT LARCENY- 
 
 distinction between grand lareeny and, abolished, 307 
 PETIT TREASON- 
 
 what constituted, 205 
 PICKLOCK- 
 
 stealing by means of, 389 
 PICTURES- 
 
 obscene, selling, etc., 121 
 PIGEON- 
 
 capable of being stolen, 337 
 killing with intent, 376 
 
 PILLORY- 
 
 punishment by, abolished, 974 
 PIRACY— 74 
 PLACE— 
 
 district, county and. defined togethw, 2 
 PLANT- 
 
 stealing, 381, 382 
 
 destroying, 684 
 
 PLAY- 
 
 cheating at, 430 
 
 PLEA- 
 
 included in expression "indictment," 3 
 
 of justification in libel, 305 
 
 objections to indictment to be before, 701 
 
 to indictment, time, 710 
 
 in bar, 714 
 
 of corporation. 727 
 
 in abatement abolished, 752 
 
 refusal to plead, 752 
 
 I PLEDGE— ' 
 
 unlawful, by attorney, etc., 342 
 |POISOX— 
 
 killing by, 174 
 
 attempt to murder by, 212 
 
 to cause bodily harm by, 240 
 
 administerinj? to procure abortion, 276 
 
 poisoning not an assault, 823 
 POLL- 
 
 challenge to, for favour, 779, 783 
 
 f>0LL-BOOKS— 
 stealing, 373 
 destroying, 580 
 
 fOLLiNG JURY-770 
 
 1061 
 
 III 
 
 if" 
 
 : II 
 
 ' i'' i 
 
 
 ;Mi! 
 
i ./ 
 
 
 i i: 
 
 1062 
 
 INDEX. 
 
 POLYGAMY— 
 
 provisions respecting, 287 
 POND- 
 
 mill-pond, damaging, 674 
 
 POOL SELLING— 
 betting and, 137 
 
 POSSESSION- 
 
 having in, defined, 2 
 
 of stolen goods, presumptive evidence of larceny, 33% 
 
 of stolen property, evidence on trial of receiver, 827 
 
 POST— 
 
 stealing, 380 
 damage to, 5<<)2 
 
 POST LETTER— 
 
 definition, 6 
 
 receiving stolen, 353 
 ' stealing, 372 
 POST LETTER BAG— 
 
 definition, 6 
 
 receiving stolen, 363 
 
 stealing, 372 
 
 POST OFFICE— 
 
 definition, 6 
 
 stealing key nt, 372 
 
 forging postal stamps, 627 
 
 sections of act repealed, 983 
 POSTPONEMENT— 
 
 of trial, 710, 713 
 
 POWER OF ATTORNEY— 
 
 theft of property held under, 342 
 forgery of, 513, 523 
 
 PRACTICE— 
 
 of courts as to juries, saving clause, 787 
 in courts of Ontario, 875 
 
 PREGNANCY— 
 
 of woman sentenced to death, 850 
 PRESENTMENT— 
 
 included in term ** indictment," 3 
 
 PRESUMPTION- 
 
 of capacity to commit crime, person of fourteen and upwards, 8: 
 
 of sanity, 8 
 
 of compulsion of wife, none, 11 
 
 of larceny by possession of stolen goods, 333 
 
 PRETENSES-397 
 
 See False Pketenses. 
 
 PREVIOUS CONVICTION— 
 
 stealing domestic animals after, 374 
 stealing trees, etc., after, 378 
 
INDEX. 
 
 PREVIOUS CONVICTIONS-Ccm<m«erf. 
 fences, etc., after, 380 
 plants, etc., in gardens, 381 
 not in srardens, 382 
 stealinflr after, 397 
 burglary, etc., after, 488 
 offence as to coin after, 5.55 
 damaging fences, etc., after, 582 
 trees, etc., 683 
 vegetables, etc., 684 
 indictment charging, 697 
 proceedings on, 791 
 proof of, 801, 802 
 
 may be given in evidence against receiver, 828 
 punishment after, 965 
 
 PRINCE EDWARD ISLAND- 
 " Court of Appeal " in, 2 
 "Superior Court of CriminalJurisdiction," 6 
 mcest m, unrepealed statute, 119 . 
 speedy trials in, definitions, 877 
 summary trials, special provisions, 886 
 trial of juvenile offenders, the same, 898 
 application of fines, 890 
 definitions, 892 
 
 general application of fines, 897 
 appeal from summary convictions, 897 
 return of convictions, 946 
 recovery of fines on estreated recogni^sanoes, 951 
 PRINCIPAL- 
 
 in first degree defined , 30 
 offence committed through agent, 30 
 m second degree defined, 31 
 all are, in treason, 35 
 See Accessory. 
 
 AiDEus AND Abettors. 
 PRISON— 
 definition, 4 
 
 escapes and rescues, 107, 113 
 See Gaol. 
 
 Penitkntiary. 
 PRISON BREACH-107.113 
 PRISONER- 
 removal of, 740 
 arraignment, 751 
 presence at trial, 756 
 statement of, to jury, 763, 764 
 procuring attendance of, as witness, 792 
 presence at taking evidence under commission, 794 
 statement of, before magistrate, evidence at trial, 80O 
 
 Hi 
 
 ill... 
 
 iii f: 
 
 i'lS, 
 
 lliii 
 
 .]' 
 
 ;!?!: 
 
r 
 
 'w 
 
 F:.'ii 
 
 v-,.- 
 
 4' 
 
 iili 
 
 If] 
 
 S.i 
 
 1064 
 
 INDEX. 
 
 PRISONERS OF WAR- 
 
 aasisting escape of, 111 
 
 PRIVY COUNCIL- 
 appeal to, abolished, 874 
 
 PRIZE FIGHT- 
 
 offences as to, 61, 62 
 PROCEDURE- 
 
 general provisions, 602 
 
 jurisdiction, 604 ^ 
 
 procedure in particular oases, 606 
 
 compelling appearance of accused before justice, 627 
 
 procedure on appearance of accused, 644 
 
 indictments, 670 
 
 corporations, 727 
 
 preferring indictment, 728 
 
 removal of prisoners — change of venue, 740 
 
 arraignment, 751 
 
 trial, 766 
 
 appeal, 864 
 
 special provisions, 874 
 
 speedy trials of indictable offences, 877 
 
 summary trials of indictable offences, 884 
 
 trial of juvenile offenders for indictable offences, 892 
 
 costs and pecuniary compensation — restitution of proi)«rty, 
 
 summary convictions, 906 
 
 recognizances, 960 
 
 fines and forfeitures, 958 
 
 PROCEEDINGS AFTER CONVICTION- 
 punishments, 959 
 
 capital punishments, 966 
 
 imprisonment, 964 
 
 whipping, 068 
 sureties for keeping the peace, and fines, 968 
 disabilities, 973 
 punishments abolished, 974 
 par 'r>ns, 976 
 
 actions against magistrates, etc., 479 
 PROCESS- 
 
 ofiicer justified in executing, 12 
 erroneous, 14 
 irregular, 16 
 
 issued without jurisdiction, 15 
 PROCLAMATION— 
 under Riot Act, 56 
 unlawfully printing, 522 
 proof of, 522 
 
 PROCURING- 
 
 oommission of offence, 28 
 
 indecent act by a male on a male, 121 
 
 defilement of girl, etc., 126, 127 
 
INDEX. 
 
 1065 
 
 ee, 627 
 
 ices, 892 
 
 m of proi)erty, 
 
 PROMISSOR\ NOTE- | , 
 
 stealing, 393 
 obtaining execution of, by false pretenses, 414 
 
 by force, 448, 452 
 forgery of, S12, 616 
 
 PROPERTY— 
 definition, 4 
 defence of, 24 
 
 defence by one without claim of right not justified, 24 
 defence of real, 26 
 
 assertion of right to, how enforced, 26 
 stolen, compensation to purcha(<er, 900 
 restitution of stolen, 901 
 
 PROPERTY, OFFENCES AGAINST RIGHTS OF-307 
 
 PROSECUTION— 
 
 commencement of, what is, 616 
 
 PROSTITUTE— 
 
 procuring a girl or woman to become, 125 
 Indian woman, 130 
 loose, idle and disorderly person, 140 
 See Bawdy-Housk. 
 
 PROVOCATION- 
 to assault, 23 
 
 to reduce murder to manslaughter, 156, 161, 162, 182 
 provisions as to, 211 
 
 PUBLIC MEETINGS- 
 
 coming armed within two miles of, 68 
 lying in wait for person returning from, 68 
 
 PUBLIC OFFICER— 
 definition, 4 
 breach of trust by, 80 
 obutruoting, in execution of duty, 84 
 uasault on, 254 
 
 PUBLIC ORDER, OFFENCES AGAINST- 
 treasun, 46 
 levying war, 47 
 treasonable offences, 48 
 conspiracy to intimidate legislature, 48 
 asHaults on the Queen, 49 
 inciting to mutiny, 49 
 enticing soldiei > oi seamen to desert, 49 
 resisting warrant to search for deserter, 50 
 enticing militiamen, etc. to desert, 50 
 
 unlawfully obtaining or communicating official information, 51 
 breach of ottioial trust, 52 
 
 PUBLIC SERVICE— 
 
 persons in, unlawfully communicating oilicial information, 51, 52 
 stealing by persons, 356 
 
 
\v 
 
 1066 
 
 INDEX. 
 
 PUBLIC SERVICE— Continued. 
 
 refusal to deliver up books, etc., 369 
 false statement of receipts, etc., 421 
 
 PUBLIC STORES— 
 
 offences as to, 425 
 
 PUBLIC WORKS— 
 protection of, 69 
 
 PUBLIC WORSHIP— 
 disturbing, 115, 116 
 
 PUBLICATION— 
 
 of false news, 73, 74 
 of libel, 296, 297 
 
 Q. 
 
 QUALIFICATION- 
 
 of grand jurors, how attacked, 752 
 of jurors, 771 
 
 QUARRY- 
 
 punishment for leaving unguarded so as to endanger life, 250» 
 
 QUARTER SESSIO.^S- 
 jurisdiction of, 604 
 
 QUEBEC— 
 
 "Court of Appeal "in, 2 
 
 " Superior Court of Criminal Jurisdiction," 5 
 
 fraudulent seizures ol land in, 422 
 
 speedy trials in, definitions, 877 
 
 summary trials, 884 
 
 application of fines, 890 
 trial of juvenile offenders, definitions, 892 
 
 application of fines, 897 
 appeal from summary convictions, 933 
 estreated recognizances in, 951, 955 
 imprisonment in, special provisions, 967 
 
 QUEEN- 
 
 treason by killing, etc., 46 
 See Theason 
 
 QUI TAM ACTIONS, 104 
 
 ; <l 
 
 R. 
 
 RACE— 
 
 betting on, 137 
 
 RAFT— 
 
 breaking, injuring, etc. , 671 
 
 RAILWAY- 
 
 intentionally endangering safety nf persons on, 245 
 negligently endangering safety, 245 
 tickets, stealing, 373 
 

 ndanger life, 250> 
 
 INDEX. 
 
 -RAILWAY- Continued. 
 stealing on, 392 
 forging tickets, 514 
 mischief on, 567 
 damage to, with intent, 673 
 conveyance of cattle by, 587 
 breach of contract to carry mails by, 590 
 RAPE— 
 
 boy under fourteen years cannot commit 8 -^m 
 provisions respecting, 268 ^"™™«. «. -«* 
 
 RECEIPT— 
 
 false, warehouseman giving, 423 
 false, statements in certain 424 
 forgery of, 512, 520 
 
 RECEIVING STOLEN GOODS- 
 
 provisions as to, 347 
 
 stolen post letter, 363 
 
 other cases, 354 
 
 when receiving complete. 355 
 
 after restoration to owner, 35'> 
 
 proceedings and trial, 697, 827, 828 
 
 RECOGNIZANCE- 
 stealing, 371 
 provisions as to, 950 
 when and how estreated, 953 
 special provisions for Quebec, 965 
 to keep the peace, 969 
 
 RECORD— 
 
 s?etSl;'ir''^«^^""''-^-*-nV'3 
 form of, on trial on indictment, 846 
 RECORDER- 
 
 has powers of two justices, 605 
 can hold a summary trial, 884 
 can try juvenile offenders, 892 
 
 REFORMATORY- 
 
 term "prison "includes, 4 
 imprisonment in, 967 
 
 REGISTER- 
 
 of deeds, false entry in, 511 
 of births, etc., forging, 512 
 forgmg public, 513 
 of court, forging entry in, 513 
 destroying, etc., any, 530 
 false extracts from, 530 
 littering false certificates of, 531 
 public, false entries in, 531 
 
 loer 
 
 II! 
 
 % 
 
T ~ 
 
 1068 
 
 INDEX. 
 
 h 
 
 HELTGION, OFFENCES AGAINST— 
 blasphemous libels, 114 
 interfering with, 115 
 
 HEPLICATION— 
 
 expression " indictment " includes, 3 
 
 HEPLY- 
 
 right of Attorney-Gfcneral to, 757 
 of counsel, 765 
 evidence in, 766 
 
 HEPRIEVE— 
 
 may be granted by court, 960,961 
 
 REQUESr- 
 
 for payment of money, forging, 513, 521 
 
 HESPITE- 
 
 ci execution of sentence, 960, 961 
 
 RESCUE-107 
 
 See Escapes and Rescues. 
 
 BESERVOIR— 
 
 damaging flood gate of, 574 
 
 RESTITUTION- 
 
 of stolen property. 901 
 
 RESTRAINT OF TRADE- 
 
 oifences as to, 589 
 
 REVENUE- 
 
 false statement of, by official, 421 
 stamps for, counterfeiting, etc., 626 
 
 RESVARD- 
 
 taking, for helping to recover stolen property, 105 
 for return of stolen property, advertising, 106 
 
 RING DROPPING- 
 trick of, 33, 312 
 
 RINGING THE CHANGES- 
 
 obtaining money by trick of, 311, 334 
 
 RIOT- 
 
 suppression of by magistrates, 21 
 
 by any one, 21 
 necessary force may be used, 22 
 
 jiersons subject to military law justified in obeying command to suppraii, 22 
 definition of, 55 
 punishment, 55 
 reading Riot Act, 56 
 destruction of building by, 57, 53 
 
 mVER- 
 
 navigable, damaging, 674 
 
yingr command tj suppress, 22 
 
 INDEX. 
 ROAD— 
 
 turnpike, property in, how averred, 681 
 ROBBERY— 
 remarks on, 433 
 agrgravated, 444 
 punishment, 446 
 
 assault with intent to commit, 447 
 stopping mail with intent, 447 
 ROUT- 
 
 provisions as to repeal, 56 
 
 S. 
 SAILOR- 
 
 enticing to desert, 49 
 carrying arms, 67 
 buying, etc., necessaries of, 428 
 
 advance note of, not an order for payment of money 5ia 
 preventing from working on ship. 595 ^' 
 
 SALE- 
 
 of things unfit for human food, 133 
 fraudulent, of property, 422 
 by false weights, 431 
 
 SALE OF OFFICE-82 
 SALMON RIVER— 
 
 throwing lime in with intent to destroy fish, 574 
 SALVATION ARMY— 
 
 meetings of, not an unlawful assembly, 54 
 SANITY- 
 
 always presumed, 8 
 
 SEA-BANK— 
 
 damaging, etc., 573 
 
 SEAL- 
 
 great, forgery of, 521 
 of court, etc., forging, 522 
 formality of a, on magistrates' documents, 948 
 SEAMEN— 49 
 See Sailob. 
 
 SEARCH WARRANT- 
 
 provisions as to, 638 
 public stores, 641 
 gold, etc., 642 
 timber, etc., 642 
 
 liquors near Her Majesty's vessels, 642 
 Kirl m house of ill-fame, 642 
 gaming house, 643 
 vagrant, 644 
 
 1069< 
 
^ir^^ 
 
 Ui 
 
 1070 INDEX. 
 
 SECURITY— 
 
 valuable, defined, 5 
 See Valuable Sbccrity. 
 
 SE DEFENDENDO— 
 See Self Dkfknob. 
 
 SEDITIOUS OFFENCES— 
 unlawful oath^ 70 
 definition 72 
 
 SEDUCTION— 
 
 of girl between fourteen and sixteen, 123 
 
 under promise of marriage, 123 
 
 of ward, servant, etc. , 124 
 
 of female passengers on vessels, 124 
 
 SEIZURE- 
 
 thinjfs under, stealing, 319, 340 
 fraudulent, of land, 422 
 
 SELF-DEFENCE— 
 
 to repel unprovoked assault, 22 
 
 provoked assault, 23 
 from assault accompanied with insult, 24 
 committing homicide in, 202 
 
 SENTENCE— 
 
 lawful, officer justified in executing, 12 
 erroneous, execution of, 14 
 without jurisdiction, 15 
 of death, false certificate of, 106 
 on trial, special provision for Nova Scotia, 876 
 of death, form of, MQ 
 how carried out, 961 
 
 SEPARATE TRIALS- 
 
 when parties entitled to, 696. 
 
 SERVANT- 
 
 correction of, by master, 27 
 
 duty of master to provide necessaries for, 14;i 
 
 assaults on, 1.51 
 
 may justify battery in defence of master, 263 
 
 troublesome, renaoving from house by force, justifiable, 2J4 
 
 taking his master's food for feeding cattle not theft, 339 
 
 larceny by, 355 
 
 SESSIONS OF THE PEACE— 
 See QuAHTKK Sessions. 
 
 SEVERANCE OF DEFENCE— 
 
 parties entitled to, 696 
 separate challenges ou, 786 
 
INDEX. 
 
 1071 
 
 SHERIFF— 
 
 is a "peace officer, "4 
 proclamation by, in case of riot, 56 
 challenge to array for partiality, etc.. of 774 
 duties of m executing sentence of delth,' 960 
 SHIP— 
 
 discipline on board of, justified, 27 
 
 placing, etc., explosives substance in sfiHin„ « . 
 
 murder, 212 ' ^"'"^^ ^'"^ *«• etc,, with intent to 
 
 with intent, 241 
 
 unseaworthy, sending or taking to sea, 251 
 steahng in, 390 ' 
 
 setting fire to, 558 
 
 attempt, 563 
 attempt to damage, by explosives, 565 
 castmg away, etc., 570 
 destroying or damaging by explosives, 573 
 preventmg seaman, etc., from working on. 695 
 
 SHIPWRECKED PERSON- 
 
 definition, 4 
 
 previating, from saving his life, 250 
 SHOOTING- 
 
 attempt to murder by, 212 
 
 with intent to maim, etc., 233 
 
 at Her Majesty's vessels, 239 
 SHOP— 
 
 breaking and entering, 480 
 SIGNAL- 
 
 of railway interfering with, so as to endanger life 245 
 
 to endanger property, 567 ' 
 
 marine interfering with, 570 
 
 SIMILITER- 
 
 in caption of record, 846 
 
 judgment not arrested for want of, 854 
 SMUGGLERS- 
 
 carrying offensive weapons, 65 
 SOCIETY— 
 
 unlawful, 70, 71 
 
 SODOM Y-1 16 
 
 See Abominable Crime. 
 
 50LICITING- 
 
 to commit offence, 30 
 to murder, 224 
 
 See AccEssoRv. 
 
 Aider a.\d AaETTor.. 
 
-■.—.«. .„^m 
 
 1072 
 
 INDEX. 
 
 SOLICITOR GENERAL— 
 
 expression " Attorney General " includes, 1 
 
 SOLITARY CONFINEMENT— 
 punishment by, abolished, 974 
 
 SOVEREIGN— 
 
 treasonable offences against, 46 
 See Thbason. 
 
 SPEEDY TRIALS— 
 
 of indictable offences, provisions for, 877 
 
 SPRING GUNS— 
 
 and man-traps, setting, 243 
 
 STACK— 
 
 of com, etc., setting fire to, 661 
 of grain, etc., threats to bum, 565 
 
 STAMP— 
 
 included in expression "property," 4 
 counterfeiting, 526, 527 
 
 STATEMENT— 
 
 ly prisoner to jury, 761 
 
 STATEMENT OF CASE— 
 
 by judge for Court of Appeal, 864 
 by justices for review, 944 
 
 STATUTE- 
 
 imperial, offence against, 6 
 disobedience to, 83 
 
 STAY OF EXECUTION- 
 
 of sentence of death by pregnant woman, 850 
 on judge's report, 961 
 
 STEALING- 
 
 See Larceny. 
 
 STEAMBOAT— 
 
 ticket for passage on, stealing, 373 
 forging, 514 
 
 STENOGRAPHER'S NOTES, 655, 715, 869 
 
 STILE- 
 
 stealing, 380 
 destroying, 582 
 
 STOCK— 
 
 included in term " valuable security," 5 
 transfer, etc., of, forging, 512 
 personating owner of, 539 
 
 STOLEN GOODS— 
 
 See Reobivino Stolen Goods. 
 
INDEX. 
 
 STORES-42r) 
 
 See Public Stores. 
 STRANGLING— 
 
 attempt to coinmit murder by, 212 
 with intent to commit offence, 28!) 
 
 STUT'EFYING— 
 
 Kirl or women with intent to have carnal connection, 12:. 
 with intent to commit indictable offence, 239 
 SLTBORNATION OF PERJURY-85 
 
 See Perjury. 
 Sl'BPCENA— 
 
 for witnytis on preliminary inquiry, 645 
 out of i)rovince, f)48 
 
 srBSEQUENT OFFENCE- 
 See Pkevious Conviction. 
 SITFFOCATIXG— 
 
 attempt to commit murder by, 212 
 
 with intent to commit indictable offence, 2.S!) 
 SriCIDK— 
 
 abettor in, guilty of murder as nrincipal, ;« 
 
 aiding and abetting, 22G 
 
 SlFxMMARY CONVICTION- 
 
 in'oceedings on, <io(j 
 
 SLTMMARY TRIALS- 
 
 of indictable offt^nced, provision for, 884 
 not limited to cities, 885. 
 
 smiMoxs— 
 
 for iippearance of accused, 032. 634 
 SlfNDAY- 
 
 warrant may be issued and executed on, r.3(! 
 jury may return verdict on, 850 
 
 SITPERIOR COITKT OF CRIMINAL JURISDIUTIUN- 
 
 definition, 4 
 jurisdiction of, (504 
 
 SUPREME COURT OF CANADA- 
 
 appeals to, 873 
 
 SURETIES— 
 
 of bail, rendering, iJ50 
 
 for keepnig the peace, etc., 968 
 
 articles of the peace, 969 
 
 SURGEON- 
 
 when justified in tjerforming ojjeration, 27 
 See Medical Phactitionkr. 
 SURVEYOR- 
 
 removing landmark placed by, 582 
 C'uiM. Law— 68 
 
 1073 
 
1074 
 
 INDEX. 
 
 
 'Is 
 
 1 
 
 
 
 
 
 '^M 
 
 ^" 
 
 
 ' '-Q 
 
 r^ 
 
 
 ■ » 
 
 
 
 mntB^M 
 
 
 ^'t^^s 
 
 ^Bmjib 
 
 
 
 m 
 
 : 
 ( 
 
 T. 
 TAKING- 
 
 necessary in theft, 308 
 
 TALES- 
 
 ordering on trial, 786 
 
 TELEGRAPH— 
 
 damage to, 56!^! 
 
 TELEPHONE— 
 damage to, 5(39 
 
 TENANT- 
 
 atealing fixtures, 370 
 injury to building by, 581 
 
 TENANT IN COMMON— 
 
 theft by, 345 
 
 indictment may name one as owner of property, 081 
 
 TENDER- 
 
 of payment, on distress warrant, 
 
 TERMS- 
 
 used in code, explanation of, 1 
 
 TERRITORIAL DIVISION- 
 definiti(ni, 5 
 
 TESTAMENTARY INSTRUMENT— 
 
 definition, 5 
 
 stealing, 370 
 
 forgery of, 512 
 
 forged, obtaining probate by, 524 
 
 THEFT- 
 
 See Larceny 
 
 THREATS- 
 
 compulsion by, when an excuse, 9 
 
 procuring connection with girl or woman by, 12(! 
 
 to murder, 222 
 
 extortion by, 451, 454 
 
 to burn, 565 
 
 to injure cattle, 580 
 
 articles of the jieace for, 969 
 
 THRESHING MACHINP]— 
 
 damage to, 577 
 
 TICKETS- 
 
 railway, etc., stealing, 373 
 
 forging, 514 / 
 
INDEX. 
 TIMBKR- 
 
 found adrift, stealing, 380 
 
 destroying, etc., 571 
 
 ttearch warrant for, 642 
 TIM?:- 
 
 limitation of, for prosecution, 013 
 
 TITLK- 
 
 of Act, 1 
 
 to goods, document of, defined 2 
 to lands, 2 ' 
 
 See Document of Title 
 TRADE— '■ 
 
 conspiracies in restraint of, 58!) 
 
 combinations in restraint of, jjso 
 TRADE MARKS- 
 
 forgery of, 533, 5;« 
 
 TRADE UXION- 
 
 not unlawful, 589 
 
 TRAIXING- 
 
 unlawful, to use of arms, 5!) 
 TRAVERSE- 
 
 to indictments, 710, 711 
 
 TREASON— 
 
 iiccessories after the fact to 47 
 
 indictment for, Jl^9'''^"^**'**^''^*P'^'*««"-ith Her Alaje.ty, 4,S 
 si>ecial i)rovisions as to trial, 7.55 
 TRKASOXABLE OFEEXCES- 
 
 conspiracy, etc., to dis,>ose Her Majesty, 48 
 
 to le^•y war against, or compel Her ilaiesfv f . 
 
 ^o .'"timidate tlu- Parlian.ent of "re S frc" r^' "''«• .'"ensures, 48 
 
 !" •"'I'.ce foreigners to invade Her M ".^ts^"^ " "'' '^'^"''''' ^^ 
 iiulictnient for, 079 ^Hajesty s dominions, 48 
 
 TRi:ASrRE-TROVE- 
 
 ciincealing, 329 
 
 conspiracy to conceal, 430 
 TRKK.S- 
 
 stealing, 377, 377, 378 
 
 unlawful possession, 38o 
 
 <l.-stroyi„g or damaging, 583 
 TRKSPASS- 
 
 "'^cessary force may In. used to resist, 24, 25 
 
 1075 
 
1076 
 
 INDEX. 
 
 i 
 
 TRIAL- 
 
 <m indictment, 75(5 
 speedy trial, t>77 
 nummary trial, 884 
 (»f juvenile offenders, 892 
 See New Trial. 
 
 TRICK- 
 
 larceny by, 311, 334 
 
 obtaining by false pretenses, 399 
 
 TRUST— 
 
 breach of, by public oificer, 80 
 criminal breach of, 417 
 
 TRUSTEE- 
 
 expression defined, .5 
 
 TURNPIKE- 
 
 road, property in how laid in indictment, (581 
 
 U. 
 
 UNDERTAKINCi- 
 
 for payment of money, forging, 5!1> 
 seaman's advance note is, 519 
 
 UNDERWRITERS— 
 
 setting fire to, etc., ship with intent to defraud, ^>iV£ 
 
 UNDUE INFLUENCE- 
 
 to obtain favours from (Government, 78 
 municipality, 81 
 
 UNLAWFUL ASSEMBLY- 
 
 definition, 52 
 punishment for, 5(5 
 
 UNLAWFUL COMBINATION- 
 
 in restraint of trade, r)89 
 
 UNLAWFUL CONSPIRACY- 
 
 nieaning of term "unlawful," 59ti 
 
 UNLAWFUL DISCHARGE— 
 
 of prisoner, IV-i 
 
 UNLAWFUL DRILLING- 
 
 and training to use of amis, 59 
 
 UNLAWFUL OATHS- 
 
 to commit certain offences, 70 
 eonii)ulnion against, 72 
 administering, 101 
 
 UNLAWFUL SOCIETIES -70, 71 
 
 UNLAWFUL WOUNDIN(;-237 
 
INDEX. 
 
 UNNATURAL OITKNCK- 
 provisions reHpecting, llti 
 See ABOMr.VAHLR Cui.mk. 
 
 (rXSKA WORTHY SHIPS- 
 
 sending and taking to nea, '2')l 
 UTTKRTNO- 
 intent in, .504 
 
 forged document, ;-)21, 523, '>3n, .531 
 counterfeit coin defined, .541 
 
 provisions as to, 541, .552, 554, 5,55 
 
 1077 
 
 V. 
 VAURAXT- 
 
 10086 idle and disorderly persons defined as, 140 
 search warrant for, (i44 
 
 VALUATiLK SECURITY- 
 
 definition, 5, 3!)4 
 
 stealing from post letter, .-^72 
 
 stealing from the perscjn, SH3 
 
 stealing, in dwelling house, 384 
 
 destroying, etc., 3'J3 
 
 obtaining execution of, by false pretense, 414 
 c'ompelhng execution of, by force, 448 
 extortion of, by letter, 44!) 
 
 by threats, 451, 4,54 
 forgery of, 513 
 
 VART XCE- 
 
 a»i'.;.'?ing at tri.al for, 82!> 
 in summary convictions, DOS 
 VK(4ETARLE PRODUCTS- 
 
 stealing (nnn garden, etc., 381, SH2 
 destroying in garden, etc., 5.S4' 
 VENIRE I)E NOVO- 
 
 Not provided for in code. 
 VEXUE- 
 
 -tfences counnittwl on transit, etc., (;*>7 
 sr-itement of, in indictment, 671 
 jurisdiction of courts, 728 
 <3hange of, 740 
 
 VEKDICT- 
 
 J"'!^'e n..t bound to accept first, 770 
 
 ot attempt when allowed, 811 
 
 ;vh,.n atten.pt charged full offence proved, 817 
 
 for a nunor ntf.,,ee included in offence charged 818 
 
 -f concahn-nt of birth on charge of child nmrder S2« 
 
1078 
 
 INDEX. 
 
 ff 
 
 VERDICT -Con<mMfrf. 
 
 jury retiring to consider, 84t> 
 
 muy be taken on Sunday, 84{( 
 
 judgment not arreHted fur formal defects in, K54 
 
 VESSELS— 
 See Ship. 
 
 VEX \TI01TS INDICTMENTS- 
 
 provisions now extended to all cases, 721> 
 
 VIADUCT- 
 
 damuging with intent, 573 
 
 VIEW- 
 
 by jury on trial, 82!t 
 
 VOLUNTARY ESCAPE— 
 
 V hat is, 108 
 
 VOLUNTARY OATHS- 
 
 adniinistering, 101 
 
 W. 
 
 WALL- 
 
 of the Hea, etc., damaging, 573 
 
 WAR— 
 
 levying by subject of state at iteace, 47 
 prisoners of, assisting escaix*, 111 
 
 WAREHOUSE— 
 
 keejjers of, giving false receipts, 42,S, 424 
 breaking and entering, 480, 4S.3 
 
 WARRANT- 
 
 officer justified in executing, 14 
 
 irregular, Ifi 
 arrest without, in wliat cases, (il(i 
 
 remarks on, 018 
 for offence out of jurisdiction, (»30 
 
 on the high seas, ()32 
 for apprehension of offender, (VST) 
 execution of, etc., 03(i 
 search warrants, (i3H 
 
 special cases. Ml, (543 
 
 for vagrant, C44 
 for witness, (]4(J-G48 
 of remand on inquiry, (552 
 of commitment, 65!) 
 of deliverance, (5(58 
 
 fr: arrest of jx-rson about to abscond, (5(58 
 Ind'a, included in expression "document of title of prufxls,": 
 doc.:, the same, 2 
 
INDEX. 
 
 fordeliveryof^cHxlHtheIilce,2 
 forflrery of, flig, 51;, 
 
 \VARRANT OF ATTORNKY- 
 stealing, 371 
 
 ^^^««^),^7.*^0RPAYMKNT- 
 
 '"cluded mexpresHio.,.. valuable- 
 
 forgery of, 518 '^amaWe security, " 5 
 
 WEAPON- 
 
 See Offensivk Wjjapo.v 
 WEIGHTS AND MEASURES- 
 
 fal«e, selling goods by. 430 
 WHARF- 
 
 stealing goods from, 330 
 WHIPPING- 
 
 punishment of, 968 
 WIF.^:— 
 
 c-npulsion of not presumed, 11 
 
 not accessory after the fact bv r • • 
 
 of offence, 40, 41 '"'* ^^ ''^^'^'ving, ,tc.. husband after . 
 duty c f hM«band to provide „« ■ ^^nnnission 
 
 ^^^-^inggo..3ofhur.r3r5"s^" 
 
 Sin;:To"^"*'^'^'--*-"ent'. include, 
 forgery of, 512 
 
 forged, obtaining probate by, 524 
 WITCHCRAFT- 
 
 I'retending to pmctice, 433 
 WITXES8-- 
 
 I'rmiring attendancf' of of .■ 
 '^' '-'J. to remain in atL idiri' thr^'J"'"'^^' ''' 
 . compelling attendance "S^ "''""^''"»*' ' »1 
 «ick, ev dence t«I-«„ ' 
 
 -tofCanrd:,;J4 ""'""'^•^'■-'"^ 
 WOMAN, OFFE.VCF>^ w..r 
 
 J'KM.VtE, 
 
 Rape. 
 WOOD- 
 
 «t'tting fire to, 5«4 
 
 I WOOLEN GOODS- 
 Btealing, 889 
 
> f ii ii. i ii!wi imw n 
 
 -"I^PP > ^ 
 
 1080 
 
 INDEX. 
 
 WORDS— 
 
 provocation to assault by , 23 
 kiUins by, 156, 165, 182 
 
 WOUNDING— 
 
 with intent to murder, 212 
 
 to maim, etc., 233 
 unlawful, 237 v 
 
 public officer in execution of duty, 239 
 and robbery, 444 
 
 WREOK- 
 definition, 6 
 stealing, 392 
 causing, 570 
 preventing saving of, i>71 
 
 av'rit— . , . «, 
 
 misconduct of officei- entrusted with executum, b4 
 stealing, 371 
 of election, stealing, 373 
 destroying, 580 
 
 WRIT OF error— 
 
 abolished, 804 
 
 WRITING- 
 
 definition, 6 
 
 destroying, falsifying, etc., by director.^, etc., 418 
 
 by clerks, 419 
 included in term "document " as to forgery, 509 
 
 YARN— 
 
 cotton, stealing, etc., 3S.1 
 
 20 
 
 4417 4