; w /±* UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY 14-'" EOSCOE'S DIGEST OF THE LAW OF EVIDENCE /VJ'V CRIMINAL CASES. TWELFTH EDITION. By A. P. PEECEVAL KEEP, M.A., OF THE MIDLAND CIRCUIT, BARRISTER-AT-LAW: LONDON : STEVENS AND SONS, Limited, 11!) & 120, CHANCEEY LANE, SWEET AND MAXWELL, Limited, 3, CHANCEEY LANE, 3£ntti publishers. 1898. KW? BHADBURY, AGNEW, & CO. LD., PB1NTEBS, LONDON AND TONBK1DGE. 3 r PREFACE TO THE TWELFTH EDITION. It is hoped that this, the Twelfth, Edition of Roscoe's Criminal Evidence will not be found to be in any way inferior to its predecessors. All the reported Decisions and Statutes since 1890 bearing on the subject have been incorporated, and no alteration has been made in the general arrangement of the work. It was felt desirable that the bulk of a book of this character, which is largely used on Circuit and at Sessions, should not be increased, and with this view the whole of the text has been care- fully revised, and by the excision of redundant and obsolete matter a considerable saving in space has been effected. By the Penal Servitude Act, 1891 (54 & 55 Vict. c. 69), the minimum sentence was fixed in every case in which a court has power to award a sentence of penal servitude, and in consequence of this Statute the parts of the sections in the Consolidation Acts prescribing the minimum period of punishment have been for the most part repealed by the Statute Law Revision Acts. These words have therefore been also deleted from the text of this volume, but a reference to the page on which the Penal Servitude Act will be found has been given in each case. While the book was passing through the press the Criminal Evidenee Act, 1898 (61 & 62 Vict. c. 36), became law. References to its provisions have therefore been inserted throughout the volume, and the Act itself will be found printed in full in the Appendix of Statutes. This is not the place for any remarks as to the effect of a measure which so widely affects Criminal Practice, but ii, may be observed that it is likely to give rise to many problems which can only be solved by the Court for the Consideration of Crown Cases Reserved. The material sections of the Inebriates Act, 1898 (61 & 62 Vict. c. 60), an Act which comes into operation on January 1, 1899, and which was passed too late for insertion in the text of the volume, will be found at the end of the Appendix of Statutes. A. P. P. K. November, 1898. CONTENTS. PAGE Index of Cases ix Table of Statutes li GENERAL HEADS. General Rules of Evidence : Best evidence ......... 1 Secondary evidence ........ 7 Presumptions . . . . . . . 13 Hearsay 22 Confessions .......... 34 Examination of prisoner ....... 50 Depositions .......... 56 What evidence is proper to the issue .... 70 Nature of the issue raised in criminal cases . . . 70 Substance of the issue to be proved as laid . . 75 Evidence confined to the issue . . . 78 AVitnesses — attendance, remuneration, and protection of . 93 incompetency of, from want of understanding . 100 incompetency of, from want of religious belief . 103 incompetency of, from interest . . . . 107 examination of . . . . . . .119 privilege of 129 Documentary evidence . . . . . . .141 Aiders, Accessories, &c. 157 Practice 105 Proceedings before the hearing 165 The hearing 189 Judgment 197 Appeal 204 Costs 210 v j Contents. PAGE 217 228 232 239 241 Vknue Appeehension of Offenders E vidence in Particular Prosecutions : Abduction Abortion ...•••••■ Affray Agents, &c, frauds by 242 A^son 248 Assault 26 ° Attempts to commit offences 269 Bankrupts, offences by - ' 3 Barratry 283 Bigamy 284 Bribery 29T Bridges 305 Burglary 313 Cattle 33T Challenging to fight 339 Cheating 340 Child, illtreatment and neglect of 344 Child, concealing birth of 350 Coin, offences relating to 353 Compounding offences .....•• 364 Concealment of deeds and incumbrances . . . • 366 Conspiracy .....•••• °" Conspiracies in restraint of trade Dead bodies, offences relating to 386 Deer, offences relating to . . . . . • • 388 Disturbing public worship • 390 Dogs ........... 391 Dwelling-house, offences relating to ... 392 Elections, offences at . . . . . . . • 395 Embezzlement . . . . . . . . .397 Escape 415 Explosive- 418 False copies of rules of trades unions ..... 422 False declarations ........ 423 False personation ........ 426 False pretences . . . . . . . .429 Ferae naturae, larceny of animals ..... 453 Fish. ..." 456 Fixtures 459 Forcible entry and detainer ...... 461 Forgery .......... 466 i }80 Lontents. VII PAGE dence in Particular Prosecutions — continued. Purious driving ....... . 508 509 Gaming ......... . 518 Grievous bodily harm ...... . . 521 Highways ........ . 525 543 Ill-treating apprentices, servants, &c. . 544 Inciting to mutiny ...... . . 547 Larceny ......... . 548 Libel '. 595 Machinery ........ . 614 616 Malicious Injuries ....... . 619 620 Manufactures ........ . 638 639 Murder ......... . 641 Murder, attempts to commit .... . . 692 Naval and military stores, offences relating to . 694 697 Oaths, unlawful ....... . 70S Offices, offences relating to . . . 711 Perjury ......... . 717 742 Piracy ......... . 743 Poison and other noxious things .... . . 748 1'o^t-office, offences relating to . . . . . 750 7o9 Public companies, offences by officers of . . 762 Railways, offences relating to .... . . 764 Rape and defilement. ....... . 767 Eeceiving stolen goods ..... . . 778 Eescue . . . «» . . 790 Riot 793 Robbery ......... . 800 816 Sea and river banks, &c, injuries to . 817 Seamen, offences relating to .... . . 81S Ships and vessels, offences relating to . 819 822 Shop . 823 Smuggling 824 Sodomy . . 828 via Contents. Evidence in Particular Prosecutions — continued Spring guns Stamps ...... Telegraphs, injuries to Telegraph messages .... Tenants and lodgers, offences by . Threats ...... Transportation, returning from . Trees and other vegetable productions Trustees, frauds by Turnpike gates, injuries to Works of art ..... Wounding ..... Written instruments .... General Matters of Defence : Infancy ...... Insanity ...... Coercion by husband Appendix : 14 & 15 Vict, c. 100 .... 22 & 23 Vict. c. 17 ... 30 & 31 Vict. c. 35 61 & 62 Vict. c. 36 . 61 & 62 Vict. c. 60 PAGE 829 830 832 833 835 836 843 845 848 848 849 850 852 856 858 868 871 877 878 882 885 INDEX S89 INDEX OF CASES. PAGE ABBEY v. Lill, 5 Bing. 299 . . 127 Abbot, R. v., 1 Den. C. C. 273 437, 441 Abingdon (Lord), R. v., 1 Esp. 225 609 Abithol v. Beneditto, 2 Taunt. 401 77 Abrahat, R. v., 2 East, P. C. 5C9 575 Aeerro v. Petroni, 1 Stark. 100 121 Adam v. Kerr, 1 B. & P. 360 . . 153 - R. v., 2 Russ. Cri. 146. . 568 Adams v. Kelly, Ry. & Moo. N. P. C. 157 603 —Lloyd, 3 Hurlst. & Nor. 351 131 - R. v., 3 C. A' P. 600 18 - Car. & M. 229 . . 797 - 22 Q. B. D. 66 . . 598 Adamson, R. v., 2 Moo. C. C. 286 441, 445 Adamthwaite v. Synge, 1 Stark. 183 145 Adderbury, R. v., 5 Q. B. 187. . 308 Addis, R. v., 6 C. & P. 388. .114, 515 Aden, R. v., 12 Cox, C.C. 512. . 571 Adey, R. v., 1 Leach, 206 680 -1 Moo. & R. 94 139 Adgar, 2 Moo. & R. 497 524 Adlard, R. v., 4 B. & C. 772 . . 714 Admiralty case, 6 Coke Rep. 51 746 Ady, R. v., 7 C. & P. 140 432 Aickles, R. v., 1 Leach, 294. . 9, 562 Akcuhead, R. v., Holt, N. P. C. 469 522 Alabaster v. Harness, (1894) 2 Q. B. 897 616 Albert, R. v., 5 Q. B. 37 226 Alcock v. Royal Exchange As- surance Company, 13 Q. B. 292 126 Alexander, R. v., 1 Leach, 63 . . 722 Alford, R. v., 1 Leach, 150 720 Alison, R. v., Russ. & Ry. 109. . 151 - 8 C. & P. 418 ... . 691 Alivon v. Fumival, 1 C. M. & R. 277 12,150 Allan, R. v., Carr. & M. 295. .415, 791 Allanson, R. v., 1 Lewin, C. C. 158 539 PAGE Allday, R. v., 8 C. & P. 136 196 Allen t'. Ormond, 8 East, 4. . . . 525 - R. v., 9 C. & P. 521 ... . 772 - 1 Den. C. C. R. 364 828 - 1 Moo. C. C. 154 . . 5 -L. R., 1 C.C. R. 367 284, 285, 289 - v. Flood, (1898) A. C. 1 382 Alleyne, R. v. Dears. C. C. 505. 205 Allison, R. v. 16 Cox, C. C. 559 604 Allum, R. v., 2 Cox, C. C. 62 . . 166 Almev, R. v., 3 Jur., N. S. 750. . 790 Almon, R. v., 5 Burr. 2686 606 Althausen, R. v., 17 Cox, 630 . . 287 Amey v. Long, 9 East, 473 .... 95 Amos, R. v., 2 Den. C. C. R. 65 254- Amphlitt, R. v., 4 B. & C. 35 . . 602 Anderson . Hamilton, 2 Brod. & B. 156 137 Weston, 6 Bing. N. C. 296, 301.. 15 - R. v., 2 Moo. & R. 469 434, 495 3 Russ. Cri. 63, 6th ed 671 - 11 Cox, C. C. 154 . . 69 -L. R., 1 C. C. R. 161 221 Andrews v. Cawthorne, Willes, 536 386 R. v., 2 Moo. & R. 37 . 512 nnesley v. Earl of Anglesey, How. St. Tr. 1139 14, 135 Anonymous, 1 Salk. 380 181 -1 Vent. 257 145 - 2 Dougl. 293 150 - 6 Mod. 96 711 - 7 Mod. 10 386 - 12 Mod. 607 .... 153 - Matth. Dig. Cr. Tr. 48 333 - 1 East, P. C. 261 . 658 - 1 East, P. C. 296. 687 - 2 East, P. C. 510. 333 -2 East, P. C. 617. 453 - 2 East, P. C. 662. 802 - Foster, 129 804 - 1 Leach, 7 158 - 3 Camp. 227 699 - Frost, App. 439 . . 695 - 1 Atk. 29 101 X Index of Cases. PAGE Anonymous, 1 Chit. Burn. 1001 98 1 Moo. C. C. 280 . 850 Math. Dig. 262 . . 869 Euss. & Ry. 268 . 199 Ry. & Moo. 300 . . 725 1 Russ. Cri. 372, 6th ed 736 - Holt on Lib. 224, 2nd ed 598 1 Lew. C. C. 8 .. 253 - 1 Lew. C. C. 37 . . 334 -lLew. C. C. 300 . 805 2 Lew. C. C. 48 . . 265 - 2 C. & P. 459 ... . 18 - 6 C. & P. 408 ... . 75 - 2 Chitt. 199 68 - 1 Cox, C. C. 250 . 360 -2C. & K. 854.... 63 Antrobus, R. v., 6 C. & P. 784 311, 712 Appleby, R. v., 3 Stark. N. P. 33 49 Appleton v. Braybrooke (Lord), 6 M. & S. 34 146 Archer, R. v., 1 Moo. C. C. 143 787, 869 -IF. & F. 351.... 622 Ardley, R. v., L. R. 1 C. C. R. 301 442 Ardsley, R. v., 3 Q. B. D. 255 . 537 538 Aris, R. v., 6 C. & P. 348 . . . . ' 255 Armstrong v. Jordan, 2 Stark. on Slan. 11, n., 2nd ed 601 Arnold v. Blaker, L. R. 6 Q. B. 433 526 -v. Holbrook, L. R. 8 Q. B. 96 526 — R. v., Collinson on Lu- nacy, 475 . . .' 859 -8C.& P. 621 63 Arscott, R. v., 6 C. & P. 408 . . 493, 499 Arton, Be, (1896) 1 Q. B. 108 . . 225 Ash, R. v., 2 Moo. & R. 294 . . 350 Ashburn, R. v., 8 C. & P. 50 . . 740 Ashby-Folville, R. v., L. R. 1 Q. B. 213 537 Ashe, R. v., 1 Cox, C. C. 150 . . J 94 Ashley, R. v., 1 C. & K. 198. .328, 330 Ah-hton, R. v., 1 Lew. C. C. 296 797 2 Lew. C. C. 147 33 Ashwell, R. v., 16 Q. B. D. 190 560 Askew, R. v., 3 M. & S. 9 206 Aslett, R. v., Russ. & Ry. 67 . . 414 - 2 Leach, 954 414 Aspinall, R. v., 2 Q. B. D. 48 . 70, 205 -1Q.B. D. 730 . 370 - L. R. 2 Ap. Ca. 48 370, 378 Astley, R. v., 2 East, P. C. 729 809 Athea, R. v., 1 Moo. C. C. 329 . 331 Atkins v. Hatton, 2 Anst. 386 . 152 Atkinson, R. v., 2 Ld. Raym. 1248 713 - 1 Leach, 302 . . 573 - 1 Russ. Cri. 153 868 PAGE Atkinson, R. v., 2 Moo. C. C. 278 404 : Carr. & M. 325 495 Attorney-General v. Briant, 15 M. it W. 169 137 Hitchcock, 1 Ex. 93 . . 90, 121 Terry, L. R. 9 Ch. 423 531 Attwood v. JolliSe, 3 N. Sess. Cas. 116 463 R. v., 1 Leach, 464 . . 114 Atwell, R. v., 2 East, P. C. 768 785 Auckland (Inhab. of), R. v., 1 A. & E. 744 537 Audley (Lord), R. v., 1 St. Tr. 387 772 - 3 How. St. Tr. 402 109 Austen, R. v., 25 L. J. M. C. 48 59 Austin, R. v., 1 C. & K. 621 . . 513 - 4 Cox, C. C. 385 . 166 Autey, R. v., Dears. & B. C. C. 294 484 Avery, R. v., 8 C. & P. 596.... 490 Aveson v. Kinnaird, 6 East, 188 23,27 Av'ett, R. v., 1 T. R. 63 74 8 C. & P. 669 66 Azire, R. v., 1 St. Tr. 633 109 BACON, R. v., 1 Lev. 146 .... 171 -llCox,C.C540 718 Backler, R. v., 5 C. & P. 118 . . 504 Badcock, R. v., Russ. it Ry. 249 157 Bagnall v. Underwood, 11 Price, 621 601 Bailev, R. v., L. R. 1 C. C. R. 347 855 -Russ. & Ry. 341.. 319 -7 C. & P. 264.... 731 - 1 Dears. C. C. R. 244 336 Baily v. Jamieson, 1 C. P. D. 329 527 Bain, R. v., L. ,t C. 129 270 Baker v. Greenhill, 3 Q. & B. 148 311 - Wilkinson, C. & M. 399 605 - R. v., 1 Leach, 290 .... 805 -1 East, P. C. 323. 685 - 2 Moo. & Rob. 53. 29 - (1895) 1 Q. B. 797. 729 Bakewell, R. v., Russ. & Ry. 35 414 Baldry, R. v., 2 Den. C. C. 430 36 Baldwin, R. v., 3 Campb. 265. . 782 Baldwin v. Elphinstone, 2 W. Bl. 1037 602 Ball v. Ray, L. R. 8 Ch. 467 . . 698 - R. v., 6 C. & P. 563 708 -Russ. & Ry. 132.... 82 -1 Moo. C. C. 330.. 82, 514 Balls, R. v., L. R. 1 C. C. 328. .88, 413 Balmore, R. v., 1 Hale, P. C. 305 114 Bamber, R. v., 5 Q. B. 279 541 Index of Cases. XI PAGE Bamfield, R. v., 1 Moo. C. C. 416 495 Banbury Peerage case, 1 Sim. & S. 153 15 Bank Prosecutions, case of, R. & R. 378 5 Banks, R. v., 1 Esp. 144 695 Bannen, R. v., 2 Moo. C. C. 309 362 Barber, R. v., 1 C. & K. 434 . . 152, 159 190 490 Barham,R. v., 1 Moo. C. C.'l51 ' 513 Barker, R. v., 3 C. & P. 589 . . 776 Dow. & Ry. N. P. C. 19 407 - 1 F. & F. 326 . . 10 25 Q. B. D. 213 . 539, 541 Barnard, R. v., 7 C. & P. 784. . 437 Barnes v. Ward, 9 C. B. 392 . . 530 -R. v., 2 Den. C, C. 59 .. 567 -L. R., 1 C. C. R.' 45 576 Barnett, R. v., 3 C. & P. 600 . . 202 2 Russ. Cri. 271 593 Barnoldswick, R. v., 4 Q. B. 499 537 Barraclough v. Johnson, 8 A. & E. 99 526, 538 Barratt, R.«., L. R., 2 C, C. 81 774 Barrett v. Long, 3 H. of L. Cas. 395 608 -R. r.,2C. A- K. 343.-627,631 — 32 L. J., M. C. 36 704 -15 Cox, C. C. 658 235 Barrow v. Humphreys, 3 B. & A. 598 97 - R. v., L. R., 1 C. C. 156 773 Barry, R. v., I F. .V- P. 389 .... 180 Bartholomew, R. v., 1 C. & K. 366 730 Bartlett v. Pickersgill, 4 Bur. 2255 729 - Smith, 11 M. A W. 483 121 - R. c, Salisb. Sp. Com. Deac. Dig. C. L. 1517 615 - 2 Sess. Ca. 291 . . 97 -2 Moo. & R. 362 491,492 -7C.&P.832 48,i07 Barton, R. v., 1 Moo. C. C. 141 496 Bass, R. v., 2 East, P. C. 566. . 573 2 ('. & K. 822 201 Bastin v. Carew, Ry. & Moo. 127 122 Bate r.Kinscy, 1 Cr. M.,v R.38 9 Bateman u. Bluck, 21 L. J., (,). B. 406 527 R. !'., 1 Cox, C. ('. 1H6 1H1 1 I '. & P. 1068 . 51 Bathwick, R. v., 2 B. & Ad. 639 132, 150 Batstone, R. v., L0 Cox, 20 257 Batthews r. Gralindo, 4 Bingh. 610 108 Batt, 6 C. & P. 329 798 PAGE Battams, R. v., 1 East, 298 170 Batty, R. v., 2 Moo. C. C. 257 . 405 Bauld, R. v., 13 Cox, C. C. 282 385 Baxendale v. McMurray, L. R. 2 Ch. 793 698 Bayard, R. v., (1892) 2 Q. B. 181 170, 542 Bayley v. Wylie, 6 Esp. 85 149 - R. v., Dears. & B. C. C. 121 405 Baynes v. Brewster, 11 L. J., M. C. 5 230 Bazeley, R. v., 2 East, P. C. 571 408, 576 Beacall, R. v., 1 Moo. C. C. 15 . 591 -1C. &P. 457.. 401 Beaman, R. v., Carr. & M. 595 573 Beaney, R. v., Russ. & Ry. 416 72 Beard, R. v., 8 C. & P. 142. .190,191, 502 Beardmore, R. v., 7 C. & P. 497 174 Beardsall, R. v., L. R., 1 Q. B. D. 452 395 Beare, E. »., 1 Ld. Raym. 404 .. 602 Beatson v. Skeene, 29 L. J., Ex. 430 138 Beatty v. Gilbanks, 9 Q. B. D. 308 799 Beaumont v. Mountain, 10 Bing. 404 144 — R. v., Dears. C. C. 270 406 Beavan v. Waters, M. & M. 235 135 Beckett, R. v., 1 Moo. & Ry. 526 850 Beckwith v. Philby, 6 B. & C. 635 229 — R. v., 7 Cox, C. C. 505 193 Bedford v. Birley, 3 Stark. N. P. C. 76 798 - R. v., 24 L. J., Q. B. 81 311, 541 Bedingfield, R. v., 14 Cox, C. C. 341 22,24, 31 Beech, R. v., 1 Leach, 133 726 Beechey, R. v., Russ.& Ry. 319 408 Beeley 'v. Wingfield, 11 East, 46 364 Beer v. Ward, 2 Phil. Ev. 245. . 155 - R. v., 2 Salk. 417 608 Beeston, R. v., Dears. C. C. 405 62, 65 Beeton, R. v., 1 Den. C. C. 414 789 Beighton, R. v., 1h Cox, 535 . . 769 Bell v. Chaytor, 1 C. & K. 162 . 155 - Stone, 1 B. & P. 331 . . 599 -R. v., 5 C. A P. 162 55 - Holt on Lib. 240, 2nd ed 600 - 12 Cox, C. C. 37 . . 282 - 14 Cox, C. C. R. 623 592 - 2 Moo. & R. 294 . . 350 Bellamy. R. v., Ry. * Moo. 171 145 Bellencontre, /.v., (1891) 2 Q. B. 122 225, 246 Bellingham, R. v., 1 Coll. on Lunacy, 636 860 Bellis, R. v., 17 Cox, 660 235 Xll Index of Cases. PAGE Belstead , E . v . , Russ. & Ry . 41 1 590 Belton, R. v., 5 Jur. N. S. 276 190 1 Salk. 372 180 Bembridge, R. v., 6 East, 136. . 341, 711 Benesech, R. v., Peake, Add. Ca. 93 ^27 Benge, R. v., 4 F. & F. 504 . . 627 Bennett v. Hertford, Sty. 233. . R. v., 2 Leach, 553, n. . . Russ. & Ry. 289. . 2 Den. C. C. 240 . 1 Bell, C. C. 1 . . 4 F. & F. 1105 . . Benson v. Offlev, 2 Show. 510. . R. v., 2 Camp. 507 103 54 317 727 622 268 158 148, 723 731 Bent, R. v., 1 Den. C. C. 157 . . ' 423 Berger, R, v., (1894) 1 Q. B. 823 25, 535, 542 Berkeley Peerage case, 4 Camp. 401 25 Bernadotti, R. v., 11 Cox, C. C. 316 28,31 Bernard, R. v., 2 Salk. 502 ... . 713 1 F. & F. 240 . . 209 Bemhard Mette, Re, 1 Swab. & Trist. 112 292 Berry, R. v., Bell, C. C. 46 ... . 719 L. R., 1 Q. B. D. 447 172 ■ Northampton Assizes, Nov. 17th, 1897 171 Berrvman v. "Wise, 4 T. R. 366 6, 601 75 R. v., 5 C. & P. 601. . Bertrand, R. v., L. R. 1 P. C. 520 Best, R. v., 1 Salk. 174 2 Moo. C. C. 124 . . 2 Lord Raym. 1167 205 378 365 369, 370 531 292 135 6 Betts, R. v., 16 Q.B. 1022 .... Bevan v. McMahon, 30 L. J., D. & M. 61 Waters, M. & M. 235 Williams, 3 T. R. 635 Beveridge v. Minter, 1 C. & 1'. 364 108 Bibithe, R. v., 2 Coke, Rep. pt. 4. 406 157 Bickerstaff, R. v., 2 C. & K. 761 756 Bignold, R. v., 1 Russ. Cri. 354, 6th ed 727 Biggadike, R. v 51 Billinghurst, R. v., 3 M. & S. 250 291 Bingley, R. v., 5 C. &. P. 602. . 801 Russ. & Ry. 446 506 -Hawk. P. C, bk. 1, c. 38, s. 37 333 Birchall v. Bullough, (1896) 1 Q. B. 325 156 R. v., 4 F. & F. 1087 . . 628 Birchenough, R. v., 7 C. & P. 575 175 Bird, R. v., 9 C. & P. 44 . . 316, 334, 589 PAGE Bird,R. »,2C. &K. 817 .... 352 2 Den. C. C. 94 .... 175 42 L. J., M. C. 44 . . 183, 565 17 Cox, 387 734 Birkett, R. v., Russ. & Ry. 251 505 8C. &P. 732.... 116 Birmingham, R. v., 8 B. & C. 29 291 Railw. Co., R. v., 1 Railw. Cas. 317 530 ■ & Gloucester Railw. Co., R. v., 3 Q. B. 223 178, 210, 538 Birt v. Barlow, 1 Dougl. 170 . . 151 R. v., 5 C. & P. 154 .. . .795, 796 Bishop, R. v., Car. & M. 302 . . 718 49 L. J., M. C. 45 545 Biss, R. v., 8 C. & P. 773 .... 706 Bitton, R. v., 6 C. & P. 92 .... 172 Bjomsen, R. v., L. & C. 545 . . 221 Blaby, R. v., (1894) 2 Q. B. 170 196, 353,362 Blackburn, R. v., 3 C. & K. 330 193 6 Cox, C. C. 333 41,108 Blackham, R. v., 2 East, P. C. 711 802 Blackmore v. Mile End Old Town, 9 Q. B. D. 451 532 Blade v. Higgs, 11 H. of L. Cases 621 454 Blake v. Pilford, 1 Moo. & R. 198 611 - R. v., 6 Q. B. 126 373, 376 Blakeman, R. v., 3 C. & K. 97. 186 Blakemore, R. v., 2 Den. C. C. R. 410 539 Bland, R. v., 1 Lew. C. C. 236 76 Blandv, R. v., 15 How. St. Tr. 1135 26 Blenkinsop, R. ;.'., 1 Den. C. C. 276 483 Blewett v. Tregonning, 3 A. & E. 554 126 Blick, R. v., 4 C. & P. 377 . .76, 460 Bliss, R. v., 7 A. & E. 550 .... 528 Bloomfield, R. v., Car. & M. 537 449 Blower v. Hollis, 3 Tyr. 356 . . 148 Boaler, R. v., 21 Q. B. D. 284.. 600 Boardman, R. v., 2 Lew. C. C. 181 497 Boddington (Inhab. of), R. v., 8 D. & R. 726 133 Bodele, R. v., 6 C. & P. 186 . . 119 Boden, R. v., 1 C. & K. 395 . . 802 Bolam, R. v., 2 Moo. & R. 192 174,211 Bolus, R. v., 11 Cox, C. C. 610 280 Bond v. Plumb, (1894) 1 Q. B. 169 518 Bond, R. v., 1 Den. C. C. 517 . . 50 Bonner, R. v., 6 C. & P. 386 . . 32 Bontien, R. v., Russ. & Rv. 260 486 Booth, R. v., Russ. & Ry. 47 . . 712 12 Cox, C. C. 231 235, 237 Index of Cases. xin PAGE Bootyman, R. v., 5 C. & P. 300 168,414 Borrett, R.r,6C. & P. 124. .6, 755 Borthwick, R. v., 1 Doug. 207. . 688 Boswell, R. v., 6 Car. & M. 584 41 Bostock, R. v., 17 Cox, 700. .268, 777 Botfield, R. v., Car. & M. 151. . 529 Boucher, R. v., 8 C. & P. 141 . . 191 Boult, R. v., 2 C. & K. 604 .... 499 Boulter, R. v., 2 Den. C. C. 396 . . 735 Boulton, R. v., 5C. & P. 537 . . 584 - 1 Den. C. C. 508 431,444 12 Cox, C.C. 87, 93 369 Bourke v. Warren, 2 C. & 1'. 307 607 Bourne, R. v., 5 C. & P. 120 . . 635 Bouvier, Ex parte, 42 L. J., Q. B. 17 225 Bowden, R. v., 2 Moo. C. C. 285 393 Bowen, R. v., Cur. & M. 149 . . 522 -9 C. & P. 509.... 174 - 13 Q. B. 790 .... 451 -1 Den. C. C. 22.. 499 Bower, R. v., 1 B. & C. 587 714 Bowerman.R. v., (1891) 1 Q. B. 112 244 Bowers v. Nixon. 12 Q. B. 546.. 184 - R, v., L. R., 1 C. C. R. 41 403 Bowes, R. v., 1 East, 164 378 Bowler, R. v.. Coll. on Lunacy 673 '. 859 Car. & M. 559 .. 423 -7C. &P. 773 189 Bowman, R. v., 6 C. & P. 337.. 175 Bows v. Fenwick, L. R. 9 C. P. 339 519 Bowyer, R. v., 4 C. & P. 559 . . 255 Box, R. v., 9 C. & P. 126 568 - 2 Rubs. Cri. 829 492 Boyes, R. v., 1 B. & S. 311. .114, 130 Boyle v. Wiseman, 10 Ex. 647. . 7, 12 Boynes, R. v., 1 C. & K. 65 423 Brackenbiidge, R. v., L. R., 1 C. C. R. 133 489 Rrackeiilmrv. R. /'., 17 Cox, 628 44 Bradfield (Inhab. of), R. v., L. R., 9 Q. B. 552 535 Bradford v. Dawson, (1897)1 Q. B. 307 519 R. v., 29 L. J., M. C. 171 766 Bradlaugh v. Newdegate, 1 1 Q. B. D. 1 . .616, 617 - R. v., 15 Cox, C. C. 156,217 ....114, 166, 595, 596, 605 - 3 Q. B. D. 607 70 204, 205 Bradley v. James, 13 C. B. 822 26 Bradshaw v. Bennett, 1 Mem. & R. 143 155 PAGE Bradshaw, R. v., 14 Cox, C. C. 83 621, 624 Brady, R. v., 1 Leach, 327 724 Brain v. Preece, 11 M. & W. 773 26 - R. v., 6 C. & P. 349 ... . 643 1 Hale, P. C. 455 . . 659 Braintree, R. v., 28 L. J., M. C. 1 8 Bramley, R. v., L. & C. 21. . 560, 564, 583 - Russ. & Ry. 478. . 583 Brandreth, R. v., 32 How. St. Tr. 770 185 Brannan, R. v., 6 C. & P. 326. . 504 Brannon, R. v., 14 Cox, C. C. 394 163, 180 Brawn, R. v., 1 C. & K. 144. .284, 289 Bray, R. v., 9 Cox, C. C. 218 . . 732 -3 B. & S. 255 739 -32L. J., M. C. 11.. 166 Brazier, R. v., 1 East, P. C. 443 100 Brecon, R. v., 15 Q. B. 813. . 308, 310 Bren, R. v., L. & C. 346. . . . 403, 405 Brett v. Beales, M. & M. 416. .25, 144 — Ex' parte, In re Hodg- son, 1 Ch. D. 151 280 Bretton v. Cope, Peake, N. P. C. 43 150 Brewster v. Sewell, 3 B. & Aid. 296 7 Brice, R. v., Russ. & Rv. 450. . 316, 319 — 2 B. & Aid. 606 .... 189 Bridges v. Blanchard, 1 Ad. & E. 536 15 Briggs, R. v., Dears. & B. C. C. 98 295 -1 F. & F. 106.... 193 Brightside Bierlow, R. v., 13 Q. B.933 528, 534 Brigstock, R. v., 6 C. & P. 184. 612 Brisac, R. v., 4 East, 164 378 Brittain v. Bank of London, 3 F. & F. 465 484 Brittleton, R. v., 12 Q. B. D. 266 586 Britton, R. v., 1 Moo. & R. 297. 180 Broadfoot, R. v., Fost. 154 688 Brocas v. Mayor of London, 1 Str. 307 150 Brodribb, R. v., 6 C. & P. 571. 708, 709 Brogan, R. v., Lane. Sum. Ass. L834, MS 55 Bromage v. Prosser, 4 B. & ('. 256 608 - Rice, 7 C. & P. 548 165 Bromwich, R. v., 1 Lev. ISO.. 58, 67 Brook v. Brook, 3 Sm. & Giff. 48] 287,292 Brooke, R. v., 1 Den. C. C. R. 217 513 -2 Stark. 472 125 Brookes, R. v., 1 Dears. C. C. R. 184 787,869 Broughton (Inhab. of), R. v., 2 Moo. & R. 444. 542 XIV Index of Cases. PAGE Brown v. A.-G. of New Zealand, (1898) A. C. 234 . . 868 Croome, 2 Stark. N. P. C. 297 610 "Woodman, 6 C. & P. 206 12 Turner. 13 C. B. 485.. 516 E. v., O. B. 1763 811 11 Mod. 273 540 1 Vent. 243. . . .110, 234 lEast, P. C. 245. 661 2 East, P. C. 487 . 315, 324 2 East, P. C. 731 . 809 2 East, P. C. 501 . 329 2 East, P. C. 1007 426 2 East, P. C. 493 . 322 April, 1824 650 Carr. & M. 314.. 241, 796 -4C. &P. 558 255 1 Den. C. C. E. 291 424 9 Cox, C. C. 281 95 14 Cox, C. C. 144 691 2 F. & F. 559 . .83, 507 L. E. 1 C. C. E. 70 89 10 Q. B. D. 381 . . 693 L. E. 1 C. C. E. 244 351 14 Cox, C. C. 144 159 -24Q. B. D. 357.. 209, 270, 828 (1895) 1 Q. B. 119 167, 519 Browne. E. v., Moo. & M. 315. .77, 147 Brownell, E, v., 1 A. & E. 598. .94, 97 Brownlow v. Tomlinson, 1 M. & Gr. 484 530 Brownswood v. Edwards, 2 Ves. sen. 244 130 Bruce, E. v., 2 Leach, 1093 220 Brummitt, E. v., 1 L. & C. 9 . . 591 Brunswick v. Harmer, 14 Q. B. 185 605 E. v., 1 Moo. C. C. 26 590 Brunton, E. v., Euss. & By. 454 117 Bryan, E. v., Dears. & B. C. C. 265 441, 442 2 F. & F. 567 . . . . 432 Bubb, E. v., 4 Cox, C. C. 455 . . 165 Buccleuch (Duchess of), E. v., 1 Salk. 358 539 Buckeridge, E. v., 4 Mod. 48 . . 539 Buckingham (Marquis of), E. v., 4 Campb. 189 307 Buekland, E, v., 12 L. T., N. S. 380 542 Buckley, E. v., 13 Cox, C. C. 293 . . 26 Buckmaster, E. v., 20 Q. B. D. 182 565 Bucknall, E. v., 2 Lord Eaym. 792 308 PAGE Bucks (Inhab. of), E. v., 12 East, 204 305 Budd, E. v., 5 Esp. 229 15 Bull, E. v., 2 East, P. C. 572 . . 576 14 Cox, C. C. E. 608 449 Bullock v. Dodd, 2 B. & Aid. 258 177 E. 37 L. J., M. C. 47 338 Buhner, E. v., L. & C. 476. .434, 452, 586 Buncombe, E. v., 1 Cox, C. C. 113 869 Bunkall, E. v., L. & C. 371. .572, 575 Bunn, E. v., 12 Cox, C. C. 316 367, 383 Burbage, E. v., 3 Burr. 1440 . . 96 Burdett, E. v., 1 Lord Eaym. 148 712, 713 - 4 B. & Aid. 95 13, 607, 608 - Dears. C. C. 431 123 - 24 L. J., M. C. 63 Burgess, E. v., Kel. 27 - L. & C. 258 . . 16 Q. B. D. 141 193 328 583, 692 364 202 431 489 180 9 43 118 464 181 705 Burgiss, E. v., 7 C. & P. 488 Burgon, E. v., 25 L. J., M. C. 105 Burke, E. v., Euss. & Ey. 496. . Burkett, E, v., Andr. 230 Burleigh v. Stibbs, 5 T. E. 465 Burley, E. v., 1 Phill. Ev. 413 - 2 Stark, Ev. 13 . . Burling v. Bead, 11 Q. B. 904 Burnby, E. v., 5 Q. B. 348 Burnett, E. v., 4 M. & S. 272 . . Burnsides, E. v., 30 L. J., M. C. 42 447 Burr v. Harper, Holt, N. P. C. 420 154 Burrell, E. v., L. & C. 354 236 Burridge, E. v., 3 P. Wins. 495 163, 790, 791 Burrowes, E. v., 1 Moo. C. C. 274 322,323 Burt v. Burt, 29 L. J., P. & M. 133 285 -E. v., 11 Cox, C. C. 399 .. 532 Burton v. Plummer, 2 A. & E. 341 126 - E. v., 1 Moo. C. C. 237 401 - 1 Dears. C. C. 282 17 -2F. & F. 788.... 193 - 3 F. & F. 772 860 - 13 Cox, C. C. 71.. 166 - 16 Cox, C. C. 62. . 432 Burton-on-Trent, E. v., 3 M. & S. 537 291, 292 Bush v. Steinman, 1 Bos. & Pul. 404 533 E. v., Euss. & Ey. 372 . .76, 780 Bushell v. Barrett, Ev. & Moo. 434 370 -E. ^.,16 Cox, C. C.367 211 Index of Cases. xv PAGE Butcher, R. v., 1 Bell, C.C. 6. .433,450 Butterfield, R. v., 17 Cox, 598. . 792 Butteris, R. v., 6 C. & P. 147 . . 786 Butterwick, R. v., 2 Moo. & R. 196 211,214,491 Butterworth, R. v., Russ. & Ry. 520 335 Buttery, R. v., Russ. & Ry. 342 490 Buttle, R. v., L. R. 1 C. C. R. 248 131 Button, R. v., 8 C. & P. 660 . . 263 Buxton v. Gouch, 3 Salk. 269.. 718 Byam v. Booth, 2 Price, 234 . . 148 Bykerdike, R. v., 1 M. & Rob. 179 73 Byrne v. Harvey, 2 M. & R. 89 10 CABBAGE, R. v., Russ. & Ry. 292 555 Cadman, R. v., 1 Moo. C. C. 114 239 Cain, R. v., 2 Moo. C. C. 204 . . 583 Caistor, R. v., 7 A. & E. 594 . . 199 Callan, R. v., Russ. & Ry. 157. . 315 (allanan, R. v., 6 B. &. C. 102 721, 725 Calvert v. Archb. of Canterbury, 2Esp. 645 26 Cambridgeshire, R. v., 4 A. & E. Ill 528 Camfield, R. v., 1 Moo. C. C. 42 330 Campbell v. Lang, 1 Macq. H. L. Ca. 451 527 r. Ricliards,5B. & Ad. 840 127 ;;. v., 11 Cox, C. C. 323.. 600, 627, 652 - 11 Q. B. 799 .. 197 - 2 Leach, 564 . . 393 - 1 Moo. C. C. 179 330, 563 Camplin, R. v., 1 C. & K. 149, 746 771, 773 Canniff , R. v., 9 C. & P. 359 674 ( lannon, R. v., Russ. & Ry. 146 813 ( lapewell, R. v., 5 C. & P. 549-. . 513 Car, R. v., Sid. IIS 727 < :arden, R. v., 5 Q. B. D. 1 605 Carey, E. v., L4 Cox, C. C. E. 214 22!), 677 Carlile, R. v., 1 Chitty, 451 603 - 3 B. & Aid. 161 596, 612 Carlisle (Mayor of) v. Blamire, 8 East, 487 9 R. v. 6 C. & P. 636 .. 531 — 1 Dears. C. C. R. 337 370 Carney, R. v., I Moo. C. C. 351 498 Carpenter, R. v., L. R., 1 C. C. 29 401 Carr v. Burdiss, 5 Tyr. 136 155 R. v., 8 C. & P. 163 625 Russ. & Ry. 377 270 Russ. & Ry. 198. .404, 405 PAGE Carr, R. v., 10 Q. B. D. 76 221 Carrell, R. v., 1 Leach, 237 327 Carroll, R. v., 1 East, P. C. 394 522 - 1 Moo. C. C. 89.. 393 - 7 C. &. P. 145 . . 669 - 11 Cox, C. C. 322 64 Carruthers, R. v., 1 Cox, C. C. 138 839 Carson, R. v., Russ. & Ry. 303 73 Carter, R. v., 1 C. & K. 741 ... . 493 - 1 C. & K. 173 823 - 2 East, P. C.985 505 - 12 Q. B. D. 522 . . 788 Cartwright v. Green, 8 Ves. 405 133 Cary v. Pitt, Peake Ev. 90. .154, 155 Case, R. v., 1 Den. C. C. 580 . . 268 Casey, R. v., 13 Cox, C. C. R. (Irish) 614 227 Caspar, R. v., 2 Moo. C. C. 101 76, 780 Cassidy, R. v., 1 F. & F. 79. . . . 119 Castell, v. Bambridge, 2 Str. 854 655 Castioni, Be, (1891) 1 Q. B. 149. . 225 Castle, R. v., Dears. & B. C. C. 363 499 Castro o. The Queen, 6 App. Ca. 229 . .74, 171, 180, 197, 205, 227, 721 ( Sates v. Hardacre, 3 Taunt. 424 130 -v. Winter, 3 T. R. 306 .. 10 Catherwood v. Caslon, 13 M. & W. 261 285 Caton, R. v., 12 Cox, C. C. 530 622 Cator, R. v., 4 Esp. 117 155 Caudle v. Sevmour, 1 Q. B. 889 678 Cauldwell, R~. v., 2 Den. C. C. R. 372 206 Central Criminal Court, R. v., 17 Q. B. D. 598 203 Chadwicke v. Bunning, R. ct M. 306 153 - E. v., 6 C. & P. 181 446 11 Q. B. 173.. 103, 289 Chadwicke, R. v., 2 Moo. it R. 545 467 Chalking, R. v., Russ. & Ry. 334 322 Chalkley, R. v., Russ. & Ry. 258 75, 337 Challenor, R. v., 2 Russ. Cri. 65, 5th ed 393 Chambers v. Bernasconi, 4 Tyr. 531 26 - v. Robinson, B. N. P. 239 148 - R. v., L. R. 1 C. C. R. 341 493 - Go L. J., M. C. 214 70 Champney, R. t'., 2 Lew. C. C. 258 735 Champneya v. Peck, 1 Stark. X. P. 404.. - R. v., 2 Moo. <& R. 26 177 Chandler v. Home, 2 Moo.& R. 423 119 XVI Index of Cases. PAGE Chandler v. Eoberts, Peake Ev. 72 149 R. v. Dears. C. C. 453 349 Chanell, R. v., 2 Str. 793 342 Chapman v. Walton, 10 Bing. 57 127 - E.d,8C.& P. 558 .. 120, 122, 174 -1C. & K. 119.. 413 - 1 Den. C. C. R. 432 204,722 Chappell v. Purday, 14 M. & W. 303 148 Chappie, R. v., Russ. & R. 77. . 337 - 9 C. & P. 355. . 163 Charles, R. v., 17 Cox, 499. . 420, 421 31 L. J.,M. C.69 702 Charlesworth, R. v., 31 L. J., M. C. 25 176, 195 Charlwood, R. v., 2 East, P. C. 689 561 Charretie, R. v., 13 Q. B. 447. . 712 Chart (Inhab. of), R. v., L. R., 1 C. C. R. 237 309 Cheafor, R. v., 2 Den. C. C. 361 453 Chedworth (Inhab. of), R. v., 9 C. & P. 285 542 Cheeseman, R. v., 7 C. & P. 455 655 -L. & C. 140.. 272 Chelsea Waterworks Co. v. Cooper, 1 Esp. 275 155 Cherry, R. v., 2 East, P. C. 556 557, 558 -12 Cox, C. C. 32.. 280 Chetwynd v. Lincoln, 2 Ves. sen. 463 130 Chichester, R. v., 2 Den. C. C. R. 458 533 Chidley, R. v., 8 Cox, C. C. 365 51 Child v. Affleck, 9 B. & C. 403 611 - R. v., 4 C. & P. 442 ... . 796 — L.R.I C.C.R. 307 256 Chillicombe (Inhab. of), R. v., 1 Moo. & R. 307 542 Chipchase, R. v., 2 East, P. C. 567 594 Chisholm v. Doulton, 22 Q. B. D. 736 706 Chorley, R. v., 12 Q. B. 515 . . 526, 542 Christian, R. v., Car. & M. 388 146, 732 - L. R., 2C. C. 94 247 29 193 Christie, R. v., Car. Supp. C. L. 202 - 1 P. & F. 75 . . Christopher, R. v., 1 Bell, C. C. 27 581 Christopherson v. Bare, 17 L. J., Q. B. 109 265 Chubb v. Westley, 6 C. & P. 436 608 R. v., Salisb. Sp. Com., 2 Deac. Dig. C. L. 1517 615 Clarence, R.w., 23 Q.B.D. 23.. 263, 264, 772 Claridge v. Hoare, 14 Ves. 59. . 370 PAGE Clark v. Clark, 1 Moo. & R. 3. . 133 v. Crowder, 38 L. J., M. C. 118 517 —v. Molyneux, 3 Q.B.D.237 611 - R. v., Russ. & Ry. 358. . 75, 854 -2 Dick. Q. S., by Talfourd, 315 . . 447 — L. R., 1 C. C. 54 . 209 -15 Cox, C.C. 171.. 387, 701 Clarke v. Imperial Gas Co., 4 B. & Ad. 315 .... 153 Newsam, 1 Exch. R. 131 496 Periam, 2 Atk. 339 . . 704 - Safferry, Ry. & M. 126 122 - R. v., 2 Leach, 1037.. 587 -1C.&K. 431.. 333 -5 Q. B. 887.... 542 — 1 Dears. C. C. R. 397 .... 773 — 1F..&F. 654. . 304 Clarkson, R. v., 17 Cox, 83 799 Clayburn, R. v., Russ. & Ry. 360 322 Cleary, R. v., 2 F. &. F. 851 . . 31 Cleave v. Jones, 7 Ex. 421 . . 121, 134 Clegg v. Levy, 3 Campb. 166. . 292, 293 --R. v., 11 Cox, C. C. 212 (Irish) 572 Clemens, R., (1898) 1 Q. B. 556 619 Clement, R. v., 4 B. & Aid. 218 97 Clements, R. v., 2 Den. C. C. R.251 65 Clendon, R. v., 2 Str. 911 227 Clerk, R. v., 1 Salk. 377 386 Clevves, R. v., 4 C. & P. 221. . 42, 48, 79, 85 Clifford v. Brandon, 2 Campb. 358 370,795 Clifton, R. v., 5 T. R. 498 535 Cliviger, R. v., 2 T. R. 263. . 109, 132 Cloncurry's (Lord) case, Cr. on Dignities, 276 288 Closmandeue v. Carrell, 18 C. B. 36 11 Closs, R. v., Dears. & B. C. C460 466 Cluderoy, R. v., 3 C. & K. 205 209 Coalheaver, R. v., 1 Leach, 64. . 157 Coates v. Birch, 2 Q. B. 252 . . 134 - R. v., 6 C. & P. 394 . . .-. 822 Cobbett v. Hudson, 1 E. & B. 11 119 - Holt, on Lib. 114, 2nd edit 598 Cobden, R. v., 3 F. & F. 833 . . 79 Cockburn, R. v., Dears. & B. C. C. 203 60 Cocks v. Purday, 2 C. & K. 269 128 Codd v. Cabe, L. R., 1 Ex. D. 352 229,677,683 Codrington, R. v., 1 C. & P. 661 431 Coggins, R. v., 12 Cox, C. C. R. 517 786 Tinier of Co. r !. XV11 PAGE Cohen, R. v., 1 Stark, N. P. C. 511 718 2 Den. C. C. R. 249 564 8 Cox, C. C. 41 . . 695 Colclough, 11. v., 15 Cox, C. C. Tr. 92 83 ' Cole, R. v., 1 Phill. Ev. 508, 10th ed 80 2 Leach, 1095.... 352 Coles, R. v., 16 Cox, C. C. 165.. 739 Collet, R. v., Russ. & Ry. 498. . 330 Colley, R. v., Moo. & Malk. 329 119 Collicott, R. v., 2 Leach, 1048 501, 831 Collier r. Simpson, 5 C. & P. 74 128 Colling v. Treweek, 6 B. & C. 394 . 9 Collins v. Bayntum, 1 Q. B. 117 155, 156 Blantern, 2 Wils. 341 364 Carnegie, 1 A. & E. 695 601 - R. v., 2 Moo. & Rob. 461 467,505 9 C. & P. 456.. 597 Collucci, R. v., 3 F. & F. 103 . . 96 Colmer, 9 Cox, C. C. 506 51 Comming, R. v., 5 Mod. 179 . . 341 Compton, R. v., 3 C. & P. 418. . 72 Coney, R. v., 8 Q. B. D. 534 .. 163, •211,2114,265,624 Conning, R. v., 11 Cox, C. C. 134 69 Connolly, R. v., 2 Lew. C. C. 229 869,870 Connop, R. v., 4 A. & E. 942. . 226 Conner, R. v., 7 C. & P. 438 .. 622 Connor v. Kent, (1891) 2 Q. B. 547 207 Conway v. Reg., 1 Cox, C. C. 210 195 Coogan, R. v., 1 Leach, 449 .. 490 Cook v. Ward, 6 Bing. 409 .... 602 2 East, P. C. 616 75 R. v., 1 F. & F. 389 211 1 Hale, P. C. 458 . . 686, 689 Cooke v. Banks, 2 C. & P. 478 25 Birt, 5 Taunt. 765. ... 685 Maxwell, 2 Stark. 183 L37, 1 IS Wildes, 1 Jut. N. S. 610 611 R. v., 13 How. St. Tr. 333 187 2 Den. C. C. R. 462 718 1 C. & P. 321 .. 98 7 C. & P. 559.. 182, 732 8 C. & P. 582. . 83, 112, 491, 501, 507 1 F. & F. 64 . . 452 L. R. 1 C. C. R. 295 567, 574 Coombe, R. v., 1 Leach, C. C. 388 223 PAGE Cooper v. Gibbons, 3 Campb. 363 11 Marsden, 1 Esp. N. P. 1 26 : Slade,25L.J.,Q.B.324 299 R. v., Cro. Car. 544 . . 632 5 C.& P. 535.. 42, 159 - 2 C. & K. 586. . 496 - 3 C. & K. 318. . 18 -8 Q. B. 533.... 603 - 1 Den. C. C. R. 459 348, 349 L. R. 2C.C.123 246 -L.R.2Q. B. D. 510 435 Coote, R. v., L. R. 4 Pr. C. 599 51, 130, 140 Cope, R. v., 1 Str. 144 373 Copeland, R. v., C. & Mar. 516 436, 447 Coppard, R. v., Moo. & Malk. 118 731 Coppen v. Moore, (1898) 2 Q. B. 306 706 Cornwall, R. v., 2 Str. 881 318 Corporation of London, R. v., 27 L. J., M. C. 231 202 < !orry, R. v., 5 East, 372 712 Cory, R. v., 10 Cox, C. C. 23 . . 453 Cosan, R. v., 1 Leach, 342 825 Coslett, R. v., 1 Leach, 236 556 Costar v. Hetherington, 28 L. J., M. C. 198 267 Cotton, R. v., 3 Camp. 444.. 25 12 Cox, C. C. 400 86 Coulson v. Disborough, (1894) 1 Q. B. 316 120 — R. v., 1 Den. C. C. 592 438, 451 County, R. v., 2 Russ. Cri. 272 593 Court, R. v., 7 C. & P. 486 36 - 6 Cox, C. C. 202. . 766 Courteen v. Touse, 1 Camp. 42 122 Courtivron v. Munier, 6 Ex. 74 279 Cousens, R. v., 3 Russ. Cri. 599 98 Coveney, R. v., 7 C. & P. 667. . 57 Cowper, R. v., 13 St. Tr. 1106 642 Cox v. Andrews, 12 Q. B. D. 126 519 -R. v., Russ. & Ry. 362 522 - 1 F. & F. 90 46 -1C. & K. 494 453 - (1898) 1 Q. B. 179 237, 347 Cnx and Railton, R. t-.,14Q. B. D. 153 135 Coxhead, R. v., 1 C. & K. 623 351, ( rah, R. v., 11 Cox, C. C. 85 . . 442 Crabtree v. Robinson, 15 Q. B. D. 312 316,685 Cracknell, 10 Cox, C. C. 408.. 842 Craddock,R. r.,2 Den. C. C. 31 780 - 3F. & F.837.. 286 Cramp, R. v., Russ. & Ry. 327 427 - 5 Q. B. D. 307 . . 240. 749 Cranage, R. v., 1 Salk. 385 78 b XV111 Index of Cases. PACK Crawley, R. v., 3 F. & F. 109 . . 705 Crawshaw, R. v., 9 W. R. 38 . . 697 Crease v. Barrett, 5 Tyr. 458. . 25, 26 Creese, R. v., L. R. 2 C. C. 105 279 Cresswell, R. v., 13 Cox, C. C. R. 127 16, 286 Creevy v. Carr, 7 C. & P. 64 . . 125 . R. v., 1 M. & S. 273.... 610 Crick, R. v., 5 C. & P. 508 .... 512 Crisp v. Anderson, 1 Stark. N. P. 35 11 R. v., 1 B. & Aid. 282 364 Crockett, R. v., 4 C, & P. 544 . 29, 32 Crompkm, R. v., 7 C. & P. 139 335 Cronmire, R. v., 16 Cox, C. C. 42 247 Crook v. Dowling, 3 Dougl. 75 . 147 Crooke, R. v., 3 Burr. 1841 .... 180 Cross, R. v., 3 Camp. 226 531 2 C. & P. 483 ... . 698 Crossley, R. v., 2 Esp. 526 601 2 Moo. & R. 17 431 Crouch v. Hooper, 16 Beav. 182 25 Crowder v. Tinkler, 19 Ves. 617 700 Crowe, R. v., 4 C. & P. 251. . . . 174 Crowhurst, R. v., 1 C. & K. 370 18 Crowther, R. v., 5 C. & P. 316 495 Crump, R. v., 1 C. & P. 658 . . 577 Crunden, R. v., 2 Camp. 89 . . 702 Cruse, R. v., 2 Moo. C. C. 53 . . 869, 870 8 C. &P. 541.... 524, 669, 692 Crutchley, R. v., 7 C. & P. 814 643 Cryer, R. v., 26 L. J., M. C. 192 789 Cuckfield District Council v. Goring, (1898) 1 Q. B. 865 . . 311, 540 Cuddy, R. v., 1 C. & K. 210 . . 675 Culkin, R. v., 5 C. & P. 121 . . 645 Cullen, R. v., 1 Moo. C. C. 300. 548 9 C. & P. 681 . . 295 Cullum, R. v., L. R. 2 C. C. 28 408 Cumberworth, R. v., 3 B. & Ad. 108 ... . 534 3 B. & Ad. 731 534 Cumpton, R. v., 5 Q. B. D. 341 678 Cundrick, R. v., Dowl. & Ry. N. P. C. 13 386 Cunliffe v. Sefton, 2 East, 183. . 153 Cunningham, R. v., 28 L. J., M. C. 66 220,221 Curgerwen, R. v., L. R. 1 C. C.R.I 294,295 Curling, R. v., Russ. & Ry. 123 746 Currie v. Child, 3 Camp. 283 . . 153 Curtis, R. v., Foster, 135. . 677, 682, 685 2C. & K. 763.... 57 Curvan, R. v., 1 Moo. C. C. 132 662, 686 Cuthell, R. v., Holt Law of Libel, 287 655 PAGE DADE, R. v., 1 Moo. C. C. 307 506 Dadson, R. v., 2 Den. C. C. R. 35 524 Dakin, R. v., 1 Lewin, C. C. 166 626 Dale, R. v., 7 C. & P. 352 . . 434, 446 16 Cox, 703 86 Dalrymple v. Dalrymple, 2 Hagg. Cons. 54 128 Damaree, R. v., 15 How St. Tr. 522 22 Dance v. Robson, Moo. & M. 294 146 Danger, R. v., Dears. & B. C. C. 307 444 Dant, R. v., L. & C. 567 628 Dart, R. v., 14 Cox, C. C. 143. . 858 Dartmouth (Lady) v. Roberts, 16 East, 334 148 Davenport, R. v., 1 Arch. Peel's Acts, 5 563 Davey, R. v., 5 Esp. 217 697 1 Cox, C. C. 60 . . 255 Davies v. Lowndes, 7 Scott, N. R. 141 15,25 alias Silk, R. v., 2 Leach, 876 324 R. v., 2 East, P. C. 709 805 10 B. & C. 89.... 511 2 Moo. C. C. 177 505 5 T. R. 626 704 10 Cox, C. C. R. 239 572 1 F. & F. 69 .... 258 3C. & K. 328.... 172 (1897) 2 Q. B. 199 519 Davis v. Dale, Moo. & M. 514. . 125 — Stephenson, 24 Q. B. D. 529 518 Williams, 13 East, 232 149 - R. v., Russ. & Ry. 113 157, 360, 500 14 Cox, C. C. 563 866 Russ. & Ry. 322 317 Russ. & Ry. 499 319 6C. & P. 177.. 788 7 C. & P. 785.. 189 8C. & P. 759.. 513 25 L. J., M. C. 91 558 3 F. & F. 19 . . 180 Davison, v. Wilson, 11 Q. B. 890 464 R. v., 2 F. & F. 250 . . 194 7 Cox, C. C. 158 281, 411 Dawber, R. v., 3 Stark. N. P. C. 34 116 Dawson, R. v., 2 East, P. C. 978 506 3 Stark. N. P. 62 74 2 Den. C. C. R. 75 494 - 16 Cox, C. C. 556 281, 452 Day v. Bream, 2 Moo. & R. 54 . 609 - Robinson, 1 A. & E. 554 607 — - R. v., 9 C. & P. 722 264 Index of Cases. xix PAGE Davnes, R- v., 12 Cox, C. C. R. 514 571 Deakin, R. v., 2 Leach, 862. .589,591 Dean, R. v., 1 Hale, P. C. 25 . . 856 Deane, R. «., 46 L. J., M. C. 155 167 Deasy, R. v., 15 Cox, C. C. 332 372 Deaves, R. v., 11 Cox, C. C. 227 (Irish) 581 De Beauvoir, R. v., 7 C. & P. 17 724 De Berenger, R. v., 3 M. & S. 67 . . 370, 375 — 1 Stark. Ev. 170, 3rd eel 1«21 De Kromme, R. v., 17 Cox, 492 378 Debruiel, R. v., 11 Cox, C. C. 207 594, 789 Deermg, R. v., 5 C. & P. 165 . . 189 Delany v. Jones, 4 Esp. 190. ... 610 Demo, R. v., 7 B. & C. 620 8 Denn v. Fulforcl, 2 Burr. 1177 146 Spray, 1 T. R. 466 . . 25 Dennis, R. v., (1894) 2 Q. B. 458 705 Deimv v. Thwaites, L. R. 2 Ex. D. 21 619 Densley, R. v., 6 C. & P. 399 . . 783 Dent, R. v., 1 C. & K. 249 .... 446 Denton (Inhab. of), R. v., 34 L. J.,M. C. 13 542 Derby (Inhab. of), R. v., 3 B. & Ad. 147 310 Derbyshire (Inhab. of), R. v., 2 G. & D. 97 306 Derrington, R. v., 2 C. & P. 418 44 Desmond, R. v., 11 Cox, C. C. 146 375 Devizes (Mayor, Ac, of I v. Clark, 3 A. & E. 506 196 Devon (Inhab. of), R. y.,14 East, 477 307 - Ry. A Moo. 144 307 -4B.AG670 308 - 5 B. A Ad. 383 310 Dews v. Rvley, 20 L. J., C. P. 264 149 Dewitt, It. v., 2C. A K. 905 .. 425 Dev, R. v., 3 Paris A' Fonbl. M. J. 140 866 Dicas v. Lawson, 5 Tyr. 235 .. 97 Dick, R. v., 1 Russ. 141 868 Dickenson v. Shee, 4 Esp. 67 . . 122 - R. v., Russ. A Ry. 420 577 Dickins v. Gill, (1896) 2 Q. B. 311 831 Dickson v. E. of Wilton, 1 F. A F. 419 138 Digby v. Thompson, 4 B. A' Ad. 821 598 Dignam, R. v., 7 A. A E. 593 . . 199 Dillon, R. v., 14 Cox, C. C. 4. . 2, 721 Dihvorth, R. v., 2 Moo. A R. 531 263 Dingey, R. v., 2 East, P. C. 570 333 - 1 C. A K. 637. . 41 4 F. & F. 99 . . 177 PAGE Dixon v. Lee, 5 Tyr. 180 97 R. v., 10 Moo. 336 . . 702, 869 - 12 Mod. 198 533 -1 East, P. C. 313. 688 - 4 Camp. 12 341 — R. & R. 53 638 -6 C. &P. 601.... 710 — 3M. &S. 11.. 15, 20, 705 25 L. J., M. C. 39 580 Dobb, R. y., 2 East, P. C.513.. 333 Dodd, R. v., 2 Sess. Ca. 33 603 Dodsworth, R. v., 8 C. A P. 218 724 Doe v. Andrews, Cowp. 845. ... 95 - Barton, 2 Moo. A R. 28 . 25 - Burdett, 4 A. A E. 1 . . 155 - Cartwright, 3 B. A Aid. 326 3 - Chambers, 4 A. & E. 410 150, 153 - Cleveland, 9 B. A C. 864 156 -Cole, 6 C. A P. 359 11 - Coulthred, 7 A. A E. 235 25 -Davies, 10 Q. B. 314.... 25 - Durford, 3 B. A Ad. 890 26 - Edward, 5 A. & E. 95 . . 25 — ^.Fleming v. Fleming, 4 Bing. 266 15 - Gilbert v. Ross, 7 M. & W. 102 11, 139 - v. Hardy, 1 Moo. A Rob. 525 . 22 - Harvey, 8 Bing. 239 3 - Hodgson, 12 Ad. A E. 135 11 - Lloyd, Peake, Ev. App. 41 155 - Mason, 1 Esp. 53 153 - Newton, 5 A. A E. 514. . 165 - Perkins, 3 T. R. 749 126 - Ross, 7 M. * W. 102. ... 12 - Skinner, 3 Exch. 84 26 - Suckermore, 5 A. & E. 703 155 - Tarver, Ry. A M. 141 . . 165 - Wainwright, 5 A.A E.520 155 - Wallinger, Mann. Index, 131 154 - Whitehead, 8 A. A E. 571 11 - Wilson, 11 East, 56 15 - Woolley, 8 B. A C. 22 . . 155 Doggett v. Catterns, 17 C. B. N. S. 669 519 Doherty, R. v., 16 Cox, C. C. 306 192,620, 650 Doker r. Hasler, Ry. A M. 198 108 Dolan. R. v., Dears. C.C. 445 222, 782 Dolby, R. v., 2 B. * C. 104. .184, 186 Doncaster (Mayor of) v. Day, 3 Taunt. 262 148 Donnallv, R. v., 1 Leach, 193. . 807, 808, 810, 811, 812 Donne v. Martyr, 8 B. A C. 62 711 Donnelly, R. v., 1 Moo. C. C. 438 496 Donnevan, R. v., 2 East, P. C. 1020 253 Donnison, R. v., 4 B. A Ad. 698 605 h 2 XX Index of Cases. PAGE Dooley, R. v., 12 Cox. C. C. 622 212 Doran, R. v., 1 Leacli, 538 .... 165 1 Esp. 126 2, 258 2 Lew. C. C. 27 . . 106 Dossett, R. v., 2 C. & Z. 306 . . 257 Douglas, R. v., 1 Moo. C. C. 480 351 1 Camp. 212 445, 450 13 Q. B. 42 . . 68, 713 Carr. & M. 193. 171 1 C. & K. 670. . 146 R. & M. C. C R. 462 435 Dowdeswell, R. v., Derby, Spring Assizes, 1873 758 Dowev, R. v., 37 L. J., M. C, 52 438, 447 Dowlin, R. v., 5 T. R. 311 . . . . 727 Peake, N. P. C. 227 725 Downer, R. v., 14 Cox, C. C. R. 486 46 Downes v. Johnson, (1895) 2 Q. B. 203 519 - Mooreman, Bunb. 189 150 R. v., 2 East, P. C. 997 504 -L. R, 1 Q. B. D. 25 632 Down Holland, R. v.,- 15 L. J., M. C. 25 542 Downshire (Marquis of), R. v., 4 A. & E. 698 168, 528, 529, 541 Dowse, R. v., 4 F. & F. 492. ... 190 Dowsell, R. v., 6 C. & P. 398 . . 572 Drage, R. v., 14 Cox, C. C. 85 . 788 Drake, R. v., 1 Lew. C. C. 25 . . 294 Dredge, R. v., 1 Cox, C. C. 235 17 Drew, R. v., 8 C. & P. 140 .... 36 Dring, R. v., Dears. & B. C. C. 329 787 Driscoll, R. v., Car. & M. 214 . 265 Druitt, R. v., 10 Cox, C. C. 592 382 Drury, R. v., 18 L. J., M. C. 189 176 Du Barre v. Livette, Peake, N. P. C. 108 133 Dubost v. Beresford, 2 Campb. 512 602 Duce, R. v., 1 Burn's Justice, 281, 30th ed 117 Duckworth, R. v., (1892) 2 Q. B. 83 263, 270, 271, 693, 822 Dudley, R. v., 14 Q. B. D. 280 171, 196, 633, 690 Dudman, R. v., 4 B. & C. 850. . 726 Duffey, R. v., 1 Lewin, C. C. 194 645 Duffy', R. v., 2 Cox, C. C. 45. .605, 613 4 Cox, C. C. 24 .... 178 Dunboyne (Lord), R. v., 3 C. & K. 1 424 Duncan v. Scott, 1 Campb. 99 . 146 R. v., 7 Q. B. D. 198 . 205, 206, 542 Duncombe, R. v., 8 C. & P. 369 124 Dunn, R. v., 1 Moo. C. C. 146. . 84 2 Moo. C. C. 297 723, 732 16 L. J., Q. B. 382 . 719 1 C. & K. 739 . . 182, 214 1 Lea. C. C. 59 487 PAGE Dunning, R. v., L. R. 1 C. C. R. 290 721 Dunraven (Earl of) v. Llewellyn, 15 Q. B. 791 25 Dunston, R. v., Ry. & Moo. N. P. C. 109 729 Dupee, R. v., 2 East, P. C. 1010 426 Durham, R. v., 1 Leach, 478 . . 114 Durkin, R. v., 2 Lew. C. C. 163 215 Durore, R. v., 1 Leach, 351 76 Dwerryhouse, R. v., 2 Cox, C. C. 446 211 Dwyer v. Collins, 7 Ex. R. 639 8, 9, 95, 134 Dyer, R. v., 2 East, P. C. 767. . 784 1 Cox, C. C. 113 . . 191 Dyson v. Wood, 3 B. & C. 449 . 149 — TL.v., Russ. & Rv. 523 . 691 7 C. & P. 305 ... . 172 (1894) 2 Q. B. 176 277, 280 EAG-LETON, R. v., 1 Dears. C, C. 515 343, 440, 445 Eardisland, R. v., 2 Campb. 494 54 1 Earl v. Lewis, 4 Esp. 1 152 Eastall, IL.v.,2 Russ. Cri. 250 . 588 East Hagbourne (Inhab. of), 1 Bell, C. C. 135 536 Eastington, R. v., 5 A. & E. 765 540 Eastmark, R. v., 11 Q. B. 877. . 526 Eastwood v. Miller, L. R. 9 Q. B. 440 519 Eaton, R. v., 2 T. R. 89 170 Eccles, R. v., 1 Leach, 274. .370, 375, 381 Ecclesfield, R. v., 1 B. & A. 348 308, 537 Eden, R. v., 1 Esp. 97 723 Edge, Lane, R. v., 4. A. & E. 723 534 Edgell, R. v., 11 Cox, C. C. 132 252 Edmeads, R. v., 3 C. & P. 390 . 515 Edmonds v. Rowe, Ry. & Moo. 77 104 Walter, 3 Stark. N. P. 7 122 R. v., 4 B. & Aid. 471 184, 185, 187, 188 Edmondson v. Stevenson, Bull. N. P. 8 611 Edmonton, R. v., 1 Moo. & R. 24 526 Edmundson, R. v., 28 L. J., M. C.213 400 Edwards, R. v., Russ. & Ry. 497 75. 454, 593 R. & Ry. 224 . . 194 1 Moo. & Ry. 257 813 Russ. & Rv- 283 291 6 C. & P. 515 . . 801 8 C. & P. 26 124, 192 8C. &P.611.. 654 1 Cox, C. C. 32. 805 13 Cox, C.C.384 587 Egerton, R. v., Russ. & Ry. 375 85, 812 Index of ( 'ases. XXI PAGE Eggington, R. v., 2 East, P. C. 494 321 Eicke v. Nokes, Moo. & M. 303 135 Eldershaw, R. v., 3 C. & P. 396 772, 857 Ellicombe, R. v., 5 C. & P. 522. 9, 10 Ellins, R. v., Russ. A Ry. L88. . 73, 755 757 Elliott, R. v., L. & C. 103 ' 701 - 16 Cox, 710 626 - 2 East, P. C. 951 . . 488 Ellis v. Sheffield Gas Co., 2 E.& B. 767 531 R. v., Car. it M. 564 423 - 6 B. & C. 145 ... . 79, 199 Ellison, R. v., 1 Moo. C. C. 336 254 Elmstead, R. v., 2 Russ. Cri. 106 813 Elrington, R. v., 31 L. J., M. C. 14 267 Elsee, R. v., Russ. & Ry. 142. . 164 Elsmore v. Briavells (Iuhab. of), 8 B. & C. 161 252 Elsworthy, R. v., 1 Lewin, C. C.117* 781 Elworthy, R. v., L. R. 1 C. C. R. 103 9 Ely. R. v., 15 Q. B. 827 310 Emden, R. v., 9 East, 437 724 Emmett v. Lyne, 1 N. R. Bos. & P. 255 ...' 261 Emmons, R. v., 2 Moo. & R, 279 844 England, R. v., 1 C. & K. 533. . 253 English, R. v., 12 Cox, C. C. 171 437, 445 Entrehman, R. v., 1 Car. & M. 248 105 Epps, R. v., I F. .V- F. HI 484 Erdheim, R. v., (1896) 2 Q. B. 260 45 Eriswell, 1!. v., 3 T. R. 707. . . .59, 67 Errington, R. y.,2 Lew. C.C.217 652 Esdaile, R. v., I P. & F. 213, 228 169. 190, L93, 205, 378 Essex, K. v., Dears. & B. C. C. 369 6 Etherington, II. v., 2 Leach, 671 72 Evani, K. v., 1 Moo. C. C. 70 .. 279 Evans . Botterell, 33 L. J., M. C. 50 516 - Phillips, 2 Phill. Ev., v loili ed., L62 - Rees, L2 A. & E. 505 . Sweet, R. & M. 83 .. L68 93 10 324 744 816 74 - R. v., Cro. Car. 473 -2 East, P. C. 798 - Car. & M. 29s . 3 Stark. N. P. 35 5C. &P.553.... 434 Hears. & B. C. C. 236 499 29 I,. .1.. M. ('. 20 147 32 I,. J., M. C. 88 150 -3 Kuss. Cri. 12, 6th ed 647 Evringham v. Roundhill,2 Moo. * R. 138 12 PAGE Ewer v. Ambrose, 4 B. & C. 25 148 Ewington, R. v., 2 Moo. C. C. 223 717, 722 Eyre v. Palsgrave, 2 Camp. 605 150 FADERMAN, R. v., 19 L. J., M. C. 147 178,209 Fagent, R. v., 7 C. & P. 238 . . 28 Faire, R. v., 8 E. & B. 486 707 Falkingham, R. v., L. R, 1 C. C. R. 122 348 Fallon, R. v., 32 L. J., M. C. 66 163 Fallows, R. v., 5 C. & P. 508 . . 804 Fanning, R. v., 10 Cox, C. C. R. 411 284 Farlar, R. v., 8 C. & P. 106. . . . 115 Farleigh, R. v., 6 D. & R. 147. . 7 Farley, R. ;■., 2 East, P. C. 740 394 - 1 Den. C. C. R. 197 134 Farnborough, R. v., (1895) 2 Q. B. 484 ...196, 576 Parr, R. v., 4 P. & F. 336 1.8 Fane, R. v., Kel. 65 :«7 Farrell, R. v., 2 East, P. C. 557 557 - 9 Cox, C. C. 446. . 701 - L. R. 2 C. C. 116 60 Farrer, R. v., L. R. 1 Q. B. 558 542 Farrington, R. u.,Russ.& Ry. C. C. 207 ...20, 258 Farrow, R. v., Dears. * B. C. < '. 164 -239 l-'asset /'. Brown, Peake, Ev. 96 153 Faulkner, R. v., 13 Cox, C. ('. 550 21,257, 619. 652 Fauntleroy, R. v., 1 Moo. C. C. 52 190 Pawcett, R. v., 2 East, P. C. Wr2 166 Fearshire, R. v., 1 Leach, 202. . 57 Featherstone, R. v., Dears. C. ( '. 369 209. 585 Feist, R. v., Dears. & B. C. C. 590 387 Fell. R. v., 1 Salk. 272 115 Fellowes. R. v., 1 ('. >V- K. 115. . 723 Fellows v. Stewart, 2 Phill. Eee. Ca. 257 -291 Fennel] v. Tail, 5 Tyr. 218 96 R. v., 7 Q. B. D. 117 37, 38 Fenton, R, v., 1 Lew. C. C. 179 621, 653 Kerens r. O'Brien. 11 Q.V,. 1). 21 55S Ferguson, R. v., 1 Dears. C. ('. R. 427 .... 178 - 1 Lew. C. C. L8] (130 Ferrers, H. v., Cro. Car. :i71 . . 680 - (Earl),R. y.,19 How. St. Tr. NIC 859 Fidler, R. v., 4 C. & P. 449.... 615 Filliter c. Minchin, Mann. Index, 131 15 1 Pinacone, R. v., 5 C. & P. 551.. 51 1 Fiiuli, R. c. Moo. C. C. 418 . . 460 Finden v. Westlake, Moo. & Malk. 461 610 Finney, R. v., 2 C. & K. 774 . . 8 44 XX 11 Index of < uses. PAGE Firth, E. v., L. R. 1 C. C. R. 172 79 Fisher v. Heming, 1 Phill. Ev. 116 134 Kitchingman, Willes, 367 147 - Lane, 2 W. Bl. 834 . . 145 - Ronalds, 12 C. B. 762 131 - Samuda, 1 Campb. 190 12 - R. v., 8 C. & P. 182. . 529, 664 -L.E.,1C.C.E.7 615 Fisherman's (The) case, 2 East, P. C. 661 807 Fitch, E. v., Dears. it B. C. C. 187 585 Fitch, E. v., L. it C. 159 497 Fitchie, E, v., Dears. & B. C. C. 175 501 Fitzgerald v. Elsie, 2 Campb. 635 153 - E. v., 2 East, P. C. 953 490 itzjames v. Moys, 1 Sid. 133. . 103 itzwalter, Peer., 10 CI. & Fin. 198 155 Flaherty, E. v., 2 C. * K. 782.. 285 Flannagan, E. v., Buss. & By. 187 325, 329 Flattery, E. r.,46 L. J., M. C. 130 773 Flecknow, E. v.,1 Bur. 461 536 Fletcher v. Calthrop, 6 Q. B. 880 511 — R. v., 1 Leach, 23 825 - Buss. & By. 58 199 - 4 C. & P. 250.. 46 -2C. &K. 215.. 256 -Bell,C.C.63 771,773 - 31 L. J., M. C. 206 848 - L. B. 1 C. C. B. 39 771, 773 -L. B. 1C.C.B. 320 719 -46L.,T.,M. C. 4 210 Flint, R. v., Buss. & By. 460 . . 447 Flowers, B. v., 16 Q. B. D. 643. 560 Foley, R. v., 17 Cox, 142 460 Folkes v. Chad, 3 Dougl. 157 . . 127 Fontaine Moreau, R. v., 11 Q. B. 1028 734 Foote v. Hayne, Ry. it Moo. 165 133 - R. v., 15 Cox, C. C. 231 . 595 Forbes, R. v., Holt, 599 62 -7C, &P. 224.. 83, 502, 507 -2Dongl.P. C. 440 227 Ford, R. v., Kel. 82 637 - 2 Den. C. C. 245 . . 124 - 1 Nev. & M. 776 . . 377 Forman v. Dawes, Carr. it M. 127 144 Forsgate, R. v., 1 Leach, 463 . . 588 Fosters. Compton, 2 Stark. 364 147 -R. v., Buss. &Ry. 412.. 77 -Russ. & Uv. 459.. 722 - 6 C. & P. 325 .... 23 -7 C. * P. 495.. 120, 363 PAGE Foster, R. v., L. R. 2 Q. B. D. 301 442 24 L. J., M. C. 134 84 Foulkes, R. v., L. R. 2 C. P. 150 406 Fowle, R. v., 4 C. & P. 392 375 Fowler v. Sanders, Cro. Jac. 446 699 - R. v., 1 East, P. C. 461.. 371 France v. Lucy, Ry. & M. 41 . . 10 R. v., 2 Moo. & R. 207. . 64 Frances, R. v., 2 East, P. C. 784 72 Francey, R. v., 2 A. & E. 49 . . 605 Francia, R. v., 15 How. St. Tr. 941 8 Francis, R. v., Russ. & Ry. 209 486 - 2 Str. 1015 803 L. R. 2 C. C. 128 1, 8, 83, 87, 448, 509 Frank, R. v., 2 Leach, 644 360 Frankland, R. v., L & C. 276 . . 592 Fraser, R. v., 1 M'Nally, 56 . . 114 Freeman v. Asbell, 2 B. & C. 494 7 Freeth, R. v., Russ. & Ry. 127.. 438 French, R. v., Russ. & Ev. 491 327, 590 - L. B. 1 C. C. B. 217 497 Fretwell, E. v., L. & C. 161. .159,691 -L. & C. 443.... 523 -31L.J.,M.C145 239 Friel, E. v., 17 Cox, 325 177 Friend, E. ?-., 13 How. St. Tr. 32 91 -Euss. & Ev. 20.. 348, 654 Fritz v. Hobson, 14 Ch. D. 542. 533, 697 Frost, E. v., 9 C. & P. 126. .184, 185, 373 - 1 Dears. C. C. E. 474 77, 182 Fry v. Wood, Selw. N. P. 495. . 155 -E. r., 2 Moo. & Bob. 42 .. 514, 825 -Dears.it B. 449.. 437 Fryer v. Gathereole, 4 Ex. 262.. 603 Fuidge, B. v., L. & C. 390. . . .87, 166 Fullager, 14 Cox, C. C. B. 370.. 246 Fuller v. Fotch, Carth. 346 150 Patrick, 18 L. J., Q. B. 236 155 - B. v., Buss. & By. 408. . 814 - 1 Leach, 186 323 -7 C. & P. 269.... 64 Fullwood, B. v., Cro. Car. 488. . 110 Furlev v. Xewnham, 2 Doug. 419 96 - R. v., 1 Cox, C. C. 76 . . 36 Furneaux, R. v., Russ. & Ry. 335 412 Furness v. Cope, 5 Bing. 114 . . 26 Fursey, R. v., 6 C. it P. 81 80 GABEY, R. v., Russ. & Ry. 178 584, 590 Gadbury, R. v., 8 C. & P. 676. . 89 Gade, R. v., 2 East, P. C. 874. . 487 Gainer, R. v., 7 C. & P. 231 . . 513 Index of Cases. XXlll PAGE Gale, R. i>.,L. R. 2Q. B.D.141 408 Gallagher, R. v., 15 Cox, C. C. 292 115, 116 Gallears, R. v.,1 Den. C.C.R. 501 453 Galloway, R. v., 1 Moo. C. C. 234 179, 789 Galwey, Be, (.896) 1 Q. B. 230.. 225 Gammon, R. v., 5 C. it P. 321 . 774 G-amons v. Swift, 1 Taunt. 507.. 12 Garbett, R. v., 1 Den. C. C. R. 258 131,139 Garbutt, R. v., Dears. & B. C. C. 166 409,585 Gardiner Peerage ease 27 R. v., 2 Moo. C. C. 95 720, 734, 736 Gardner v. Mansbridge, 19 Q. B. D. 217 619 R. v., 25 L. J., M. C. 100 432,437 -32L.J..M.C.35 580 -2 Camp. 513.... 6 -2 Moo. C. C. 95 730 -1 C. &K. 628.. 193, 755 -1C. & P. 479.. 815 -9 Cox, 332 .... 46 Garland v. Schoones, 2 Esp. 618 1 47 - R. v., 2 East, P. C. 493 321 ■ 11 Cox, C. C. (Irish) 224 168 Garner, R. v., 1 Den. C. C. 329 36, 49 - 6 Times L. R. 110 57 - 4 F. & F. 346 . . 86 2 C. & K. 920 .. 40 Garratt, R. v., 10 Times L. R. 167 442 Garrells v. Alexander, 4 Esp. 37 154 Garrett,R. v., 1 Dears. C. C. 232 433 - 2 F. & F. 14 571 - 6C. it P. 369.... 512 Garside, R. v., 2 A. & E. 266 . . 117 —2 Lew. C. C. 38 118 Garvey, R. v., 16 Cox, C. C. 252 6 Gascoigne, It. v., 2 East, P. C. 709 806, 807, 810 Gascoine, R. /•., 7 ('. A' P. 772.. 189 Gate Fulford (Inhab. of), R. r., Dears. & B. C. C. 94 210 Gathercolew. Miall, 15 M. & \V. 319 7,605, 612 Gavin, R. v., 16 Cox, 656 41 Gay, I:, v., 7 C. & P. 230.... 32, 49 Gayford v. Chowler, (1898) 1 Q. B. 316 619 Gaylor, R. v., Dears. & B. C. C. 288 L57, 620 Gazard, R. y., 8 C. & P. 595 .. L86 Geach, R. v., 9 Car. & P. 190 . . 186, 187, 1HS Geering,R. u.,18L. J., M.C.215 86 Genge, R. v., Cowp. L3 .... 713, 714 George v. Surrey, Moo. & M. 516 154 Gerber, R. v., Temp. & M. 647. . 113 Gerrans, R. v., 13 Cox, 158 . . 65, 165 PAGE Gerrish it Brown, R. v., 2 Moo. & R. 219 361 Gibbon, R. v., Foster, 108 319 L. & C. 109 729 Gibbons, R. v., 12 Cox, C. C. 237 237 -2Russ.Cri.23.. 330 Gibbs v. Phillipson, 1 Russ. & M. 19 99 — R. v., Dears. C. C. 445 . . 402 Gibson v. Lawson, (1891) 2 Q. B. 545 384 — R. v., Car. it M. 672 . . 135 Gilbert, R. v., Gow, N. P. C. 225 563 Gilchrist, R. v., 2 M. C. C. 233 494, 757 Giles, R. v., 1 Moo.C. C. 166.. 500 — L. & C. 502 434 - 1 Russ. Cri. 935 . . 386 Gilham, R. v., 1 Esp. 285 104 - Ry. & M. C. C. R. 198 133 -1 Moo.C. C.186. 38,40 Gill, R. v., 1 Lewin, C. C. 303. . 841 -2 B. & Aid. 204.. 376 378 -1 Dears. C. C. 289.. 409 Gillham, R. v., 6 T. A R. 672. . 713 Gillis, R. v., 11 Cox, C. C. (Irish) 69 118 Gillow, R. v., 1 Moo. C. C. 85. . 522 Gilmore, 15 Cox, C. C. 85 . . 177, 766 Gilson, R. v., 18 Q. B. D. 537. . 207 Giorgetti, R. v., 4 F. & F. 546. . 185 Girdwood, R. v., 1 Leach, 142. . 840 Glamorgan (Inhab. of), R. v., 2 East, 356 305, 307, 309 Glanvill, R. v., Holt, 354 343 Glasburn Bridge case, 5 Burr, 2594 307, 309 Class, R. v., 1 Den. C. C. R.215 756 Gleed, R. v., 3 Russ. Cri. 623 . . 132 Glen, R. v., 3 B. it Aid. 373 . . 181 Glossop, R. v., 4 B. it A. 616 . . 77 Gloster, R. v., 16 Cox, C. C. R. 471 27, 31 Gloucestershire I Inhab. of),R. v., Car. it M. 506 . . 306 — (Justices of), R. v., 4 A. & E. 689 . . 220 Glover, R. v., Russ. & Ry. 269 456, 511 L. & C. 446 . . 401, 407 Glyde.R. t>.,L. R. 1 C. C. R. 139 580 Gnosil, R. v., 1 C. & P. 304.... 802 Goalie, R. v., 1 Lord Ravm. 737 487 Gocldard r. Smith, 6 Moo. 262.. 283 -R.y.,2 Lord Ravm. 920 178 - 15 Cox, C. C. 7.. 31 Godefroy w. -lay, 1 M. & P. 236 145 Goldsmith, R. v., L. R. 2 C. C. 71 . . 181, 184, 204 - 12 Cox, C. C. 594 203 Goldthorpe, R. v., 2 Moo. C. C. R. 244 350 Gompertz, R. v., 9 Q. B. 824 .. 206 Gooch, R. v., 8 C. it P. 293 460 XXIV Index of Cases. PAGE Good, B. v., 1 C. & K. 185 .... 868 Goodbody, E. v., 8 C. & P. 665 407 Goode, E. v., Car. & M. 582 . . 573 7 A. &E. 536 172 Gooden, E. v., 11 Cox, C. C. 672 497 Goodered v. Armour, 3 Q. B. 956 9 Goodfellow, E. v., Car. & M. 569 . . 721, 730 1 C. & K. 724 513 14 Cox, C.C. 326 CO Goodhall v. Little, 20 L. J., Cli. 132 135 — E. v., Euss. & Ey. 461 4:S4 Gooding, E. v., C. & M. 297 . . 294 Goodtitle v. Braham, 4 T. E. 497 154,155 Goodwin v. West, Cro. Car. 521 95 Gordon v. Secretan, 8 East, 548 156 E. v., 1 Leach, 300 . . 8 1 Leach, 515 . . 6, 16, 159 4 T. E. 366 6 - Euss. & Ey. 48 292 Car. & M. 410 147, 723 -2Dowl.417..119, 144 - 2 M. & S. 582. . 96 -25L. J.,M C.19 278, 281 - 23 Q. B. D. 354 435, 444 -LordG.,E.i!.,21How. St.Tr.535.. 22 2 Doug. 593 . . 144 Goss v. Watlington, 3 B. & B. 132 25 E. v., 29 L. J., M. C. 86 . . 441 Gotley, E. v., Euss. & Ey. 84 . . 364 Gough, E. v., 1 Moo. & E. 71. . 178 Gould, E. v., 9 C. & P. 364 336 Gourman, E. v., 2 Leach, C. C. 546 194 Grady, E. v., 7 C. & P. 650 63 Graham v. Dvster, 2 Stark. N. P. 23 11 E. v., 2 Leach, 547 77 - 13 Cox, C.C. E. 57 407 16 Cox, C.C. 420.. 796, 799 Grand Surrey Canal v. Hall, 1 M. & G. 392 307, 310 Grant, E. v., 4 F. & F. 322 258 Gray v. Beg., 11 CI. & F. 427 . . 186 E. v., Str. 481 332 -7C. & P. 164 775 -2 Den. C. C. E. 86.. 786 - Dears. & B . C . C . 303 521 , 851 -Kel. 64 658 - 4 F. & F. 1102 . . 88, 258 - 17 Cox, 299 448 Greathead,E. v., 14 Cox, C.C.E. 108 440 Green and Bates, E. v., 3 F. &. F. 274 235 Green v. Goddard, 2 Salk. 641 266 PAGE Green, E. v., 6 C. & P. 665. ... 38 1 Wil. Wol. & Hod. 35 170 -3C. & K. 209.... 83 - 7 C. & P. 156 626 1 Dears. C. C. 323 567 - 1 Dears. & B. C. C. 113 176,588 Greenacre, E. v., 8 C. & P. 36 . .48, 66, 68, 157, 620, 650, 691 Greenhalgh, E. v., Dears. C. C. 267 444 Greenhow, 1 Q. B. D. 703 541 Greenhough u. Gaskell, 1 My. & K. 100 133, 135 GreenifE, E. v., 1 Leach, 363 . . 791 Greenslade, B.w., 11 Cox, C. C. 412 66 Greenway, E. v., 7 Q. B. 126 . . 95 Greenwood, E. v., 2 Den. C. C. E. 453 157, 164, 360 Gregory v. Beg., 15 Q. B. 957 184, 198, 598 - Travemor, 6 C. & P. 281 126, 705 Tuffs, 6 C. & P. 271. . 705 E. v., 5 Barn. & Adol. 555 697 7 Q. B. 274 226 - 1 Cox, C.C. 198 226 1 C. & K. 228. . 199 -4D. & L. 777.. 184 L. E. 1 C. C. E. 77 161 2 F. & F. 153. . 628 Grendall, E. v., 2 C. & P. 563. . 726 Grey, E. v., 2 East, P. C. 708. . 803 Lord, E. v., 3 St. Tr. 519.. 232, 370 - 4 F. & F. 73 702 Grice, E. v., 7 C. & P. 803 514 Griepe, E. v., 1 Lord Eaym. 258 729 Griesley, E. v., 1 Vent. 4 531 Griffin, E. v., Euss. & Ey. 151. . 45 -11 Cox, C. C.402.. 265, 658 Griffith, E. v., 2 Euss. Cri. 847. . 497 Griffiths, E. v., Dears. & B. C. C. 548 484 - 14 Cox, C. C. E. (Tr.) 308 293 Grimwade, E. v., 1 Den. C. C. E. 30 838 Grindley, E. v., 1 Euss. Cri. 143, 6th ed 669,866 Groombridge, E. v., 7 C. & P. 582 772 Grosvenor, Lord, E. v. ,2 Stark. 511 531 Grove, E. v., 7 C. & P. 635 412 Grover, E. v., 8 Dowl. P. C. 325 170 Gruby, E. v., 1 Cox, C. C. 249. . 451 Gruncell, E. v., 9 C. & P. 365. . 557 Guelder, E. v., 30 L. J., M. C. 34 409 Gullv v. Bp. of Exeter, 4 Bing. 298 7 Judex of Gases, XXV PAGE Gumble, R. v., L. R. 2 C. C. R. 1 183, 5C5 Gunnell, R. v., 16 Cox, C. C. 154 245 Gumey v. Langlands, 5 B. & B. 334 155 - R. v. 11 Cox, C. C. 439 370 Gutch, R. v., Moo. & M. 433 . . 665 Guthrie, R. v., L. R. 1 C. C. R. 241 267, 777 Guttridge, K. u.,9 C.& P. 471.. 58 Gwyn, R. v., 1 Str. 401 150 Gyles v. Hill, 1 Camp. 471 145 HACKER, R. r., Kel. 12 112 Hadley v. Taylor, L. R. 1 C. P. 53 530 Hadfield, R. v., Coll. on Lunacy, 480 861 - L.R.I C. C. R. 253 766 Haigh v. Town, (fee, Sheffield, L. R. 10 Q. B. 102 519 Hailey, R. v., Ry. & Moo. N. P. C. 94 722 - 1 C. & P. 258 . . 724 Haines, R. v., Russ. & Ry. 451 316 - 2C.& K. 368.. 627, 631 1 F. & F. 86 . . 55, 191 Hale, R. v., 2 C. & K. 326 389 Hall v. Ball, 3 M. & G. 242. ... 12 - R. v., 1 Sir. 416 605 - Russ. & Ry. 355 .. 316 Russ. & Ry. 463 . . 412 1 Moo. C. C. 474 .. 405 3 ('. & P. 409 802 8 C. & P. 358 22 - 1 Den. C. C. 381 . . 578 - L3 Cox, C. C. 149 .. 403 (1891) 1 Q. B. 747 340, 711 Hallam, It. v., 12 Cox.C. C.174 45 Hallard, K. v., 2 Leach, 701 .. 323 Hallett, It. v., 2 Den. C. C. R. 237 204, 718 Halliday, R. v., 9 Times L. R. 109 . .' 647 Halloway, R. v., 1 C. & P. 127 595 Hamilton v. Reg., 9 Q. B. 271. . 451 K. v., I Leach, 348 . . 394 - 2 Russ. Cri. 65 393 - 7C. & P. 448.. 378 - 8 C. & P. 49 . . 393 Hammersmith, I!. \.. 1 Stark. N. P. C. 357 529 Hammond /.Stewart, 1 Str. 510 95 -R. v., 1 Reach, 447.. 868 K) Mod. 382.. 525 2Esp.N. P. C. 720 372, 381 Hampton, R. c, 1 Moo. C. C. 225 504 Hancock, R. v., Russ. & Ry. 170 322 PAGE Hancock, R. v., 14 Cox,C.C. R. 119 783 v. Somes, 28 L. J., M. C. 196 267 Handcock v. Sandham, 1 East, P. C. 306 (n.) 229 Handley, R. v., Carr. & M. 547 577 -IF. & F. 648.. 235, 236 - 5 C. & P. 565 . . 514 Hanks, R. v., 3 C. & P. 419. . . . 718 Hamiam v. Mockett, 2 B. & C. 934 453 Hanson, R. v., 2 C. & K. 912 . . 263 Hapgood, R. v., L. R. 1 C. C. 221 270, 272 Harborne, R. v., 2 A. & E. 544 15 Hardcastle v. South Yorks. Railw. Co., 4 H. & N. 67 530 Hardey, R. v., 14 Q. B. 529 364 Harding v. Greening, 1 B. Moore, 477 606 Hardy, R. v., Gurney's ed. vol. i. p. 360 372 -L.R. 1C.C.R.278 766 -24 How. St. Tr. 753 ... . 122, 126, 136, 137, 194, 375 -25 St. Tr. 1 374 Hargrave, R. v., 4 C. & P. 170.. 624 Harland, R. v.,2 Lew. C. C. 170 465 Harley, R. v., 4 C. & P. 370 . . 239 ■ 1 C. &K. 89 .... 755 Harmer v. Bean, 3 C. & K. 307 3 Harman, R. v., 1 Hale, P. C. 534 815 Harper, R. v., 5 Mod. 96 713 - 7 Q. B. D. 78.. 487, 491 Harrington, R. v., 10 Cox, C. C. 370 665 Harris v. Briscoe, 17 Q. B. D. 504 617 -Thompson, 13 C. B. 33 611 -R. v., 7 C. & P. 416.. 501, 506 - 3 Burr. 1330 227 -1 Leach, 135 359 - 2 Leach, 701 323 - 1 Moo. C. C. 343 53 -2Moo.ee. 267.. 494 -5B. &A.926 737 -Car. & M. 661.. 797, 798 -5C. &P. 159 270 -7C. & P. 429 .... 82 -7C. &P. 253 721 -3 Jur., N.S.272.. 190 -Dears. C.C. 347.. 209 Dears. ('. ('.331.. 407 -4 F. & K. 342 ..88,258 1 Den. C.C. R.461 282 - 15 Cox, C. C. 75.. 256 -L. R. 1 C. C. R. 282 701 -17 Cox, 656 403 -3 Russ. Cri. 102, 6th ed 678 Harrison v. Bush, 25 L. J., Q. B. 25 611 Blades, 3 Camp. 457 153 XXVI Index of Cases. PAGE Harrison, R. v., 12How. St. Tr. 861 92 9 Cox, C. C. 503 727 Harrod v. Harrod, 1 K. & J. 9. . 102 R. v., 2 C. & K. 294. ... 178 Hart, R. v., 7 C. & P. 652 .... 484 Hartell, R. v., 7 C. & P. 773 . . 189, 788 Hartley, R. v., Russ. & Ry. 139 404 Harvey v. French, 1 Crom. & M. 11 607 Harvey, 26 Ch. D. 644 684 R. v., 2 East, P. C. 669 566 Russ. & Ry. 227 497 2 B. & C. 268. . 19, 607 L. R. 1 C. C. R. 284 362,363 Harwood, R. v., Style, 86 72 Haslam, R. v., 1 Leach, 418 . . 782 Haslemere (Inhab. of), R. v., 32 L. J., M. C 541, 542 Hassall, R. v., L. & C. 58 .... 571 Hastie, R. v., L. & C. 269 .... 408 Hasting, R. v., 1 Moo. C. C. 82 743 Hastingfield, R. v., 2 M. & S. 558 535 Hastings, R. v., 7 C. & P. 152 114 Haswell, R. v., Russ. & Ry. 458 760 Hatfield, R. v., 4 B. & A. 75 528, 537 4 A. & E. 156. . 528, 534 Haughton, R. v., 5 C. & P. 559. . 338 - 1 El. & Bl. 501 538, 539 Hawdon, R. v., 11 A. & E. 143. . 170 Hawes, R. v., 1 Den. C. C. 279. . 286 Hawke v. Dunn, (1897) 1 Q. B. 579 519 Hawkes, R. v., 2 Moo. C. C. 60. . 491 Hawkeswood, R. v., 1 Leach, 257 491 Hawkins, R. v., 2 East, P. C. 485 318 -2 East, P.O. 501 328 -3C. & P. 392.. 159 Haworth, R. v., 4 C. & P. 254. . 10 Hawthorn v. Hammond, 1 C. & K. 404 701 Hawtin, R. v., 7 C. & P. 281 . . 576 Hay v. Justices of the Tower, 24 Q. B. D. 561 130 Haydon, R. v., Hutt. 20 314 Hayes, R. v., 2 Moo. & Rob. 155 193, 788 Hayman, R. v., Moo. & M. 401 310, 541 Hayne, R. v., 4 M. & S. 214 343 Hayward, R. v., 6 C. & P. 157. .30, 667 1 C. & K. 518. . 575 Haywood, R. v., Russ. & Ry. 16 337 Hazel, R. v., 1 East, P. C. 236. . 663 Hazell, R. v., 11 Cox, C. C. 597 571 Hazelton, R. v., L. R. 2 C. C. R. 134 438, 448 Hazy, R. v., 2 C. & P. 458 5 Head, R. v., 1 F. & F. 350 453 Heane, R. v., 4 B. & S. 947. . 181, 722 Heanor (Inhab. of), R. v., 6 Q. B. 745 542 PAGE Heap, R. v., 2 Q. B. 128 537 Hearn, R. v., 1 Car. & M. 109. . 37 Heath, R. v., 12 L. T. 492 542 - 2 Moo. C. C. 33 . . 573, 854 Hedge, R. v., Russ. & Ry. 162. . 409 Heeson, R. v., 14 Cox, C. C. 40 86, 174 Hehir, R. v., 18 Cox, 267 560 Hemmings, R. v., 2 East, P. C. 1116 838 Hemp, R. v., 5 C. & P. 468 734 Hempstead, R. v., Russ. & Ry. 344 73 Henderson, R. v., 2 Moo. C. C. 192 451 11 Cox, C. C. R. 593 572 Hendon (Inhab. of), R. v., 4 B. & Ad. 628 308, 311 Henkers, R. v., 16 Cox, C. C. 257 . . 235 236 Hennah, R. v., ±3 Cox", 547 24o' 749 Hennell v. Lyon, 1 B. & A. 182 148 Henry v. Ady, 3 East, 221 153 -R. y.,2Moo. C. C. 118.. 815 Hensler, R. v., 11 Cox, C. C. R. 570 432 Henshaw, R. v., L. & C. 444 . . 434 Hepworth, R. v., 3 B. & Ad. 110 534 Hermann, R. v., 4 Q. B. D. 284 359 Hescott, R. v., 1 Salk. 330 712 Hetherington, R. v., 5 Jur. 529 595 Hewgill, R. v., 1 Dears. C. C. 322 437,445 Hewins, R. v., 9 C. & P. 786. .182, 732 Hewitt, R. v., R. & R. 158 170 -1 Car. & M. 534.. 43 - 4 F. & F. 1101 . . 352 Hewlett, R. v., 1 F. & F. 91 523 Hey, R. v., 1 Den. C. C. R. 602 573 Heydon, R. v., 1 W. Bl. 351. ... 150 Heymann v. R., L. R. 8 Q. B. 102 204, 378 Hey wood, R. v., 2C.&K. 352. . 500 L. & C. 451 . . 178, 179 789 Hibbert, R. v., L. R. 1 C. C. R. ' 184 236 -13 Cox, C. C.82.. 383 Hiekling (Inhab. of), R. v., 7 Q. B. 890 541 -R. y.,37L. J.,M. C.89 702 Hickman, R. v., 2 East, P. C. 593 587 - 2 East, P. C. 728 810, 812 Hicks v. Gore, 3 Mod. 84 234 Higgins, R. v., 2 East, 8 . . 269, 270 - Russ. & Ry. 145 404 - 3 C. & P. 603 . . 48 - 4 C. & P. 247 . . 713 Higgs, R. v., 2 C. & K. 322 323 - 10 Cox, C. C. 527 512, 513 Highfield v. Peake, Moo. & M. Ill 146 Index of Cases. XXVll PAGE Hill v. Halford, 4 Camp. 17. . . . 146 Met. Asylum Managers, 50 L. J. (H. L.) 353 . . 707 R. v., Russ. & Ry. 190 73 - 8 C. & P. 274 502 -2 Moo. &R.458 823 - 1 Den. C. C. R. 453 783 - 2 Den. C. C. R. 254 103 Liverpool Spring Ass. 1838 44 Hilles r. lnliab. of Shrewsbury, 3 East, 457 .'. 254 Hillman, R. v., L. & C. 343 240 Hilton v. Eckersley, 6 E. & B. 62 381, 382 -R. v., 2 Lew. C.C. 214.. 626 - 28 L. J., M. C. 28 167 Hinchcliffe, R. v., 1 Lew. C. C. 161 637 Hind, R. v., 29 L. J., M. C. 147 29 Hindmarsh, R. v., 2 Leach, 571 14 Hinley, R. v., 2 Moo. & R. 524 178, 180 Hirst, R. v., 18 Cox, 374 44 Hoare v. Silverloek, 12 Q. B. 625 607 -R. v., IP. &F. 647 571 Hobbs, R. v., Times, Aug. 8, 1898 519 Hobson, R. y., 1 East, P. C. Add. xxiv 410 Hodge, R. v., 2 Lew. C. C. 227. . 644 Hodges, It. v., M. & M. 841. .457, 845 Hodgkiss, R. v., L. R. 1 C. C. R. o]*> 722 Hodgson,' R.'i.',lLew." C.C." 236 76 - 3 C. & P. 422 168, 409, 414 ■ R. & R. 211 . . 775 Dears. & B. C. C. 3 466, 503 Hodnettw. Foreman, 1 Stark. 90 153 j Hogan, R. v., 2 Den. C. C. 277 348, 349 Hogg, R. v., 2 Moo. & R. 380 200, 644 6 C. & P. 176 .. 58 Holbroo v., Q. B. D. 60 606, 609 Holcroft, R. v., 1 Co. 46 b 177 Holden, H. v., 8 C. & P. 60!* .. 120 5 15. ,V- A. 347 .. 227 K. & K. 1.V1.... 503 Holland, R. v., 5 T. R. 607 .... 712 I T. R. 692.... 711 -2 Moo. & K. 351 649 Hollingberry, R. v., 4 B. & C. 329 370 Hollis, R. v., 12 Cox, C. C. R. 463 210 L2Q. B. D. 25 .. 564 Holloway v. Reg., 2 Den. C. ('. 296 198,204,761 R. r.. r, C.x P. 524.. 333 I C. & P. L28.. 154 I Den. C C. 370 209, 554. 578 PAGE Holman, R. v., 3 Jur. , N. S. 722 190 Holmes, R. v., 2 Lew. C. C. 256 404 — 1 C. &K. 248.. 36 - 1 Dears. C.C. R. 207 701 -L.R.I C. C.R. 334 90, 268, 776 -12Q.B. D. 23.. 452 Holroyd, R. v., 2 M. & R.339.. 766 Holt, R. v., 7 C. & P. 518 . .523, 692 9 W. R. 74 87 - SOL. J.,M. C. 11.. 448 Holtham, R. v., 3 Russ. Cri., 6th ed. 643 118 Holy Trinity (Inhab. of), R. v., 7B. & C. 611 3 Hood, R. v., 1 Moo. C. C. 281. . 109 Hook, R. v., Dears. & B. C. C. 606 737 Hooper, R. v., 3 Russ. Cri. 548, 6th ed 52 —1 F. & F. 85 . . 17 Hoost, R. v., 2 East, P. C. 950 . 488 Hopewell v. Da Pinna, 2 Camp. 113 16 Hopkins v. Prestcott,4C. B. 578 712 R. c, Car. & M. 264 . . 236 8 C. & P. 591 . . 642 10 Cox, C. C. 229 266, 662 - (1896) 1 Q. B. 652 275 Hopper, R. v., 3 Price, 495 146 Hopwood v. Thorn, 8 C. B. 293 611 Hornby, R. v., 8 C. & K. 305 . . 570 HorneTooke, R. v., 27 How. St. Tr. 71 5 Horner, R. v., 1 Leach, 191. . . . 805 Hornsea, R. v., Dears. C. C. 291 209 Hornsey, R. v., Carth. 212 . .540, 541 Horsey, R. v., 3 F. & F. 287 . . 651 Hough, R. v., Russ. & Ry. 120. . 83 Hounsell v. Smyth, 7 C. B., N. S. 731 530 Houseman, R. v., 8 C. A: P. 180 496 How v. Hall, 14 East, 276 10 Howard v. Canfield, 5 Dowl. P. C. 417.. 126 - 1 Moo. & Rob. 187 6 R. v., 10 Cox, C. C. 54 205 Howatt, R. v., 2 East, P. C. 604 758 Howes, R. v., 6 C. & P. 10 1 .... 42 Howell, R. v., 1 F. & P. 160. .232, 371 1 Den. C.C.I... . 30 Howie, R. v., 11 Cox, C. C. 320 492, 495 Hubbard, R. v., 14 Cox, C. C. 565 31 Hube, R. v., 5 T. R. 543 390 - Peake, 181 2 Hack, R. v., 1 Stark. N. P. 523 28, 730 Hudson v. Macrae, 4 B. & S. 592 456, 742 R. v., I F. & F.56.... 724 XXV111 Index of Cases. PAGE Huet, R. v., 2 Leach, 821 52 Huggett, E. v., Kel. 52 679 Huggins, R. v., 2 Str. 882 655 Hughes v. Budd, 8 Dowl. P. C. 315 10 Rogers, 8 M. & W. 123 165 R. i>., 2 East, P. C. 491.. 320 2 East, P. C. 1002 5 1 Russ. Cri. 147. . 869 1 Moo. C. C. 370 402, 408 2 Moo. C. C. 190 774 ■ 1 Lewin, C. C. 301 805 2C. & P. 420.... 338 1 C. & K. 235. .185, 186, 188 ■ 1 C. & K. 519. .721, 734 -2C. & K. 214.... 805 Dears. & B. C. C. 248 622, 631, 653 Bell, C. C.242. .161,781 -IF. & P. 726 281 -2 Russ. Cri. 253.. 588 Derby Wint. Ass. 1868 123 -4 Q. B. D. 614.. 720 Hugill, R. v., 2 Russ. Cri. 403, 6th ed 638 Humphrey, R. v., (1898) 1 Q. B. 875 519 Humphreys, Ex parte, 19 L. J., M. C. 189 66 - R. v., Car. & M. 601 166 Hungerforcl, R. v., 2 East, P. C. 518 334 Hunsdon (Lord) v. Arundel (Lady), Hob. 112 148 Hunt v. Massey, 5 B. & Ad. 902 15 R. v., 8 Cox, C. C. 495.... 572 - 31 St. Tr. 375 605 - 2 Camp. 585 73 -1 Moo. C. C. 93 ..21,228, 522, 523, 651 -2 Chit. R. 130 170 -3B. & C. 566 11 - 3 B. & A. 568 . . 4, 81, 373 - 8 C. & P. 642 401 - 10 Q. B. 925 226 - 1 Cox, C. C. 177 241 -3B. & A. 444 227 Hunter, R. v., Russ. & Ry. 511 505 -3C.& P. 591.. 173, 174, 211 -4C. &P. 128..,. 9 Huntingtower v. Gardiner, 1 B. & C. 297 299 Huntley, R. v., Bell, C. C. 236. . 781 Hurd v. Moring, 1 C. & P. 372 135 Hurley, R. v., 2 Moo. & R. 473. . 5 Hurrell, R. v., 3 F. & F. 271 . . 720 Hurry, R. v., 1 Lofft's Gibb. Ev. 57 727 Hurse, R. v., 2 Moo. & R. 360. . 360 Hutchinson v. Birch, 4 Taunt. 619 685 - R. v., 1 Leach, 343 825 PAGE Hutchinson R. v., Russ. & Ry. 412 591 3 Keb. 785 . . 177 2 B. & C. 608..28, 29 9 Cox, 555 . . 628 Huttley v. Simmons, (1898) 1 Q. B. 181 382 Hyam, R. v., 7 C. & P. 441 ... . 316 Hyman, R. v., 2 Leach, 925. ... 782 ILLIDGE, R. v., 1 Den. C. C. R. 404 498 Ince, R. v., 1 Leach, 342 825 Incledon, R. v., 13 East, 127 . . 707 Ingham, R. v., 29 L. J., M. C. 18 281 Ingram, R. v., 1 Salk. 384 869 Instan, R. v., (1893) 1 Q. B. 450 657 Ipstones (Inhab. of), R. v., L. R. 3Q. B. 216 541 Ireland v. Powell, Peake, Ev. 15 25 Irving v. Motley, 7 Bing. 543 . . 588 Isaacs, R. v., L. & C. 220 240 Iven, R. v., 7 C. & P. 213 702 JACKSON v. Benson, 1 Y. & J. 32 130 - R. v., 1 East, P. C. Add.xxi 808,815 - 1 Leach, 267 . . 839 -3Campb. 370.. 438 - Russ. & Ry. 487 773 - 1 Moo. C. C. 119 570 1 Lewin, C. C. 270 737 -7 C. &P. 773.... 891 -17 Cox, 104. .271, 822 Jacob v. Lee, 2 Moo. & R. 33 . . 10 - R. v., 1 Stark. N. P. 516 206 - Russ. & Rv. 331.. 828 Jacobs v. Layborn, 11 M. & W. 685 121 -B,.v., 12 Cox, C. C. 151.. 560 Jacobson, R. v., 14 Cox, C. C. 522 386 Jagger, R. v., 1 East, P. C. 455 110 James, R. v., 1 Show. 327 147 - 1 Russ. Cri. 574, 6th ed 796 - 5 C. & P. 153 796 - 1 C. & P. 553.. 505, 507 -1 C. & K. 530.... 263 -6Cox, C. C. 5.... 104 - 12 Cox, C. C. 127 188, 451 - 8 C. & P. 292 ... . 498 - 8 C. & P. 131 640 -24 Q. B. D. 439 557, 786 Jameson, R. v., (1896) 2 Q. B. 425 225 J'Anson v. Stuart, 1 T. R, 748, 754 599, 704, 706, 714, 716 Index of Cases, XXIX PAGE Jarman, R. v., 14 Cox, C. C. R. Ill 438 Jarrald v. Ost, L. & C. 301 336 Jarvis, R. v., 1 Moo. C. C. 7 . . 330 -2 Moo. & R. 40.... 114, 162, 622 - 25 L. J., M. C. 30 361 - 3F. & F. 108.... 705 - L. R. 1 C. C. R. 96 37, 38 Jeans, R. v., 1 C. & K. 539 338 Jellyman, R. v., 8 C. & P. 604. . 117, 828 Jenkins, R. v., L. R. 1 C. C. R. 187 31 - Russ. & Ry. 244. . 326 Jenks, R. v., 2 East, P. C. 514. . 77 Jennings, R. v., 1 Dears. & B. C. C. 447 72 Jennison, R. v., L. & C. 157. .435, 437 Jenson, R. v., 1 Moo. C. C. 434 406 Jepson, R. v., 2 East, P. C. 1115 840 Jen-is, R. v., 6 C. & P. 156 .... 779 Jessop, R. v., Dears. & B. C. C. 442 444 -16 Cox, C. C. 204 .. 691 Jessup, R. v., 25 L. J., M. C. 54 452 Jewell, R. v., 7 E. & B. 140. ... 170 Jeyes, R. v., 3 A. & E. 416 .... 214 Jobling, R. v., Russ. & Ry. 525 330 John, R. v., 1 Leach, 504. .28, 29, 110 - 13 Cox, C. C. 100 . . 854 Johnson y. Lawson, 2 Bing. 86 25 - Leigh, 6 Taunt. 240 685 -R. v., 1 Wils. 325 .... L80 2 East, P. C. 488.. 314 - 7 East, 65 608 Russ. & Ry. 492.. 514, 825 — 3 Russ. Cri., 6th ed., 547 52 - 1 Lewin, C. C. 161 650 :; M. & S. 539 180 -Car. & M. 218 318 - 2 C. & K. 354 . . 27, 61, 62, 17 1 -2Den.CCR.310 575 -27L. J., M. C, 52.. 589, 590 -29L.J., M. C. 1-33.. 206, 542 -L. R. 2C. C. 15.. 719 Johnston, R. y., 2 Moo. C. ('. 255 436 Joliffe, R. v., 2 B. A- C. 54 1 5 1 'I'. R. 285.... 174, 370 .l,.nrs & Bever, R. y., Kiel. 52.. 336 , Ex parte, L8Ch.D.109 278 v. Edwards, MCI. & V. L49 in Mason, 2 Str. 833 L53 Stevens, 11 Price, 1251 601 - Tarleton, 9 M. & W. 675 12 -R. v., Kel. 37 868 2 Str. 1145 713 PAGE Jones, R. v., 2 Camp. 132 114, 180 - 3 Camp. 230 533 - Dears. & B. 555 . . 460 - 1 Leach, 102 171 - 1 Leach, 204 489, 490 -1 Leach, 367 502, 591 - 1 Leach, 537 325 - 2 East, P. C. 499 . . 324 -2 East, P. C. 714 .. 811 - 2 East, P. C. 883 . . 505 - 2 East, P. C. 941 . . 498 - 8 East, 34 174 2 Russ. Cri. 224, 6th ed 460 -2 Russ. 658 54 — Russ. &. Ry. 152 . . 45 - Peake, N. P. C. 37 725, 731 - 2 Har. & W. 293 . . 170 -2 Moo. C. C. 94.... 179 - 2 Moo. C. C. 293 . . 640 -Car. & M. 614 295 - 2C. & P. 629 47 -4C. &P. 217 394 -6C. &P. 343 201 -8C. &P. 288 ..412,413 -9C.it P. 258 692 — 2B. &Ald. 611 .... 74 -2C. &K. 524 844 - 4 B. & Ad. 345 367 -11 Q. B. D. 118.... 294 - 1 Den. C. C. R. 166 135 - 1 Den. C. C. 193 . . 555 - 1 Den. C. C. 551 . . 452 - 2 Den. C. C. R. 475 501 -(1895) 1Q. B. 4.... 828 - 11 Cox, C. C. R. 358 294 - 11 Cox, C. C. 544 . . 628 - 14 Cox, C. C. 3 788 Jones, Amos, R. v., 2 Moo. C. ( '. 308 254 Jones, William, R. v., (1898) 1 Q. B. 118 280,438 .Ionian, R. v., 7 C.&P.432. .319,320, 332 -9C. &P. 118.... 772 Jory v. Orchard, 2 B. & P. 39. . 9 Joyce, R. v., L. & C. 576. .. .492, 496 Juda, R. y., 2 C. & K. 635 497 KAY, R. v., Dears. >V B. C. C. 231 758 -L. R. 1 C. C. R. 257 496 Kealey, R. v., 2 Den. C. C. 69 446 Ke me, R. v., 4 B. & S. 9 17 180 Keary, R. v., 14 Cox, C. C. 143 172 Keate, R. v., Comb, 408 660 K. ena, It./-., L. H. 1 ('.(*. H. 113 412 Keene v. Beaumont, 2 B. & P. 2ss 9 Keir v. Leeman, 9 Q. B. 371 . . 364 Keith, R. v., 1 Dears. C. C. R. 486 489 Kelby /-. Wilson, Ry. iv; Moo. N.P. C.178 588 XXX Index of ( 'ases. PAGE Kelleher, R. v., 14 Cox, C. C. R. Ir. 48 205 Kelly, R. v., Russ. & Rv. 421. . 785 2 C. & K. 814. . . . 664 2 C. & K. 379. ... 785 Kelsey, R. v., 2 Lew. 45 115 Kempton v. Cross, Hardw. 108 149 Kendrick, R. v., 7 C. & P. 184. . 511 Kenilworth, R. v., 7 Q. B. 642 8 Kennedy v. Cowie, (1891) 1 Q. B. 771 385 Kenny, R. v. L. R.2 Q. B. D. 307 585 Kem-ick, R. v., 5 Q. B. D. 49 . . 376, 378, 441 Kensington v. Inglis, 8 East, 289 126 Kent v. Worthing Local Board, 10 Q. B. D. 118 532 Kent (Inhab. of), R. v., 13 East, 220 310 2 M. & S. 513 305 Kerr, R. v., 8 C. & P. 176 44 Kerrigan, R. v., L. & C. 383 . . 451 Kerrison, R. v., 3 M. & S. 326. . 310 Kessal, R. v., 1 C. & P. 437 . . 672 Kew, R. v., 12 Cox, C. C. 355. . 628 Key, R. v., 3 C. & K. 371 185 Kilham, R. v., L. R. 1 C. C. R. 261 430,431,432,444 King v. R., 7 Q. B. D. 782 . .197, 376 R. v., 4 Inst. 181 339 - Russ. & Ry. 332 . . 785 - 2 T. R. 234 150 - 5 C & P. 123 504 - 1 Cox, C. C. 36 365 • (1897) 1 Q. B. 214 204, 435, 587 Kinglake, R. v., 11 Cox, C. C. (Q. B.) 499 129, 140 Kingsmoor, R. v., 2 B. & C. 190 538 King's Newton, R. v., 1 B. & Ad. 826 538 Kingston (Duchess of), R. v., 20 How. St.Tr. 565 133, 170, 296 - R. v., 4 C. & P. 387. . 40 Kinnear, R. v., 2 Moo. & R. 117 490, 492 -2B. & Aid. 462 194 Kinnersley, R. v., 1 W. Bl. 294 598 Kinnersly, R. v., Str. 193 369, 378 Kinsey, R. v., 7 C. & P. 447 . . 201 Kipps, R. v., 4 Cox, C. C. 167. . 235 Kirkham, R. v., 8 C. & P. 115. . 668 Kirkwood, R. v., 1 Moo. C. C. 304 506 Kissam v. Link, (1896) 1 Q. B. 571 151 Kitchens. Manwaring, 7 C. & P. 648 103 - R. v., Russ. & Ry. 95 822 Kitson, R. v., Dears. C. C. 187 2, 9, 10 Knatchbull, R. v., 1 Selw. 150. . 170 Knell, R. v., Barnard. K. B. 305 609 PAGE Knewland, R. v., 2 Leach, 721 807, 810 Knight, R. v., Bac. Ah. Libel, 2 611 - 2 East, P. C. 510 333, 578 - 1 Lewin, C. C. 168 626 -1L. & C. 578.... 18 - 14 Cox, C. C. R. 31 205, 265 Knill, R. v., 5 B. & A. 929 (n.). . 734, 736 Knowlden, R. v., 5 B. & S. 532 167 Kolm, R. v., 4 F. & F. 68 . .224, 378 Koops, R. v., 6 Aid. & El. 198. . 723 LABOUCHERE, R. v., 12 Q. B. D. 320.. 598, 599 -14Cox,C.C. 119 613 Lacon v. Higgins, Dowl. & Ry. 38 293 Lacy, R. v., Car. & M. 511 423 Lake, R. v., 11 Cox, C. C. 333. . 427 Lamb, R. v., 2 East, P. C. 664. . 597 Lambe, R. v., 2 Leach, 554 34, 54 Lambert, R. v., 2 Campb. 398 597, 608 Lambeth, R. v., 3 C. L. R. 35. . 542 Lancashire (Inhab. of), R. v., 2 B. & Ad. 813 306, 310 Lancaster, R. v., 16 Cox, 737 . . 297 Landsmere, R. v., 15 Q. B. 689 525, 526, 534 Landulph, R. v., 1 Moo. & Ry. 393 535 Lane, R. v., 1 East, P. C. 268. . 623 Langford, R. v., Car. & M. 602 795, 796 Langhorn, R. v., 7 How. St. Tr. 416, 497 90, 194 Langley, R. v., 6 Mod. 125 599 Langridge, R. «., 1 Den. C. C. R. 448 61 Langrish v. Archer, 52 L. J., M. C 47 518, 701 Langstaff, R. v., 1 Lewin, C. C. 162 664 Langton, R. v., L. R. 2 Q. B., D. 296 126, 592 Lapier, R. v., 2 East, P. C. 557 55J, 802, 805 Lara, R. v., 2 East, P. C. 819. . 342 Larkin, R. v., 1 Dears. C. C. 365 183, 782 Earner, R. v., 14 Cox, C. C. 497 432 Latham, R. v., 9 Cox, C. C. 516 198, 376 Latimer, R. v., 15 Q. B. 1077 . . 600 -R. v., 17 Q. B. D. 359 21, 522, 523, 651, 851 Laugher, R. v., 2 C. & K. 225 40, 869 Lautor Teesdale, 8 Taunt, 830 288 Lavender, R.v.,2East,P.C.566 573 Lavey R. v., 2 Den. C. C. 504. . 204 Index of Cast s. XXXI PAGE Lavey, R. v., 3 C. & K. 26 . .730, 732 Lawley's (Lady) case, B. N. P. 287 110 Lawleys, R. «., 2 Str. 904 618 Lawrence v. Clarke, 14 M. & W. 251 10 R. v., 4 P. & P. 901 . . 174 Laws v. Eltringham, 8 Q. B. D. 283 619 Laxton v. Reynolds, 18 Jur. 963 9 Lay v. Lawson, 4 A. & E. 795. . 610 Laycock, R. v., 4 C. & P. 326. . 731 Layer, R. v., 12 Vin. Abr. 96 . . 3 16 How. St. Tr. 170 8, 54 - 14 How. St. Tr. 285 89 Lea, R. v., 2 Moo. C. C. R. 9 . . 206 Leach, R. v., 3 Stark. 70 405 Leake, R. v., 5 B. & Ad. 469. .526, 534 Leary v. Llovd, 29 L. J., M. C. 194 221 Leatham, R. v., 3 L. T. 504 299 Ledger, R. v., 2 F. & F. 858. .622, 627 Lee v. Ridson, 7 Taunt. 191 459 - q. t. v. Birrell, 3 Camp. 337 139 -R. u.,2McNallyonEv.634 373 - 1 Leach, 258 491 - 1 Russ. Cri. 368, 6th ed 735 - Russ. A: Ry. 361 117 -6C. & P. 536 162 -L. & C. 309 434 4F. & P. 63 64, 66 L. & C. 418 443 L. R. 1 Q.B.D.198 542 Leech, R. v., 25 L. J., M. C. 77 452 Leef, R. v., 2 Camp. 134 725 Lees, R. v., 1 El. B. & El. 828. . 205 Leggett, R. v., 8 C. & P. 191 . . 622 Le Merchant, R. v., 1 Leach, 300 8 Lennanl, R. v., 1 Leach, 92. .. . 363 Leonard, R. v., 1 Den. C. C. R. 306 449 Lever, R. v., 1 Wil. Wol. & Eod. 35 170 I ie-v ett, R. v., Cro. & Car. 538. . 633 Levy v. Pope, Moo. & M. 410.. 135 R. v., 2 Stark. N. P. 458. . 74 I ,. ,s is v. Sapio, Moo. & M. 39. .5, 154 Walter, 4 B. & A. 613 801, 611 -R. v., 1 Str. 70 721 Poster, 116 484 - Sayer, 205 342 - 2 East, P. C. 957 490 -6C. &P. 162... . 53 -1C. &K.419.... 264, 265, 674 - Dears. & B. C. C. 182 223 1 Dears. »v H. C. C. 227 209 - 4 Burr. 2458 170 - 12 Cox, C. C. 163 719 -2C. &P. 628.... 316 I evman v. Latimer, 3 Ex. D. 352 599 PAGE Light, R. v., Dears. & B. C. C. 332 230 Lillyman, R. v., (1896) 2 Q. B. 167 23 Lince, R. v., 12 Cox, C. C. R. 451 437,445 Lincoln, R. v., Russ. & Ry. 421 720 (City of), R. v., 8 A. &. E. 65 307 Lindo v. Belisario, 2 Hagg. 268 292 Lindsay (Inhab. of), R. v., 14 East, 317 310 Lines, R. v., 1 C. & K. 393 774 Lingate, R. v., 1 Phil. Ev. 414.. 41 Lister v. Priestley, Wightw. 67 6 - R. v., Dears. & B. C. C. 118 409 - Dears. & B. C. 209.. 699 Lithgo, R. v. Russ. & Ry. 357... 322 Little, R. v., Russ. & Ry. 430. . 172 - 14 Cox, C. C. 319. 91 Liverpool (Mayor, &c. of),R. v., 3 East, 86 534,538 Lloyd v. Mostyn, 10 M. & W. 481 134 Passingham, 16 Ves. 64 139 - R. v., Cald. 415 464 - 1 Camp. 260 527 - 4 Esp. 200 697 - 2 East, P. C, 1122 838 -4C. &P. 233 28 -6C. & P. 393.... 38 -6C. & P. 318.... 777 - 19 Q. B. D. 213. . 722, 732 Loader, R. v., 1 Russ. Cri. 7, 6th ed 218 Lock, R. v., L. R. 2 C. C. R. 10 265 Lockett, R. v., 2 East, P. C. 940 494 Logan v. Burton, 5 B. & C. 513 525 Loggen, R. v., 1 Str. 75 713 Lolley, R. v., Russ. & Ry. 237.. 295 London (Lord Mayor of), R. v., 5 Q. B. 555 64, 66 London (Lord Mayor of), R. v., 16 Cox, C. C. 77 167 London (Lord Mayor of), R. v., L6 Q. B. D. 772' 586, 600 London (Corporation of), R. v., 27 L. J., M. C. 231... 202 Lone, R. v., 2 Str. 920 713 Long, R. v., 4 C. & P. 398 629 -6 C. & P. 179.... 79 -7C. &P. 314.... 516 Longbottom, R. v., 3 Cox, 439. . 628 Longden,R. v., Russ. A Rv.228 662 Longmead, R. v., L. & C. 427. . 783 Longnor, R. v., 4 B. & Ad. 647 154 Longstreath, R. v., 1 Moo. C. C. 137 569, 570 LongtonGas Co., R. i'.,29 L. J., M. C. 118 531, 533 Loose, R. v., Bell, C. C. 259 . . 572 Lopez, R. v., Dears. & B. C. C. 525 221 Louis, R." v., 2 Keb. 25 177 xxxn IinJex of Cases. PAGE Lovat (Lord) R. v., 9 How. St. Tr. 639, 646, 704 121 Love, R. v., 5 How. St. Tr. 113. 104 Loveless, R. v., 1 Moo. & Rob. 349 709 Lovell, R. v., 2 Moo. & R. 30 . . 822 8 Q. B. D. 185 . . 556, 571, 840 Lovett, R. v., 9 C. & P. 462. .597, 602 Lowe, R. v., 3 C. & K. 123 . . . . 631 - 15 Cox, C. C. R. 286 278 Lowrie, R. u., L. R. 1 C. C. R. 61 855 Lucas v. Nockells, 10 Bing. 182 588 Luckhurst, R. v., 1 Dears. C. C. 245 39,40 Lult, R. v., 3 F. & F. 834 83 Lumley, R. v., L. R. 1 C. C. R. 196 16,294,295 Lushington, R. v., (1894) 1 Q. B. 420 202 Luttrell v. Reynell, 1 Mod. 282 91, 92 Lynch, R. v., 5 C. & P. 324. ... 674 (1898)1Q.B.61.. 385 Lynn, R. v., 2 T. R. 733 386 Lyon, R. v., 1 Leach, 185 323 2 East, P. C. 933 497 - Russ. & Ry. 255.. 487, 490 Rv. & Moo.N.P.C. 151 529 Lyons, R. v., 28 L. J. M. C. 33 255 - 9 Cox, C. C. 299 .. 280 MABBETT, R. v., 5 Cox.C. C. 339 632 Mabel, R. v., 9 C. & P. 474.... 265 Mabey, R. v., 6 T. R. 619 370 Mackalley, R. v., 9 C. Rep. 67. . 646 McArthur, R. v., Peake,N.P.C. 155 723 McAthey, R. v., L. & C. 250 . . 787 McCarthy, R. v., Carr. & M. 625 173 McConnell, R. v., 1 C.& K. 371 488 McCraw v. Gentry, 3 Camp. 232 153 Macdaniel, R. y.,Fost. 125. .159, 370, 804 McDonagh, R. v., Carr. Suppl. 23 593 McDonald, R. v., L. & C. 85 . . 404 Macdonald, R. v., 15 Q. B. D. 323 572 McDougal v. Cowry, Ry. & M. 392 12 McDougall v. Claridge, 1 Camp. 267 611 Knight, 25 Q. B. D. 1 610 McEneanv, 14 Cox, C. C. 87 . . 227 M'Evin, R. v., 1 Bell, C. C. 20. . 786 M'Gahey v. Alstone, 2 M. & W. 211 6,7 PAGE McGrath, R. v., L. R. 1 C. C. R. 205 555,571 - 14 Cox, C. C. 598 419 McGuire, R. v., 2 East, P. C. 2002 5 Machynlleth, R. v., 2 B. & C. 166 308,537 M'Intosh, R. v., 2 East, P. C. 942 493,495 McKale, R. v., L. R. 1 C. C. R. 125 564 Mackalley, R. v. ,9 Co. Rep. 65 (6) 72, 682 McKenzie, R. v., (1892) 2 Q. B. 519 385 Mackerrell, R. v., 4 C. & P. 448 615 M'Keron, R. v., 1 Russ. Cri. 354, 6th ed 727 M'Makin, R. v., Russ. & Ry. 333 785 Macklin, R. v., 2 Lewin, C. C. 225 687 M'Leod v. Wakley, 3 C. & P. 311 605 M'Loughlin, R. v., 8 C. & P. 635 851 Macmichael, R. v., 8 C. & P. 755 707 M'Namee, R. v., 1 Moo. C. C. 368 573 M'Naughten's case, 3 Russ. Cri. 571 .... 127 -8Scott,N.R. 595 862, 864 M'Naughten, R. v., 14 Cox, C. C. Ir. 576 798 McPherson v. Daniels, 10 B. & C. 272 19, 608 - R. v., Dears. & B. C. C. 197. . . . 293 M'Quin, R. v.] *l'Cox,'c.' C.'34! .' 500 Macrae R. ;;., Northampton Ass., Dec. 1892 195 M'Rue, R. v., 8 C. & P. 641 ... . 774 Maddeson v. Shore, 5 Mod. 355 95 Madge, R. v., 9 C. & P. 29 594 Makin v. Att.-Gen. of N. S. W., (1894) A. C. 57 85, 207 Male, R. v., 17 Cox, 689 44 Malings, R. v., 8 C. & P. 242 . . 191 Mallory, R. v., 13 Q. B. D. 33. . 48, 107 Maloney, R. v., Matth. C. L. 157 52 - 9 Cox, C. C. 6.... 19 Manchester (Mayor of), R. v., 7 E. & B. 453 170 Mankletow, R. v., 1 Dears. C. C. R. 159 234,235,236 Mann v. Carey, 3 Salk. 155 150 Manners, R. v., 7 C. & P. 801. . 360 Maiming, R. v., Sir T. Raym. 212 664 - 2 C. & K. 903 691, 869 - Dears. C. C. 21 578 - L. R. 1 C. C. R. 338 252 -12 Q. B. D. 241 367, 377 Mansell v. R., Dears. * B. C. C. 375 185, 186, 188, 205 Index of Cases. -XXXlll Mansfield, R. v., 14 Cox, C. C 639 38 Manwaring, R. v., Dears. & Bell, C. C. 132 286 Margett, R. v., 2 Leach, 930. .328, 329 Mark, R. v., 3 East, 157 708 Markuss, R. v., 4 F. & F. 256. . 630 Marks v. Benjamin, 5 M. & W 564 - Beyfus, 25 Q, B. D. 494 v., 10 Cox, C. C. 367 Marriott, R. v., 8 C. & P. 425. . Marsden, R. v., L. R. 1 C. C. R 131 (1891) 2 Q. B. 705 137 183 657 230 -L49 767 775 Marsh v. Colnett, 1 Esp. 665 .. ' 150 -R. v., 1 Moo. C. C. 182.. 258, 870 - 1 C & K. 496. .263, 348 -6 A. & E. 236.... 112 -3 P. & F. 523.... 405 — 1 Den. C. C. 405. . 451 Marshall, R. v., C.& 31. 117 . . 59 — — — ~ 11 Cox, C. C. 496 403 Martin, R. v., 2 Camp. 269. . 341, 711 - Russ. & Ry. 108. . ' 324 -R. & R. 196 791 - Russ. & Ry. 324. . 427 - 3 C. & P. 211 ... . 621 - 5 C. & P. 130 ... . 650 - 7 C. & P. 549. ... 496 -1 Den. C. C.398.. 789 - 6 Cox, C. C. 107. . 734 - Shelford on Lu- nacy, 465 861 - Ahs. P. C. L. 486 102 L. R. 1C.C.R.56 433, I I ! - 6 C. & P. 562 .... 776 - L. R. 1 c. C. R. 214.... 167,196,362 - L- R- 1 C. C. R. :;7lS 188 -8Q B. D. 54.. 21,523 _ _ n 619, 652 — - 5 Q. B. D. 34 . . . . 486 Mason, R. v., Foster, 132 671 1 Leach, 548 703 - Russ. lV i; v . 419.. 805 - 2 T. R. 581 204 - 2 East, P. C. 796 745 ZT~ ~T~ 2 c - & K. 622. .424, 125 Masters, R. v., 1 Den. C. C. 332 208, ivr 4i i ^ 4 °9> 574 Matthews, R. v., 14 Cox, C. C. 5 640 1 Den. C.C.R. „ 59( > 869 - 12 Cox, C.C.R. is: 1 580 Maugham v. Hubbard, 8 B.'&C. 14 ^ go Mawbey R. v., 6 T. R. 638. . .'.266, 381 Mawgndge, R. v., Kel. 174. . 19 650 ^T~ ~ Kel - 121 • . 634, 666 Mawson v. Hartsink, 4 Esp. 102 89 R. n/r t-, PAGE May, R. v., 1 Russ. Cri. 338, 6th ed 731 L. & C. 13 ; -2 East, P. C. 796 May, Jane, R. v., 10 Cox, C. C. 448 Maybury, R. v., 4 F.'ct P. 90 '.'.' Mayhew, R. v., 6 C. & P. 315 Mayle, R. v., 11 Cox, C. C. 150 Maynard, R. v., Russ. & R. 240 — — - - 2 East, P. C. 501 402 746 352 529, 539 737 402 352 Mayne v. Fletcher, 9 B. & C 382 Mazeau, R. v., 9 C. & P. 676 . . Mead v. Robinson, Willes, 424 — R. v., 2 Stark, N. P. C. 205 676, 677 -2B. &C. 605 .. 28,29 328 605 506 150 - 3 D. & R. 301 , -4C. &P. 535 Meade, R. v., 1 Lewin, C. C. 185 Meadham, R. „., 2 C. & K. 633 Meadows, R. v., 2 Jur. N. S 718 Meakin, R. v., 7 C. & P. 297 Meany, R. v., 32 L. J., M. C. 24 Mears, R. v., 2 Den. C. C. R 79 — — - - 4 C. & P. 221 .. . Medley, E.«.,6C. & P. 292 Meed v. Young, 4 T. R. 28 . Meek, R. v., 9 C. & P. 513 .. . 170 854 689 515 190 669 196 232, 370 49 706 484 147, 731 99 30 49 288 Meekms v. Smith, 1 H. Bl. 636 Megson, R. v., 9 C. & P. 420 . . Melen v. Andrews, M. & M 336 Mellis R „., 10 CI. & F. 534 . . Melhsh, R. v., Russ. & Ry. 80 400, 407 Mellor, R. v., Staff. Sum. Ass. 1883 113 -IB. & Ad. 32 . . 525 Dears. & B. C. C. 188, 209 168. .M.lville (Lord), R. v ', 29 How. St. Tr. 683 J44 -Menage, R. v., 3 F. & F. 310 .' .' 842 Men,,., K. ,-., Car. A M. 234 757 Mercer v. Woodgate, L. R. 5 Q- B. 26 526 Meredith, R. v., Russ. & Ry.*46 712 Merionethshire, R. v., 6 Q. B. 343 Merriman v. Hundred of'ci.'ip' !"'"liam, 2 Rast, P. C. 709. Merry v. Green, 7 M. & W. 623 542 806 579, 580 Merthyr Tydvil, R. v., 1 B & Ad. '2!) o Me _singliam, R. v., i Moo.C.'c". -i57 7ftfi Metcalf, R. v., 1 Moo. C.'c. 483 587, Mette, In re, 1 Sw. & Tr. 112. 292 Meumer, In re, (1894) 2 Q. B. 415 114,225 XXXIV Iwlex of Cases. PAGE Meynell, R. v., 2 Lewin, C. C. 122 42 Michael, R. v., 2 Moo. C. C. 120 648 Mich.-ll, R. v., 50L.J.,M.C76 279 Middlecroft v. Gregory, 2 Phill. 365 291 Middleditch, R. v., 1 Den. C. C. R. 92 842 Middlehurst, R. v., 1 Burr. 400 73 Middlesex (Inhab. of), R. v., 3 B. & Ad. 201 .... 306 (Justices of), R. v., 5 B. & Ad. 1113 175 Middleton v. Barned, 4 Ex. 241 16 — Janvers, 2 Hagg. 441 292 R. v., L. R. 2 C. C. R. 38 556, 559 Midgley v. Wood, 30 L. J., D. & M. 57 291 Midville, R. v., 4 Q. B. 240. . 533, 537 Miles v. Rose, 5 Taunt. 705. .. . 15 R. v., 38 W. R. 334 267 Millar, R. v., 7 C. & P. 665 ... . 594 Millard, R. v., R. & R. 245 ... .82, 83 1 Dears. C. C. R. 166 721 Miller v. Salomons, 7 Ex. 534. . 104 R. v., 2 Moo. C. C. 249.. 406 3 Wils. 427 127 14 Cox, C. C. 356 524, 851 18 Cox, 54 44 Milligan v. Wedge, 12 Ad. & El. 757 402 Millis, R. v., 10 C, & F. 534 . . 288 Mills, R. v., Dears. & B. C. C. 205 432 Milner v. Maclean, 2 C. & P. 18 463 R. v., 2C. &K.310.... 281 Milton, R. v., Ir. Cir. R. 61. .101, 535 Minter Hart, R. v., 6 C. & P. 106 854 Mitchell v. Rabbets, 3 Taunt. 91 152 R. v., 2Q. B. 636 . .217, 218 50L.J.,M. C.76 279 17 Cox, 503 .... 32 Mizen, R. v., 2 Moo. & R. 382. . 539 Moah, R. v., Dears. C. C. 626. . 413 Moffatt, R. v., 1 Leach, 438. ... 491 Mogg, R. v., 4 C. & P. 364. . . .86, 338 Mogul Steamship Co. v. Mc- Gregor, 21 Q. B. D. 544 .... 382 Moir, R. v., MS. 1828 688 Moises v. Thornton, 8 T. R. 307 153 Moland, R. v., 2 Moo. C. C. 276 433, 451 Monkhouse, R. v., 4 Cox, C. C. 55 669 Monkton v. Att.-Gen., 2 Russ. & M. 158 25 Monroe v. Twistleton, Peake, Ev. 171 108 Montague, R. v., 4 B. & C. 602 15 Moody, R. v., L. & C. 173 .... 497 Mooney, R. v., 9 Cox, C. C. 411 68 Moor, R. v., 6 East, 419 9 Moore v. Tyrrell, 4 B. & Ad. 870 133 R. v., Matt. Cr. Law, 157 52 PAGE Moore R. v., 1 Leach, 335 805 1 Leach, 314 565 2 East, P. C. 582 . 757 6 East, 419 (n.) . . 709 3 B. & Ad. 184 701, 706 2 Lew. C. C. 37 . . 118 1 Moody, C. C. 122 363 3C. & K. 319.... 867 2 Den. C. C. 526 39, 40 1 F. & F. 73 507 L. & C. 1 581 17 Cox, 458 106 Mopsey, R. v., 11 Cox, C. C. 143 491 Morby, R. v., 8 Q. B. D. 571 . . 632 Morfit, R. v., Russ. & Ry. 307. . 577 Morgan v. Bridges, 2 Stark. N. P. 314 125 R. v., 1 Leach, 54 105 1 Dears. C. C. R. 395 564 - 6 Cox, C. C. 107 3 - 14 Cox, C. C. 337 31 Moriarty v. Brooks, 6 C. & P. 684 850 Morley, R. v., 1 Hale, P. C. 456 660 Morphew, R. v., 2 M. & S. 602. . 68 Morris v. Hanson 2 Moo. & R. 392 . 10 - Miller, 1W.B1. 632!.' 3 -R. v., 1 Leach, 50 723 - 1 Leach, 109 .... 781 B. N. P. 239 .... 148 -Russ. &Ry. 270.. 507, 868 - IB. & Ad. 441 531, 700 - 9 Car. & P. 349 .. 587, 801 -7C. & P. 270.... 116 — L.R. 1 C. CR. 90 177 Morrison v . Kelly, 1 Blackst. 385 168 -R. v., 1 Bell, C. C. 158 853 Morse, R. v., 8 C. & P. 605 53 Morton, R, v., 2 East, P. C. 954 491 - 2Moo.&R.514.. 36 - 4M. & S. 48.... 8 ■ 1 Den. C. C. 398 208 - L. R. 2 C. C. 22 . 490 Mosely, R. v., L. & C. 92 . . 433, 450 Moss, R. v., Dears. & B. C. C. 104 341,518 Most, R. v., 7 Q. B. D. 244. .224, 379, 693 Mothersell, R. v., 1 Str. 93 150 Mott, R. v., 1 Leach, 73 (n.) 337 Mountford, R. v., 1 Moo. C. C. 44 1 822 Mucklow, R. v., 1 Moo. C. C, 160 558 Mudie, R. v.,1 Moo. & R. 128. . 723, 735 Mulcahy, R. v., L. R. 3 H. L. 306 . '. 187, 367, 369 Mullany, R. v., L. & C. 593 729 Mullett v. Hunt, 3 Tyr. 875 97 Mundav, R. v., 2 Leach, 850 . . 460 Index of C<(ses. XXXV PAGE Munslow, R. v., (1895) 1 Q. B. 758 GOO Murdoch, R. y.,2 Den. C. C. R. 298 411 Murlis, R. v., 1 Moo. & Malk. 515. . 125 Murphy v. Arrow, (1897)2 Q. B. 527. . 703 -R. v., (iC. & P. 103.. 624, 673 -8 C. & P. 30(5.. 1 — 8C. & P. 297.. 122, 180, 373, 374 -13 Cox, C. C. R. (Irish) 298 .. 438 -L.R. 2 P. C. 535 205 Murray v. Reg., 7 Q. B. 700 . . 197 - Souter, 6 Bing. 414. . 605 R. v., Matthews, Dig. C. L. 90 370 — 1 Moo. C.C.276.. 574 Murrow, R. v., 1 Moo. C. C. 456 851 Murry, R. v., 2 East, P. C. 496 324 Murton, R. v., 3 F. & F. 492 . . 650 Mutters, R. v., L. & C. 511 585 Mycock, R. v., 12 Cox, C. C. 28 236, 237 Myers, R. v., 12 Cox, C. C. 311 773 Mvnn y. Joliffe, 1 Moo. & Ry. 326 .'. 133 NAILOR, R. v., 1 East, P. C. 277 635 Nash, R. v., Russ. & Ry. 368 . . 513 - 2 Den. C. C. R. 493 151, 503 Naylor, R. v., L. R. 1 C. C. 4 . . 449 Neale, R. v., 9 C. & P. 431 .... 799 — 7 C. & P. 168 .... 117 Negus, R. v., L. R. 2 C. C. 34 437, 100. 403 Neil, R. v., 2 C. & P. 485 698 Nelson v. Lord Bridport, 8 Bea. 527 128 Netherthong, R. v., 2B. & A. 179 534, 537 Nether Hallam, R. r.,i'> Cox, ('. C. 135 539 N'ettleton, l;. ('., 1 Moo.C.C.259 KH Nevill, I!, r., IVakr, 91 (J98 Newboult, R. v., L. R. 1 C. C. R. 344 258 Newill, R. v., 1 Moo. C. C. 458 258 Newman, K. v., SC.& K. 252.. 119, 613 - 1 El. & Bl. 268 206, 613 - 2 Den. C. C. R. 390 L45 - 8 Q. B. D. 706 246 New Sarum, R. v., 7 Q. B. 241 308, 311 Newton, Ex pa He, I E. & B. 869 205 v. Chaplin, IOC. B. 356 11, 134. 139 PAGE Newton v. Harland, 1 M. & G. 644 464 - R. v., 2 Moo. & R. 503 285 - 1 C. & K. 469 . . 168 IF. &F.641 62 Nichless, R. v., 8 C. & P. 757. . 512 Nichol v. Allen, 31 L. J., Q. B. 43 538 Nicholas,' R. v., 2 C. & K. 246. . 101 Nicholl, R. v., 1 B. & Ad. 21 727, 729 Nicholls v. Dowding, 1 Stark. 81 121 — Parker, 14 East, 331 25 - R. v., 1 F. & F. 5 85 - 10 Cox, C. C. 476 776 -13 Cox, C. C. 75.. 631 Nicholson, R. v., 2 East, P. C. 669 569 Nichols, R. v., Russ. & Rv. 130 264 Noake, R. v., 5 C. & P. 326. .117,825 Noble v. Adams, 7 Taunt. 39 . . 588 Norden, R. v., Foster, 129 814 Norman, R. v., Car. & M. 501. . 410 Norris, R. v., Russ. & Ry. 69 . . 460 North, R. v., 2 East, P. C. 1021 253 Northampton (Inhab. of), R. v., 2 M. & S. 262 307, 311 Norton, R. v., Russ. & Ry. 510 75 -8 C. &P. 671.... 815 Norweston, R. v., 16 Q. B. 109. . 529 Norwich (Inhab. of), R. v., 1 Str. 177 311 Nott, R. v., 4 Q. B. 768 196, 710 Nottingham, St. Mary, R. v., 13 East, 58 130 Nutbrown, R. v., Foster, 77 325 Nute, R. v., C. Burn, tit. Confess. 38 Nutt, R. v., Fitzg. 47 ' 609 OAKLEY, R. v., 4 B. & Ad. 307 463 Oastler, R. v., L. R. 9 Q. B. 132 170 Oates, R. v., Dears. ('. ('. 459.. 439 O'Brien, R. v., 15 L. T. N. S. 419 696 -15Cox,C.C.R.29 177 -15 Cox, 180 605, 613 O'Connell v. Reg., 11 CI. & F. 155 178, 197, 198, 377 O'Callaghaj^R.v., 14Cox,C.C. 499 183 ( )'( 'minor v. Majoribanks, 4 M. &G-. 435.... 108, 133 R. v., 15 Cox. C.C. R. 3 341, 518 Oddy, Et. r.,-1 Den. C. C. li. 264 85 O'Donnell, R, v., 7 C. & P. 138. . 201 Offord, R. /., :> ('. ,V 1'. KW 860 Ogden, R. v., 6 C. & P. 631 502 Ogilvie, R. v., 2 C. & P. 230 .. 77 Oldham, R. v., 2 Den. C. C. R. 472 336 Olifier, R. v., 10 Cox, C. C. 102 235, 236, 237 Oliver, R. v., 13 Cox, C. C. R. 588 183, 205, 282 Omichund v. Barker. Willes, 558 103, 104 c 2 XXXVI Index of Vases. PAGE Omichund v . Barker, 1 Atk. 21 . . 105 Onebv, R. v., 2 Str. 766 666 Opic, R. v., 8 Cox, C. C. 332 . . 350 Orbell, R. v., 1 Mod. 42 180 Orchard, R. v., 8 C. & P. 559. . 120 3 Cox, C. C. 248 701 Orman, R. v., 14 Cox, C. C. 381 378 Orr v. Morice, 3 B. & B. 139 . . 155 Orrell, R. v., 1 Moo. & R. 467. . 189 Orton, R. v., 39 L. T. 293 .... 264 14 Cox, C. C. 226 623 Osborne v. London Dock Co., 10 Ex.701 131 R. y., Sess. Ca. 260 . . 599 Car. & M. 622. . 23 7 C. & P. 799 . . 174 Osman, R. v., 15 Cox, C. C. 1. . 31 Overton, R. v., 2 Moo. C. C. 263 729 4 Q. B. 90 .... 204 Owen v. Waters, 2 M. & W. 91 15 R. v., 1 Moo. C. C. 205. . 78, 338 2 East, P. C. 645 . . 393 1 Moo. C. C. 118 . . 78 1 Moo. C. C. 96. .157, 786 9C.&P.83 51 . 57 L. J.,M. C. 46 .. 112 20 Q. B. D. 829 776 Oxenham, R. v., 46 L. J., M. C. 125 572 Oxford, R. v., 9 C. & P. 525 . . 858, 862 (Inhab. of), R. v., 13 East, 416 206 Oxfordshire (Inhab. of), R. v., 1 B. & Aid. 297 . . 305 (Inhab. of), R. v., 4 B. & C. 194 308, 309, 534 PACKARD, R. v., Car. & M. 246 622 Packer, R. v., 3 Russ. Cri. 544, 6th ed 52 2 East, P. C. 653 589 Paddington Vestry, R. v., 9 B. & C. 460 . . . .". 534 Paddle, R. v., Russ. & Ry. 484. . 838 Page, R. v., 1 Russ. Cri. 235 . . 164 - Russ. & R. 392 ... . 279 8 C. & P. 122 360 Paine, R. v., 5 Mod. 165 602 7 C. & P. 135 ... . 316 Painter, R. v., 2 C. & K. 319 . . 64 Palmer, R. v., 2 Leach, 978 . . 500 1 Moo. & Rob. TO 514 1 Dea. Dig. C. L. 147 291 — 6 C. & P. 652. . 173 Pancras, St., R. v., Peake, 219 540, 541 Pappineau, R. v., 2 Str. 686 . . 697, 699, 707 Paradice, R. v., 2 East, P. C. 565 573 Pardoe, R. v., 17 Cox, 715 .... 256 Parfait, R, v., 1 East, P. C. 416 839 PAGE Parish, R. v., 7 C. & P. 782.... 174 8 C. & P. 94 ... . 502 Parker v. M' William, 6 Bing. 683 119 Parker, R. v., 2 East, P. C. 592 460 3 Doug. 242 92 Car. & M. 639 . . 733, 735 7C. &P.825.... 438 9 C. & P. 45 252 3 Q. B.292 376 — Collinson on Lu- nacy, 477 860 L. & C. 42 40 L. &C.459 513 L. R. 1 C. C. R. 225 65 Parkes, R. v., 2 East, P. C. 671 501, 567 2 Leach, 775 ... . 486 Parkhouse, R. v., 1 East, P. C. 462 371 Parkin v. Moon, 7 C. & P. 405 123 - R. v., 1 Moo. C. C. 45 . . 592 Parkins v. Hawkshaw, 2 Stark. N. P. C. 239 ..133,135 R. v., 1 Moo. C. C. 46 195, 592 Parkinson, R. v., 2 Den. C. C. R. 459 206 Parmenter, R. v., 1 Leach, 537 326, 331 Parnell, 14 Cox, C. C. 508 .... 367 Parr, R. v., 1 Leach, 434 488 2 Moo. & R. 356.... 787 2F. &F. 861 175 Parratt, R. v., 4 C. & P. 570 . . 40 Parry v. May, 1 Moo. & R. 279. . 9 R. v., 7 C. & P. 836 . .168, 175 Parsons, R. v., L. R. 1 C. C. R. 24 844 1 W. Bl. 392 .... 373 - 16 Cox, C. C. 498 401 Partridge, R. v., 7 C. & P. 551 18 Pascoe, R. v., 1 Den. C. C. R. 456 365 Patch, R. v., 1 Leach, 238 565 Pateman, R. v., Russ. & Ry. 455 488,492 Patience, R. v., 7 C. & P. 775. . 676 Patram, R. v., 2 East, P. C. 732 782 Patrick, R. v., 1 Leach, 252 591 Pattison v. Jones, 8 B. & C. 578 611 Paty, R. v., 1 Leach, 72 337 Paul v. Summerhayes, 1 Q. B. D. 9 516 - R. v., 2 Moo. & R. 307 536 25 Q. B. D. 202 776 - (Inhab. of), R. v., 1 Moo. & R. 307 542 Payne, R. v., 1 Moo. C. C. 378 515 4C. &P. 558.... 850 L. R. 1 C. C. R. 27 761 L.R.I COR. 349 114 Peace, R. v., 3 B. & A. 580 ... . 76 Peacock, R. v., Russ. & Ry. 278 485 12 Cox, C. C.21.. 62 Judex of Cases. XXX VI 1 PAGE Peak, E. v., 9 Cox, C. C. 356 . . 456 Pear, R. v., 2 East, P. C. 685. . 554, 561 Pearce v. Hooper, 3 Taunt. 62. . 155 - E. v., 2 East, P. C. 603 758 - 1 Peake, 106 .... 605 -9 C. & P. 667 858 -9 Cox, C.C. 258.. 721 Pearson, E. v., 4 C. & P. 572 . 755, 758 - 8 C. & P. 119 ... . 720 - L. E. 5 Q. B. 237 267 Pease, E. v., 4 B. & A<1. 30. .532, 700 Peat, E. v., 2 East, P. C. 557. . 556 - 1 Leach, 228 802 Pechell v. Watson, 8 M. * W. 691 616 Peck, E. v., 9 A. & E. 686 . .367, 376 Pedley v. Paige, 1 Moo. & E. 258 153 - E. v., 1 Leach, 325 . .127, 725 - 1 Ad. & E. 823 . . 707 Peel, E. v., L. & C. 231 223 Peltier. R v., Selw. X. P. 917. . 603 Pembliton, R. v., L. E. 2 C. C. E. 119 20, 619, 651 Pembridge (Inhab. of), E. v., Carr. & M. 157 145 - 3 Q. B. 901 . . 542 Penson, E. v., 5 C. & P. 412 . . 291 Pepy, E. v., Peake, N. P. C. 138 729 Perkins, E, v., 2 Moo. C. C. 13 . 528, 30 -2 Den. C.C.E.459 786 Perry v. Gibson, 1 A. ,V E. 48. . 95 - R. v., 1 Lord. Raym. 158. . 204 - Ry. & Moo. N. P. C. 353 110 - 1 Den. C. C. 69 . . . . 854 Dears. C. C. R. 473 350 Peters, R. v., 16 Q. B. D. 636. .280, 281 Petch.R. v., 1 tCox.C.C.R. 116 454 Peto v. Reynolds, 9 Exch. 410. . 491 Petrie, R. v., 1 Leach, 295 394 Peyton, R. v., 1 1. each, 324. .. . 328 Phelps r. Prew, 3 E. & B. 430. .11, 139 -R. v., Car. & M. 1.S3 796 Phene's Trust, 1 1. R. 5 Ch. 150. . 294 Phetheon, R. v., 9 C. & P. 552. . 556 Philips, R. v., I P. & F. 105 .. 61 Philipson v. Chace, 2Campb. 110 9 Phillip, R. v., Rubs. & Ry. 369 3 - Cowper, 832 687 Phillips, R. v., 3 Camp. 78 78 2 Kast, 1'. C. 662 577 (i East, KM. .. .2(l!i. 339 - 2 Moo. C. C. 552 798 1 Lew. C.C. 105.. 48, 84 Wore. Sum. Ass. L831 52 8C. ., Carr. A M. 284 647 Plaxton v. Dare, 10 B. & C. 19. . 25 Plestow, R. v., 1 Campb. 494 . . 445 Plumar, R. v., Russ. & Ry. 264. .609, 757 Plumer, R. v., Kel. 109 158 Plummer, R. y., Car. & M. 597 654 - 1 Car. & K. 608 657 Plumpton, R. v., 2 Lord Raym. 1377 .'... 297 Plunkett v. Cobbett, 5 Esp. 136 138, 637 Pollman, R. v., 2 Camp. 229 . . 377 Pollock, R. v., 17 Q. B. 34 631 Pomeroy v. Baddeley, Ry. & Moo. 430 119 Poole v. Dicas, 1 New Cases, 649 26 - R. v., Dears. & B. C. C. 345 578 Pooley, R. v., Russ. &R. 12. .757, 854 Pope, R. v., 6 C. & P. 346 579 Porter v. Cooper, 6 C. ct P. 354 145 - R. v., L. & C. 394 545 Portugal, E. v., 16 Q. B. D. 487 246 Poten v. Glossop, 2 Ex. 191 15 Pott, E. v., Euss. & Ey. 353 . . 427 Potter, E. v., 7 C. & P. 650.... 63 -2 Den. C. C. R. 235 823 Potts v. Durant, 3 Anstr. 795 . . 152 - Sparrow, 6 C.& P. 749 617 Pouget r. Tonkins, 1 Phill. 449 291 Poulterers, E. v., 9 Co. 55 b. . . . 369 Poulton, E. v., 5 C. & P. 329 . . 643 Povey, E. v., 22 L. J., M. C. 19 128 -IDears.C.C. 32.. 293 Powell v.Ford, 2 Stark. 164 154 Kempton Park Co., (1897) 2 0, B. 242 .. 519 - E. v., 7 C. & P. 646 202 - 2 Den. C. C. 403. . 204, 853, 854 -2B. & A. 75 ..197, 198 Powell, R. v., 54 L. .1., M. C.26. .435, 447 XXXV111 Index of Cases. PAGE Powner, K. v., 12 Cox, C. C. 233 502 Poynton, R. v., L. & C. 247 557 Pratt, R. v., 1 Moo. C. C. 250 . . 564 Dears. C. C. 502. . . . 512 1 Dears. C. C. 360. . 556 Pressley, R. v., 6 C. & P. 182 . . 55 Preston, R. v., 2 Den. C. C. R. 353 580 — 2 Lewin, C. C. 193 534 ■ (Lord), R. v., 1 Salk. 278 97, 103 (Inhab. of), R. v., 1 C. & K. 137 542 Price v. Lord Torrington, 1 Salk. 285 26 R. v., 6 East, 323 724 1 Leach, 419 782 4 Burr. 1925 579 - 5 C. & P. 510 798 7 C. & P. 178 688 - 8C. &P. 19 870 9 C. & P. 729 255 12 Q. B. D. 247 387 Prince v. Blackburne, 2 East, 252 153 Samo, 7 A.' & E .' 627 '.'. 126 - R. v., L. R. 1 C. C. R. 150 570 11 Cox, C. C. 145 585, 593 L. R. 2 C. C. 154 237, 267 Pritchard v . Powell, 10 Q . B . 589 25 — R. v., 1 L. & C. 36. .209, 584 -7C. &P. 303.. 172 Privett, R. v., 1 Den. C. C. 193 577 Probert, R. v., 2 East, P. C. 1030 252 Prosser, R. v., 2 East, P. C. 502 331 -1 Leach, 290 .. 782 Proud, R. v., L. & C. 97 79, 405 Prowes, R. v., 1 Moo. C. C. 349 594 Puckering, R. v., 1 Moo. C. C. 242 454 Pulbrook, Ex parte, (1892) 1 Q. B. 86 604 R. v., 9 C. & P. 37 . . 498 Pulham, R. v., 9 C. & P. 280 . . 781 Pulley, R. v., 5 C. & P. 539. ... 643 Pullman v. Hill, (1891) 1 Q. B. 524 603 Punshon, R. v., 3 Camp. 96 717 Purchase, R. v., C. & M. 617 . . 191 Purefov, R. v., Peake, Ev. 68 . . 67 Pumell, R. v., 1 W. B. 37 .... 150 Pvwell, R. v., 1 Stark. 402 376 QUARMAN v. Burnett, 6 M. & W. 499 406 Queen's case, 2 B. & B. 284 . . 47, 90, 91, 104, 123, 125, 372 Quin, R. v., 4 F. & F. 618 124 PAGE RAAKE, R. v., 8 C. & P. 626. . 495 Radbourne, R. v., 1 Leach, 457. .65, 67 Radeliffe v. Bartholomew, (1892) 1 Q. B. 161 711 Radford, R. v., 1C.&K. 707 . . 501 Rafferty v. The People, 12 Cox, C. C. 617 678 Raglev, R. v., 12 Mod. 409 .... 533 Ram, R. v., 17 Cox, 610 ... .189, 772 Rambert v Cohen, 4 Esp. 213. . 3 Ramsbotham, R. v., 1 Leach, 30, 3rded 149 Ramsden, R. v., 2 C. & P. 603 .. 126 -27 L. J., M. C. 296 311,536 Randall, R. v., Russ. & Ry. 195 491 — Car. & M. 496 . . 531 Randell, R. v., 16 Cox, C. C. 535 435 Ransford, R. v., 13 Cox, C. C. R. 9 269,272 Ransom, R. v., Russ. & Ry. 232 587, 757 Ratcliffe v. Burton, 3 Bos. & Pul. 223 685 Rathbone, R. v., 2 Moo. C. C. 242 755 Ravenscroft, R. v., Russ. & Ry. 161 493 Rawlins, R. v., 7 C. & P. 150 . . 330 Rawson, R. v., 9 B. & C. 598 . . 214 Rea, R. v., L. R. 1 C. C. R. 365 285 Read, R. v., 3 Q. B. D. 131. .408, 454 Reader, R. v., 4 C. & P. 245 . . 254 Reading, R. v., 7 How. St. Tr. . 226 130 Reane, R. v., 2 East, P. C. 735 808 - 2 Leach, 616 814 Reaney, R. v., Dears. & B. C. C. 151 31 Rearden v. Minter, 5 M. & Gr. 204 155 - R. v., 4 F. & F. 76 . . 79 - L. R. 1 C.C. R. 31 782 Reason. R. v., Foster, 293 662 — 1 Str. 499 28 - 1 Dears. C. C. R. 236 756 Reban y. Trebor, 4 Jur. 292 . . 170 Bedford y. Birley,3 Siark. N. P. 76 798 Redman, R. v., L. R. 1 C. C. R. 12 839 Reece, R. v., 2 Russ. Cri. 226, 6th ed 460 Reed v. Lamb, 6 H. & N. 75 . . 340 - Nutt, 24 Q. B. D. 669 . . 267 - R. v., 8 C. & P. 623 492 - 12 Cox, C. C. 1 . . . . 702 Rees v. Bowen, M'Cl. & Y. 383 147 R. v., 7 C. & P. 568 331 -6C. & P. 606 755 Reeve v. Wood, 34 L. J., M. C. 15 110 - R. v., L. R. 1 C. C. R. 362 37 Index of Cases. XXXIX PAGE Reeves, R. v., 2 Leach, 808 505 9 Car. & P. 25 . . 643 - 5 Jur. 716 571 Regan, R. v., 16 Cox, Cr. C. 203 3, 834 Reid v. Margison, 1 Camp. 469 145 - R. v., 1 Dears. C. C. R. 257 573, 575 Reillv, R. v., 1 Leach, 455 .... 741 Remnant, R. v., R. & R. 136 . . 120 Rews, R. v., Kel. 26 649 Reynolds, Ex parte, 20 Ch. D. 294 132 R. v., Russ. & Ry. 465 826 Rhodes, R. v., 2 Ravm. 886. .73, 729, 733 Rhymer, R. v., L. R. 2 Q. B. 136 702 Rice, R. v., 3 East, 581 339 L. R. 1 C. C. R. 21 704 -Bell, C. C. 87 460 Richard, R. v., Russ. & Ry. 193 491 Richards v. R., (1897) 1 Q.B. 574 205 - R. v., 8 T. R. 634 525 5 C. & P. 318. . 42 - 1 C. & K. 532. . 578 - 11 Cox, C. C. 43 842 -L. R.2Q.B.D. 311 157, 620 -6F. & F. 860.. 65 Richardson v. Willis, L. R. 8 Exch. 69 600 - R. v., 1 Moo. & R. 402 375 -6C. & P. 335.. 789 - 2 F. & F. 343 79, 87 - 3 F. & F. 693. . 137 Richmond, R. v., 1 C. & K. 240 363 -Bell, C. C. 142 499 -12 Cox, C. C. R. 495 572 Rickards, R. v., 6 F. & F. 860. . 65 Rickman, R. v., 2 East, P. C. 1035 80 Ridgely, R. v., 1 East, P. C. 171 363 Ridgewaj v. Farndale, 11892) 2 Q. B. 309 518 Ridgway, K. v., 3 F. & F. 838 443 Ridley, R. v., Russ. & Ry. 515. . 512 ■2 Camp. 650 ..263, 348 Ridsdale, It. v., York Sprffcg Ass. L837 23 Rigby, R. v., 14 Q. B. 687 532 Riley, R. v., 3 C. & K. 316 .... 61 1 Dears. C. ('. R. 149 558 -4 F. & F. 964.... 123 - 18Q.B.D.481..90,26H, 776 - (1896) 1Q.B. 309 173, 498 Rinakli, R. v., L. & C. 330 490 Ring, R. v., 17 Cox, 191 271 - 8T. R. 585 97 Ritson, R.r., L.R.I C.C.R. 200 466 Rivers, R. v., 7 C. & P. 177 51 Rob, R. v., 4 F. & F. 59 235 PAGE Roberts v. Allett, M. & M. 192 130 -Hunt, 15 Q. B. 17.. 535 — R. v.,14Cox,C.C. 101 616 - 1 Camp. 399 . . 377 - Car. C. L. 57 . . 171 - 2 C. & K. 207. . 736 - 1 Dears. C. C. 534 271 -L. R.9Q. B. 77 212 -18 Cox, 530.... 348 Robertson, R. v., L. & C. 483. . 841 Robins, R. v., 1 C. & K. 456. .234, 237 1 Leach, 290 805 Robinson v. Jermyn, 1 Price, 11 598 R. v., Holt, N. P. C. 595 76, 591 - 2 East, P. C. 565 573 - 2 Leac, ,749 . . 839 - 2 Lewin, C. C. 129 215 - 1 Leach, 44. . . . 370 - 1 Moo. C. C. 327 316 - 2 Moo. & R. 15 841 - 10 L. J.,M.C. 9 267 - 1 Bell, C. C. 34 391, 444 - L. R. 1 C. C. R. 80 245 -L. & C. 604.... 360 - 1 Moo. C. C. 413 361 Robson v. Kemp, 5 Esp. 54. .134, 135 -R. v., 2 Moo. C.C. 182.. 505 - L. & C. 93 572 R. &R.413 565 -16Q.B.D. 137.. 405,583 Roche, R. v., 1 Leach, 134 .... 177 Roddam, R. v., Cowp. 672 96 Roden, R. v., 12 Cox, C. C. 630 86 Roderick, R. v., 7 C. & P. 795. . 269 Rodgers, R. v., York Spring Ass. 1842 665 Rod way, R. v., 9 C. & P. 784 . . 564 Roe d. West v. Davis, 7 East, 353 9 - R. v., 11 Cox, C. C. R. 559 454 Roebuck, R. v., 25 L. J., M. C. 101 86, 441, 448 Rogers v. Custance,2 Moo. & Ry. 179 10 - R. v., Foster, 312 677 -1 Leach, 89, 428.. 326 -2 Moo. 85 361 -8C. & P. 629 .... 484 -9C.&P. 41 498 -L.R.I C.C.R. 136 594 -3Q. B. D. 28.. 411, 452 Rogier, R. v., 1 B. & C. 272. .518, 702 Rollett.R. y.,L. R. 10Q.B.469 541 Rooke, R. v., 1 F. & F. 107 766 Rookwood, R. r.,4 How. St. Tr. 684 181 Rooney, R. v., 7 C. & P. 517. .80, 202 ltupn- r. Knott, (1898) 1 Q. B. His 619 Rose v. Blakemore, Ry. & Moo. 384 ' 139 - Graves, 5 M. & Gr. 613 697 xl Index of Cases. PAGE Rose, R. v., 1 Leach, 342 825 Times, Feb. 5, 1898 34 Rosier, R. v., 1 Phil. Ev. 414 . . 41 Rothwell, R. v., 12 Cox, C. C. 145 660 Rouch v. G. W. Ry., 1 Q. B. 51 22 Rough, R. v., 2 East, P. C. 607 454 Rowe v. Brenton, 8 B. & C. 747 146 Rowland v. Ashby, Ry. & Moo. 232 52 R. v., Ry. & Moo. N. P. C. 401 .... 113 2 Den. C. C. R. 364 376 1 F. & F. 72 . .2, 149, 732 Rowlands, R. v., 17 Q. B. 686. . 369 8 Q. B. D. 530 280 Rowley, R. v., 12 Rep. 17 663 — Ry. & Moo. N. P C 299 . 726 Rowton, R. y.',L. & C. 520. ... 88, 89 Ruck, R. v., 2 Russ. Cri. 46, 6th ed 218 Rudd, R. v., Cowp. 331 117 Ruding v. Smith, 2 Hagg. Cons. R. 399 288 Rue, R. v., 13 Cox, C. C. 210 . . 43 Rugby Charity v. Merry weather, 11 East, 375 527 Rugg, R. v., 12 Cox, C. C. R. 16 349 Rundle, R. v., 1 Dears. C. C. R. 432 545 Rush v. Smyth, 4 Tyr. 675. . 95, 125 Rushworth, R. v., Russ. & Ry. 317 .' . 448 Russell v. Jackson, 9 Hare, 392 135 R. v., 6 East, 427 530, 533 -1 Moo. C.C. 377.. 315 -Car. & M. 247 166 -Car. & M. 541.... 251 - 3 E. & B. 942. .206,531, 542 Russen, R. v., 1 East, P. C. 438 774 Russett, R. v., (1892) 2 Q. B. 312 565 Rust, R. v., 1 Moo. C. C. 183 . . 320 Bustel v. Macquister, 1 Camp. 49 608 Ruston, R. v., 1 Leach, 408. .102, 103 Ryalls v. Leader, L. R. 1 Ex. 296 611 Ryan, R. v., 2 Moo. & R. 213 . . 523 Ryder, R. v., 8 C. & P. 539.... 191 Ryland, R. v., L. R. 1 C. C. R. 99 349 SADLER, R. v., 4 C. & P. 218 95 Saffron Hill, R. v., 1 E. & B. 93 7, 8 Sainsbury, R. v., 4 T. R. 451 .. 711 St. Andrews, R. u., 1 Mod. 112 540 St. Benedict, R. v., 4 B. & Aid. 447 309,534 St. Botolph, Ministers, &c. of, R. v., 1 W. Bl. 443 341 St. George, R. v., 9 C. & P. 483 263, 270, 341, 693 St. George's, Hanover Square, R. v., 3 Camp. 222 533, 540 PAG St. Giles, Cambridge, R. v., 5 M. & S. 260 537,538,539 St. Helen's Co. v. Tipping, 35 L. J., Q. B. 66 699 St. Mary, Nottingham, R. v., 13 East, 58 (n.) 130 St. Pancras, R. v., Peake, 219. . 540, 541 St. Weonards, R. v.fi C. & P. 582 529 Salisbury, R. v., 5 C. & P. 155. .79, 756 Salmon, R. v., 6 Q. B. D. 79. .158, 627 Salop (Inhab. of), R. v., 13 East, 95 308 525 Salt, H. v., Staff. Spr. Ass. 1843 ' 113 Samuel v. Payne, Dougl. 359 . . 229 Samways, R. v., 1 Dears. C. C. R. 371 556 Sanders, R. v., 9 Car. & P. 79. . 823 9 Q. B. 235 704 L. R. 1 C. C. R. 75 723 Sanderson, R. v., 1 F. & F. 568 516 Sansome, R. v., 1 Den. C. C. 145 50 Satchwell, R. v., L. R. 2 C. C. 21 255 Sattler, R. v., Dears. & B. C. C. 525 221 Saunders, R. v., Plow. Com. 475 160, 651 -7C. & P. 277.. 654 -8C. &P. 265.. 265 - Wor. Spr. Ass. 1842 113 - 36 L. J., M. C. 87 676, 678 - L.R. 1 Q.B. D. 15 702 Savage, R. v., 5 C. & P. 143 . . 60 - 1 C. & K. 75 . . . . 173 Sayer v. Kitchen, 1 Esp. 210 . . 11 Scaife, R. v., 17 Q. B. 238 59, 205 - 1 Moo. & R.551.. 28 Schlesinger, R. v., 10 Q. B. 670 127, 725, 730, 732 Schmidt, R. v., L. R. 1 C. C. R. 15 783 Schofleld, Ex parte, 6 Ch. D. 230 45 Scholes v. Hinton, 10 M. & W. 15 . 95 Scott, R. v'., R.& R.13 ! '. '. '. '584, 590 - 3 Q. . 543 532 - 25 L. J., M. C. 128 44, 245, 722 - L. R. 2 Q.B. D. 415 145, 146, 723 Scotton, R. v., 5 Q. B. 493. . 512, 721 Scully, R. v., 1 C. & P. 319 636 Searing, R. v., Russ. & R. 350 . 455 Searle, R. v., 1 Moo. & R. 75 . . 127 S. von Seberg, R. v., L. R. 1 C. C. R. 264 221 Sedley, R. v., Sid. 168 597, 702 Sefton, R. v., 2 Russ. Cri. 16, 6th ed 325 Index of Cases. xli Sharwin, R. v., 1 East, P. C. 421 Shaw v. Movley, 37 L. J., M. C. 105 R. v., Russ. & Rv. 526. . — 6C.& P. 373 .... -2 East, P. C. 580 386 825 L. & C. 579. Leeds Sum. Ass. L868 16 Cox, C. C. 503 519 791 44 73, 755 720, 735 628 91 851 214 533 Sheard, R. v., 7 C. & P. 846 Sheering, R. v., 7 C. & P. 440. Sheffield, R.»,2T. R. 106... i lanal Co., R. v., 13 Q. B.913 539 Shellard, R. u., 9 C. & P. 277.. 375 Shelley, R. v., 1 Leach, 340 . . 825 Shepherd, R. u., 31 L. J., M. C. 102 657 L. & C. 1 17 349, 63] - L. R. 1 C. C. R. 118 847 - 2 East, P. C. 944 494 - 26 L. J., M. C. 52 Sheppard, R. v., 11 Cox, ('. ('. 302 - Rubs.A Ry. L69 Shepperd v. Shorthose, 1 sir. 412 Sheridan, R. v.,31 How. St. Tr. 672 Sherrington, R. v., 1 Leach, 513 - 2Lewin, C.C. Selhv v. Harris, 1 Lord Raym. 745 146 Self, R. v., 1 East, P. C. 226 . . 656 Sellers, R. v., Car. Supp. Cr. L. 233 28 Sellis, R. v., 7 C. & P. 850 .... 643 Sells v. Hoare, 3 Br. & B. 232 105 Selsby, R. v., 5 Cox, C. C. 495 369 Semple, R. v., 2 East, P. C. 691 561 Senior, R. v., 1 Moo. C. C. 346 629, 644 Sermon, R. v., 1 Burr. 516 180 Seme, R. v., 16 Cox, C. C. 311 651 Serva, R. v., 2 C. & K. 53 .... 104 -IDen. C.C.R. 104 745 \ Seven Bishops (Case of the), 12 How. St. Tr.183 604 \ Severn and Wye Ry. Co., R. v., 2 B. & A. 648 . . . 525 Seward v. Barclay, 1 Lord Raym. 62 266 - R. v., 1 A. & E. 713 367, 371 Sexton, R. v., C. Burn, tit. Confession 42 Shadbolt, R. »., 5 C. & P. 504. . 522 Shaftesbury v. Digby, 3Keb. 631 103 Sharman, R. v., 1 Dears. C. C. R. 285 499 Sharpe, R. v., 2 Lew. C. C. 233 219 — Dears. & B. 160 123 755 II '.i 502 149 4 591 43 PAGE Sherwood, R. v., 1 C. & K. 556 660 Dears. & B. C. C. 251 443 Shickle, R. v., L. R. 1 C. C. R. 158 453 Shimmim, R. v., 15 Cox, C. C. 122 191 Shipley v. Todhunter, 7 C. & P. 680 " 603 Short v. Mercier, 3 Mac. & Y. 205 131 Shott,«R. v., 3 C. & K. 206 434 Shrimpton, R. v., 2 Den. C. C. R. 319 89 Shukard, R. v., Russ. & Y. 200 501 Slimmer, R. v., 17 Q. B. D. 323 59 Sidebottom v. Atkings, 3 Jur., N. S. 631 131 Sidney, R. v., 9 How. St. Tr. 817 375 Sills, R. v., 1 C. & K. 494 .... 109 Silverloek, R. v., (1894) 1 Q. B. 766 154,452 Simmond, R. v., 1 Moo. C. C. 408 594 Simmonds, R. v., 1 C. & P. 84. . 119 1 C. & K. 164 285 Simmons, R. v., Bell, C. C. 168 719 Simon, R. v., 2 East, P. C. 712 807 Simons, R. v., 6 C. & P. 541 . .35, 64, 107 - 2 East, P. C. 731 808 Simpson v. Hill, 1 Esp. 431 415 - Smith, 2 Phill. Ev. 497 125 - R. v., Kel. 31 317 - Car. & M. 669 . . 797 - 4C. &P. 407.... 630 - 1 Dears, C. C. R. 421 803 - 15 Cox, C. C. 323, 328 285 Singleton v. Evans, (1895) 1 Q. B. 607 704 Sissinghurst-house case, 1 Hale, P. C. 461 646 Skeen, R. v., 1 Bell, C. C. 97 . . 245 Skeet, R. v., 4 P. & P. 931 646 Skelton, R. v., 3 C. & K. 116 . . 351 Skerrit, R. v., 2 C. & P. 427 . . 361 Skinner, R. v., 2 Esp. 219 539 Skutt, R. r., '2 East, P. C. 582.. 757 Slator, R. v., 8 Q. B. D. 267 . . 131 Slatterie v. Pooley, 6 M. & W. 669 '. 7 Sleeman, R. v., 1 Dears. C. C. 249... 37, 10 Sleep, R. v., 9 Con. C. C. 559.. 351 \, & C. 11 696 Sloper, R. v., 2 East, P. C. 583 758 Slowly, R. v., 12 Cox, C. C. 269 564 Small, R. v., 8 C. & P. Hi .... 570 Smallman, R. v., (1897) 1 Q. B. 4 401 Smith r. 1 '.at tens, 1 Moo. 341.. 15 - Beadnell, 1 Camp. 33 140 Carey, 3 Camp. 161 .. 607 Euson, 1 Phill. 287.. 285 xlii Index of ( 'ases. PAGE Smith v. Reg., 18 L. J., M. C. 207 170 Sainsburv,5C.&P.196 154 Stewart, 3 East, 89 . . 99 Taylor, 1 Bos. & Pul. 210 6,601 Thomasson, 16 Cox, 740 385 Whittingham, 6 C.& P. 78 26 Young, 1 Camp. 439. . 3, 10 R. v., 1 Str. 704 697 1 Leach, 288 782 2 East, P. C. 497 324 2 East, P. C. 1000 5 4 Esp. Ill 699 Temp. & M. 214. . 209 Russ. &Ry. 267.. 400 Russ. & Ry. 339. .62, 65 Russ. & Ry. 368. . 513 Russ. & Ry. 417. . 332 Russ. etRy. 516.. 402, 407, 409 -8B. & C. 341 145 1 Moo. C. C. 178. . 315 1 Moo. C.C.289.. 108 2 Moo. C. C. 295. . 505 1 Moo. & Rob. 256 321 2 C. & P. 439 263 2C. &P. 633 79 -3C. & P. 413.... 165 4 C. & P. 411 83 4 C. & P. 569 255 5 C. & P. 203. ... 327 6 C. & P. 151 644 7 C. & P. 147.... 589 8 C. & P. 135 545 -8C. & P. 160.... 669 -8C. &P. 173. ... 851 ■ -1C.&K. 700. .492, 495 2C. & K. 207 63 -IDen. C.C.R.510 841 - 1 Den. C.C.536.. 124 -2 Den. C.C.R.449 556 - 25 L. J., M. C. 29 651 - Dears . C . C . R . 494 784 - Dears. & B. C. C. 556 467 - Dears. C. C. 559.. 523 - 1 Stark. N. P. 242 51 -L. & C. 607 ....28, 545 -L. & C. 168 497 - 4 F. & F. 1066 . . 660 -L.R.1C.C.R. 110 719 -L.R. 1C.C.R.266 583 - 12 Cox, C. C. 597 203 - 14 Cox, C. C. 398 545 - 16 Cox, C. C. 170 31 17 Cox, 601 93 -18 Cox, 470 32 Smithers, R. v., 5 C. & P. 332 48 Smithie, R. v., 5 C. & P. 332 . . 107 Smithson, R. v., B. N. P. 228. . 146 Smollett, R. v., Holt on Lib. 224 598 Smyth, R. v., 5 C. & P. 201. .463,464 Smythies, R. v., 1 Den. C. C. R. 498 226, 295, 507 PAGE Snell, R. v., 2 Moo. & R. 44. . . . 351 Snelling, R. v., 1 Dears. C. C. R. 219. 495 498 Snow,' R.V, 1 East, P. C. 244. . ' 672 Snowley, R. v., 4 C. & P. 390. . 407 Soares, R. v., Russ. & Ry. 25. . 157, 360, 500, 506 Solomon, R. v., R. & Moo. N. P. C.252 725 Solomons, R. v., 17 Cox, 93 566 Somerset (Inhab. of), R. v., 16 East, 305 310 Somerville v. Hawkins, 10 C. B. 583 611 R. v., 2 Lew. C. C. 113 323 Southampton (Inhab. of), R. v., 21 L. J., M. C. 201 306, 308 (County of), R. v., 19 Q. B. D. 590 542 Southern, R. v., Russ. & Ry. 444 513 Southerton, R. v., 6 East, 126. . 364 Southey v. Nash, 6 C. & P. 632. . 119 South Staffs. Water Co. v. Shar- man, (1896) 2 Q. B. 44 581 Southwood, R. v., 1 F. & F. 356 724 Sowerby, R. v., (1894) 2 Q. B. 173 429, 452 Spalding, R. v., Car. & M. 568 . 423 Spanner, R. v., 12 Cox, C. C. 155 319 Sparke, R. v., Peake, N. P. C. 78 133 Sparks, R. v., 1 F. & F. 388 . . 113 Sparling v. Heddon, 9 Bing. 11 601 Sparrow, R. v., 30 L. J., M. C. 43 266 Spears, R. v., 2 East, P. C. 568 575, 576 Speed, R. v., 15 Cox, C. C. R. 24 434 Speneeley, v. D. Wilmot, 7 East, 108 . . .' 90 Spencer, R. v., 2 East, P. C. 712 807, 809 Russ. & Ry. 299 402, 408 - Ry. & Moo. N. P.O. 99 ..724,726 3 C. & P. 420.. 447 -7C. &P. 776.. 39 - Dears.&B.C.C, 131 254 - 3F. & F. 854.. 516, 517 Spiller, R. v., 5 C. & P. 333 630 Spilling, R. v., 2 M. & R. 107. . 631 Spilsbury, R. v., 7 C. & P. 187. . 30, 33, 44, 52 Sponsonby, R. v., 1 Leach, 332 503 Spragg, R. v., 2 Burr. 993 .... 369 Spragge, R. v., 14 East, 276 10 Spriggs, R. v., 1 Moo. & R. 357 . 316 Springett, R. v.\ 2 East, P. C. 1115 838 Squire, R. v., 3 Russ. Cri. 13, 6th ed. . . 653, 654 1 Russ. Cri. 151 870 - Russ. & Ry. 349 401 Index of Case*. xliii PAGE Stainer, R. v.,L. R. 1 C. C. R. 230 401,583 Stallion, R. v., 1 Moo. C. C. 398 252, 254 Stanbury, R. v., L. & C. 128 . . 452 Stanley v. Jones, 7 Bing. 369 . . 017 - R. v., Kel. 87 687 - Russ. & Ry. 432 791 Stannard, R. v., L. & C. 349 . . 704 Stanton, R. v., 7 C. & P. 431 . . 202 - 1 C. & K. 415 . . 773 Stapylton v. Clough, 2 E. & B. 933 26 Starey v. Cbilworth,24Q. B.D. 90 342 Stayte v. Farquharson, 2 Ad. 282 291 Stead, R. v., 8 T. R. 142 706 Stedman, R. v., Foster, 292 . . 660 Steel, R. v., 1 Lea, C. C. 452 . . 102 -2 Moo. C. C. 246.. 377 - 46 L. J., M. C. 1 . . 210 -L.R. 1Q.B.D.482 600 Stephen v. G-wennap, 1 Moo. & R. 121 26 Stephens v. Myers. 4 C . & P. 346 263 - R. v., L. R. 1 Q. B. 702 532,706 - 16Cox,C.C. 387 80, 88 Stephenson, R. v., I L. & C. 165 60 - 13 Q. B.D. 331 387 Steptoe, H. v., 4 C. & P. 397 . . 48 Stevens v. Bagwell, 15 Ves. 139 617 Stevenson, R. v., 1 I St. Tr. 846 678 - 3 K. & F. 106. 705 Steventon, R. v., 1 ('. & K. 55. . 529 Stewart, R. v., L3 Cox, C. C. 296 16,69 Stignani, R. v., 10 Cox, C. C. 552 66 Stimpson, K. y.,9 Cox,C.C.356 456 Stock, R. v., 1 Rubs. & Ry. 185 329 St or k< lair/-. Hansard, 9 A.&E.l 610 -11A.&E. 297 .. 610 R/y.,2 Lew.C.C.220 653 Stockley, R. v., 1 East, P. C. 310 678 3 Q. B. 328.. 165, 181 Stockton, II. /-., 2 Leach, 1015. . 329 Stoddarl v. Sagar, (1895) 2 Q. ,'>. 171 518 Stoke, R. v., 6 C. & P. 15] 194 - 5C. & P. 146 798 Stokes, It. v., :i Russ. Cri. 6th ed. 613 118 Stolady, R. v., I !•'. & F. 518 .. 725 Stone v. Blackburne, 1 Esp. 27. 121 R. v., 1 C. & P. 379 364 - 1 Den. C. C. R. lul 496, 718 - Dears. C. C. R. 251 718 - 6 T. R. 527 I'.ll StopiWd, R. v., 11 Cox, C.C. 643 523 Story, R. v., Russ. & Ry. 81 . . 438 Stourbridge, R. v., 3 B. & C. 96 7 Stoveld, R. y., 6 C. & P. 489 . . 732 PAGE 226 90 178 179 388 154 Stowell, R. ?;., 5 Q. B. 44 Straff rd (Lord), R. v., How. St. Tr. 400 Strahan, R. v., 7 Cox, C. C. 85. . Strange, R. v., 8 C. & P. 172 . . 1 Cox, C. C. 58. . Stranger v. Searle, 1 Esp. 14 . . Stratford-on-Avon (Mayor of), R. v., 14 East. 348 311 Stratton, R. v., 1 Doug. 239 . . 181 Streek, R. v., 2 C. & P. 413 194 Stretch, R. v., 5 A. & E. 503 . . 97 Stringer, R. v., 2 Moo. C. C. 361 815 Stripp, R. v., 25 L. J., M. C. 109 53 Strother v. Burr, 5 Bing. 136 . . 3 Sterner, R. v., 1 C. & K. 650 . . 120 Stroud, R. v., 1 C, & K. 187 . . 644 Stroulger, R. v., 17 Q. B. D. 327 205, 304 Stuart v. Lovell,2 Stark. N. P. C. 93 607 R. v., (1894) 1 Q. B. 310 400 Stubbs v. Director of Public Prosecutions, 24 Q. B.D. 577 214 -R. v., 25 L. J., M. C. 16 114, 115, 116 -16 Cox, C. C.219 214 Studd, R. v., 14 W. R. 806. . 210, 464 Studdy v. Saunders, 2 Dow. & Ry.'347 135 Sturge v. Buchanan, 10 A. & E. 598 126 R. v., 3 E. & B. 734 . . 183 Sullen, R. v., 1 Moo. C. C. 129 409, 576 Sullivan, R. v., 7 C. & P. 641. . 621 - 11 Cox, C. C. 44 (Irish) 597, 612 Sulston v. Norton, 3 Burr. 1835 299 Summers, R. v., L. R. 1 C. C. R. 182 204 Sunley, R. v., 1 Bell, C. C. 145 . 695 Sussex Peerage case, 11 CI. it Fin. 134 128, 150, 293 Sutcliffe, R. v., Russ. & Ry. 469 844 Sutton, R. v., 4 M. & S. 548 . . 602 - 3N. & P. 569 .. 311 - 5B.& Ad. 52. .206, 542 7 A. & E. 594.. 199, 856 - 13 Cox,C. C. 6 is 513, 51 1 - 3 A. & E. 597 . . 856 188 49, Swain, R. v.,2 Moo. & R. 112. Swatkins, R. v., 4 C. & P. 550 189, 255 Sweeting v. Fowler, 1 stark. 156 76 Swenden, R. v., 11 How. St. Tr. 559 118 SwindaU, R. v., 2 C. & K. 230. . 620 Swinnerton v. Marquis of Staf- ford, 3 Taunt. 91 152 — R. v., 1 Car. & M. 592 , 49 55 Sydserff,'R. v', 11 Q.' B.*245 . . 376 Svkes y. Dunbar, 2 Selw. N. P. '1004 112 xliv Index of Cases. PAGE TACEY, R. v., Russ. & Ry. 452 615 Taft, R. v., 1 Leach, 172 484 Tailors of Cambridge, R. v., 8 Mod. 11 381 Tait, R. v., 2 F. & P. 553 60 Talbot v. Hodgson, 7 Taunt. 251 153 Tancock, R. v., 13 Cox, C. C. 217 177 Tankard, R. v., (1894) 1 Q. B. 548 402, 552, 583 Tannet, R. v., Russ. & Ry. 351 427 Taplin, R. v., 2 East, P. C. 712 807 Tarrant, R. v., 6 C. & P. 182 . . 55 Tatlock, R. v., L. R. 2 Q. B. D. 157 244, 246, 853 Tattersall, R. v., 1 Russ. Cri. 162 157 Tattershall, R. v., 2 Leach, 984 48, 82 Taverner, R. v., 4 C. & P. 413 . 83 Tawney, R. v., 1 Bott. 333 712 Taylor v. Foster, 2 C. & P. 195 133 — Goodwin, 4 Q. B. D. 228 508 Hawkins, 16 Q.B. 308 508, 611 Newman, 4 B. & S. 89 742 R. v., 2 Str. 1167 700 3 Salk. 198 599 - 1 Leach, 360 ..158, 589 2 East, P. C. 1020 251 Peake, N. P. C. 11 104 R. & R. 418 393 1 Campb. 404. .. . 726 - 3B.& C, 502.. 175, 518, 703 ■ 1 C. &P. 84.... 119 - 8 C. & P. 773 39 - 1 C. &K. 213.. 494, 495 - 3 Bos. & Pul. 596 410 - 1 F. & F. 535 191, 193, 259, 270 - 1 F. .V- F. 511 507 L R. 1 C. C. 194 267 - 1 F. & F. 511 259 1 Leach, 214 484 - L. R. 2 C. C. 147 159, 620 - 12 Cox, C. C. 627. 585 - 15 Cox, C. C. 8 . . 174 - 15 Cox, C. C. 265 370, 432 - (1895) 1 Q. B. 25 . 781 Teague, R. v., 2 East, P. C. 979 491, 506 Teal, R. v., 11 East, 307 206 Telicote, R. v., 2 Stark. N. P. 484 54 Tessymond, R. v., 1 Lewin, C. C. 169 631 Thallman, R. v., L. & C. 326 . . 701 Thatcher v. Waller, T. Jones . . 67 Thomas v. Ansley, 6 Esp. 80 . . 2 - David, 7 C. & P. 350 119 - Newton, M. & M. 48 139 - K. v., 2 East, P. C. 781. 780 — 2 Leach, 637 54 Carr. Supp. 295 . . 393, 394 PAGE Thomas, R. v., 3 Russ. Cri. 94, 6th ed 688 . 4 C. & P. 237 ... . 797 - 7 C. & P. 345 ... . 44 7 C. & P. 718 ... . 63 -7C. & P. 817.. 667, 669 7 C. & P. 851 498 3D. & R. 621 180 11 Cox, C. C. 535. 278, 280 L. R. 2 C, C. 141 73, 167, 362 Thompson v. Trevanion, Skin. 402 23 R. v., 2 Leach, 771 . 324 2 Lew. C. C. 137 171, 189 York Spr. Ass. 1845 215 -IMoo. C.C.78 803 -16 Q.B. 832.. 370, 377 1 Den. C. C. R. 549 584 1 Moo. C. C. 80 686 -L. & C. 225.. 564 -L. & C. 233.. 567 L. R. 1 C. C. 377 109 -11 Cox, C. C. 362 336 -(1893)2 Q. B. 12 34, 38, 49 Thomson, R. v., 2 Russ. Cri. 283, 6th ed 592 Thorley v. Lord Kerry, 4 Taunt. 364 598,599 -R. v., 1 Moo. C.C.343.. 407 Thomhill, R. v.,8 C. &P. 575. . 121 Thornton v. Royal Ex. Ass. Co., Peake, N. P. 25.. 127 - v. Shetford,l Salk. 284 12 -R. r;.,2Ph. & Arn.Ev. 104 57 - 1 Moo. C. C. 27 44 Tharpe v. Gilsburne, 2 C. & P. 21 154 Thorpe, R. v., Dears. & B. C. C. 562 406 - 1 Lewin, C. C. 171 673 Thurburn, R. v., 1 Den. C. C. R. 387 580 Tibbs v. Smith, Lord Raym. 33 453 Tickle v. Brown, 1 A. & E. 378 26 Tilley, R. v., 2 Leach, 662 .... 791 Timmins, R. v., 7 C. & P. 499 626 30 L. J., M. C. 45 235,237 Timothy v. Simpson, 1 C. M. & R. 757 . .229 241 Tindall, R.'v'.jk A. & K 143 . . ' 531 Tinkler, R. v., 1 East, 354 ... . 28 Tinley v. Porter, 2 M. & W. 822 97 Tippett, R. v., 1 Russ. Cri. 784. . 530 Tippin, R. v., Car. & M. 545 . . 590 Tite, R. v., 1 L. & C. 29 ... .404, 405 Index of ('lists. xlv PAGE Titley, R. v., 14 Cox, C. C. 502 . 183 Tivey, R. v., 1 Den. C. C. 63 . . 337 Todd v. Hawkins/2 Moo. & R. 20 611 - R. v., 2 East, P. C. 653 . . 589 Toll ay le, R. v., cited Cro. Car. 510 699 Tolfree, R. v., 1 Moo. C. C. 243 584, 870 Tollett, R. v., C. & Moo. 112 . . 585 Tolson, R. v., 4 F. & F. 104 126, 294, 295 -23 Q. B. D. 170.. 295 Tomlinson, R. v., L. R. 1 C. C. R. 49 722 (1895) 1 Q. B. 710 808,841 Tonge, R. v., Kelynge, 18 114 Tongue, R. v., 30 L. J., M. C. 49 401, 402, 408 Tonkinson, R. v., 14 Cox, C. C. R. 603 571 Toole, R. v., Dears. & B. C. C. 194 77 Toolev, R. v., 2 Ld.Raym. 1296 679, 6,so Topham, R. v., 4 T. R. 127. .599, 600, 609 Topping, R. v., 25 L. J., M. C. 72 295 Torpey, R. v., 12 Cox, C. C. 45 868, 870 Toshack, R. v., 1 Den. C. C. 492 505 Tottenham, R.v., 7C. & P. 237 255 Towers, R. v., 12 Cox, C. C. 530 622 Towle, R. v., R. & R. 314 . . . . 158 - 2 Marsh. 466 .... 180 Townley, R. v., Foster, 7 74 -3F.&F. 839.. 860 -L. R. ICC, R. 315 454,459 Townsend, R v., Doug. 421 . . 540 -Car.&M. 178 756 Tracy Peerage case, 10 CI. & F. 191 127 — R. i>., 3 Salt. L92 713 Train, 11. r.. 31 L. J., M. C. 169 531 Trapshaw, R. v., 1 Leach, 427. . 327 Trebilcock,R. v., Dears. & B.C. C. 45;! 578 Treeves, R. v., 2 East, P. C. 821 340 Trenfield, I!. v., 1 K. & F. 43.. 502 Trevelli, R. v., 15 Cox, C. C. 289 193 Trewhitt y., Lambert, 10 Ad. & E. 470 3 Trilloes, R. u., 2 Moo. C. C. 260 643 Trueman, R. v., 8 C. & P. 727 . 180 Tum in (Archbishop of ) v. Robin- son, 5 Bing. 17 607 Tuberfield, R. v., L. & C. 495. . 89, 230 Tuberville v. Savage, 1 Mod. 3 264 Tuchin, R. v., Holt, R. 424.... 597 Tucker, R. v., 1 Moo. C. C. 134 841 1 Phil. Ev. 10 . . 101 2 Q. B. D. 417 . . 705 Tuder, R. v., 1 Den. C. C. 325 . 434 PAGE Turner, R. v., 1 Leach, 536 . .75, 590 Ld. Raym. 144 . . 663 - Kel. 30 336 — 1 Moo. C. C. 347 . 46, 49, 741, 782 - 2 East, P. C. 519 334 13 East, 228 369 - 6C. & P. 407.... 323 — -8C. &P. 755 351 - 11 Cox, C. C. 551 403 Twist, R. v., 12 Cox, C. C. 509 . 564 Twistleton, R. v., 1 Lev. 257 . . 234 Twose, 14 Cox, C. C. 327 257 Twyman v. Knowles, 13 C. & B. 224 1 Twyning (Inhab. of), R. v., 2 B. & A. 386 15 Tyers, R. v., Russ. * Ry. 402 401, 412 Tyler, R. v., 8 C. & P. 616. .647, 691 1 Moo. C. C. 428 840 Tylney, R. v., 1 Den. C, C. R. 321 502 Tyree, R. v., L. R. 1 C. C. R. 177 401 Tyrrell, R. v., (1894) 1 Q. B. 710 769 Tyson, R. v., L. R. 1 C. C. R. '107 728 UEZZEL, R. v., 2 Den. C. C. R. 274 512 Uncle v. Watson, 4 Taunt. 16. . 25 United Kingdom Electric Tele- graph Co., R. c,2B. & S. 647 526, 530, 532 Upton-on-Severn, R. v., 6 C. & P. 133 529 Urry, R. v., Lincoln Sp. Ass. 1873 774 Usill v. Hales, 3 C. P. D. 319. . 612 YALLANCEY v. Fletcher, (1897) 1 Q. B. 265 390 Van Butchell, R. v., 3 C. & P. 632 29, 629 Vandercomb,R. v., 2 Leach, 708 177 r 335, 336 Vandercombe, R. v., 2 East, P. C. 514 333, 336 v"anderstein,R. u.,10Cox,C. C. (Irish) 177 494, 507, 757 Vantandillo, R. v., 1 M. & S ... 705 Varle, R. v., 6 Cox, C. C. 170. . 304 Varley, R. v., 1 Leach, 76 359 Vattrass, R. v., 15 Cox, C. C. 73 256 Vaughan's case, 4 Burr. 2191 297 \ .iiii.r. Ex parte, 3 Mk. 772. . 536 Vcvlst, H. c, 3 Camp. 432 .. 6, 717 Verrier, R. v., 12 Ad. & E. 317 735 Vicars r. Langham, Hob. 235 . . 184 Villensky, R. v., (1892) 2 Q. B. 597 783 xlvi Index of Cases. PAGE Vincent, R. v., 9 C. & P. 91. .367, 799 2Den. C. C. R. 464 589 Vivian, R. v., 1 C. & K. 719 . . 493 Vodden, R. v., Dears. C. C. 229 195 Voke, R. v., Russ. & Ry. 531 . . 85 Volant v. Soyer, 13 C. B. 231 . . 134 Vreones, R. v., (1891) Q. B. 360 340 Vyse, R. v., 1 Moo. C. C. 218 . . 854 WADDINGTON, R. v., 1 B. & q 26 . . 595, 596 Wade, H.'v'.,'i Moo'. C. C. 86 . . ' 194 1 C. & K. 739 ... . 786 Wadley, R. v., 4 M. & S. 508 . . 390 Wadsworthv. Marshall, 3 Tyrw. 228 95 Wagstaff, R. v., Russ. & Ry. 398 838 Waite, R. v., 2 East, P. C. 570 576 (1892) 2 Q. B. 600 271, 772, 857 Wakefield, Mayor of, R. ■;;., 57 L. J.,M. C. 52.. 536 R. v., 2 Lewin, C. C. 1, 279 109, 110, 128, 371 Wakeling, R. v., Russ. & Ry. 504 449 Waldron, R. v., 18 Cox, 373 . . 213 Walkden, R. v., 1 Cox, C. C. 282 263 Walker v. Beauchamp, 6 C. & P. 552 25, 152 Homer, 1 Q. B. D. 4 530 ■ Lord Mayor of Lon- don, 38 L. J., M. C. 107 202 Wildman, 6 Madd.47 133 . R. v., 1 Leach, 412 104 1 Leach, 97 791 - 3 Camp. 264 . . 76, 780 1 Moo. C. C. 155 459, 853 . 2 M. & R. 446 176, 267 1 C. & P. 320. .626, 628 - 1 Dears. C. C. R. 358 229 Dears. & B. C. C. (506 402 27 L. J., Q. B. 137 720 Walkling, R. v., 8 C. & P. 243 191 Wallace, R. v., Car. & M. 200. . 259 Waller, R. v., 2 Stark. Ev. 623 731 Wallis, R. v., Salk. 234 158 1 Moo. C. C. 344 257 Walne, R. v., 11 Cox, C. C. R. 647 447 Walsh, R. v., 1 Moo. C. C. 14. . 357 IDen.C. C.R. 199 7 R. & R. 215 .... 587 Walter, R. v., 14 Cox, C. C. 579 227 Walters, R. v., Carr. & M. 164 654 - Carr. & M. 588 498 5 C. & P. 133 . . 279 Walton v. Gavin, 16 Q. B. 48 . . 6 ■ R. v., L. & C. 298 . . 808, 841 Wandsworth, R. v., 1 B. & Aid. 63 525,534 PAGE Wanklyn, R. v., 8 C. & P. 290 193 Wannop, R. v., Sayer, 142 464 Warburton, R. v., L. R. 1 C. C. R. 274 368 Ward, R. v., Str. 747 466, 467 - Gow, 168 401 6 C. & P. 366 ... . 145 4 A. & E. 384 531 1 East, P. C. 270 624 L. R. 1 C. C.R. 356 20, 851 Wardell, R. v., 3 F. t t F. 82 . . 493 Wardle, R. v., Car. & M. 647 . . 194 Wardroper, R. v., Bell, C. C. 249 788,869 Warner, R. v., 3 Russ. Cri. 458. . 39 - 1 Moo. C. C. 388 679 Warren v. Warren, 1C.M.&B. 360 602,609 - R, v., Russ. & Ry. 48 . . 712 1 Cox, C. C. 68 . . 256 Wartnaby, R. v., 2 Ad. & E. 435 170 Warwickshall, R. v.,1 Leach,263 34 Washbrook, R. v., 4 B. & C. 732 535 Wason v. Walter, L. R. 4 Q. B. 73 610,611 Waters, R. v., 1 Den. C C. R. 356 631, 654 12 Cox, C. C. 390 759 Watkinson, R. v., 2 Str. 1122 . . 135 12 Cox, C. C. R. 271 282 Watson, R. v., 2 Leach, 640 . . 565 - 32 How. St. Tr. 107 136 -2T. R. 199 597 2 Stark. 116. .1, 4, 89, 121, 135, 136, 138, 139, 603 - Russ. & Ry. 468 844 -6C. &P. 653.. 120 -3C. &K. 111.. 53, 54, 55 Watt, R. v., 3 Esp. 675 531 —Moo. & Malk. N. P. C. 281 698 Watts, R. v., 2 Den. C. C. R. 14 444, 574 -9 Cox, C. C. 395.. 63 Waudby, R. v., (1895) 2 Q. B. 482 851 Wavell, R. v., 1 Moo. C. C. 224. . 445 Waverton, R. v., 2 Den. C. C. R. 340 529 Wavertree, R. v., 2 Moo. & R. 353 311 Wealand, R. v., 20 Q. B. D. 827 776 Weatherston v. Hawkins, 1 T. R. 110 611 Weaver v. Bush, 8 T. R. 78. .265, 266 -R.«.,L.R.2C.C85.. 237, 776 Webb, R. v., 3 Burr. 1468 .... 181 - 3 Russ. Cri. 622. . 109 - 1 Moo. & Rob. 405 630 1 Den. C. C. 338.. 208, 701 Index of Cases. xlvii PAGE Webb, E. v. 6 C. & P. 595 .... 115 11 Cox, C. C. 133.. 106 - 2 For. 1068 170 Webster, R. v., 1 F. & F. 515. . 737 -31L.J..M.C.17 583 — 16 Q. B. D. 134 777 L. & C. 79 .... 209 Wedge, R. v., 5 C. & P. 298 . . 776 Weeks y. Sparke, 1M.&S. 687 25 Wegener, R. v., 2 Stark. N. P. C. 245 603, 608 Weil, R. v., 9 Q. B. D. 701 .... 225 Welch, R. /-., 20 L. J., M. C. 101. . 361 L. R. 1 Q. B. D. 23 20, 338 Weld y. Hornby, 7 East, 199 . . 699 Welland, R. v., Russ. & Ry. 494 75 WeUard, R. v., 14 Q. B. D. 63. . 701 Weller, R. v., 2 C. & K. 233. . 53, 54 Wellings, R. v., 3 Q. B. D. 426. . 60 Wells v. Fisher, 1 Moo. & R. 99. 108 — — -R. v., M. & M. 326 116 -IF. & F. 109. ... 571 Welman, R. v., Dears. C. C. 188 80, 433, 434, 448 Welsh, R. v.,1 East, P. C. 164 359 1 Moo. C. C. 175 . 218 Welton, R. v., 9 Cox, C. C. 297. .60, 183 Weonards, St. (Inhab. of), R. v., 6 C. & P. 583 529 West v. Smith, Tyr. & G. 825. . 607 ■ R. v., Salisl). Spr. Com. 2 Deac. Dig. C. L. 1518 615 -2C. & K. 784.... 239 - lDen.C.C. R. 258 496 - 1 Dears.C.C.R.402 589 - Dears. & B. C. C. 109 757 -Phil. Ev. 91 117 -Dears.&B.575,583 437 - (1898) 1 Q. B. 174 769 Westhcr. R. v., 1 Leach, 12 .. 58, 459 853 Western, R. v., L. R. 1 C. C. R. ' 122 511,720 Westley, R. y., 29 L. J., M. C. 35 733 Westmark, R. v., 2 Moo. & R. 305 527, 536 Weston, R./., L4 Cox, C. C. 346 I'.tl, 627, 662 Westwood, R. y.,Buss.& Ry. 195 322 Wetheril, R. v., Cald. 432 711 Wharam y. Routledge,5 Esp. 235 11 Wheatland, R. y.,8C.&P.238 .. 737 Wheatley y. Williams. 1 M.& M. 533 134 -R.y., 2 Burr. 1125.. 341, 342 Wheeldon, R. v., 8 ('. & I'. 717 335 Wheeler, R. y., :( ('. & P. 586 .. 816 -7 dtP. 170..779,788 Wheeley, R. v., 8 C. ct P. 250. . 51 Wheeling, R. v., 1 Leach, 311.. 34 Whelan, II Cox, C. C. Ir. 595. . 91 Whickham, Ex parte, 10 Times L. R. 266 834 PAGE Whiley, R. v., 2 Leach, 985. .79, 82, 83 - 2 Russ. Cri.647.. 485 - 2 M. C, C. 186 . . 294 Whitbread, R. v., 1 C. & P. 84.. 119 Whitchurch, R. v., 24 Q. B. D. 420 368 White v. Feast, 41 L.J., M. C. 81 619 -Hindley, L.R.10Q.B. 219 532 R., 13 Cox, C. C. 318 375 - R. v., 1 Burr. 333 697, 699 1 Leach, 430 104 1 Camp. 359 597 - R. & R. 99 158 - Moo. & M. 271 . . 722 -8C. & P. 742 405 - 9 C. & P. 282 498 -9C. &P. 344 555 - 1 Dears. C. C. R. 203 558 -L. R. 1 C. C. R. 311 348 Whitehead, R. v., 1 Dow. & Ry. N. P. 61 . . 375 - 9 C. t t P. 429 327 -L. R. 1 C. C. 33 102, 121 Whitehouse, R. v., Dears. C. C. R. 1 206 Whiteley, R. v., 1 Lewin, C. C. 173 673 Whitelock v. Baker, 13 Ves. 514 24 - Musgrave, 1 C. R. 6 M. 511 153 Whiteman, R. v., 1 Dears. C. C. R. 353 847 Whitfield, R. v., 3 C. & K. 121. . 172 Whithorne, R. v., 3 C. & P. 324 516 Whitnash v. George, 8 B. & C. 566 25 Whitney, R. v., 1 Moo. C. C. 3.. 337 -3 Ad. & E. (59; 7 C. & P. 208 306, 536, 540 Whittaker, R. v., 1 Den. C. C. R. 310 512, 513 Wicker, R. v., 18 Jur. 252 60 Wickham, R. v., 10 Ad. ct El. 34 437, 443, I \5 Wicks, R. v., Russ. & Ry. 149. . 490 Widdop, R. v., L. R. 2 C. ('. 3 45, 215 Wigg, R. v., 1 Leach, 378 (n.). . 664 -2 Lord Ravm. 1163 697, 699 Wiggins. R. v., 10 Cox, CC. 562 51 Wightwick v. Banks, Forrest, 154 116 Wigley, R. v., 7 C. & P. 4 99 Wilcock, R. v., 2 Russ. Cri. 826 192 Wilcox, R. y., Russ. & Ry. 50.. 505 Wild, It. y., 2 Lew. C. C. 214 . . 622 - 1 Moo. c.c. 451.. 38 Wilder, R. v., 2 Burr. 1128 342 Wiley, R. v., 2 Den. C. C. R. 37 783 Wilford, R. v., Russ. & Ry. 517 327, 590 xlviii hitler of Cases. PAGE Wilkes, R. v., 4 Burr. 2530 .... 597 5 E. & B. 690 . . 170 Wfflrins, R. v., 1 Leach, 520. .570, 587 1L. & C. 89.... 749 Wilkinson, R. v., 1 Hale, P. C. 508 557 - Russ. & Ry. 570 58 Wilks, R. v., 7 C. & P. 273. . 114, 115 7 C. & P. 811 511 Williams v. Dempsey, 1 East, P. C.306 229 East India Co., 3 East, 192 508 Gardiner, Tyr. & G. 578 607 Munday, Ry. & Moo. 34 133 - Ogle, 2 Str. 889 ... . 77 - Stott, 1 Cr. & M. 689 401, 607 Wilcox, 8 A. & E. 314 532 - Ex parte, 13 Price, 670 93 -R. v., 1 Salk. 382 .... 704 3 Burr. 1317 .... 711 1 Hale, P. C. 522 328 ■ 2 Camp. 506 339 5B. & A. 595.... 600 1 Russ. Cri. 734, 6th ed 700 1 Moo. C. C. 107 556 Car. & M. 259 . . 361 6 C. & P. 390. . . . 564 7 C. & P. 298 75 . 7 C, & P. 320. ... 100 7 C. & P. 331.... 411 7 C. & P. 354 449 8 C. & P. 286. ... 132 8C. &P. 434.... 128 1 C. & K. 195. . . . 556 1 Den. C. C. 39. . 270 2 Den. C. C. 61 209, 505 1 Cox, C. C. 16 . . 838 Talf. Dick. Sess. 239 464 4 F. & F. 515. ... 60 12 Cox, C. C. 101 66 14 Cox, C. C. 59. . 514 (1893) 1 Q. B. 321 271, 772, 857 Williamson v. Henley, 6 Bing. 299 617 ■ R, v., 3 C. & P 629 11 Cox, C. C. 238 442 Willis, R. v., 1 Moo. C. C. 375. . 584 1 Den. C. C. R. 80 644 L. R. 1 C. C. R. 363 204 Willmett, R. v., 3 Cox, C. C. 281 695 Willoughby, R. v., 1 East, P. C. 288 689 2 East, P. C. 581 757 - 2 East, P. C. 944 494 Willshire, R. v., 6 Q. B. D. 366 294 PAGE Wilshaw, R. v., 1 Car. & M. 145 58 Wilson v. Bowie, 1 C. & P. 10. . 11 Rastall, 4 T. R. 758 . . 133 - Stubbs, Hobb. 330 75 R. v., 1 Leach, 285 359 — 8 T. R. 357 461 — 8 C. & P. Ill ... . 566 — 3 A. &E. 817.. 463, 465 — 5 Q. B. D. 28 . . . . 278 - 6 Q. B. 620 181 - 1 Den. C. C.284.. 502 — 26 L. J., M. C. 45 18 1 Dears. &B.C.C. 127 239 3 P. & F. 119.... 287 — 18 Q. B. 348 .... 535 - 12 Cox, C. C. 622 211 Wilton, R. v., Russ. & Ry. 115 328 Wilts (Inhab. of), R. v., 1 Russ. Cri. 498, 555, 877, 6th ed. 312 - (Inhab. of), R. v., 1 Stark. 359 311 Wiltshire v. Prince, 3 Hagg. Ecc. R.332 291 Windsor, Ex parte, 34 L. J., M. C. 163 466 R. v., 4 F. & F. 360. . 40 Wink, R. v., 6 C. & P. 397 23 Winkworth, R. v., 4 C. & P. 444 86 Winship, R. v., 1 Cald. 76 711 Winsor v. Reg., L. R. 1 Q. B. 390 113,195,205 Winter, R. v., Russ. & Ry. 295 253 Winterbottom, R. v., 1 Cox, C. C.164 492 v. Ld. Derby, L. R. 2 Ex. 316 526 Winwick (Inhab. of), R. v., 8 T. R. 454 678 Wiseman, R. v., Fortescue, 91. . 828 Witchell, R. v., 2 East, P. C. 830 439,440,445 Withal, R. v., 1 Leach, 89. . . .72, 334 Wither, R. v., 2 Camp. 578 133 Withers, R. v., 1 Moo. C. C. 294 851 Witt, R. v., 1 Moo. C. C. 248 . . 328 Wollerston, R. v., 12 Cox, C. C. R. 180 265 Wolstenholme, R. v., 11 Cox, C. C. 313 413 Womersley, R. v., 2 Lew. C. C. 162 . . 215 Wood v. Burgess,' 24 Q.B. D. 162 342 - Drury, 1 Ld. Raym. 734 153 - Veal, 5 B. & A. 454 . . 527 - R. v., 1 F. & F. 470 516 - 1 Moo. C. C. 278 850 - 3 B. & Ad. 657 . . 704 1 Sess. Ca. 217 . . 343 - 6 Cox, C. C. 224 193 -Dears. & B. C.C.I 512 Woodhall, R. v., 12 Cox, C. C. 240 803 Index of Cases. xlix PAGE Woodcock, R. v., 1 Leach, 500. . 28, 29, 110 Woodhead, R. v., I Moo. & R. 549 638 -2C. & K. 520 119 Woodfield, R. v., 16 Cox, C. C. 314 511 Woodward v. Cotton, 4 Tyrw. 689 144 - Landor, 6 C. & P. 548 611 R.v.,2East,P.C.653 589 - 1 Moo. C. C. 323 254, 255 -8C. &P. 561.. 868 -L. & C. 122.... 787 Woodyei' v. Hadden, 5 Taunt. 125 527 Woolcock, R. v., 5 C. & P. 517 796 Woolford, R. v., 1 Moo. & R. 384 780 Woolley, R. v., 1 Den. C. C. 559 443 Woolmer, R. v., 12 A. & E. 422 605 Woolston, R. v., Fitzgib. 66. . . . 595 Woolway v. Rowe, 1 A. & E. 117 25, 26 Worcester (City of), R. v., Skin. Kil 188 All Saints, R. v., 6 M. & S. L94 132, 133 Worrall, R. v., 7 C. & P. 516 . . 460 Wortley, R. v., 1 Den. C. C. R. L62 592,816 - 2 Den. C. C. 333 404 Worton, R. v., (1895) 1 Q. B. 227 518 Wrigglesworth, R. v. (Hindm. Suppl. to Deacon's C. L. 1583) 180 Wright v. Woodgate, Tyr. & ^lll^• v. Cuthhertson, 1 Macq. H. L. Ca. 455 527 -R. v., 2T. R. 734.... 371, 386 3T. R. 106 ..178,180, 434, 450 -- 3 T. R. 304 341 8 ('. & P. 644.... 676 - 3 C. & K. 106.... 62 - IDen. C.C.R.194 755 5 Cox, C. C. 296. . 108 - 10 Cox, ('. C. 374 623 - 14 Cox, C. ('. R. Ill 773 Yrisarri /'. ( 'li'incnt, 3 Ring. 482 602 Yscuado, R. v., 6 Cox, C. C. 386 172 ZIELMAN r. Pooley, 1 Stark. X. 1". 168 12 Zulueta, R. v., 1 C. & K. 215 . . 171, 714 R. d TABLE OF STATUTES. PAGE 13 Edw. 1, c. 34, s. 1 771 33 Edw. 1, st. 4 186, 397 1 Edw. 2, st. 2 759 1 Edw. 3, c. 14 616 28 Edw. 3, c. 13, s. 2 182 34 Edw. 3, c. 1 283 1 Rich. 2, c. 4 616 5 Rich. 2, st. 1, c. 7 461 15 Rich. 2, c. 2 461, 463 c. 3 220 8 Hen. 6, c. 9, ss. 9, 7 . . 461, 463, 464 22 Hen. 8, c. 5 207, 305 28 Hen. S, c. 15 220, 743 32 Hen. 8, c. 9, s. 3 616 33 Hen. 8, e. 9 703 1 Edw. 6, c. 1 596 1 Eliz. c. 2, s. 3 596 5 Eliz. c. 4 380 c. 9, ss. 3, 5, 6 738 s. 13 738 12 Eliz. c. 12 596 18 Eliz. c. 3, s. 2 130 31 Eliz. c. 5 617 c. 11, s. 3 462 1 Jac. 1, c. 11 284, 292 s.2 16 s. 3 295 3 Jac. 1, c. 21, s. 9 596 21 Jac. 1, c. 15 462, 464 14 Car. 2, c. 4, s. 20 596 22 & 23 Car. 2, c. 10 490 29 Car. 2, c. 5 717 c. 7, s. 6 683 1 W. & M., st, 2, c. 2 610 c. 18 390 2 W. & M. c. 8, s. 20 697 1 Will. 3, c. 18, s. 17 596 9 & 10 Will. 3, c. 32, ss. 1, 2, 3 596 10 & 11 Will. 3, c. 17, s. 1 .. 7«4 11 & 12 Will. 3, c. 7, ss. 8, 9. . 743, 746 s. 10 .. 746 12 & 13 Will. 3, c. 2 130 1 Anne, st. 1, c.18, s. 5 312 st. 9, c. 2 95 12 Anne, c. 7 393 1 Geo. 1, st. 2, c. 5, ss. 1, 5. . 793 PAGE 8 Geo. 1, c. 24, s. 1 743 s. 3, 746 9 Geo. 1, c. 22 251, 337 s. 6 252 11 Geo. 1, c. 4 712 12 Geo. 1, c. 29, s. 4 283 2 Geo. 2, c. 24, s. 7 299 c. 25 492 s. 2 740 s. 24 493 5 Geo. 2, c. 30 279 15 Geo. 2, c. 13, s. 11 500 c. 28 360 16 Geo. 2, c. 31, s. 4 791 18 Geo. 2, c. 30 744 19 Geo. 2, c. 34 333, 824 21 Geo. 2, c. 3 283 25 Geo. 2, c. 36. .702,703, 704, 705 s. 5 702 ss. 8, 9, 10 . . 703 c. 37. s. 9 791 25 Geo. 2, c. 33 290 c. 50 756 12 Geo. 3, c. 24, ss. 1, 2.. 250, 821 13 Geo. 3, c. 63, s. 40 68 c. 78 537 32 Geo. 3, c. 60, ss. 1, 2, 3, 4 613 33 Geo. 3, c. 52, s. 62 713 c. 67, ss. 1, 4, 7, 8 794 37 Geo. 3, c. 70, ss. 1, 2 547 c. 98, s. 21 340 c. 123 70S, 709 s. 1 708 ss. 2, 3 ..709, 710 ss. 4, 5 708 38 Geo. 3, c. 52 219 39 Geo. 3, c. 69, s. 10 821 s. 104 250 c. 79 710 ss. 2, 8 710 39 & 40 Geo. 3, c. 94, s. 2 . . 172, 201 41 Geo. 3, c. 90, s. 9 144 c. 109, ss. 8, 9 537 42 Geo. 3, c. 85 68 c. 119, s. 1 704 43 Geo. 3, c. 58 239 a 59 s.5.,305, 306, 309 d 2 Hi Table of Statutes. PAGE 43 Geo. 3, c. 140 96 44 Geo. 3, c. 102 96 45 Geo. 3, c. 92, s. 3 94 ss. 3, 4 97 46 Geo. 3, c. 54 746 c. 87 129 48 Geo. 3, c. 75 387 51 Geo. 3, c. 37 289 52 Geo. 3, c. 104 708, 710 s. 1 708 s. 2 710 s. 3 710 ss. 5, 6 708 e. 143 755, 758 s. 2 ....755, 756 s. 6 483 c. 146, ss. 6, 7 151 c. 155, s. 12 390 c. 156 791 53 Geo. 3, c. 127, s. 3 106 c. 160 596 55 Geo. 3, c. 50, s. 4 201 c. 68. s. 2 52S 57 Geo. 3, c. 19 710 s. 25 710 c. 51 288 c. 90 515 1 Geo. 4, c. 4 508 1 & 2 Geo. 4. c. 41, s. 1 700 c. 76 821 c. 88, s. 1 791 3 Geo. 4, c. 114 740, 793 4 Geo. 4, c. 34, s. 2 722 c. 54, s. 5 33S s. 40 338 c. 76, s. 3 290 s. 21 287 s. 22 290 s. 31 287 5 Geo. 4, c. 68 288 c. 83 90, 107, 112 c. 84, s. 22 843, 844 ss. 23, 24 843 e. 96 380 c. 113, s. 9 7 1 f s. 10 483, 744 6 Geo. 4, c. 50, s. 1 187 s. 29 186 s. 47 182 c. 92, s. 2 290 c. 122 382 c. 129 ....368, 380, 382 c. 129, ss. 4, 5 382 7 Geo. 4, c. 16 482, 696 s. 35 426 s. 38 ....426, 483 c. 46 551, 584 s. 9 551, 5S4 c. 57, ss. 10, 70, 71 . 72.'! c. 64 93, 98, 161 PAGE 7 Geo. 4, c. 64, s. 12 ....217. 452 s. 13 218 s. 14 551, 583, 584 ss. 15, 16 552 ss. 17, 18.. 552. 553 s. 20 226 s. 22 .... 209, 210, 213 s. 23 ....211, 212 s. 28 214, 215 s. 29 215 s. 30 216 s. 31 93 7 &8 Geo. 4, c. 28, s. 1 178 s. 2 172 ss. 6, 7 . . 250 s. 8 ..482, 760 s. 11 .... 167, 203, 483 s. 13 .... 177 c. 29 550 s. 12 .... 393 s. 13.. 252, 321 s. 47 400 c. 30 550 s. 2 258 s. 9 255 s. 16 .... 338 s. 17.. 254, 255 c. 53 483 9 Geo. 4, c. 15 182 c. 31 176, 514, 822 s. 7 209 s. 11 822 s. 27 267 c. 48, s. 1 200 c. 55 550 c. 56 550 c. 69 511, 513, 515 s. 1..509, 511, 513 s. 2 . 229, 510, 516 s. 4 510, 514 s. 8 510 s. 9 510, 513 ss. 12, 13 509, 510, 511 10 Geo. 4, c. 44, s. 7 230 c. 50, s. 124 483 1 & 2 Will. 4, c. 32, s. 30 .... 720 2 & 3 Will. 4, c. 16, ss. 3, 4 . . 483 c. 34, s. 7 260 s. 10 362 c. 45, s. 58 423 c. 53, s. 49 . 426, 483 c. 59, s. 19 483 c. 64 220, 306 c. 75, ss. 7, 8, 10, 18 . . 387 c. 120 483 Table of Statutes. liii PAGE 3&4 Will. 4, c. 49 105, 724 4 & 5 Will. 4, c. 36, ss. 2, 3 . . 225 s. 16,.... 171 s. 22 . . . . 222 c. 67 844 5 & 6 Will. 4, c. 24, s. 3 .... 482 c. 50 530 s. 3 536 s. 5 309 s. 21 307, 309 s. 23 526, 535 ss. 58, 59 535 s. 62 540 ss. 64, 65, 66 531 s. 78 508, 718 ss. 88, 89, 92.. .. 528 s. 95 541 s. 98 214, 542 s. 99 ... . 542 c. 54 284, 292 c. 62 724 s. 5 .... 739 s. 9 .... 724 s. 13.. .. 710 s. 18.... 423 S. 21 .. ..724, 739 C. 76 219, 220, 311, 385 s. 34 . . . . 423 6 .v 7 Will. 4, c. 65, s. 9 .... 721 c. 76, ss. 8, 19.. 603, 605 c. 85 288 s. 2 .... 287 s. 3 .... 288 s. 10 . . . . 291 s 18 .. .. 286 s. 20 287 s. 21 . . . . 287 s. 23.. .. 286, 287 ss. 36, 18 286 s. 39 287 ss. 45,46, 47 .. 288 c. 86, s. 30 424 s. 38 152, 285 s. 41 424 s. 43 425 C. 114 56, 192 SS. 3, 4.. 66 c. 115 536 7 Will. I & 1 Vict. c. 22, s. 1 . 287 s. 23 287 c. 23 7 10 c. 30 .... 208 c. 32 750 PAGE 7 Will. 4 & 1 Vict. c. 36, s. 25 750 s. 26 . . . . 750, 755, 756, 757 ss. 27, 28 750 s. 29 751 ss. 30, 31 751 s. 35 751 s. 36 751 ss. 37, 39, 40 . .751, 752 ss. 41, 42, 47.. 752, 753 c. 85, s. 11 177, 873 c. 88, ss. 2, 3, 4 746, 747 c. S9, s. 3 251, 253 c. 91, s. 1..547, 708, 744, 791, 793 1 Vict. c. 36 750, 833 1 & 2 Vict, c 77 106, 724 c. 94, s. 13 146 ss. 19, 20 . . 483 c. 96, s. 1 ....551, 584 c. 101, s. S 719 c. 105, s. 1 105 2 & 3 Vict, c. 47, ss. 27, 28 . . 821 ss. 54, 64,65, 66 230 c. 51 483 c. 82, ss. 1, 2 218 3 .t 4 Vict. c. 9 610 c. 92, s. 8 482 s. 17 152 c. 97, s. 13 764 s. 14 764 s. 15 766 c. 110, s. 8 553 c. Ill, s. 2 551 5 & 6 Vict. c. 38 169 c. 39 245 c. 55, s. 17 764 c. 85 551, 584 c. 122, s. 32 .... 282 6 & 7 Vict. c. 18, ss. 81, 82 . . 423 c. 40 400 c. 68, s. 2 705 c. 85 107 s. 1 ....106, 153 c. 86 483 c. 96 s. 3 837 s. 4 600 s. 5 600 s. 6.. .. 605, 612 s. 7.... 596, 606, 609 s. 8 600 c. 98, s. 4 68 7&S Vict. c. 2, ss. 1, 2 .... 222 c. 22, s. 2 4S2 c. 29 509 s. 1.. .. 510, 511 c. 62 254 c. 81 152. 288 liv Table of Statutes. PAGE PAGE 7 & 8 Vict. c. 101, s. 31 387 14 & 15 Vict c. 99, s. 7 150 8 & 9 Vict. c. 10 719 ss. 8, 9, 10, c. 16, s. 9 151 11.. 142 c. 83 112 s 11 .... 142 s. 80 108 s. 13.. 142, 175, c. 109, s. 2 .. 518, 703 415 s. 15 .... 518 s. 14.. 143,150, s. 17.. 341, 518 152, 237, c. 113 .. 141, 144, 482 286 s. 1 .. 141, 153 ss. 15, 16 143 ss. 2, 3 .. 141 s. 17.. 143, 482 s. 4 . . 141, 480 c. 100, s. 1..K c. 114 201 182, 183, 9 & 10 Vict. c. 24 226 217, 252, c. 48 704 325, 333, c. 95, s. 57.. 476, 732 505, 529, s. 77.. 718 644, 877 10 & 11 Vict. c. 82 550 s. 5 498 c. 89, s. 15.. 229, 231 s. 8 . . 503, 504 11 & 12 Vict. c. 42.. 50, 51, 677, s. 9 . . 70, 176, 879 252, 269, s. 4.... 93, 684 519, 775 s. 10 676 s. 10 .... 177 s. 17 .. 58, 61, s. 12.. 71, 434, 63, 65 777 s. 18.. 50, 51, 54 s. 19 .... 739 s. 20 .... 93 s. 20.. 720, 739 s. 27 . . . . 66 s. 21.. 739. 740 8. 34 66 s. 22.. 143, 739 c. 43 676 s. 23.. 217, 219 s. 8 720 s. 24 . . 74, 217 s. 23 .... 676 s. 25.. 181, 184, c. 46, s. 1 166 197, 204 s. 4 .... 182 s. 27 .... 173 c. 59 550 s. 28 .... 175 c. 78 209 s. 29 .... 702 ss. 1,2 . . 207 {See this statute in the Appendix. ) ss. 3, 4 . . 208 15 & 16 Vict. c. 57, s. 8 299 s. 5 . . 198, 205 16 & 17 Vict. c. 30, s. 9 96 c. 88, ss. 4, 5 . . 754 c. 83 107 12 & 13 Vict. c. 68 677 s. 3 133 c. 103, s. 15.. 401, 552 c. 99, s. 6 844 c. 106, s. 252 . . 281 c. 11£ ..518, 519,703 14 & 15 Vict. c. 19 89 c. 125 , s. 1. .706, 707 s. 3 255 17 & 18 Vict c. 38, ss. 1, 2 . . 518, s. 5 . . 71, 267, 703 524, 850 c. 10S , ss. 2, 3 . . 298, s. 7 766 299, 301, s. 11. .213, 229, 427 516 ss. 10, 12, ss. 12, 14 ..213 13.. 298, 300 s. 21 516 18 & 19 Vict. c. 126 c. 55 215 19 & 20 Vict. c. 16 s 9 516 s. 2 212 171, 227 s. 19 219 ss. 13, 25, s. 24 219 26.. 211, 213 c. 92, ss. 3, 4, 5, c. 54, ss. 1, 3 .. 165 6.. 550 c. 96, s. 1 288 c. 11£ , ss. 2, 18 739 c. 99 .. 107, 142, 153 s. 21 . . 287 Table of Statute, lv PAGE '20 & 21 Yict. c. 3, s. 2 . . 510, 844 c. 77, s. 69 .... 149 c. 83 597, 702 c. 85, ss. 21, 25 327 21 & 22 Vict. c. 25 286 22 & 23 Vict. c. 17 . .276, 430, 702, 704, 717, 739, 771 s. 1 .. 166, 367, 722, 878 (Sec this statute in the Appendix.) c. 35, s. 24 366 23 & 24 Vict. c. 18 287 c. 32 390 c. 38, s. 8 366 c. 75 201 c. 86 288 c. 123 722 24 & 25 Vict. c. 26, s. 68 408 c. 94 163 ss. 1, 2 161,557 s. 3 163 s. 4.. 163, 201 ss. 5. 6 . . 161 s. 7 164 s. 8 163 s. 9 223 c. 95 872, 873 c. 96 . . 19, 313, 388, 392, 400, 640 S. 1.. 244, 314, 331, 400, 414, 430, 444, 548, 848 s. 2 ;, I ^ s. 3 .. 549, 571 s. 4 .. 460, 549 ss.5,6 178, 549 s. 7 . . 460, 549 s. 8 .. 460, 549 s. 9 .. 400, 549 ss. 10, 11 337, 614 s. VI.. 17';, 388, 585. 614 ss. 13, 14, 15, 16.. 388, :.s;,, i;i |,i;:;n s. 17.. 509, 512 s. 18 391 s. 19 .... 391 s. 20 .... 391 s. 23 .... 742 s. 24 456 ss. 25, 26 457 s. 27 .... 852 s. 28 852 s. 29..5S7, 61 I s. 30.. 587, 853 24 & 25 Vict. c. 96 PAGE s. 31.. 459, 587 ss. 32, 33 845 s. 36 .... 845 s. 38 639 s. 39 640 s. 40 .... 800 s. 41.. 71, 176, 2(12, 800 s. 42.. 262, 800 s. 43 250, 262, 800 s. 44 .... S36 s. 45 .... 836 s. 46.. 815, 836 s. 47.. 815, 837 s. 48.. 801. 837 s. 49 .... 837 s. 50 .... 816 ss. 51, 52 313 s. 53 313, 321, 392 s. 54.. 313, 314 s. 55 392 s. 56.. 392, 823 s. 57.. 392, 816 s. 58 313, 336, 365, 614 s. 59.. 314, 614 s. 60.. 78, 392, 614 s. 61 .... 393 s. 62 .... 638 s. 63 819 s. 64.. 819, 821 s. 68 397, 399, 400, 407, 408 s. 69 604 s. 70.. 397, 407 s. 71 179, 397, 399, 412, 414 s. 72.. 71, 176, 398, 409, 586 s. 73 .... 399 s. 74 .... 835 s. 75.. 45, 242, 244, 246, 762, 848 ss. 76, 77 242, 243, 246 ss. 78, 79 243 s. 80 .... 848 ss. 81—84 45, 761, 762 s. 8."... 140, 245 s. 87.. 169, 762 s. 88.. 71, 340, 429, 434, 449 8. 89 .... 429 s. 90.. 429, 467 lvi Table of Statutes. PAGE PAGE 24 & 25 Vict. c. 96, s. 91 .... 778 24 & 25 Vict. c. 97, s. 43 819 s. 92 179,779, s. 44 250,269, 789 819 s. 93 .... 778 s. 45 418,614, s. 94.. 71, 176, 819 778 ss. 46—49 s. 95.. 778, 779 819, 820 s. 96.. 779, 789 s. 50 .... 837 s. 100 202 s. 51 ..20, 619 s. 101 365 ss. 51,52.. 619 s. 102.... 365 s. 54 419 s. 103.. .. 228 s. 57 .... 230 s. 104.. 89, 230 s. 58 251,258, s. 112 460 337, 338, s. 114.... 225, 385, 419, 460, 592 640 s. 115 222,592 s. 59 251,421, s. 116 89,167, 640 196 s. 60 251,258, s. 117.... 201 259, 421, c. 97 248, 252, 640 796 s. 61 228 ss. 1—6.. 248, s. 72 223 249, 251, s. 73 201 256, 765 s. 77 .... 213 s. 7 . . 249, 255 c. 98 . . 19, 467, 482 s. 8.. 249, 269 ss.1,2 467,468 s. 9.. 418,419 s. 3 469 s. 10.. 269, 418, s. 4.. 428, 468, 419, 614 469 s. 11.. 793,797, ss.5,6 468,469 816 s. 7 . , 470 s. 12 794, 797, s. 8 ..470, 482 816 ss. 9, 10.. 470 s. 13 .... 835 ss. 11, 12, ss. 16—18 249, 13, 14.. 471, 846 473 s. 18 269 s. 15 .... 472 ss. 19, 20 846 s. 16.. 472, 489 ss. 21—23 846, s. 17 .... 473 847 ss. 18,19.. 473 s. 26.. 249, 639 s. 20 468,474, s. 27 249,269, 490 639 ss. 21, 22 468, s. 28.. 639, 640 474 s. 29 640 s. 23.-474,494 s. 30 817 ss. 24,25.-475, s. 31 817 493 s. 32.. 748, 817 ss. 26,27. . t75, s. 33 312 476 s. 34 848 s. 28 ^75 s. 35 177,765, ss.29,30,31 476 766 ss. 32,33.. 476, s. 36 177,765, 477 766 s. 34 426 ss. 37, 38.. 269, s. 35 .... 477 832 s. 36.-424, 477 s. 39 849 ss. 37,38.. 451, s. 40.. 337, 850 477, 478, s. 42.. 249, 819 498, 834 '['able of Statutes. lvii PAGE PAGE 24 & 25 Vict. c. 98, ss. 39, 40 478 24 & 25 Vict. c. 100, s. 17 .... 260 s. 41.. 479, 507 s. 18 260,269, ss. 42, 43 479, 521, 693, 497, 505 822, 850 s. 44 480, 498, s. 19 260,692, 502, 503, 505 822 ss. 45,47,48 480 s. 20 260,264, s. 49 .... 481 521, 850 s. 50 223 s. 21.. 260, 269 s. 51 .... 201 s. 22 .... 748 s. 54 .... 213 s. 23.. 521, 748 c. 99 19, 353 s. 24 264,748, s. 1 .... 353 749 ss. 2,3 353,354 s. 25 .... 748 ss. 4,5,6.. 354 s. 26 521,544, s. 7 354 545 s. 8 , 355 s. 27 263,348, s. 9 ..355, 359 521 ss. 10,11.. 355 s. 28.. 418, 521 s. 12.. 72, 196, s. 29.. 419, 521 355, 362 s. 30 418.521, ss. 13, 14, 819 15.. 286, 356 s. 31 350,521, ss. 16,18.. 356 829 ss. 19, 20, ss. 32, 33.. 177, 21 .... 357 765, 766 s. 22 .... 357 s. 34 177,765, s. 24 .... 357 766 ss. 25,28.. 358 s. 35.. 508, 521 ss. 29,30.. 358 s. 36 .... 261 s. 31 .... 228 s. 37 .... 261 s. 35 .... 358 s. 38 261,776, s. 36 223, 358 826 s. 37.. 89, 167, s. 41 .... 383 196, 361 ss. 42, 43 261, s. 38 .... 201 34 S s. 42 .... 213 ss. 44,45.. 261, c. 100 .... Ill, 232, 267 693, 771 s. 46 267 s. 1 641 s. 47 262,264, s. ■>.. 199, 200 266 s. 3.. 199, 560 s. 48, 49.. 108, s. 4.. 224, 379, 111, 112, 641 767, 771 s. 5 620 s. 50..10S, 771 s. 6.. 620, 641 s. 51.. 108, 771 s. 7.. 543, 766 s. 52 108,111, s. 9.. 224, 620, 262, 268, 641 348, 771 s. 10.. 22:;, 620 ss. 52—55 111, s. 11 521,692, 233, 771 748, 850 s. 53 lOS.lll, s. 12 418 232, 233, s. 13 250,692, 234, 237 819 ss. 54,55.. 108, s. 14 692,693, 111, 112, 233, 748, 822 234, 237, 238, s. 15 269,692, 348 693 s. 56.. 233,234, s. 16 836 237, 348, 390 lviii Table of Statutes. PAGE 24 & 25 Vict. c. 100, s. 57. .16, 284, 294 ss. 58, 59 239, 749 s. 60.. 71, 176, 350, 641 s. 61 828 s. 62 262, 269, 828 s. 63 767, 774, 828 s. 64 419 .s. 66 230 s. 67..550,641 s. 68 .... 223 s. 69 550 s. 71 .... 201 s. 72 .... 550 s. 73.. 262,544 ss. 74, 75 212, 213, 262, 544 s. 77.-213,544 s. 114 551 25 & 26 Vict. c. 18 768 c. 61, s. 19 542 ss. 34, 35 540 s. 44 530 s. 46 536 c. 89 ss. 166—168 763 c. 114, s. 2 .... 516 26 & 27 Vict. c. 27 287, 288 s. 7 288 c. 29, s. 6 300, 303 c 44 261, 800 c. 73, s. 14 428 c. 87, s. 9 399 s. 10 .... 554 c. 90 288 c 103, s. 1 .... 577 c. 113 749 c 117 775 27 & 28 Vict, c. 19 722, 739 s. 9 204 c. 53 677 c. 101, ss.21, 47, 48 .. 530 s. 51 . . 530, 531 c. 115 749 28 & 29 Vict. c. 18, s. 2 189 s. 3 92 ss. 4, 5 56, 57. 123 s. 6 ..132, 143 s. 7 153 s. 8.. 5, 89, 154 c 89, s. 45 696 c. 124, s. 6 482 PAGE 28 & 29 Vict. c. 124, ss. 8, 9 426 c. 126, s. 37 . . 417, 761, 791 29 & 30 Vict. c. 52 . . 98, 211, 212 c. 108, ss. 15— 17 763, 764 c. 109, ss. 10, 11, 12, 13.. 547 s. 34 . . 250 c. 117 407 s. 14 . . 200 s. 22 . . 417 c. US 407 s. 34 .... 417 30 & 31 Vict, c 35, s. 1. .166, 367, 430, 702, 704, 717, 739 s. 2 ..166, 214 s. 3 58, 63, 65, 93, 95, 98 ss. 6, 7 . . 59 s. 9 .... 203 (Sec tJiis statute in the Appendix.) c. 84, s. 30 425 s. 32 705 c. 128, ss. 3, 20.. 695 c. 131, s. 35 . . 428 31 Vict. c. 24, s. 9 425 31 ct 32 Vict, c. 37 150, 482 s. 2 143 c. 45, ss. 51, 52, 55 457, 458 c. 110, ss. 20, 21 833 c. 116, s. 1.. 403, 405, 551, 583 c. 119, s. 5.. 763, 764 s. 8 . . . . 764 c. 121, s. 14 .. 425 c. 125, s. 17 .. 299 32 & 33 Vict. c. 24, sched. 2. . 603 c. 62 169, 273 s. 11.. 273, 280 s. 13 .... 280, 282, 430 s. 14 . . . . 280, 425, 739 s. 17 .... 214 c. 68 108 c. 73, s. 23.. 483, 750, 755, 833 s. 24 .... 833 c. 102, ss. 19, 20, 21 468 33 Vict. c. 14 182 33 & 34 Vict. c. 23, s. 1 .... 129 s. 2 199 s. 3.. 199, 203, 212 s. 4.. 203, 212 Table of Statutes lix 33 & 34 & 35 & 36 .v 37 & 38 V ;;,s ,v PAGE 34 Vict. c. 23, s. 10 ... . 588 c. 52 225 s. 15 ..68, 225 c. 58, s. 3 .... 468 s. 4 .... 428 c. 77 187 c. 90, ss. 2, 3 . . 224 s. 11 .... 224 35 Vict. c. 31 214 ss. 2, 3 . . 402 s. 8 .... 553 ss. 18, 19 422 c. 32 , , 380, 382 c. 36, s. 9 425 c. 79 425 ss. 3, 7 . . 231 s. 8 204 ss. 10, 11 163 s. 15 90 c. 112, s. 18 .. .. 143 s. 19.. 85, 168, 196, 778, 788 36 Vict. s. 3 ..395, 483 s. 10 .... 423 s. 24 301, 427 c. 44, s. 11 .... 477 s. 12 .... 483 c. 93, s. 30 203 37 Vict. c. 32, s. 13 470 c. 38 90, 518 c 60 225 c. 66, s. 16 171 s. 47 210 s. 100 .. 210 c. 71, s. 13 .... 817 38 Vict. c. 3, s. 13 .... 470 c. 15 518, 703 c. 36, ss. 1,2,3.. 428 c. 42, s. 1 452 s. 9 553 c. 62 278 c. 88, s. 38 152 S. 40 424 sub-s. 2 483 ct. c. 24, s. 1 4( ss. 2, 3 400 39 Vict. c. 17 419, 700 s. SI .... 483 ss. 91,92.. 42(1 c. 25 ..19, 694, 696 ss. 1, 2, 3, 4, 5.... 694 ss. 6-18.. 695 c. 2."., ss. 10, 17.. 695 c. •"'•" 705 ss. 116—119 705 PAGE 38 & 39 Vict. c. 63, s. 3 705 c. 77, ss. 16, 19.. 209 c. 83 468 s. 32 .... 475 c. 86 ..111, 380, 383 ss.3,41 11,367, 383 s. 5. .111, 367, 384 s. 6.. Ill, 384, 544 s. 7 ..262, 384 s. 9 ..385, 544 s. 10 .... 385 s. 11.. Ill, 385 s. 12, sub-s. 6 214 ss. 14, 15, 16 385 c. 87 852 s. 99 . . 366, 425 ss. 100, 101 425, 483 c. 89. s. 44 729 39 Vict. c. 13 338 39 & 40 Vict. c. 22, ss. 3, 9, 12 553 s. 16 422 c. 36 824 s. 28 483 s. 29 554 s. 36 739 s. 85 399 s. 168 425 s. 189 824 s. 190 825 ss. 191— 193 825 ss. 210—216, 255, 257, 258, 260— 262.. 826, 827 c. 77 338 40 Vict. c. 14 Ill c. 24 541 40 & 41 Vict. c. 26, s. 6 . .151. 592 41 & 42 Vict. c. 26, s. 25 423 c. 33, s. 35 425 c. 73 221 c. 77, s. 10 536, 542 42 & 43 Vict. c. 11 151 c. 18 704 c. 21, s. 10 824 c. 22, ss. 3, 5 . . 214 s. 7 ..203, 21 I c. 34 262, 545 s. 1 284 c. 49.. 167, 398, 554, 77'.' s. 17 .... 167 c. 59 617 lx Table of Statutes. PAGE 43 & 44 Vict. c. 33 754 s. 3 .... 483 c. 41, s. 1 386 s. 7 .... 794 s. 10 . . . . 425 c. 45 267, 777 44 Vict. c. 12, s. 12 826 44 & 45 Vict. c. 24 677 c. 57 547 s. 16 792 s. 36 426 e. 58 426, 547 s. 142 . . 426 c. 60, ss. 1, 2, 3 604 ss. 4, 5 . . 604 s. 6 166 s. 15..150,605 c. 68, s. 15 207, 208, 209 c. 69 225 45 Vict. c. 9, ss. 2, 3 ....141, 482 45 & 46 Vict. c. 43 279 c. 50 311 s. 2 301 ss. 22, 23, 24 151 ss. 28, 30 301 s. 59 423 s 74 396, 483 s. 77 .... 301 s. 117 . . 247 s. 119 .. 308 s. 186 . . 187 s. 228 . . 220 s. 235 . . 483 Sched. 1, Pt. 2 .. 712 Sched. 6 219 c. 61, s. 3 491 c. 75 ..93, 278, 327. 870 s. 12 108. Ill, 112, 586, 590 s. 16 108, 111, 112, 586, 870 46 Vict. c. 3 112, 420, 700 ss. 2, 3 420 s. 4 112, 420 s. 5 164, 420 s. 6 131, 120 s. 7 179, 420, 421 ss. 8, 9 421 46 & 47 Vict. c. 22, s. 17 483 c 38, s. 2 196,201. 858 c. 45 359, 360 o. 51 112, 395 s. 1, sub-ss. 1, 2, 3.. 112, 297, 301 PAGE 46 & 47 Vict. c. 51, Sched. 5 .. 426 s. 3 427 s. 6 ....302, 427 sub-s. 2 302, 427 sub-ss. 3, 4 302 ss. 13—23 .. 299 s. 24 427 s. 33 (7) 423, 739 s. 41, sub-s. 4 396 s. 43, sub-s. 5 301 ss. 45, 46 301 s. 48 299 s. 50 227, 300, 301 s. 51 300 s. 52 71, 300 s. 53 112, 299, 300 ss. 55, 56 301 s. 57 214, 301 s. 58 301 s. 59 130, 301 s. 60 301 s. 64 427 c. 52 ....45,273,277 s. 5 273 s. 11 273 ss. 12, 13 275 s. 14 276 s. 16 276 s. 17 ....276, 722 ss.18, 19,20.. 276 s. 23 276 s. 25 282 s. 27 722 s. 31 ....276,280 s. 103 274 s. 149 ..273, 276 s. 152 278 s. 162 273 s. 163 273,274,275 s. 164 276 s. 165 281 s. 166 277 s. 167 ..178, 277 c. 61, s. 13 739 47 & 48 Vict. c. 14, s. 1 ... . Ill, 586 c. 54, s. 47 739 c. 64 201 c. 70 ..300, 301, 396 s. 1 427 s. 2 301 c. 76 750 ss. 3, 4 754 s. 11 834 s. 13 750, 751, 754 s. 19 753 48 & 49 Vict. c. 49. s. 3 832 112, 118, 169, 212. 233, 771 Tn hie of Statutes. lxi PAG E 48 & 49 Vict. c. 49, s. 2 .. 118,371, 767, 773 s. 3.. 118,236,264, 430, 749, 767, 838 s. 4 101, 118, 233, 265, 739, 767, 768, 772, 775, 857 s. 5 .... 769, 773 s. 6 769 s. 7 233, 235, 237. 238 ' s. 8 770 s. 9 .... 770, 775 s. 11 ....262, 700, 8-28 s. 12 770 s. 13 704 s. 16 771 s. 17 166,169, 771 s. IS 771 s. 20 111, 233, 268, 771. 776 1'.' Vict. c. 14, s. 1 ..286, 287, 289 s. 23 286, 287 50 & 51 Vict. c. 25, s. 1 200 s. 3 .... 201 c. 28 ..112, 312, 167 s. 2 482 s. 4 ..4S2, 483 s. 1 .... 1 1 2 s. 14 214 c. 41, s. 75 396 c. 43, s. 2S 732 s. 180 732 c. 46, ss. 1— 5..10G, 72! c. 58, s. 32.. 425, 483 c. 64 112 c. 71. s. 4 66 s. 5 66 51 & 52 Vict. c. tl, s. 85 508 c. 46, s. 6 v 881 c. 64, s. 3.. 604, 612 s. 4 604 s. 7.. 204, 597 s. 8 604 s. 9.. 112, 609 52 Vict. c. 10, s. 7 739 s. 8 483 52 & 53 Vict. c. 12 170 c. 18, s. 6 231 c. 21 341 c. 42, s. 2 357 c. 52, s. 1 714 ss. 2—6. . 715 s. 4 ..214, 821 s. 6 ..227, 716 52 & 53 Vict 53 Vict. 53 & 54 Vict 54 Vict. 5 I & 55 Vict. 55 & 56 Vict. 56 & 57 Vict. PAGE c. 52, ss. 7, 8, 9.. 716 c. 63, s. 3 711 s. 9 144 c. 69 297 s. 1 302 s. 2 302 ss. 3, 4 . . 303 s. 5 ..214, 303 ss. 6, 7 . . 303 c. 72 705 c. 5, s. 15 .... 231 s. 38 .... 548 - s. 40 .... 545 s. 44 .... 545 s. 117. . .. 545 s. 195.. .. 545 s. 200.. .. 545 s. 315.. .. 545 ss. 31 7. 318 425, 546 s. 322 545 s. 324 . . 546, 771, 773 s. 329.... 546 c. 4 112 c. 21, s. 10 .... 303 s. 11 .... 827 s. 12 .... 428 sehecl 714 s. 24 . . 6, 150 c. 34 705 c. 37 225 c. 45, s. 9 127 c. 54 387 c. 71, s. 7 282 s. 26 .... 275 s. 27.. 45; 140, 215 c. 15, s. 2 .... 21 1 s. 13 .... 830 s. 14 .... 830 c. 38, ss. 15, 81, 27 .... 831 c. 39, s. 14 .. .. 156 c. 46, s. 10 754 " c. 65, s. 25 .... 546 c. 69 . . 90, 203, 204 s. 2 231 s. 3 204 s. 6 231 s. 7 90 c. 76 705 s. 47 705 c. 4 520 c. 23, s. 15 .... 739 s. 16 289 c. 53, sched. 1 . . 396 c. 64 99, 714 c. 39, s. 3 553 ss. 6, S . . 553 lxii Table of Statutes. PAGE PAGE 56 & 57 Vict. c. 39, s. 21 .... 553 57 & 5S Vict. c. 60, s. 241 821 s. 64 . 452 s. 248.. . 399 s. 75 . 151 s. 282.. . 483 c 48. e>. 1 . 200 s. 398.. . 821 c c. 61 711 . 203 s. 422.. s. 457.. . 821 71, s. 24 . 820 57 Vict. c. 6 ......... . 170 s. 535.. . 821 57 & 58 Vict. c. 4, ss. 13, 14 . 58 s. 564.. . 483 c. 33, s. 2 . 417 s. 607.. . 820 c. 41.. 108, 112, 118, 233, 262, 344, 348 s. 1 344 s. 4.. 231, 344 s. 6 345 ss. 7, 8 . . 345 s. 11 345 s. 12.. 112, 346 ss.680,684 818, 820, 821 s. 687 .. 213, 221, 224 s. 695 .. 150, 483 ss. 700, 701.... 213 s. 719 . . 150 s. 13 346 58 & 59 Vict. c. 33 225 ss. 14, 16.. 60, c. 39 199, 263 149, 347 s. 4 199 s. 15.. 61, 101, 59 & 6 c. 19 705 739, 776 c. 25 406 s. 17 . . . . 237. s. 49 553 347,776 s. 53.. .. 150 s. 19 344 s 100 .. 150 ss. 20, 21.. 21 4, c. 26, s. 11 ... . 553 347 c. 57 169, 314 s. 23 347 60 Vict. c. 18 194 s.24..265 ; 347 60 & 61 Vict. c. 52 262, 545 c. 60, s. 15 821 61 & 62 Vict. c. 36 50, 51, 107, s. 66 483 109, 111, 123, s. 67 .... 425 130, 133, 262, ss. 104, 586 121,130 483 s. 1 .... 192 s. 147.. .. 821 ss. 2,3.. 190, s. 154 483 192 s. 180. . . 483 s. 4.. 107, 111, s. 187.. . 818 112, 262. 346, s. 188.. . 818 586, 771, 828 s. 197.. . 483 s. 6 Ill s. 220 . 820 (Sec this statute in the Appendix. ) STATUTES IN THE APPENDIX. PAGE 14 & 15 Vict. c. 100 870 22 & 23 Vict. c. 17 877 30 & 31 Vict. c. 35 878 61 & 62 Vict. c. 36 882 61 & 62 Vict. 2. 60 885 A DIGEST OF THE LAW OF EVIDENCE IN CRIMINAL CASES. The general rules of evidence are the same in criminal and in civil proceedings. " There is no difference as to the rules of evidence," says Abbott, J., "between criminal and civil cases: what may be received in the one maybe received in the other; and what is rejected in the one ought to be rejected in the other." R. v. Watson, 2 Stark. N. P. C. loo; A'.'v. Murphy, 8 0. & P. 306. Best evidence."] It is the first and most signal rule of evidence that the best t>\ idence of which the case is capable shall be given; for if the best evidence be not produced, it affords a presumption that it would make against the party neglecting to produce it. Gilb. Ev. ;j Bull. N. P. 293, per Jervis, * '. J., in Twyman v. Knowles, 13 C. B. 224; Best on AV., Pt. 1, eh. 1, ss. 87 and 89. Hist evidence — chattels."] Primary evidence of the contents of written documents is required, as will be presently seen, in almost every case ; but with regard to the state or quality of a chattel not produced in court, it would seem that secondary evidence may be given. On the trial of an indictment for endeavouring to obtain an advance from a pawnbroker upon a, ling by false pretences, evidence was tendered to show that the prisoner had offered another ring to another pawnbroker upon a previous day; this ring was net produced, but the pawnbroker stated that it was a sham. The evidence was held admissible. Lord Coleridge, C. J., made the following remarks: — "No doubt it' there was not admissible evidence thai this ring was false, it ought not to have been left to the jury; but though the non-production of the article may afford ground for observation more or less weighty, according to circumstances, it only goes to the weight, not to the admissibility of the evidence, and no question as to the weight of this evidence is now before us. Where the question is, as to the effect of a written instrument, the instrument itself is primary evidence pi its contents, and until it is produced, or the non-production is excused, no secondary evidence can be received. Bui there is no case whatever deciding that when the issue is as to the state of a chattel, , .,/., the sound- ness of a horse or the quality of the bulk of the g Is to the sample, the production of the chattel is primary evidence, and that no other evidence can be given till the chattel is produced in court for the inspection of the jury." ~ R. v. Francis, A. A'., 2 C. C. A'. 128; 43 A. ./., M. C. 97. As to an inscription on a ring, see A', v. Farr, post, p. 8. R. B 2 Best Evidence. Best evidence — written instruments.'] The most important application of this principle is that which rejects secondary and requires primary evidence of the contents of written documents of every description, by the production of the written documents themselves. The rule was so stated by the judges on the occasion of the trial of Queen Caroline (2 B. & B. 286), and is perfectly general in its application ; the only exceptions to it being founded on special grounds. These may be divided into the follow- ing classes: — (1.) Where the written document is lost or destroyed: (2.) "Where it is in the possession of an adverse party who refuses or neglects to produce it: (3.) Where it is in the possession of a party who is privileged to withhold it, and who insists on his privilege : (4.) Where the production of the document would be, on physical grounds, impossible, or highly inconvenient: (5.) Where the document is of a public nature, and some other mode of proof has been specially substituted for reasons of convenience. It is apparent, therefore, that, in order to let in the secondary evidence in these cases, certain preliminary conditions must be fulfilled ; what these conditions are we shall explain more particularly when we come to treat of Secondary Evidence- It is not necessary, in every case where the fact that is to be proved has been committed to writing, that the writing should be produced, but (unless the contents of the written document is itself a fact in issue) only in those cases where the documents contain statements of facts, which, by law, are directed or required to be put in writing, or where they have been drawn up by the consent of the parties for the express purpose of being evidence of the facts contained in them. Indeed, in many cases the writing is not evidence, as in the case of B. v. Layer, infra, p. 3. The following cases are cited as instances of the general ride. Upon an indictment for setting fire to a house with intent to defraud an insur- ance company, in order to prove that the house was insured, the policy must be produced, as being the best evidence, and the insurance office cannot give any evidence from their books unless the absence of the policy is accounted for. R.y. Doran, 1 Esp. 126; B. v. Kitson, I Bears. O. C. 187 ; 22 L. J., M. C. 118. Upon the same principle, the records and pro- ceedings of courts of justice, existing in writing, are the best evidence of the facts there recorded. As, for instance, where it was necessary to prove the day on which a cause came on to be tried, Lord Ellenborough said that he could not receive parol evidence of the day on which the court sat at nisi prius, as that was capable of other proof by matter of record, Thomas v. Anslcy, 6 Esp. 80. Vide post, Doc. n military Evidence. So, on an indict- ment for disturbing a protestant congregation, Lord Kenyon ruled that the taking of the oaths under the Toleration Act, being matter of record, could not be proved by parol evidence. B. v. Huhe, Peake, N. P. 180 ; ,3 T. B. ,342. InB. v.Bcivland, 1 E. &F. 72, Bramwell, B., held that on an indictment for perjuiy, in order to prove the proceedings of the county court, it was necessary to produce either the clerk's minutes, or a copy thereof bearing the seal of the court ; the county court Act directing that such minutes should be kept, and that such minutes should be admissible as evidence. And it has been said generally that where the transactions of courts which are not, technically speaking, of record are to be proved, if such courts preserve written memorials of their proceedings, those memorials are the only authentic modes of proof which the law recog- nises. 3 Stark. Ev. 1043, 1st ed. On indictment for perjury, where it appears that there was an information in writing such writing is the best evidence of the information, and must be produced. B. v. Dillon, 14 C. & R. 147. And. where the loss or destruction of a paper is highlv probable, very slight evidence is sufficient. Per Abbott, <'..!., in Brewster v. Sewell, 3 B. & Aid. 296. Thus where depo- sitions have been delivered to the clerk of the peace or his deputy, and it appears thai the practice is, on a bill being thrown out, to put away the depositions as useless, slight evidence of search is sufficient, and the deputy need not be called, it being his duty to deliver the depositions to his principal. Freeman v. Ashell, 2 11. & C. 494. See Boyh v. Wiseman, 10 Ex. 647. Where it is the duty of the party in possession of a document to deposit it in a particular place, and it is not found in that place, the presumption is tli.it it is lost or destroyed. R. v. Stourbridge, 8 />'. & ('. 96. And where an attorney or officer is applied to generally for documents, the courl will assume, until the contrary is proved, that all the documents relating to the subject of inquiry are produced. UPGahey v. Alston, 2 M. d' W. 213. But where an attorney was applied to for a document which related to his own private affairs, and by his direction a search was made in his office, and the document was not found, the ( ourt of Queen's Bench refused to say that the court of quarter sessions was wrong in deciding that there had not been a sufficient search for the purpose of rendering secondary evidence admissible. /.'. v. Saffron Hill. 1 A', it' Jl. 93; li 12 /.../., M. C. 22. It is not necessary in every case to call the person to whose custody the document is traced. //. v. Saffron Hill, ubi supra. But some doubt seem-, to have existed whether, if he be not called, evidence can be given of 8 Best Evidence. answers made by him to inquiries respecting the document. Such evi- dence appears to have been received in R. v. Morton, 4 M. & S. 48, but was rejected in It. v. Denio, 7 B. & C. 620. In R. v. Kenilworth, 7 Q. B. 642, the court seems to incline to the opinion that for this preliminary purpose such evidence ought to be received ; in R. v. Saffron Hill, 1 F. & B. 93, evidence of this kind had been received, but as the court thought that, even if receivable, it was insufficient for the purpose, the point remained undecided. However, in 7?. v. Braintree, 28 L. J., M. C. 1, the Court of Queen's Bench thought that answers to such inquiries were admissible to satisfy the conscience of the court that the search had been a reasonable one. Secondary evidence — documents in the hands of adverse party.'] In the case where a document is in the hands of an adverse party, a notice to produce it in court must be given to him, before secondary evidence of its contents can be received. Its object is not, as was formerly thought, to give the opposite party an opportunity of providing the proper testimony to support or impeach the document, but it is merely to enable him to produce it if he likes at the trial, and thus to secure the best evidence of its contents. Dwyer v. Cull ins, 7 Ex. R. 639. There is no distinction between civil and criminal cases with regard to the production of docu- ments after notice given to produce them, and with regard to the admis- sibility of secondary evidence in case of their non-production. R. v. Le Merchant, coram Eyre, B.. 1 Leach, 300 (»). In R. v. Layer, for high treason, it was proved by a witness, that the prisoner had shown him a paper partly doubled up, which contained the treasonable matter, and then immediately put it in his pocket; and no objection was made to the witness giving parol evidence of the paper. 6 State Trials, 229 (fo. ed.) ; 16 HovelVs St. Tr. 170, S. C. ; /,'. v. Francia, 15 Howell's St. Tr.' 9il. But where it was proved that a ring which had been lost had an inscrip- tion upon it, and that the prisoner had been seen with a ring like the one which had been lost and with an inscription upon it, the counsel for the crown was not permitted to ask what was the inscription upon the ring seen in the prisoner's possession, no notice to produce the ring having been given to the prisoner. R. v. Farr, 4 F, & F. 336. See R. v. Francis, ante, p. 1. A notice to produce will let in secondary evidence in criminal as well as civil cases, where the document to be produced appears to have been in the hands of the agent or servant of the prisoner under such circumstances, as that it might be presumed to have come to his own hands. Colonel Gordon was indicted for the murder of Lieut. -Colonel Thomas in a duel. The letter from Gordon containing the challenge was carried by Gordon's servant, and delivered to Thomas's servant, who brought a letter in answer and delivered it to Gordon's servant ; but it did not appear in fact, that this letter was ever delivered to Gordon himself. Eyre, B., permitted an attested copy of the latter letter to be read against the prisoner, and left it to the jury as evidence, if they were of opinion that the original had ever reached the prisoner's hands. Hotham, B., concurred; but Gould, J., thought that positive evidence ought to be given that the original had come to the prisoner's hands. R. v. Gordon, 0. B, 1784; 1 Leach, 300 («). Though the evidence was rightly received there seems to be an error in leaving the preliminary question of fact to the jury: all such questions are for the court alone. See Boyle v. Wiseman, infra, p. 12. Where a prisoner's attorney produced a deed as part of the evi- dence of his client's title upon the trial of an ejectment, in which the prisoner was lessor of the plaintiff, and the deed was delivered back to Secondary Evidence. 9 the attorney when the trial was over, it was held to be in the prisoner's possession, and the prisoner not producing it in pursuance of notice, secondary evidence of its contents was received. Per Vaughan, B., R. v. Hunter, 4 ('. & P. 128. But in order to render a notice to produce available, the original instrument must be shown to bo in the possession of the opposite party, or of some person in privity with him, who is bound to give up possession of it to him. Therefore, where a document is in the hands of a person as a stakeholder between the defendant and a third party, a notice to produce will not let in secondary evidence of its con- tents. Parry v. May, 1 Moo. & R. 279. See also Laxton v. Reynolds, 18 Jar. 963. Secondary evidence — notice to produce — when dispensed with.'] Where from the nature of the prosecution the prisoner must be aware that he is charged with the possession of the document in question, a notice to produce it is unnecessary. Thus, upon an indictment for stealing a bill of exchange, parol evidence of its contents may be given, without any proof of a notice to produce. li. v. Aickles, 1 Leach, 294; 2 East, /'. 0. 675. So upon the trial of an indictment for administering an unlawful oath, it may be proved by parol that the prisoner read the oath from a paper, although no notice to produce that paper has been given. R. v. Moor, 6 East, -119 (n). See, also, II. v. Farr, supra, where the prisoner must have known that he was charged with the possession of the ring, although this point docs not appear to have been taken. But an indictment for setting fire to a dwelling-house with intent to defraud an insurance office, is not such a notice to the prisoner as will dis- pense with a notice to produce the policy of insurance, so as to allow the prosecutor to give secondary evidence of its contents. R. v. Ellicombe, :> 0. & /'. 522 ; 1 Moo. & 'li. 260; R. v. Kitson, 1 Dears. C. C. R. 187; 22 /.. ■/.. .1/. ( '. LIS. Upon an indictment for perjury it was held that secondary evidence of a draft last seen in the possession of the prisoner was inadmissible, no notice to produce having been given and the indict- ment not operating as a notice. It must be observed, however, that the course which the evidence took at the trial, was such, that a gi'eat deal turned on the contents of the draft, and on alterations alleged to have been made in it, and it would appear that this circumstance was regarded by several of the judges as of great importance. R. v. Elworthy, L. li.. 1 C. C. R. 103; 37 /.'. -/., .1/. C. 3. A notice to produce is not requisite where tin' document tendered in evidence is a duplicate original. Per Lord Ellenborough, Philipson v. Ghace, 2 Campb. IK); per Bayley, J., Colling v. Treweeh, 6 /!. & C. 394 ; or a counterpart ; BurleighV Stibbs, 5 '/'. R. 465; Roe d. West v. Davis, 7 East, 353; Mayor of ''artist, \. Blamire, 8 East, 487. Or where the instrument to he given iu proof is a notice, as a notice of action ; Jory v. Orchard, 2 B. & I'. '■'>'■>; a notice of the dishonour of a bill of exchange; Rum v. /!iit, 2 II. Q, II. 956. It is sullicient to dispense with a notice to produce, that the party in possession of the document has it with him in court. Dwyer \. Collins, 7 Ex. It. 639, overruling Bate v. Kinsey, 1 Cr. M. & It. 38. ' Secondary < vidence — notice f" produce^— form of. ] It is not necessary that a notice to produce shall he in writing; and if a notice by parol and in writing be given at the same time, it is sufficient to prove the parol notice 10 Secondary Evidence. alone. Smith v. Young, 1 Campb. 440 ; 3 Russ. Cri. 374, 6th ed. Nor is a notice to produce necessary if the document be known, and can be proved, to be not in existence. R. v. Haworth, 4 C. r>'s)nit/>/i<>itx and not proofs; for they stand instead of proofs of the fact tdl the contrary be proved. Glib. Ev. 157. The instance -elected by Gilbert, C. B., to illustrate the nature of pre- sumption is. where a man is discovered suddenly dead in a room, and another i> found running out in haste with a bloody sword; that is a violent presumption that he is the murderer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants of such facts; and the next proof to the sight of the fact itself is the proof of those cir- cumstances that usually attend such fact. / Bing. X. <'. 296, 301. So the presumption is that indorsements on a note admitting the receipt of interest were written at the time of their date. Smith v. Battens, 1 Moo. J' innocence ami legality.^ The law presumes a man to be innocent until the contrary is proved, or appears from some stronger pre- sumption. In other winds, ;i man cannot be presumed to have committed a crime without some evidence of it. But any evidence, however small, if it he such that a reasonable man might fairly be convinced by it, is sufficient for the purpose. Presumption against immofulity.~] There is also a general presumption againsl immoral conducl of every description. Thus legitimacy is always presumed; Banbury Peerage case, 1 Sim. & S. 153; and cohabitation is generally presumptive proof of marriage: Doe. d. Fleming v. Fleming, 4 Bing. 266; except in eases of bigamy. So it will not be presumed thai a trespass or other w ron i^ has been committed; lUst, Ev. 416; and there is always a presumption iii favour of the truth of testimony. /'/. 419. Where a woman, whose husband twelve months previously had left the country, married again, the presumption that she was innocent of bigamy was held to preponderate over the usual presumption of the duration of life. R. \. [nhab. <>/' Twyning, 2 /.'. & A. 386. But the observations of Bayley ami Best, JJ., in It. v. Twyning, with respect to conflicting presumptions, were questioned by the court in 1L v. Etar- borne, 2 Ad. & A'. 541. It has now been decided that no presumption 16 Presumptions. arises that the party is alive, but that it is a question for the jury. See R. v. Lumley, L. R.. 1 C. C. R. 196; see post, tit. Bigamy. See upon the point of conflicting presumptions, Middleton v. Barned, 4 Ex. 241. Presumption omnia rite esse acta.] This well-known presumption is of very common application. Upon this principle it is presumed that all persons assuming to act in a public capacity have been duly appointed. Thus in R. v. Gordon, Leach's Or. Ca. 515, on an indictment for the murder of a constable in the execution of his office, it was held to be not necessary to produce his appointment ; and that it was sufficient if it was proved that he was known to act as constable. The same presumption applies in favour of the due discharge of official and public duties; and see R. v. Cresswell, 1 Q. Jl. J>. 446; 43 L. J., M. C. 77; 13 Cox, 127, post, tit. Bigamy, where it was presumed that a clergyman rightly performed a marriage ceremony. R. v. Roberts, 14 Cox, 101, where it was held that a deputy county court judge acting as such was evidence of his being duly appointed. R. v. Stewart, 13 Cox, 296, where it was presumed that a consul at New York had taken proper steps with regard to the transmission of witnesses. Presumption from the course of nature.'] It is a presumption of law that males under fourteen are incapable of sexual intercourse. So it is a pre- sumption of fact that the period of gestation in women is about nine calendar months. The exact limits of this period are, both legally and scientifically, very unsettled ; and if there were any circumstances from which an unusually long or short period of gestation might be inferred, or if it were necessary to ascertain the period with any nicety, it would be desirable to have special medical testimony upon the subject. The subject was elaborately discussed in the Gardiner Peerage case, and the scientific evidence given in that case will be found in the report of it by Le Marchant. For ordinary purposes, however, it will be a safe presumption that fruitful intercourse and parturition are separated by a period not varying more than a week either way from that above mentioned. There is no presumption of law that life will not continue for any period however long, but juries are justified in presuming, as a fact, that a person is dead who has not been heard of for seven years; Hopewell v. De Pinna, '2 Campo. 113; this is in analogy to the period fixed by the 1 Jac. 1, c. 11, s. 2 (see now 24 & 25 Vict. c. 100, s. 57), which absolves a husband or wife from the penalties of the crime of bigamy after an absence of seven years. j Presumption of guilt arising from the conduct of the party charged.'] In almost every criminal case a portion of the evidence laid before the jury consists of the conduct of the party, either before or after being charged with the offence, presented not as part of the res gestae of the criminal act itself, but as indicative of a guilty mind. The probative force of such testimony has been elaborately, carefully, and pojmlarly considered by Bentham, in his Rationale of Judicial Evidence, ch. 4. In weighing the effect of such evidence nothing more than ordinary caution is required. The best rule is for the jury to apply honestly their experience, and to draw such inferences as experience indicates in matters of the gravest importance. This will, in general, be found a safer guide than a con- sideration of some of the extreme cases which are related in many of the books on evidence. These must be considered as somewhat exceptional, and it may be fairly said that this is a very useful kind of evidence, and one which no judge need seek to withdraw from the consideration of a jury. /'resumptions. 17 Presumption of guilt arising from the possession of stolen property.'] It has already been stated that possession is presumptive evidence of property, supra, p. 15; but where it is proved, or may be reasonably presumed, that the property in question is stolen property, the onus probandi is shifted, and the possessor is bound to show that he came by it honestly ; and, if he fail to do so, the presumption is that he is the thief or the receiver, according to circumstances. In every case, therefore, either the property must be shown to have been stolen, by the true owner swearing to its identity, and that he has lost it, or, if this cannot be done, the cir- cumstances must be such as to lead in themselves to the conclusion that the property was not honestly come by. In the latter class of cases there are two presumptions : first, that the property was stolen ; secondly, that it was stolen by the prisoner. The circumstances under which the former of these presumptions may be safely made are tolerably obvious. ' ' Thus," it is said in 2 East, P. < '. 656, " a man being found coming out of another's barn, and upon search corn being found upon him of the same kind with what was in the barn, is pregnant evidence of guilt. So persons employed in carrying sugar and other articles from ships, and wharves, have often been convicted of larceny at the Old Bailey, upon evidence that they were detected with property of the same kind upon them, recently upon coming from such places, although the identity of the property, as belonging to such and such persons, could not otherwise be proved. But this must be understood of articles like those above mentioned, the identity of which is not capable of strict proof from the nature of thern." In It. ^-^Dredm^ 1 Cox, 235, tin' prisoner was indicted for stealing a doll aluPother toys. The prosecutor proved that he kept a large toy-shop, and that the prisoner came into the shopdressed in a smock frock. After remaining there some time, from some suspicion that was excited, he was searched, and under his smock frock were found concealed the doll and other toys. The prosecutor could not go further than to swear that the doll had once been his, but he could not swear that he had not sold it, and he had not missed it ; and from the mode in which he kept his stock it was not likely that he would miss that or any other of the articles found on the prisoner. Erie, J., directed an acquittal. In I!, v. Burton, Dears, C. C. 282, the prisoner was indicted for stealing pepper. He was found coming out of a warehouse in which there was a quantity of pepper both loose and in bags; when stopped and accused, he threw some pepper on the ground, and said, "I hope you will not be hard with me." Upon the case of Jl. v. Dredge being cited, Manic, ,1 , pointed out the distinction that in this case the prisoner had, in fact, admitted thai the pepper had nut been honestly come by ; and he added " if a man go into the London Docks sober, and comes out of one of the cellars, wherein are a million gallons of wine, very drunk, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any wine was missed." In II. \. Hooper, 1 /■'. & I'. 85, the prisoner was charged with stealing 1!)() lbs. weighl of Lydney coal, lie was left with a ton of that sort of coals in a cart at twelve o'clock, and delivered them, according to his orders, at one o'clock. At half-past twelve o'clock he sold L90 lbs. weight of Lydney coal to a person living in tin • same town, but there was no e\ idence of the quantity delivered being less than a ton. or of any coal having been missed. Willes, J., left it to the jury to say, whether the 190 lbs. of coal sold by the prisoner was stolen property. if the property be proved to have been stolen, or may fairly be pre- sumed to have been so, then the question arises whether or not the prisoner is to be called upon to account for the possession of it. This he will be bound to do, and on his failing to do so, a presumption against R. C 18 Presumptions. him will arise, if taking into consideration the nature of the goods in question, they can be said to have been recently stolen. The presumption will be either that he stole the property or that he received it knowing it to be stolen. In what cases goods are to be considered recently stolen cannot be defined in any precise manner, but the following cases show what some of the judges have thought on the subject. "Where stolen property (it does not appear of what description) was found in the'posses- sion of a person, but sixteen months had elapsed since the larceny, Bayley, J., held that he could not be called upon to account for the manner in which it came into his possession. Anon., 2 C. & P. 457. Where two ends of woollen cloth in an unfinished state, consisting of about twenty yards each, were found in the possession of the prisoner, two months after they had been stolen, Patteson, J., held that the prisoner ought to explain how he came by the property. " The length,xii..time," said that learned judge, " is to be considered with reference to the nature of the articles which are stolen, p they are such as pass from- hand-to hand readily, two months would be a long time ; but here that is not soT"" Ji. v. "Pfflrfridge, 7 U. 35 P. 551. But Parke, B., directed an acquittal where the only evidence against the prisoner was that certain tools had been traced to his possession, three months after their loss ; R. v. Atl >tms, 3 C. tit P. GOO ; and Maule, J., did the same, where a horse, alleged to have been stolen, was not traced to the possession "of the prisoner until six months from the date of the robbery. R. v. Cooper, 3 C. & K. 31S. Where the prisoner was the servant of a firm which owned a large number of shovels, four of which were found in his possession, it was held that the question of larceny was properly left to the jury, although there was no evidence to show when they were missed, or how long they had been in his possession. R. v. Knight, 1 L. & G. 578. In R. v. Crowhurst, 1 C. &. K. 370, the prisoner was indicted for steal- ing a piece of wood ; upon the piece of wood being found by the police constable in the prisoner's shop about five days after it was lost, he stated that he bought it of a man named Nash, who lived about two miles off. Nash was not called as a witness for the prosecution, and no witness was called by the prisoner. Alderson, B., said to the jury, " in cases of this nature you should take it as a general principle that, where a man in whose possession stolen property is found gives a reasonable account of how he came by it, as by telling the name of the person from whom he received it, and who is known to be a real person, it is incumbent on the prosecutor to show that the account is false ; but if the account given by the prisoner be unreasonable or improbable on the face of it, the Mus of proving its truth lies on the prisoner." It appears, therefore, tnat the learned judge thought that in this case the prisoner's account was suffi- ciently reasonable to shift the burden of, proof back again on to the prosecutor, but the report does not state whether or not the case was left to the consideration of the jury. In R. v. Wilson, 26 L. J., M. <". 45, the prisoner was indicted for stealing some articles of dress. It was proved that the property was stolen, and sold by the prisoner. The prisoner on being apprehended said, that C. and D. brought them to his house and that he sold them. In consequence of this C. and D. were appre- hended and 0. was tried and convicted for stealing other articles taken from the prosecutor's house at the same time as the articles in question ; D. was discharged. The constable made inquiries as to the statement made by the prisoner of how he came by the goods, but no evidence of what transpired on such inquiries was received, being objected to by the prisoner's counsel. Neither C. nor D. were called as witnesses for the Presumptions. 19 prosecution, and no witness was called by the prisoner. The jury found the prisoner guilty, and the conviction was upheld by the court of criminal appeal, upon the ground, as stated by Pollock, C. B., that there was some evidence for the jury upon which the prisoner might be convicted. The following remarks by Mr. East on this subject are well deserving of attention : "It has been stated before that the person in whose possession stolen goods are found must account how he came by them, otherwise he may be presumed to be the thief ; and it is a common mode of defence, to state a delivery by a person unknown, and of whom no evidence is given ; little or no reliance can consequently be had upon it. Yet cases of that sort have been known to happen, where persons really innocent have suffered under such a presumption ; and, therefore, where this excuse is urged, it is a matter of no little weight to consider how far the conduct of the prisoner has tallied with his defence, from the time when the goods might be presumed to have first come into his possession." 2 East, P. C. 665. With respect to the evidence of guilty knowledge in charges of receiving stolen goods, see post, Receiving Stolen Goods. Presumption of guilt arising from the possession of property in other cases.'] There are cases in which the possession of property carries with it the presumption (if guilt, although the property has not been stolen ; mostly cases where the property itself carries with it indications of a criminal act. Instances of cases in which such a presumption is drawn are the possession of filings or clippings of gold or silver coin, of more than five pieces of foreign counterfeit coin, of coining tools (see 24 & 25 Vict. c. 99), the possession of instruments or paper for foreign exchequer bills and bank notes (see 24 & 25 Vict. c. 98), the possession of deer, or implements for taking deer, of implements for housebreaking, of goods belonging to ships wrecked or stranded (see 24 & 25 Vict. c. 96), the possession of naval and military stores (see 38 & 39 Vict. c. 25, and other acts). These pre- sumptions will be discussed under the headings of the principal offences to which they relate. Presumption of malice.'] Much of the difficulty connected with this subject will lie removed by considering what malice is in the legal sense of tlie term. " Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse." Per Littledale, J., in M'Pherson \ . Daniels, 10 B. & 0. 272. Best, J., in R. v. Harvey, 2 B. & < '. '2<>s, said " the legal import of this term differs from its acceptation in ordinary conversation. It is not, as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mis- chievous intention of the mind. Thus in the crime of murder, which is always stated in t lie indictment to be committed with malice aforethought, it is not necessary in support of such indictment to show that the prisoner bad 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 done without any justifiable cause." Thus, where a jury returned a verdict of guilty of murder, but said that they believed it was done withod premeditation, Byles, J., refused to receive the verdict, saying, "the prosecutor is not bound to prove that the homicide was committed from malice prepense. If the homicide be proved, the law presumes malice; and. although it may be rebutted by evidence, no such attempt has been made here." R. v. Moloney, !» ( '<>x, 6. He that doth a cruel aet voluntarily doth it of malice prepense. Holt, O. J., R. v. Mawgridge, Kelynge, 174. C2 20 Presumptions. All, therefore, that is meant by the presumption of malice is that when a man commits an unlawful act, unaccompanied by any circum- stances justifying its commission, it is presumed that he has acted advisedly, and with an intent to produce the natural consequences of such an act. Thus, in R. v. I) iron, 3 M. & S. 11, upon an indictment against the defendant, who was employed to make bread for a military asylum, for delivering bread made from unwholesome materials, it was held to be unnecessary to allege in the indictment, and, therefore, of course, unnecessary to prove, that the defendant intended to injure the health of any one, as that was an inference of law arising from the doing of the act. Where a man was convicted of setting fire to a mill, with intent to injure the occupiers thereof, a doubt occurred under the words of the statute, whether an intent to injure or defraud some person ought not to be proved ; or at least some fact from which such intention could be inferred, beyond the mere act of setting the mill on fire ; but the judges were of opinion that a person who does an act wilfully necessarily intends that which must be the consequence of the act, viz., injury to the owner. R. v. Farriiif/ton, Russ. & Ry. 207. And in R. v. Philp, 1 Mood. C. C. 263, where a part owner of a ship was indicted for setting fire to it with intent to prejudice his co-owners, it was held that the intent was implied by the act, and that no proof of it was therefore necessary. The prisoner was indicted for wounding with intent, but the jury found him guilty of unlawful wounding only, and it was held that malice was a necessary ingredient in the offence of which he was found guilty, and that malice was sufficiently shown under the following circumstances. The prisoner and the prosecutor, who had been on good terms, were in separate punts upon the water on a light night. The prisoner had on different occasions said he would shoot at wild fowl even if somebody was in the way at the time. The prisoner fired at twenty- five yards distance, and at that moment the prosecutor's punt slewed round and he was shot. The prisoner then rendered help, and assured him it was an accident. It was stated in the case that it seemed probable that the prisoner only intended to frighten the prosecutor, and to deter him from coming to shoot there again. The court did not, however, give their reasons for arriving at the conclusion that there was evidence of maliciously wounding. R. v. Ward, L.R.,\ C. C. R. 356 ; 41 L. J., M. C. 69; but Blackburn, J., in the coiu - se of the argument, said: "I have always thought a man acts maliciously when he wilfully does that which he knows w T ill injure another in person or property." See also R. v. Welch, post, tit. Cattle. Whereby the words of the statute creating the offence, the offence must be done unlawfully and "maliciously," it must be shown to have been done " wilfully " by an intentional act ; whatever may be the rule as to malice in cases of murder. A man who had been fighting in a crowd threw a stone which broke a window, but he threw it at the peoj)le he had been fighting with, intending to strike one or more of them with it, but not intending to break the window : held not guilty. If the jury had found that the prisoner was aware that the window was where it was, and that he was likely to break it, and was reckless whether he broke it or not, it might have been different. R. v. Pembliton, L. R. 2 C. C. 119; 43 /,. -/., M. C. 91. It is to be observed in the above case that the prisoner was indicted under 24 & 25 Yict. c. 97, s. 51, for unlaw- fully and maliciously injuring property, and that the jury negatived any intention to injure property. Had the conviction been for injuring one person's property while intending to injure another's, it would, it is sub- mitted, have been upheld. Where, therefore, the prisoner, while unlaw- fully and maliciously aiming a blow at A., accidentally wounded B., he- Presumptions. 21 was held to be rightly convicted of unlawfully and maliciously wounding B. R. v. Latimer, 1*7 Q. B. I). 359; 55 L. J., M. C. 135; R. v. Hunt, 1 Moo. (J. C. 93. The prisoner, with the intention of causing terror to persons leaving a theatre, put out the gas on a staircase, and also with the intention of obstructing the exit, placed an iron bar across a doorway. In attempting to escape several of the audience were by the crush injured; it was held that the prisoner was rightly convicted of unlawfully and maliciously inflicting grievous bodily harm upon two of the crowd. " He acted," said Lord Coleridge, C. J., " unlawfully and maliciously, not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injury, and by which others were in fact injured." Stephen, J., said: "If the prisoner did that which he did as a mere piece of foolish mischief unlawfully and with- out excuse, he did it ' wilfully,' that is, ' maliciously,' within the meaning of the statute." R. v. Martin, 8 Q. B. J). 54; 51 L. J., M. C. 36. Where the prisoner carelessly set fire to some rum which he intended to steal, and in consequence the ship in which the rum was placed, caught fire, it was held that he could not be convicted of arson of the ship. R. v. Faulkner, 13 Cox, 550. (See this case, post, tit. Arson.) See post, Malicious Injuries. Presumption <;/' intent to defraud.'] This presumption is very similar to that of malice ; it is always made whenever the natural consequence of the act is to defraud, and no proof is necessary that such was the inten- tion of the prisoner. The only cases which have arisen upon this head of presumptions relate to forgery and arson, with respect to which the law has been somewhat modified by statute ; it is therefore considered more convenient to discuss it in the chapter relating to those classes of offences. 22 Hearsay. HEARSAY. General nature of hearsay evidence.'] Evidence of facts with which th witness is not acquainted of his own knowledge, but which he merely states from the relation of others, is inadmissible upon two grounds. First, that the party originally stating the facts does not make the state- ment under the sanction of an oath ; and secondly, that the party against whom the evidence is offered would lose the opportunity of examining into the means of knowledge of the party making the statement. A less ambiguous term by which to describe this species of evidence is second- hand evidence. Evidence to explain the nature of the transaction. ] The terin hearsay evidence is frequently applied to that which is really not so in the sense in which that term is generally vised. Thus, where the inquiry is into the nature and character of a certain transaction, not only what was done, but also what was said by those present during the continuance of the transaction, is admissible ; and this is sometimes represented as an excep- tion to the rule which excludes hearsay evidence. But this is not hearsay evidence ; it is original evidence of the most important and unexception- able kind. In this case, it is not a second-hand relation of facts, which is received, but the declarations of the parties to the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances. Thus it has been held on a prosecution for high treason, that the cry of the mob who accompanied the prisoner may be received in evidence as part of the transaction. 11. v. Lord, George Gordon, 21 How. St. Tr. 535 ; Best, Ev. 572 ; Ii. v. Tkimaree, Fost. Or. Law, 213; 15 How. St. Tr. 522. See also Rouch v. The Great Western Railway Company, 1 Q. B. 51 ; R. v. Hall, 8 C. & P. 358 ; Doe v. Hardy, 1 Moo. & Rob. 525. In R. v. Bediny field, 14 ( 'ox, C. C. 341, where a woman came from a house having had her throat cut immediately before by the prisoner, it was proposed to ask what she said ; but Cockburn, C. J., said : "Anything uttered by the deceased at the time the act was being done would be admissible, as, for instance, if she had been heard to say something, as ' Don't, Harry.' But here it was something stated by her after it was all over, whatever it was, and after the act was completed." This decision gave rise to some discussion, of which a note will be found in the report of the case as cited above. It seems that the ruling of Cockburn, C. J., was correct, if it is to be taken as a fact, that the transaction was entirely at an end, which it appears was the case. See letter of Cockburn, C. J., cited infra, p. 24. This evidence must not be confounded with evidence of what is said by the accused party himself, which is always capable of being received on another ground, namely, as an admission. See tit. Confessions. Evidence of comjdaiut in cases of rape.] The evidence which is almost always given in cases of rape that the woman made a complaint of having been violated, is not hearsav, but original evidence of a fact, which is most Hearsay. 23 important, and which cannot be ascertained in any other way. There has been considerable difference of opinion among judges as to the admissibility of the details of the complaint, but it has now been decided by the Court for Crown Cases Eeserved that upon the trial of an indict- ment for rape or other kindred offences against women or girls, the fact that a complaint was made by the prosecutrix shortly after the alleged occurrence, and the particulars of such complaint, may, so far as they relate to the charge against the prisoner, be given in evidence on the part of the prosecution ; not as being evidence of the facts complained of, but as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as negativing consent on her part. R. v. Lillyman (1896), 2 Q. B. 167; 65 L. J., M. C. 195. It was pointed out by Hawkins, J., who delivered the judgment of the court (Lord Russell, C. J., Pollock, B., Hawkins, Cave, and Wills, JJ.), that it is the duty of the judge to impress upon the jury in every case that they are not entitled to make use of the complaint as evidence of the facts complained of , or for any other purpose than that of enabling them to judge whether the conduct of the woman was consistent with her testimony on oath in the witness-box, negativing her consent, and affirming that the act complained of was against her will, and in accordance with the conduct they would expect from a truthful woman under the circum- stances detailed by her. Evidence of complaint in other cas'-s.~] Where a person has been in any way outraged, the fact that this person made a complaint is good evidence, both relevant and admissible, but it would seem that the par- ticulars of such complaint are not. Thus, in R. v. Wink, 6 G. & P. 397, upon an indictment for robbery, evidence was given (without objection) by the prosecutor, that he made a complaint the next morning to a constable. He also stated (no objection being made) that he mentioned the name of a person, as the name of one of the persons who had robbed him, but this seems objectionable. The counsel for the prosecution then proposed to ask whose name was mentioned, but Patteson, J., refused to permit it, adding, " but when you examine the constable, you may ask him, whether, in consequence of the prosecutor mentioning a name to him, he went in search of any person, and if he did, who that person was." Cresswell, J., in the ease (1 f //. v . Osborne, <''. Ml, 812; hearsay or public reputation is admissible. Hut reputa- tion is not evidence of a particular fact. Weeks v. Sparke, 1 .1/. & S. < >., ancient leases, in which they are described as lying in parish B., are evidence of reputation that the lands are in that parish. Plaxton v. Dare, 10 11. & C 17 ; and see Brett v. Beales, M. tt East, 188, the facts were somewhat peculiar. The action was brought on a policy of insurance, effected by a husband on the life of his wife. The defence was that the wife was a hard drinker, and was in ill-health at the time the policy was effected. The surgeon who had examined the woman on behalf of the office was called by the plaintiff, and he swore positively to his belief of her good health at the time, and said that he formed his opinion principally from the satisfactory answers which she gave to his inquiries. A witness was then called for the defence, who stated that she saw the deceased a day or two after the surgeon had examined her ; that she then complained of being unwell ; and said that she was unwell when she went to see the surgeon, with other similar statements. A verdict was found for the defendant, and a rule for a new trial obtained by the plaintiff on the ground that evidence of these statements ought not to have been received, which rule was discharged. It was assumed by all the judges, that what was said by the deceased to the surgeon was evidence of her state of health at the time ; and they all thought that this evidence having been produced by the plaintiff, it was open to the defendant to rebut it by showing that she had made different statements on another occasion upon the same subject. In the Gardiner Peerage case, reported by Le Marchant, a great many doctors were examined on the part of the claimant as to their experience of cases of protracted gestation. In order to ascertain the cir- cumstances of these cases, it was necessary to inquire into the data upon which the witnesses had formed their calculations, but these depended on the answers of women To certain medical inquiries involving facts which had taken place some months previously. Evidence of what these answers were was repeatedly objected to, and finally rejected by the Committee upon the advice of Lords Giffard and Redesdale. In li. v. Johnson, 2 V. & A'. 354, the prisoner was charged with having murdered her husband, and in order to prove the state of health of the deceased prior to the day of his death, a witness was called who had seen him a day or two before that time; and on this witness being asked in what state of health the deceased appeared to be when he last saw him, ho began to state a conversation which had then taken place between the deceased and himself on this subject. This was objected to on behalf of the prisoner, but Alderson. B., said that he though! that what the deceased person said to the witness was reasonable evidence to prove his state of health at the time. The result of the cases seems to be this ; that, if it becomes necessary to inquire into the state of health at a particular time of a person who is deceased, a witness may detail what the deceased person has himself said on that subject at that time ; and this whether he be a medical man or not. But perhaps a medical man might go further, and, even in case of a, person who is still living, state the answers to inquiries made by him lia\ ing reference to such person's health ; this evidence is frequently given in cases of assault, in order to prove what the person assaulted lias suffered. See per Lawrence, ,1., in Aveson v. Lord Kinnaird, (> East, 198; //. v. Qloster, 16 Cox, 471. Dying declarations.] Evidence of this kind, which is peculiar to the case of homicide, has been considered by some to be admissible from necessity, since it often happens that there is no third person present to be an eye-witness to the fact, 1 East, I'. C. .'5-3:5. But it is said by Eyre, < '. ]',., that the general principle upon which evidence of this kind is admitted is, that it is of declarations made in extremity, when the party 28 Dying Declarations. is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by an oath administered in court. R, v. Woodcock, 1 Leach, 502 ; R. v. Bernadotti, 11 Cox, 316. Probably it is the concurrence of both these reasons which led to the admission of this species of evidence. The declaration must have been made by a person who, if alive, would have been a competent witness. Thus, on an indictment for the murder of a girl four years of age, Park, J., refused to hear evidence of her declarations, observing that, however precocious her mind might be, it was impossible that she could have had that idea of a future state which is necessary to make such a declaration admissible. In this decision, Parke, B., concurred. R. v. Pike, 3 C. C. & I'. .">41 ; also 5 C. & l\ 54.2.) For these reasons the state- ments of prisoners are often excluded from being given in evidence in eases where they would bo unobjectionable as to the admission of a party to a civil suit."' 1 /'hi//. Ev. 402, \0th ed. What confessions are not admissible in evidence."] Prima facie, as a matter of course, a confession by the prisoner is admissible as evidence against him. But there are certain grounds which may be shown by him sufficient tn exclude the confession. The law, however, as it at presents stands, is involved in considerable obscurity ; and, until it has received further dis- cussion, it is impossible to mark out precisely the limits of exclusion and admission. Thus much is certain, that no confessiou by the prisoner is admissible which is made in consequence of any inducement of a temporal nature, having reference to the charge against the prisoner, held out by a person in authority. Itis usual to speak of a threat or inducement as excluding the confession ; and whether a man says, "if you do confess I will mil do so and so," or whether he says. " if you do mi! confess I will do so and so," makes very little difference, if in substance the person accused is unduly influenced. All that is here said, therefore, will be applicable to both threats and inducements. What is an i mi in i an nt.'] The reported cases in which statements by prisoners have been held inadmissible are very numerous. Previous to d 2 36 Confessions. the decision in R. v. Baldry, 2 Den. 0. C. 430 ; 21 L. J., 31. 0. 130 ; which will be noticed presently, they had gone a very great length. In R. v. Drew, 8 C. P. 1-10, the prisoner was told "not to say anything to pre- judice himself, as what he said would be taken down, and would be used for or against him at his trial." Coleridge, J., considered this to be an inducement to make a statement : and rejected the evidence. In R. v. Morton, 2 Moo. & R. 514, the constable said to the prisoner, " What you are charged with is a very heavy offence, and you must be very careful in making a statement to me or to anybody else that may tend to injure you ; but anything that you can say in your defence we shall be ready to hear, or to send to assist you." Coleridge, J., said : " Upon reflection, I adhere to my decision in R. v. Drew,'" and rejected the evidence. In //. v. Furley, 1 Cox, 70, the prisoner was told by the constable that whatever she told him would be used against her at the trial ; and Maule, J. , referring to It. v. Drew, rejected the evidence; and the same learned judge pursued the same course in R. v. Harris, ib. 106. All the cases, however, are reviewed in R. v. Baldry, ubi supra, where the constable had said to the prisoner, after telling him the charge, " that he must not say anything to criminate himself ; what he did say would be taken down, and used as evidence against him." Lord Campbell, C. J., at the trial received the evidence, but reserved the point for the consideration of the Court of Criminal Appeal, on the authority of the above cases. All the judges were of opinion that the statement was admissible. Pollock, C. B., said, " A simple caution to the accused to tell the truth, if he says any thing, has been decided not to be sufficient to prevent the statement being given in evidence ; yet, even in that case, the person charged might have- understood the caution as meaning that he could not tell the truth without confessing his guilt. It has been decided that that would not prevent the statement being given in evidence, by Littledale, J., in R. v. Court, 7 C. & P. 486; and by Rolfe, B., in a case at Gloucester, R, v. Holmes, 1 C. & K. 248 ; but where the admonition to speak the truth has been coupled with any expression importing that it would be better for him to> do so, it has been held that the confession was not receivable; the objectionable words being, ' that it would be better to speak the truth,' because they import that it would be better for him to sav something. This was decided in R. v. Garner, 1 Den. C. C. 329 ; 2 C. & K. 920. The true distinction between the present case and a case of that kind is, that here it is left to the prisoner as a perfect matter of indifference whether he should open his mouth or not. With regard to the cases of R. v. Drew and R. v. Morton, with the greatest respect for my brother Coleridge, I do not approve of the decision in the former, or the arguments used to support it in the latter. I think the statement in R. v. Drew ought to have been received. With every veneration for the opinion of my brother Maule, I cannot agree with his view of the subject." Parke, B., said, " I have reflected on R. v. Drew and R. v. Morton, and I have never been able to make out that any benefit was held out to the prisoner by the cautions employed in those cases." And Lord Campbell, C. J., said, "With regard to the decisions of my brother Maule, and my brother Coleridge, with the greatest respect for them, I disagree with their conclusions." The case of 11. v. Court, above referred to, was this : the prisoner was taken before a magistrate on a charge of forgery; the prosecutor said, in the hearing of the prisoner, that he considered the prisoner as the tool of one G., and the magistrate then told the prisoner to be sure and tell the truth ; upon which the prisoner made a statement. It was held by Little- dale J., that evidence of this statement was admissible. In //. v. Holmes < 'niifessiuns. 37 [supra), the prisoner was before a magistrate on a charge of rape, and the magistrate said, "Be sure you say nothing but the truth, or it will be taken against you, and may be given in evidence against you at your trial." Evidence of the statement then made by the prisoner was held by Eolfe, B., to be admissible. In R. v. Garner (supra), a surgeon told the prisoner, in the presence of her master and mistress (which, as we shall see presently, is the same thing as if the words had been used by the master or mistress themselves), that it was better for her to speak the truth ; evidence of the statement thereupon made was unanimously held by the Court of Criminal Appeal to be inadmissible ; see also /,'. v. Jarvis, L. R., 1 C. G. ft. 96 ; 37 L. J., M. G. 3, per Willes, J., and R. v. Fennell, Jl. v. Reeve, infra. It is not considered necessary to refer at any greater length to a large class of previous cases which will all be foiuid in the argument for the prisoner in ft. v. BalJry. In R. v. Sleeman, 1 Dears, C. G. 249, the prisoner, a maid-servant, was taken into custody on a charge of setting fire to her master's premises. She desired to change her dress, and was permitted to do so, being given, for that purpose, into the charge of her master's daughter. While she was changing her clothes, her master's daughter said to her, " I am very sorry for you, you ought to have known better; tell me the truth whether you did it or no." The prisoner said, " I am innocent." The master's daughter replied, " Don't run your soul into more sin; tell the truth." The prisoner then made a full confession. The evidence was admitted; and the Court of ( Yiminal Appeal, on a case reserved, held that there was no inducement or threat, and affirmed the conviction. In R. v. Upchurch, 1 Moo. C. G. 4(')~>, the prisoner, a servant girl, aged thirteen, was indicted for attempting to set fire to her master's house. After the attempt was discovered, her mistress said to her, " Mary, my girl, if you are guilty do con less ; it will perhaps save your neck ; you will have to go to prison ; if W. II. C. (a person whom the prisoner had charged), is found clear, the guilt will fall on you."' She made no answer. The mistress then said, " Pray tell me if you did it." The prisoner then confessed. The evidence was admitted, and the point reserved ; but the judges thought that it ought not to have been received. In R. v. Hearn, 1 Car. & M. 109, a servanl was charged with attempting to set fire to her master's house. It was proved that the furniture in two bedrooms was on fire, and a spoon and other articles were found in the sucker of the pump. The master told the prisoner, that if she did not tell the truth about the things found in the pump, he would send for the constable to take her, but he said nothing to her respecting the tire. Coltman, J., held that this was such an inducement to confess as would render inadmissible any statemenl that the prisoner made respecting the tire, as the whole was to be considered as one transaction. Where the prisoner's master in the presence of two policemen said, " I think it is right 1 should tell you, that besides being in the presence of my brother and myself, you are in the presence of two officers of the police; and 1 should advise you that to any question that may be put to you you will answer truthfully, so that it' you have com- mitted a fault you may not add to it by stating what is untrue," it was held that tlase winds did not make the evidence inadmissible. Kelly, ( '. 1>., said, " The words that have been used import ad\ ice only on moral grounds." ft. v. Jarvis, L. ft., 1 G. C. ft. 96; 37 /,. ■'.. M. G 1. So also, where the mother of some little boys iii custody said, " You had better, as good hoys, tell the truth," it was held that a statement made thereupon was admissible, and thai the cases to the contrary had gone too far. ft. \. /,v ve, I.. I!.. 1 G. G. ft. 362 ; 41 L. J., M. G. 92. Where the prose- cutor said to the prisoner, "The inspector tells me you are making 38 ( 'onfessions. housebreaking implements ; it' that is so, you had better tell the truth, it may be better for you," and the prisoner immediately after made a con- fession to the prosecutor in the presence of the inspector, the confession was held not admissible in evidence. B. v. Fennell, 7 Q. B. I). 147 ; 50 L. J., M. C. 126. Where the prisoner was in custody of a policeman on a charge of arson, and she said to her mistress, " If you forgive me I will tell you the truth," and the mistress without cautioning her said, "Ann, did you do it ? " Williams, J., rejected her confession. H. v. Mansfield, 14 Cox, 639. Where the prosecutor remarked, " It will be the right thing for M. (the prisoner) to make a statement," and the remark was com- municated to the prisoner, it was held that such a remark was calculated to lead the prisoner to believe that it would be better for him to say something. B. v. Thompson, (1893) 2 Q. II. 12; 62 L. J., M. C. 93. Whether the inducement must han- reference to the charge — religious inducement.'] Upon this point there are but few authorities. In //.v. Sexton, Chit. /turn. tit. Confession, jiost, p. 42, the prisoner said, "If you will give me a glass of gin, I will tell you all about it," and two glasses of gin were given him. He then made a confession, which Best, J., refused to admit. This decision has been repeatedly doubted. See Deacon, Dig. Cr. Law, 424 ; Joy on Confessions, 17 ; 3 Muss,. Cri. 482, 6th ed. In B. v. Lloyd, 6 C. & J'. 393, a man and his wife were in prison in separate rooms, on a charge of stealing and receiving, and the constable said to the man, " If you will tell where the property is, you shall see your wife " ; Patteson, J., held that a confession made afterwards was admissible. The report of B. v. Green, 6 C. & l\ 655, which is sometimes cited on this point, seems too obscure to be relied on for any purpose whatever. It is to be remarked that if it is necessary that the inducement should have reference to the charge against the prisoner, it is quite unnecessary to discuss, as was done in great length in B. v. Gilham, 1 Moo. 0. C. 186, whether the inducement must be of a temporal nature. There the chap- lain of the gaol had had repeated interviews with the prisoner, and had strongly impressed upon him the religious duty of confession ; coupling' these exhortations with an expression of belief that the prisoner was a guilty man. as indeed the prisoner himself, in general terms, admitted. The gaoler had also conversed with the prisoner on the subject, and had held, in briefer terms, similar language. The prisoner at length, after being cautioned that what he said would be used in evidence against him, made a full confession to the gaoler, and afterwards to the mayor. Both confessions were received by Garrow, B., the question of their admissibility being reserved for the opinion of the judges. The judges, without stating any reasons, held that the confessions (both according to the report) were properly received ; and it is said in 3 Buss. Cri. 493, 6th ed., that the ground of this decision was that there were no temporal hopes of benefit or forgiveness held out ; and that such hopes, if referable merely to a future state of existence, are not within the principle on which the rule for excluding confessions obtained by improper influence is founded. In B. v. Wild, 1 Moo. C. C. 452, which is frequently quoted on this subject, a variety of confessions which had been made by the prisoner were received in evidence, and some of these, at least, are open to more than one objection. As it is said in the report that the confession was considered by a majority of the judges to be admissible, not saying which, and no grounds of the decision are given, no conclusion can be drawn from it. In B. v. Nute, ('hit. Bum. tit. Confession ; 3 Buss. Cri. 495, 6th ed., the question, whether inducements not of a temporal nature coming Confessions. 39 from a person in authority arc sufficient to exclude a confession, seems to have been considered by the judges, and by some, at least, to have been resolved in the negative. On the whole the authorities seem to be in favour of the proposition that the inducement must be of a temporal nature. Whether or no it must have reference to the charge, has scarcely been fully discussed. It is certainly possible to conceive cases in which a much stronger induce- ment might be held out to a prisoner than one having reference to an escape from a charge not involving any very serious consequences. I whir, m t„t held out with reference to a different charge.'] An inducement held out to a prisoner with reference to one charge will not exclude a confession of another offence, of which the prisoner was not suspected at the time the inducement was held out. The prisoner had been in the custody of several constables, one after another, and it was suggested on his behalf, that one of them had improperly induced him to confess, and this constable was called and stated that whilst the prisoner was in his custody on another charge, and when he was not suspected of the offence for which he was then on his trial, he had made a statement in which he confessed himself guilty of a second charge. It was submitted, that it a promise was held out to him, it was immaterial what the charge was. Littledalc, J., said, " I think not. If he was taken up on a par- ticular charge, I think that the promise could only operate on his mind as to the charge on which he was taken up. A promise as to one charge will not affect him as to another charge." The confession was admitted. //. \. Warner, Glouc. Spr. Ass. 1832, 3 Russ. Cri. 489, 6th ed. But where a threat was held out to a prisoner without the nature of the charge being stated, but subsequently the nature of the charge was stated, and thereupon a confession was made, it was held to be inadmissible. /,'. v. Luckhurst, 1 Dears. C. C. R. 24,3. Inducement must be held cut by a person in authority.'] in //.v. Spencer, 7 C & I'. 7 70. Parke, !>., stated that there was a difference of opinion among the judges, whether a confession made to a person who has no authority, after an inducement held out by that person, can be given in evidence; and the learned judge intended, had the evidence been pressed, to have received it, and to have reserved the point. But on the last- mentioned case being cited in 11. v. Taylor, '26. Parke, B., in delivering a carefully considered judgment of the Court of Criminal Appeal, said that it the inducement was not held out by a person in authority, it was clearly admissible. This question may, therefore, be considered as settled. Who is a person in authority.] The decisions are numerous and undoubted that the prosecutor, or the person who in the ordinary course of things will become so, the constable in charge of the prisoner, and any person having judicial authority over the prisoner, are persons in autho- rity within the meaning of the rule. The rule also extends to the master or mistress of the prisoner, but only where the offence concerns the master or mistress. This was decided in R. v. Moore, supra, where the prisoner was charged with killing or concealing the birth of her infant child, and had made a confession to her mistress alter an inducement, which was held admissible. The previous cases were there discussed by 40 ( 'onfessions. Parke, B., and shown to be in conformity with that decision. In R. v. Luckhurst, 1 Dears. G. C. 245, the owner of a mare was held to be a person from whom a threat coming would exclude the confession of a prisoner that he had had connection with the mare. In R. v. Kingston, 4 G. & P. 387, Park, J., after conferring with Littledale, J., held that an induce- ment held out by a surgeon was sufficient to exclude a confession. This appeals to be the only decision on this point. In Ji. v. Garner, 2 < '. & K. 920, the inducement was held out by the surgeon, and the confession was made to him, but the master and mistress were present, and, as will be seen presently, that is the same as if the inducement had been held out by them. The case of Ji. v. Gilliam, 1 Moo. C. C. 86, is no authority, as has sometimes been stated, that the chaplain of a gaol is a person in authority within the meaning of this rule: see that case fully stated, ante, p. 38. In R. v. Sleeman, 1 Dears. G. G. 249, ante, p. 37, it was said that the daughter of the master of the house who had the maid- servant in her custody for a temporary purpose was not a person in authority. tied qu. ; the point was not necessary to the decision, as it was held that there was no inducement. The wife of a sergeant of police who was employed at the gaol as searcher only, for which she received regular wages, was held to be a person in authority. JI. v. Windsor and another, 4 F. & F. 360. Inasmuch as in cases of felony any person may, upon reasonable suspicion, apprehend the suspected party, it follows that a person in no way connected with the charge may put himself in the position of a person in authority. Thus in R. v. Parratt, 4 G. & P. 570, the prisoner, a sailor, was charged with robbing one of the crew of the ship to which he belonged. The master said, "If you do not tell me who your partner was, I will commit you to prison"; and the prisoner thereupon confessed. Alderson, B., held the confession inadmissible. Parke, B., referring to this case in R. v. Moore, 2 Den. G. ('. 526. puts it on the ground that the master had threatened to take part in the prosecution for the felony. It is the same thing whether the inducement be held out by a person in authority or by another in his presence. JI. v. Luckhurst, 1 Dears. C. C. 145. And it appears from this case, from Ji. v. Laugher, 2 C & A'. 225, and R. v. Garner, id. 920; 1 Jhn. G. C. 329, that, even if the person in authority be silent, he will be presumed to acquiesce in the inducement. Where there were three prisoners in custody on the same charge, and one said to another. "Well, John, you had better tell Mr. Walker (the prosecutor) the truth," and the prisoner addressed thereupon made a confession : evidence of this confession was received, and its admissibility reserved for the consideration of the Court of Criminal Appeal : that court affirmed the conviction. No counsel appeared, and no reasons were given ; but probably it was thought that though what is said in the presence of a person in authority may generally be considered as said with his sanction, yet that this did not apply to what was said by one prisoner to another; as it could hardly be imagined that what was thus said was sanctioned by the person in authority. Ji. v. J'arher. L. & C 42. Inducement by <>ff/>.~\ "Where a con- fession has been obtained by artifice or deception, but without the use of promises or threat-, it is admissible. Thus it has been held, that it is no objection that the confession was made under a mistaken supposition that someof the prisoner's accomplices were in custody, and even though some artifice has been used to draw him into that supposition. I!, v. Burley, East. V. 1818; 1 /'hi//. Ev. 413, , 10. 230; 46 L. -/., Bkcy. 112. A mere witness not the bankrupt is, how- ever, entitled to protection. S. C. The effect of these decisions has been carried out by the legislature in the Bankruptcy Act, 1883 (46 & 47 Vict, c. 52), which, by sect. 17, sub-sect. 8, has enacted that, " the debtor shall be examined on oath, and it shall be his duty to answer all such questions as the court may put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down in writing, and shall be read over to and signed by the debtor, and may thereafter be used in evidence against him." They cannot however be used against him in proceedings for the misdemeanors enumerated in sects 75 — 84 of 24 & 25 Vict. c. 96. See 53 & 54 Vict. c. 71, s. 27, post, But it has been held that this does not preclude any other mode of proving the debtor's admissions made at his public examination, so that on the trial of an indictment against a bankrupt for misdemeanors under the Debtors Act, 1869, where notes of his public examination had been taken, but not read over or signed by him, parol evidence of the person who took such notes was admissible to prove such admissions. R. v. Erdheim, (1896) 2 <). II. 260; 65 /.. -/., .1/. C. 176. Seejw.^, Privilege /e.~\ Declarations accompanying an act done have been admitted in evidence. The prisoner was tried for stealing a guinea and two promissory notes. The prosecutor was proceeding to state an inadmissible confession, when Chambre, J., stopped him, but permitted him to prove that the prisoner brought to him a guinea and a bl. Eeading Bank note, which he gave up to the prosecutor as the guinea and one of the notes that had been stolen from him. The learned judge told the jury, that, notwithstanding- the previous inducement to confess, they might receive the prisoner's description of the note, accompanying the act of delivering it up, as evidence that it was the stolen note. A majority of the judges (seven) held the conviction right. Lawrence and Le Blanc, JJ., were of a contrary opinion, and Le Blanc, J., said that the production of the money by the prisoner was alone admissible, and not that he said it was one of the notes stolen. R. v. Griffin, Russ. & Ry. 151. And see II. v. Jones, Russ. & /.'//. 152, where the statement of the prisoner, on producing some money out of his pocket, that it was all he had left of it, was held inadmissible, the prosecutor having held out inducements to confess. Speaking of declara- tions accompanying an act, Mr. Phillipps observes, " it may be thought that the only ground upon which such declarations can be received is, that they are explanatory of the act of delivery, and not a narrative of a past transaction." Phill. Ev. 432, 8th ed. Evidena only against the parties making them.'] It is quite settled generally, that a confession is only evidence against the party making it, and cannol be used against others. With respect to conspiracy, there is some obscurity on this subject, which will be Eound discussed in the 46 ( 'onfessions. chapter relating to that offence, post. But a difficulty occurs where a confession by one prisoner is given in evidence, which implicates the other prisoners by name, as to the propriety of suffering those names to be mentioned to the jury. Several cases are collected in 1 Lewin, C. ('. 107, which show that Littledale, J., Alderson, B., and Denman, C. J., con- sidered that the whole of the confession, whether verbal or written, ought to be presented to the jury, not omitting the names ; Parke, B., thought otherwise. See R. v. Fletcher, 4 0. & 1\ 250, and R. v. Clewes, id, 221, where Littledale, J., says, that he had formed his opinion after much consideration. The confession of the principal is not admissible in evidence to prove his guilt, upon an indictment against the accessory. One Turner was indicted for receiving sixty sovereigns, &c, by one Sarah Bich then lately before feloniously stolen. To establish the larceny by Bich, the counsel for the prosecution proposed to prove a confession by her, made before a magistrate in the presence of the prisoner, in which she stated various facts, implicating herself and others, as well as the prisoner. Patteson, J., refused to receive as evidence anything which was said by Sarah Bich respecting the prisoner, but admitted what she had said respecting herself. The prisoner was convicted. Having afterwards learned that a case had ■occurred before Wood, B., at York, where two persons were indicted together, one for stealing and the other for receiving, in which the prin- cipal pleaded guilty, and the receiver not guilty, and that "Wood, B., refused to allow the plea of guilty, to establish the fact of the stealing by the principal, as against the receiver, Patteson, J., thought it proper to refer to the judges the question, " Whether he was right in admitting the confession of Sarah Bich in the present case ? " The judges were unani- mously of opinion, that Sarah Bich's confession was no evidence against the prisoner, and the conviction was held wrong. R. v. Turner, Moody, C. C. 347. In ]l. v. Cox, 1 F. . Had, by him ; money in the ordinary course of business^ however, Mr. Douglas been alive at the time, there can be no doubt that he must have been called ; and that he might have been called to prove the receipt of the money would probably not have been questioned. This case does not therefore, as sometimes appears to have been thought, in any way touch upon the rules that the admission of an agent does vol bind his principal in criminal cases, but merely shows that, where the acts of the agent have to be proved, those acts may be proved in the usual way. Admissions by the prosecutor.] It would seem doubtful whether in any case a prosecutor in an indictment is a party to the inquiry in such a sense as that an admission by him could be received in evidence to _ prove facts for the defence. Of course this does not refer to the admission of facts which would go to his reputation for credibility as a witness in the case ; these may always and under all circumstances be proved by the admission of the witness' himself. But any other fact necessary to the defence would have to be proved by the best available evidence, independently of any admission by the prosecutor. The Queen's case, 2 Broil. & Bing. 297, is sometimes quoted as bearing on this point. There the question asked of the judges, in abstract form, was, whether the admission of an agent of the prosecutor that he had offered a bribe to a witness who was not called could be given in evidence by the prisoner, for the purpose of discrediting generally those witnesses who were called ; and the judges answered that it could not, No question of admission or agency was discussed, but the judges grounded their opinion on this, that no infer- ence against the general credibility of the witnesses could be drawn from the evidence tendered, and that it was not, therefore, relevant to the issue. The. whole of m, admission must be taken tor/ether.'] In criminal, as well as in civil, cases, the whole of an admission made by a party is to be given in evidence. The rule is thus laid down by Abbott, C. J., in The Queen's ease, 2 Brod. & Bing. 297. If, on the part of the prosecution, a confession or admission of the defendant, made in the course of a conver- sation with the witness, he brought forward, the defendant has a right to lav before the court the whole of what was said in that conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the matter introduced on the previous examination, provided only that it relates to the subject-matter of the suit ; because it would not be just to take pari of a conversation as evidence against a party, without giving to the party at the same time the benefitof the entire residue of what he said on the same occasion. " There is no doubt," says Bosanquet, J., "that if a prosecutor uses the declaration of a prisoner, he must take the whole of it together, and cannot select one pari and leave another ; and if there be either no other evidence in the case, or no other evidence incom- patible with it, the declaration so adduced in evidence must be taken as true. But it, after the whole of the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner, and the whole ■of the other evidence, must be left to the jury, for their consideration, precisely as in any other case where one part of the evidence is contradic- tory to another." B. v. Jones, 2 C. <(' P. <>29. "Where a prisoner was indicted for larceny, and, in addition to evidence of the possession of 4S Confessions. the goods, the counsel for the prosecution put in the prisoner's statement before the magistrate, in which he asserted that he had bought the goods, Garrow, B., directed an acquittal, saying, that if a prosecutor used a prisoner's statement, he must take the whole of it together. 3 Bnss. Cri. o32, 6th ed. But there is not the least doubt that a jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient ground for so doing. Thus where, in addition to evidence of the stolen goods being found in the possession of the prisoner, the prosecutor put in the prisoner's examination, which merely stated that the "cloth was honestly bought and paid for," Park, J., told the jury, "if you believe that the prisoner really bought and paid for this cloth, as he says he did, you ought to acquit him ; but if, from his selling- it so very soon after it was lost, at the distance of eight miles, you feel satisfied that the statement of his buying it is all false, you will find him guilty." B. v. Higgins, 3 C. & P. 603. So where a prisoner, charged with murder, stated in his confession that he was present at the murder, which was committed by another person, and that he took no part in it, Littledale, J., left the confession to the jury, saying, " It must be taken all together, and it is evidence for the prisoner as well as against him ; still the jury may, if they think proper, believe one part of it, and disbe- lieve another." B. v. Clewes, 4 C. & P. 221. See also B. v. Steptoe, 4 C & P. 397. In a trial for murder, the counsel for the prosecution said he would treat the statements of the prisoners before the magistrates as their defence, and show by evidence that they were not consistent with truth ; B. v. Greenacre, 8 C. & P. 36 ; and this course is frequently adopted in practice. Admissions of matters void in point of law, or false in fact.'] An admis- sion on the part of a prisoner is not conclusive, and if it afterwards- appear in evidence that the fact was otherwise, the admission will be of no weight. Thus, upon an indictment for bigamy, where the prisoner had admitted the first marriage, and it appeared at the trial that such marriage was void, for want of consent of the guardian of the woman, the prisoner was acquitted. 3 Stark. Ev. 894, 3rd ed. So on an indict- ment for setting fire to a ship, with intent to injure two part-owners, it was held that the prosecutor could not make use of an admission by the prisoner that these persons were owners, if it appeared that the requisites- of the shipping acts had not been complied with. R. v. Philp, 1 Moody, C. C. 271. Confessions inferred from silence or demeanour.^ Besides the proof of direct confessions, the conduct or demeanour of a prisoner on being- charged with the crime, or upon allusions being made to it, is frequently given in evidence against him. Thus, although neither the evidence nor the declaration of a wife is admissible against the husband on a criminal charge, yet observations made by her to him upon the subject of the offence, to which he gives no answer or an evasive reply, are receivable in evidence as an implied admission on his part. R. v. Smithers, 5 C. 49 frequently contain much hearsay and other objectionable evidence, and as the demeanour of a person upon hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be regarded with much caution." 1 Ph. & Am. 405, 10th ed. A deposition of a witness, or the examination of another prisoner taken before the committing magistrate, is not admissible in evidence merely because the party affected by it was present, and might have had an opportunity of cross-examining or commenting on the evidence ; neither can any inference be drawn, as in other cases, from his silence. 11. v. Appleby, 3 Stork. N. P. 33; Helen v. Andrews, M. & M. 336; R. v. Turner, 1 Moody, 0. C. 347 ; R. v. Swinnerton, 1 Carr. & M. 593, post, p. 55. Confessions taken dovm in writing.] If the confession is taken down in writing and signed by the prisoner, or its truth acknowledged by parol, or if it lie written by him, then it is put in as an ordinary document and read by the officer el' the court. R. v. Swatlcins, 4 C. & P. 550. But if it be taken down by a person who is present when the confession is made, and is not signed or acknowledged by the prisoner, the document is not itself evidence, but may be used by the person who made it to refresh his memory. 4 C& /'. 550. aote />. According to general principles, if the confession were contained in a document, which was in existence and admissible in evidence, parol evidence could not be given of it. See R. v. Gay, 7 C. &, I'. 'I'M), supra, ]>. 32. The math' hi' introducing confessions.'] It was at one time thought that it was unnecessary for the purpose of introducing a confession to negative / any promise or inducement, and that a confession might be presumed to be voluntary until the contrary was shown. R. v. Meors, 4 C. & P. 221. But it has now been held by the Court for Crown Cases Beserved, that it must be affirmatively proved, before a confession is admissible, that such confession was not preceded by any inducement on the part of a person in authority, or that it was not made until after such inducement had clearly been removed. /,'. v. Thompson. (1893) 2 Q. B. 12; 02 A. ./., M. C. 93. If evidence of a confession be received, and it afterwards appear from other evidence that an inducement was held out, which, hadit been known at the time, would have rendered the evidence inadmissible, the proper course for the judge to take is to strike the evidence of confession out of his notes, and to fell the jury to pay no attention to it. /,'. v. Garner, 1 /»'n. C. C. 329; 2 0. & K. 920. 1;. E 50 Examination of the Pri strati . EXAMINATION OF THE PRISONER. Statute 11 tt- 12 Vict. c. 42.] The foregoing pages relate only to the- confessions and admissions made by persons charged with offences to third persons, and not to those made to magistrates during the examina- tions directed to be taken by statute. Those examinations are now governed by the 11 & 12 Vict. c. 42. That statute, after pointing out the mode in which the depositions are' to be taken, enacts, by s. 18, "That after the examinations of all the witnesses on the part of the prosecution as aforesaid shall have been completed, the justice of the peace or one of the justices, by or before- whom such examination shall have been so completed, as aforesaid, shall, without requiring the attendance of the witnesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words to the like effect, ' Having heard the evidence, do you wish to say anything in answer to the charge ? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon y»ur trial ' ; and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned ; and afterwards upon the trial of the said accused person the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same : Provided always, that the said justice or justices, before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat ; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person." This procedure is unaffected by the Criminal Evidence Act, 18!»s, 61 & 62 Vict. c. 36 (see Appendix of Statutes), by which a prisoner may give evidence on his own behalf. See section 1 (A). Mode of taking examinations — the caution.^ The 28th section of the above statute declares that the forms given in the schedule are to be deemed good, valid, and sufficient in law ; and the form in the schedule does not contain the second caution mentioned in s. 18. It has, therefore, been held that, if the first caution has been given, the statement of the prisoner is admissible without any further question. R. v. Bond, 1 Dou C. C. 517; 19 L. J., M. C. 138; R. v. Sansome, 1 Den. C. C. 145; 25 L. ./., M, (J. 143. It has been suggested that the second caution was- Examination of the Prisoner. 51 intended to be used where there has been a previous promise or threat made to the prisoner. Per Alderson, B., in li. v. Bond, ubi supra; and Erie, J., in 11. v. Sansome, intimated that it would be prudent in justices always to give the prisoner the second caution, as being the only course which would preclude all possibility of question as to the admissibility of his statement ; for as it was not yet decided whether that caution was absolutely requisite when a previous inducement or threat had been held out, and the justice could never be certain whether such previous threat or inducement had or had not been held out, a perplexing question might arise as to the sufficiency of the first caution to remove the effect on the prisoner's mind of such threat or inducement, should it afterwards appear in fact that either had been held out. Mode of taking examinations — must not be upon oath.'} The examination of a prisoner under 11 & 12 Vict. c. 42, s. 18, must not be taken upon oath : if it be so, it will not be receivable in evidence. This was frequentlv so held before the 11 & 12 Vict. c. 42, was passed; R. v. Smith, \ Stark. N. P. 242; P. v. Rivers, 7 C. & P. 177; li. v. Pihesley, 9 C. & I'. 124. This of course does not apply to a confession made on oath by the prisoner when giving testimony upon another inquiry. And the deposition of a witness taken before magistrates was allowed by Cockburn, C. J., to be read at the trial as evidence against him, although after his evidence was taken the magistrates committed him for trial, his evidence criminating himself. R. v. Chidley, 8 Cox, 3(io. The prisoner's deposition on oath, in reference to such inquiries, is clearly admissible. 3 Russ. Cri. 511, tith ed. Thus, where the prisoner was tried for arson, and there had been a previous inquiry, legally held, as to the origin of the fire, at which the prisoner had been examined on oath as a witness, and had not been improperly compelled to answer questions tending to criminate him, his depositions thus taken were admitted as evidence against him. R. v. Coote, L. R. 4 P. C. 599; 42 L. J., P. 0. 45, post, Privilege of Witnesses. It was, however, formerly doubted whether, if a person who had given evidence 'upon oath before a coroner were afterwards made the subject of a criminal charge arising out of the siime facts, his deposition could be given in evidence against him. //. v. Wheeley, 8 C. & /'. 250; but in several later cases thev have been admitted. R. v. Owen, 9 C. & /'. 83; R. v. Colmer, 9 Cox, 506; R. v. Uateman, I /•'. & F. L068; //. v. Wiggins, LO Cox, 562. In R. v. Bigga- dilee, Lincoln Winter Assizes, L868, Byles, J., admitted in evidence a state- ment upon oath made by the prisoner voluntarily, and before she was in custody, inp'i signed by her. but taken down in writing by the coroner at the time. The coroner was catigd. In the case of William York, a boy ten years old, who was charged before the coroner's jury with murder, which he at first denied, hut on being closely interrogated, confessed, such confession, together with others subsequently made to the magistrates and other persons, were admitted as e\ idence against him. Post. < '. < '. 70. It does not appear whether the boys confession before the coroner was upon oath or not. 1 Russ. Cri. 117, 6th td. By the Criminal Evidence Act, L898, HI & 62 Vict. c. '66 see Appendix of Statutes), every person charged with an offence shall be a competenl witness for the defence at every stage of the proceedings, and may therefore give evidence on oath before the magistrates. Seepost, Incompetency of Witnesses. Statements madt by th prisoner not returned under the statute.} There is considerable confusion as to the admissibility of statements made by the prisoner before the examining magistrate, which are either not returned e2 52 Examination of the Prisoner. at all in the depositions, or which, being returned, are found to want one or more of the formalities required to make them available under the statutes from time to time in force on this subject. It seems, however, clear, that if no examination was taken in writing, then the evidence was always considered admissible. But this must be distinctly shown. Thus where the witness stated that no examination was taken down in writing, Parke, J., said, "As all things are to be presumed to be rightly done, I must have the magistrate's clerk called to prove that no examination of the prisoner was taken in writing ; and unless you can clearly show that the magistrate's clerk did not do his duty, I will not receive the evidence." B. v. Packer, Glouc. Spr. Ass. 1829, 3 Buss. Ori. 544 («..) 6th ed.; P. v. Phillips, Wore. Sum. Ass. 1831. Where the only evidence against the prisoner was his examination before the magistrate, which was not taken in writing, either by the magistrate or by any other person, but was proved by the viva voce testimony of two witnesses, who were present, all the judges (except Gould, J.) were of opinion that this evidence was well received. P. v. JIuet, 2 Leach, 821. So it has been held that remarks or statements made by a prisoner after the commencement of the investigation before the magistrate, and whilst the witnesses are giving their testimony, are receivable in evidence, although the prisoner's examination is afterwards taken in writing. Thus where one of two prisoners was committed before the other was appre- hended, and the depositions against that prisoner were read over before the magistrate to the other prisoner, and after they were read the prisoner went across the room to a witness, who was called, and said something to him so loud that it might have been heard by the magistrate if he had been attending, and the magistrate proved the examination of the prisoner before himself, and that the statement to the witness was not contained in it; Parke, J., held that what the prisoner had said to the witness might be given in evidence. B. v. Johnson, alone. Spr. Ass. 1829, 3 Puss. Cri. 547, 6th ed. So where a man and woman were brought before the magistrate on a charge of burglary, and, in the course of the exami- nation of a witness, a glove was produced which had been found on the man with part of the stolen property in it ; on which the man said, " She gave me the glove, but she knew nothing of the robbery " ; the depo- sitions having been put in, and the clerk to the magistrates having proved them, and there being no such statements in the depositions or the cxanii nation of the prisoner, Erskine, J., held, that what the man said might be proved by parol evidence. P. v. Hooper, Glouc. Sum. Ass. 1842. 3 Rues Cri. 548, 6th ed. And it was said by Best, 0. J., that his opinion was that upon clear and satisfactory evidence, it was admissible to prove something said by the prisoner beyond what was taken down by the committing magistrate. Rowland v. Ashby, Ry. & Moo. 232. So it has been ruled by Parke, J., that an incidental observation made by a prisoner in the course of his examination before a magistrate, but which does not form a part of the judicial inquiry, so as to make it the duty of the magistrate to take it down in writing, and which was not so taken down, may be given in evidence against the prisoner. P. v. Moore, Matthew's Die/. Or. Law, 157; P. v. Spilsbury, 7 0. & P. 187, per Coleridge, J. But where it ought to have been taken down in writing, and it was not, Littledale, J., ruled that it was inadmissible. P. v. Moloney, Matthew's I)i the only evidence of it. exclusive of all parol testimony. If from some defect or informality this return is not available, then what is >aid by the prisoner on this occasion may be proved in the usual way. There i-,, perhaps, no direct authority for the last proposition, but it seems to he an inference from the two most recent cases. A confession made under circumstances which do not bring it within the statute stands a.- a confession at common law. See the con- cluding words of sect. 18. 54 Examination of the Prisoner. It was remarked by Piatt, B., in 7*'. v. Welter, 2 C. & K. 22:5, that any observation made by the prisoner in the course of the exami- nation, which was material, ought to be taken down. This is useful, because the memorandum, though not evidence in itself, may be used bv the witness to refresh his memory at the trial. R. v. Watson, 3 C. &K. 111. It seems to be the dirty of the magistrate, who presides at the examina- tion, to advise the prisoner not to make any statement before the evidence is concluded and the caution is administered. R. v. Watson, ubi supra. The prisoner is not to be precluded from showing, if he can, that omis- sions have been made to his prejudice, for the examination has been used against him as an admission, and admissions must be taken as they were made, the whole together, not in pieces, nor with partial omissions. Even the prisoner's signature ought not to stop him from proving, if he can, such omissions. 2 Phill. Ev. 118, 10th ed. Mode, of taking examinations — signature. ,] The examination of a prisoner, when reduced into writing, ought to be read over to him, and tendered to him for his signature. But whether signed or not by him, it is still evi- dence against him, nothing being said in s. 18 of the 11 & 12 Vict. c. 42, about signature by the prisoner, and the statement being expressly made evidence without further proof, if read over to the prisoner and signed by the magistrate. In the schedule (N.) it is said, " Get him (the prisoner) to sign it, if he will." At common law, as has already been said, if a statement were made by a prisoner and reduced into writing, the memo- randum could only be evidence if signed by the prisoner, or its truth acknowledged by parol ; nor do the previous statutes seem to contain any- thing which dispenses with the proof, which would be necessary in ordinary cases, that the truth of the written memorandum was thus recog- nised by the prisoner. All the cases before the statute seem reconcilable on this principle. See R. v. Lamhe, 2 Leach, 552 ; R. v. Thomas, 2 Leach, 637; R. v. Bennet, 2 Leach, 553 (».); R. v. Telicote, 2 Stark. N.P. 483. Informal examinations — used to refresh the memory of witness.] It lias already appeared that if the examination of a prisoner has been taken down in writing, but not in such a manner as that the writing itself is admissible under the statute, parol evidence of what the prisoner said is admissible ; and in such case the writing may be referred to by the witness who took down the examination, in order to refresh his memory. Where a person had been examined before the lords of the council, and a witness took minutes of his examination, which were neither read over to him after they were taken, nor signed by him ; it was held that although they could not be admitted in evidence as a judicial examination, yet the wit- ness might be allowed to refresh his memory with them, and having looked at them, to state what he believed was the substance of what the prisoner confessed in the course of his examination. R. v. Layer, 16 How. St. Tr. 215. So where an examination taken at several times, was re- duced into writing by the magistrate, and on its being completed, was read over to the prisoner, but he declined to sign it, acknowledging at the same time that it contained what he had stated, although he afterwards said that there were many inaccuracies in it, it was held that this might- be used as a memorandum to refresh the memory of the magistrate, who gave parol evidence of the prisoner's statement. R. v. Jones, 2 Ritss. 658 (».). So in R. v. Telicote, supra, supposing the written document .was inadmissible, yet the clerk of the magistrate, who was called as a witness, might have proved what he heard the prisoner say on his examination, Examination of the Prisoner. 55 and have refreshed his memory by means of the examination which he had written down at the time. 2 Buss. 60S ; see 4 C. & P. 550 («.). And see R. v. Watson, 3 C. & K. 111. So where, on a charge of felony, the examination of the prisoner was reduced into writing by the magistrates' clerk, but nothing appeared on the face of the paper to show that it was an examination taken on a charge of any felony, or that the magistrates who signed it were then acting as magistrates; Patteson, J., permitted the clerk to the magistrates to be called, and to refresh his memory from this paper. 11. v. Tarrant, 6 0. & P. 182 ; and see R. v. Pressley, Id. 183 ; R. v. Bell, 5 C. & P. 162, and R. v. Watson, 3 C. & K. 111. Mode of 1 1 roi>/.~\ If the examination has been taken in conformity with the provision of the statute, it proves itself. But should there be altera- tions or erasures, the clerk to the magistrates, or some person who was present at the time, should be called to explain them. Where, upon an indictment for murder, it was proposed to prove the prisoner's examina- tion before the coroner by evidence of the handwriting of the latter, and by calling a person who was present at the examination, it appealing that there were certain interlineations in the examination, Lord Lyndhurst said that he thought the clerk who had taken down the examination ought to be called, and the evidence was withdrawn. R. v. Brogan, Lane. Hum. Ass. 1834, MS. Evidence against the prisoner only.'] In R. v. Haines, 1 /•'. & F. 86, Crowder, J., refused to allow the prisoner's statement which had not been put in evidence by the counsel for the prosecution to be put in on behalf of the prisoner. And it is evidence only against the prisoner who makes it. If two prisoners be taken before the magistrate on a charge, a state- ment made by the first prisoner cannot be given in evidence against a second prisoner, because when before the magistrate the second prisoner is only called upon to answer, if he pleases, the depositions which have been given on oath against him, and not what the other prisoner may have said on his examination. R. v. Sivinnerton, C '. & M. 593, per Patteson, J. As to the examination being put in by the direction of the court, see post, tit. Practice. 56 Depositions. DEPOSITIONS. Depositions — when admissible.'] The question of the admissibility of evidence in criminal cases of what are usually called depositions is one by no means free from difficulty. It is not within the scope of this work to enter at length into the discussion of this question, but it is necessary to point out the rules which have been generally acknowledged, the diffi- culties which have arisen, and the opinions which have been expressed in reference to this subject. It is a well-known rule of evidence, and one which is treated as generally applicable both to civil and criminal cases, that what a witness has once stated on oath in a judicial proceeding may, if that witness cannot possibly be produced again, be given in evidence, provided the inquiry be sub- stantially the same on both occasions, and between the same parties. This applies not only to evidence taken at different stages of the same inquiry, but to successive inquiries into the same matter ; as, for instance, to a new trial granted in a case of misdemeanor. It is also a well-known rule of evidence that upon any point material to the issue, a witness may be contradicted or discredited by showing that he has on a previous occasion made statements at variance with that made by him at the trial. This includes all previous statements of the witness, whether on oath or not, and whether in a judicial proceeding or not. And as to this rule, see now 28 & 29 Vict. c. 18, ss. 4, o, post, Examination of Witnesses. Now it is obvious that a totally different class of considerations will apply to the proof of the previous statements according as they are used as evidence in chief, or to discredit the witness only. It is absolutely necessary, therefore, in considering how such previous statements are to be proved, never to lose sight of the purpose for which they are being used ; and it is from not doing so that much of the confusion on this point of the law of evidence has arisen. In criminal cases it is generally with respect to the preliminary inquiry before magistrates on charges of felony and misdemeanor that this ques- tion assumes its greatest importance ; when, therefore, in what follows, we speak of depositions, it will be understood that depositions so taken are alone referred to. Depositions when used to contradict a witness — how proved.] The follow- ing rules relating to this question were laid down by the judges after the passing of the Prisoner's Counsel Act, 6 & 7 Will. 4, c. 114 (see 7 C. & P. 676). 1 . That where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not in his deposition make such or such statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein, and that such deposition must be read as part of the evidence of the cross-examining counsel. Depositions. ol 2. That after such deposition has been read, the prisoner's counselmay proceed in his cross-examination of the witness as to any supposed con- tradiction or variance between the testimony of the witness in court and his former deposition; after which the counsel for the prosecution may re-examine, and after the prisoner's counsel has addressed the jury, will be entitled to reply. And in case the counsel for the prisoner comments upon any supposed variances or contradiction without having read the deposition, the court may direct it to be read, and the counsel for the prosecution will be entitled to reply upon it. 3. That the witness cannot in cross-examination be compelled to answer whether he did or did not make such and such a statement before the magistrate until after his deposition has been read, and it appears that it contains no mention of such a statement. In that case the counsel for the prisoner may proceed with his cross-examination ; and if the witness admits such statements to have been made, he may comment upon such admissions or upon the effect of it upon the other part of his testimony; or, if the witness denies that he made such a statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses In prove that he made such statement. But in either event the reading of the deposition is the prisoner's evidence, and the counsel for the prosecution will be entitled to reply. The effect nf these rules is that the depositions returned by the magis- trates before whom the preliminary inquiry took place must, if anything said upon that inquiry is to be used for the purpose of discrediting a witness, be hist put in evidence ; but these rules expressly recognise that what appears upon the depositions is not in any way conclusive as to wdiat passed on thai 01 casion, which, after the depositions have been once read, may be proved by the witness's admission, or, if it be material to the issue, by oth< r witnesses who were present. This appears to be the view taken by Erie, J., in It. v. Curtis, 2 C. & K. 703. These rules must now be read in connection with 28 & 29 Vict. c. 18, ss. 4, 5, and it seems to !"■ doubtfu] whether they are any longer in force. See Tayl. on Ev., p. \'2~>.~), Qth ed. See post, Examination of Witnesses. In 11. v. Garner, Times L. 11. 1 10, the < 'ourt for Crown Cases Reserved held that the judge at any time before verdict may read to the jury depositions which have been used in cross-examination by the prisoner's counsel. it has been suggested that there is a difference between adding to and varying depositions; per AJLderson, 1!., in II. v. Coveney, 7 C. & P. 007 ; and there can be no doubt that, as a general principle, you may add to bui not vary ■written evidence. See infra. The question is whether that principle is applicable to the case now under consideration. At common law the return of the magistrate would not be even admissible to contradict a witness, any more than a judge's notes in a civil case; bu1 ever since the statute of the 1 & 2 P. & M. c. 13, this return has been considered as admissible; but on the general principles of evidence this would no1 exclude additions which were not variations. Depositions when used as substantive evidence — hoiv proved.] When depositions.taken before the magistrate are used to supply the testimony of an absent witness, there is then considerable authority for saying that the return nf t lie magistrate is the best and only evidence as to what was said before him. That it is the best evidence has always been acknow- ledged, and was laid down by Lord Mansfield in It. \. Fearshire,\ Lea. 202 ; and that it is the only e\ idence has also generally been acknowledged, and was so said by Eolroyd, J., in R. v. Thornton, 2 Ph. & Am. Ev. 104, 10. A ed. («.) -38 Depositions. As already pointed out, there is a difference between adding to and varying written evidence, and it has been sometimes urged that even where a deposition is used as substantive evidence, it might be added to though not varied. But it must be recollected that, under the statute 11 & 12 Vict. c. 42. s. 17, infra, if the magistrates do their duty, the return of the depositions will bo both exclusive and inclusive; and though it cannot lie denied that, on general principles of law, a deposition may be added to, there are very sound reasons why an exception should be made in this particular case ; for there might be very great danger in trusting to the oral repetition of testimony, which, under all circumstances, must be less satisfactory than that ordinarily given. These considerations do not apply with equal force to depositions pro- duced for the purpose of contradicting or lessening the credit of a witness. For, in the first place, many matters which do not appear material to the charge at the preliminary inquiry, and which, therefore, would not be returned, may become exceedingly important for the purpose of testing the truth of the testimony of a witness; and, moreover, the witness being himself then and there present, his own memory and conscience can be searched as to what was really said before the magistrate. The result suggested is, that to discredit a witness the depositions may be added to but not varied; but, when they are used as substantive evidence, the return of the justices is final and conclusive. There is still one difficult question which is not unlikely to rise, and which has not yet been discussed; i.e., whether, in any case, if no deposition be returned by the magistrate, or one which from some informant v cannot be used, other evidence ought to be received of what was said by the witness. It will scarcely be denied that, on general principles, all the usual evidence would be let in in such a case, but it is unnecessary to repeat the argu- ments which go to show that, as substantive evidence, nothing should be received which is not returned by the magistrate. See also the remarks, ante, pp. .31 et seq. As to taking and proving the deposition of a child under the Preven- tion of Cruelty to Children Act, see 51 & 58 Vict. c. 4, ss. 13, 14, post, p. 346. Depositions when admissible as substantive evidence.^ Depositions are admissible as substantive evidence at common law, should the witness be either dead; Hale, P. C. 305 ; R. v. Westbeer, Lea, C. C. 12; R. v. Brom- wich, 1 Lev. 180 ; Salle. 2S1 ; B. X. P. 242 ; or be in such a state as never to be likely to be able to attend the assizes; R. v. floe/q, 6 C. & P. 176; R. v. Wilshaw, Carr. & M. 145; or if the witness be kept away bv the practices of the prisoner; R. v. GuUridge, 9 C. & P. 471. The admissi- bility of depositions is now governed by the 11 & 12 Vict. c. 42, s. 17, which provides that in all cases where' any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed in England or "Wales, or upon the hi. 323; 55 /.. -/.. .1/. C. 153. None of tlie previous statutes contained any directions as to when the depositions should he considered admissible. It will be observed that only two cases are mentioned in the above statute, " where the witness is dead, or so ill as not to he able to travel." It is not said in the statute 1 that the deposition would he admissible if the witness were kept out of the w r ay by the procurement of the prisoner, a case well established at common law. See Tayl. "ii /•>.. p. 465, 6th <•. 208, where the prisoner was indicted together with Booke and Smith for larceny, evidence was given that by the procurement of Smith one of the witnesses for the prosecution had been kept out of the way, and her deposition was tendered; the evidence was admitted to be receivable as against Smith, but it was said that it was no evidence against Scaife and Rooke. The case came before the Court of Queen's Bench, and it was held that the learned judge ought to have told the jury that the evidence ;i]i]i!ieil to the case of Smith only, and not to that of either of the other prisoners, [ncidently, therefore, the admissibility of the depositions as against a prisoner who has himself procured the absence of a witness, is recognised by this case. There dues not appear to he any criminal case in which the depositions have been admitted on the ground of the witness being insane either before or since the statute. In civil inquiries this is considered a good ground of admission ; A'. \. Eriswtll, 3 T.R. 720; and it is said in //. v. Marshall, C. .(■ M. 147. that Coleman. J., thought it a good ground in ■criminal cases also. It is not a sufficient ground of admission that the witness cannot he produced on account of his absence in a foreign country. R. v. Austen, 25 /.. J., M. c. 48. As to when a witness will he considered so ill as not to be able to travel, the following cases have been decided. 'Where the physician stated that GO Depositions. the witness could not speak or hear from paralysis, and that if brought to court he would not be able to given evidence, yet that he might be brought there without danger to life, though he, as his physician, would not permit the witness to roam abroad if he knew it, it was held by the Court of Criminal Appeal that the deposition was rightly received. B. v. Cockburn, Bears. & B. C. C. 203. There may be incidents in regard to a state of pregnancy which may bring the case within the statute. B. v. Stephenson, 1 L. & < '. 165 ; '61 L. J., M. C. 147 ; and see R. v. Go idfelloiv, 14 Cox, 326. It is in such case a question for the presiding judge in his discretion to determine whether the witness is so ill as not to be able to travel. B. v. Wettings, 3 Q. B. D. 426; 47 L. J., M. < '. 100. Where a witness came to the assizes, but returned home by the advice of a medical man, who deposed that it would have been dangerous for the witness to remain, Parke, B., held that the witness was "unable to travel" within the meaning of this section, and allowed his depositions to be read. B. v. Wicker, 18 Jur. 252. A superintendent of police having seen a policeman in bed two days before the trial stated that he appeared ill, and that when he tried to get out of bed he could not stand, but he was unable to state what was the matter with him, except that he believed it to be rheumatics, and no medical man was called to be examined as to his condition. Held, that the deposition could not be admitted. Ber Piggott, B., B. v. William*, 4 /■'. & F. 515. The witness. Mary Lee, whose deposi- tion it was proposed to read, lived not far from the court. Her medical attendant was called, and said, " I know Mary Lee; she is very nervous, and seventy-four years of age. I think she would faint at the idea of coming into court, but I think she could go to London to see a doctor without difficulty or danger. I think the idea of seeing so many faces would be dangerous to her, and that she is so nervous that it might be- dangerous to her to be examined at all. I think she could distinguish between the court going to her house and she herself coming to the court." It was held by the Court for Crown Cases Eeserved, that the deposition was not admissible, and Lord Coleridge, C. J., in giving judgment, said, " it would be dangerous to admit any such latitude of construction as would bring this case within the words of the statute." B. v. Farrel',. L. B. 2 C. C. It. 116; 43 I. J.,M. C. 94. See also R. v. Welton, 9 Cox, 281; /,'. v. Bull, 12 Cox, 31. It is a question for the judge at the trial to determine whether the proof of a witness being so ill as not to be able to travel is sufficient ; and the ( !ourt of Criminal Anneal will not interfere with the exercise of his discretion. /,'. v. Stephenson* 1 L. & C. 165 ; 31 L. J., M. C. 147. In B. v. Farrel! , supra, the case was reserved for the Court by Lord Coleridge, C. J., and not at the request of counsel. But see now B. v. Wellings, ante. There is nothing in the words of the statute which renders it necessary that the inability of the witness to attend at the trial should be permanent ; it may. therefore, bo implied that it need not be so. Before the statute, it seems to have been doubted whether a merely temporary illness was a sufficient ground for admitting the deposition. 2 Stark. Br. 383, '3rd nl. ; B. v. Savage, 5 ('. & I'. 143. And there can be no doubt that a judge would now exercise his discretion and decide whether, in the interests of justice, it were better to read the deposition, or to adjourn the trial in order to obtain the oral testimony of the witness. See II. v. Tait, 2 F. & F. 553, where Grompton, J., postponed the trial to the next assizes. As to the absence of a child and the proof of its deposition on a prosecution for an offence under the Prevention of Cruelty to Children Act, see 57 & 58 Vict, c 41, ss. 14 & 16, post, pp. 346, 347. Depositions. 01 Condition of absent witness — how •proved.'] Of course, a surgeon's certi- ficate, however authentic in itself, is no legal evidence of the state of the witness. His condition must be proved on oath to the satisfaction of the judge who trios the case, whose province it is to decide this preliminary question of fact. It appears to be the established practice that, in the case of a witness being alleged to be ill, the surgeon, ii' he be attended by diic. must be called to prove his condition. In R. v. Riley, 3 0. & K. 316, Pattesou, J., laid it down, that where a witness is ill, his deposition would not be received in evidence under this statute, unless the surgeon attended at the trial to prove that the witness was unable to travel. And he also stated that where a witness was permanently disabled, and was not attended by a surgeon, other evidence that the witness was unable to travel was receivable. In that case, it appears that the witness was attended by a surgeon, who was not called; but another person proved that he saw the witness in bed on the 18th March, when he seemed ill ; the commission-day was the 21st. and the trial took place on the 23rd; it was held that the proof was insufficient to render the deposition admissible. In J', v. Phillips, 1 /'. & F. 105, the attorney for the prosecution was put into the box to prove that the witness was unable to attend, and stated that the witness's residence was twenty-three miles off, and that he had seen him that morningin bed with his head shaved. Erie, J., said, "The evidence, no doubt, is us strong as it can be, short of that of a medical man, but the case may !><• easily imagined of a person extremely un will in. g to appear as a witness, and so well feigning himself to be ill as to deceive anyone but a medical man" ; and the evidence was rejected. Deposition*, to bt admissible, must betaken in proper form."] To render a deposition of any kind admissible in evidence in any case, it must be proved to have been formally taken. The requirements of 11 & 12 Vict. c. -12, s. 17. supra, must be proved, by the party tendering the evidence, to have been complied with ; though the usual presumptions in favour of the proceedings having 1 n regular, will be made, if the depositions are in form correct. As to the unsworn deposition of a child, see, however, 57 & 58 Vict., c. 41, s. 15, post, p. 347. Modi of taking depositions caption."] The title or caption of the depo- sition need state no more than that it is the deposition of the witness, and also the particular charge before the magistrate to which the deposition had reference. Where, therefore, upon the trial of a prisoner for unlaw- fully obtaining a promissory note by false pretences, the deposition of the prosecutrix, proved to have been regularly taken before the committing magistrate, stated, by way of caption, that it had been taken "in the presence and hearing of Harriet Langridge (the prisoner), late of, &c, wife of John Langridge, of the same place, Labourer, who is now charged before me this day for obtaining money and other valuable security for money from M. II. the prosecutrix), then and there being the money of, &c. " ; it was held, that such caption charged an offence against the prisoner with sufficient distinctness, and that the deposition had been properly received in evidence at the trial, after due proof of the absence of the prosecutrix from illness. /;. v. Langridge, 1 Den. C. C. Ii. 448; 18 /.. ./.. .1/. C. 198. One caption at the head of the body of the depositions taken in the case is sufficient, and the particular deposition sought to be given in evidence need not have a separate caption. /,'. v. Johnson, 2 0. & K. 355. So where the depositions had one caption, which mentioned the names of all the witnesses, and at the end one jurat, which also contained the names of all the witnesses, and to which was the signature C2 Depositions. of the magistrate, and each witness signed his own deposition, Williams, J., was of opinion that they were correctly taken. 11. v. Young, 3 C. & A".. 106. A deposition without a caption is inadmissible, though otherwise formally taken. R. v. Newton, 1 F. & F. 641. Mode of taking depositions — opportunity of cross-examination.] The prisoner must have an opportunity of cross-examining the witness. Where the prisoner was not present during the examination, until a certain part of the deposition, marked with a cross, at which period he was introduced, and heard the remaining part of the examination, and when it was concluded, the whole was read over to him; Chambre, J., refused to admit that part of the depositions previous to the mark which had not been heard by the prisoner. Jl. v. Forbes, Holt, 599 (n. ). But a different rule was acted upon in the following case. The prisoner was indicted for murder, and the deposition of the deceased was offered in evidence. It appeared that a charge of assault having been preferred against the prisoner, the deposition of the deceased had been taken on that charge. The prisoner was not present when the examination commenced, but was brought into the room before the three last lines were taken down.. The oath was again administered to the deceased in the prisoner's presence, and the whole of what had been written down was read over to him. The deceased was then asked, in the presence of the prisoner, whether what had been written was true, and he said it was perfectly correct. The magistrate then, fin the presence of the prisoner, proceeded to examine the deceased further, and the three last lines were added to the deposition. The prisoner was asked whether he chose to put any questions to the deceased, but did not do so. An objection was taken that the prisoner had not been present. The deposition, however, was admitted, and by a majority of the judges held rightly admitted. II. v. Smith, Ihiss. & It//. 339; 2 Stark. N. 1>. 208. In R. v. Beeston, Dears. C. C. 40,3, Alderson, B., stated that he still thought he was right in the objection which, as counsel for the prisoner, he took to the admissibility of the deposition in 7/. v. Sin it//, upon the ground that "the prisoner had not a sufficient opportunity of cross-examination; that he had no opportunity of hearing the witness give his answers and seeing his manner of answering, and that so much of the evidence as had been taken in the prisoner's absence was inadmissible." And Piatt, B., in 11. v. Johnson, 2 C. & E. 394, reprobated the practice of taking depositions in the absence of the prisoner, and then supplying the omission by reading them over to the prisoner, and asking him if he would like to put any questions to the witnesses. The law presumes that if the prisoner was present he had a full opportunity of cross-examination, but this presumption may be rebutted. 11. v. Peacock, 12 Cox, 21. Mode of taking deposit inns — m ust he in 'presence of a magistrate.'] A person whilst before a magistrate had a full opportunity of cross-examining, and a note of the heads of the examination was taken by a clerk. Afterwards another clerk examined the witnesses from the notes so taken, and, in the absence of the magistrate, wrote down the answers and obtained the signa- tures of the witnesses. The prisoner's attorney was not there, though he might have been if he had liked, and the prisoner who was present was not asked if he would then cross-examine. The prisoner and witnesses were then taken before the magistrate, and the evidence taken before the clerk was read over to them. The prisoner was not then asked if he would cross-examine. The magistrate then cautioned the prisoner, who then signed his own statement, and the magistrate signed the depositions. It Depositions. 63" was held by the Court for Crown Cases Reserved that the depositions were inadmissible, because they were not taken in accordance with the 11 & 12 Vict. c. 42, s. 17, but the argument of counsel was mainly directed to the point that the depositions were not taken in the presence of a magistrate.. R. v. ]Yatts, 9 Cox, 395; 33 /.. -/., M. C. 63 ; A. & C. 339. Mode of taking depositions — should be fully taken and returned.^ By the- 11 & 12 Vict. c. 42, s. 17, it is expressly enacted that the justice "shall in the presence of such accused pei\son, who shall be at liberty to put questions to any witness produced against him, take the statement on oath or affirmation of those who shall know the facts and circumstances^ of the cases, and shall put the same into writing, and such depositions shall be read over and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same." The observations of Parke, B., in 11. v. Thomas. 7 ('. ,[• /'. 718, are still pertinent. He said, "Magistrates are required by law to. put down the evidence of witnesses, or so much thereof as shall be- material. They have hitherto in many cases confined themselves to what they deemed material, but in future it will be desirable that they should be extremely careful in preparing depositions, and should make a full statement of all the witnesses say upon the matter in question, as the- experience we have already had of the operation of the Prisoner's Counsel Bill has shown us how much time is occupied in endeavouring to establish contradictions 1 ie1 ween the testimony of the witnesses and their depositions, in the omission of minute circumstances in their statements made before the magistrates, as well as in other particulars.' 1 Where there was an omission, in the depositions, of a conversation which was sworn to at the trial, and which the witness said he had told to the magistrate, Lord 1 >enman, C. J., thought the complaint of the prisoner's comrsel, that such omission was unfair to the prisoner, was well founded, and that the magistrate ought to have returned all that took place before him with respect to the charge, as the object of the legislature in granting prisoners the use of the depositions was, to enable them to know what they have to answer on their trial. A', v. Grady, 7 C. & P. 650. The same learned judge expressed an opinion that although in a case of felony the com- mitting magistrate need not bind overall the witnesses who have been examined before him in support of the charge, but only those whose evi- dence is materia] to the charge, it was very desirable that all which had been given in evidence before the magistrate should be transmitted to the judge. li. v. Smith. 2 C & K. 207. So also, in cases where the prisoner calls witnesses before the magistrate in answer to the charge, they should be heard, and their evidence taken down; and if tin.' prisoner be com- mitted for trial, the depositions of his witnesses should he transmitted to the judge, together with t he depositions in support of the charge. J // F. & F. 860, said the depositions were sufficiently signed, and Byles, J., said, "the different sheets appear to have been attached together at the time of the signature, and it can make no difference whether they were attached by a pin or in any other way as to the continuity of the piece of paper." R. v. Parker, /.. li. 1 C. C. li. 225; 39 L. J.. M. C. 60. The mode of taking depositions of witnesses for the defence is regulated by the 30 & 31 Vict. c. 3.3, s. 3, see Appendix of Statutes, Depositions —for what purposes available.] If the deposition be admis- sible at all, it is admissible for all the purposes for which ordinary evidence is admissible, and may he used either for or against the prisoner. It may be used before the grand jury in the same way as before the pettv jury. //. v. Clements, 2 Den. <". 0. 251 ; 20 L. ./.. M. C. 193. In R. v. Gerrans, 13 Cox, 158, Denman, J., allowed a deposition to be sent before the grand jury without first proving the illness of the witness and the taking of the deposition. Depositions- -admissible on trial of what offences.'] Most of the cas*'s which have actually occurred on this subject are those in which the in- quiry before the magistrates has been into an injury done to the witness, which, from subsequent circumstances, has resolved itself into a more serious charge. The question lias then arisen, whether, if the witness be unable to attend at the trial, his deposition is admissible, as having been given on a different charge from that then made. All the cases before the 11 & 12 Vict. c. 42, s. 17, were in favour of the admissibility of the deposition under such circumstances. In li. x. Smith, Russ. A- Ry, 339, the prisoner was indicted for the murder of one Charles Stewart. The prisoner had been taken before the magistrate upon a charge of assault upon the deceased and also of robbing a. manufactory, where the deceased was employed as night-watchman. At the trial the deposition of the deceased taken upon this inquiry was offered in evidence, and received by Richards, < '. B. The matter was referred to the opinion of the judges, who held by a majority of ten to one that the deposition was rightly received in evidence, hour of the judges, however, stated that they should have doubted hut for the case of li. v. Radbourne, 1 Lea. 45s, which i- to the same effect. It seems to have been thought that the 11 & 12 Vict, c 12, s. 17, made some difference in this respect, and the deposition was rejected once or twice under similar circumstances, but in It. v. Beeston, Dears. C. C. 405, the subject was fully considered; there the prisoner was charged before the magistrate with feloniously wounding .1. A. with intent to do him grievous bodily harm. J. A. subsequently died of the wound, and on the trial of the prisoner for the murder, the deposition of J. A. taken at the above inquiry was offered in evidence and received by < Irompton, .1. The point was reserved and fully argued before the Court of Criminal Appeal, where it was unanimously held that the deposition in this case would have keen admissible at common law, and that there was nothing in the statute by which the common law rule on the subjeel was affected. An opinion is expressed that the true guide in each case is not any technical distinction between the charge on which the deposition is taken and that on which the prisoner is ultimately tried, but whether the prisoner appears to have hail a full opportunity of cross- examination on all points material to one charge as well as to the other ; R. F GO Depositions. and see 7?. v. Lee, 4 F. proper objects, or why the depositions should be received under circumstances which render every other kind of depositions taken judicially inadmissible, except by express statutory pro- vision. And he adds, "And it seems an unreasonable and anomalous proposition to hold that on a trial for murder upon the coroner's inquest, a deposition taken before him, in the absence of the prisoner, is receivable 1' " / 68 Depositions. in evidence; but that, if the trial takes place on a bill of indictment, a deposition so taken before a magistrate is not receivable. The same principle which excludes in the one case ought, if it is just and sound, to exclude also in the other." 2 Phil/. & Am. Ev. 109, 110, 10th cd. ■ See Taylor on Evidence, 179, 6th ed. The judges have power, by their general authority as a court of justice, to order a copy of depositions taken before a coroner to be given to a prisoner indicted for the murder of the party concerning whose death the inquisition took place. R. v. Greenacre, 8 C. & P. 32, It seems that depositions, taken before a coroner, of a witness too ill to attend, may be sent before the grand jury. R. v. Mooney, 9 Cox, 411. As to giving a witness's deposition in evidence against himself, if he is charged with a crime upon the same facts, see supra, p. 51. Depositions in India by consent. Vict. c. 96, s. 94, " If upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for [he jury to convict upon such indictment such nf the said persons as shall hi' proved to have received any part or parts "I' such property." Other statutes relating in the form of indictments, which affect the issues raised by them, are the 24 & 25 Vict. c. 94, by which it is enacted, that an accessory before the tact to any felony may he indicted in all respects as if he were a principal felon ; the 24 iV 25 Vict. c. 100, s. 60, by which a woman indicted for the murder of her infant child may he found guilty of endeavouring to conceal its birth ; the 24 iV 25 \ ict. c. !">, s-. 88, by which a person indicted for obtaining property by false pretences -hall not be acquitted of the misdemeanor if the facts amount to larceny: the 14 & \~> Vict. c. 19, s. 5, by which a person indicted for feloniously wounding may be found guilty of unlawfully wounding only : and the 4(i (S 47 Vict. c. 51, s. 52, by which persons charged with corrupt 72 What Evidence is proper to the issues. practices may be fcamd guilty of illegal practices. For the various verdicts which may be returned under 48 & 49 Yict. c. 69, see post, tit. Rape. Divisible averments.~\ There is one rule of liberal construction applied to criminal indictments which does not depend on recent legislation, and which stands in somewhat curious contrast to the general body of rules adopted in former times. It is generally known as the rule of divisibility of averments, and maybe stated thus : that if in the indictment an offence is stated which includes within it an offence of minor extent and gravity of the same class, then the prisoner may be convicted on that indictment of the minor offence, though the evidence fail as to the major. Thus, upon an indictment for murder, the prisoner may be convicted of manslaughter. Gill). Ev. 262. 11. v. Maclcalley, 9 Co. Rep. 65 (6) ; Co. Lift. 282(a). And where a man was indicted on the statute of 1 Jac. 1, for stabbing contra formam statuti, it was held, that the jury might acquit him upon the statute, and find him guilty of manslaughter at common law. P. v. Hanvood, Style, 86; 2 Hale, P. C. 302. Where a man is indicted for burglary and larceny, the jury may find him guilty of the simple felony and acquit him of the burglary. 2 Hale, P. C. 302. So where the indictment was for burglary and larceny, and the jury found the prisoner guilty of stealing to the amount of 40s. in a dwelling-house, the judges were of opinion that by this verdict the prisoners were ousted of their clergy, the indictment containing every charge that was required by the statute. R, v. Withal, 1 Leach, 89; 2 East, P. C. 515, stated post, tit. Burglary. J!, v. Compton, 3 C. & P. 418. So, on an indictment for stealing in a dwelling-house, a person therein being put in fear, the prisoner may be convicted of the simple larceny. R. v. Etherington, 2 Leach, 671 ; 2 East, P. C. 635. Again, if a man be indicted for robbery, he may be found guilty of the larceny, and not guilty of the robbery. 2 Hale, P. C. 302. And in all cases of larceny, where, by statute, cir- cumstances of aggravation subject the offender to a higher punishment. on failure in the proof of those circumstances, the prisoner may be con- victed of the simple larceny. Thus, on an indictment for horse-stealing ■under a statute, the prisoner may be found guilty of a simple larceny. li. v. Beaney, Russ. & By. 410. But where upon an indictment for robbery from the person, a special verdict was found, stating- facts which, in judg- ment of law, did not amount to a taking from the person, but showed a larceny of the party's goods; yet as the only doubt referred to the court by the jury was, whether the prisoners were or were not guilty of the felony or robbery charged against them in the indictment, the judges thought that judgment, as for larceny, could not be given upon that indictment, but remanded the prisoner to be tried upon another indict- ment. R. v. Frances, 2 East, P. C. 784. In II. v. Jennings, 1 Liars. & B. C. C. 447, the indictment charged that the prisoner, whilst the servant of A., stole the money of A. It appeared that the prisoner was not the servant of A., but the servant of B., and that the money which he stole was the money of B., but in the possession of A. as the agent of B. ; the prisoner was convicted, and the court held the conviction good, saying, that the allegation in the indictment as to the prisoner being a servant might be rejected as surplusage. But where the prisoner was indicted under 24 & 25 Vict. c. 99, s. 12, for the felony of uttering counterfeit coin after a previous conviction for a like offence, and the jury found him guilty of the uttering, but negatived the previous conviction, it was held that he could not be convicted of the misdemeanor of uttering, on the ground that on an indictment for felony there can be no conviction for What Evidence is proper to the Issues. 73 misdemeanor, except by statutory enactment. II. v. Thcmas, I.. II., 2 C. C. R. 141; 44 /,. J.\ M. C. 42; and see post, tit. Coining. In misdemeanors, as well as in felonies, the averments of the offence are divisible. Thus, in an information for a libel, it was stated that the defendants composed, printed, and published the libel; the proof extended only to the publication ; but Lord Ellenborough held this to be sufficient. R. v. Hunt, 2 ('dm ji. .384. So, where an indictment charges that the defendant did, (did caused to lie done, a certain act, as forged and caused 1o lie forged, it is sufficient to prove either one or the other. Per Lord Mansfield, R. v. Middleliurst, 1 Burr. 400. Upon an indictment for obtaining money under false pretences it is not necessary to prove the whole of the pretence charged ; proof of part of the pretence, and that the money was obtained by such part, is sufficient. //. v. Hill, Buss. & Ry. 190. So, upon an indictment for perjury, it is sufficient if any one of the assignments of perjury be proved. R.y. Rhodes, 2 Raym. 886. So, on an indictment for conspiring to prevent workmen from continuing to work, it is sufficient to prove a conspiracy, to jtrovent one workman from working. II. v. Bykerdike, 1 M. & Itch. 179. As to divisible averments in charges involving an assaidt, see tit. Assault. In cases of rape, see post, tit. Rape. With regard to the extent of the property as to which the offence has been committed, the averments in the indictment are divisible. Whatever quantity of articles may be stated in an indictment for larceny to have been stolen, the prisoner maybe convicted if anyone of those articles be proved to have been feloniously taken away by him. Where the prisoner was indicted, for that he, being a post-boy andrider employed in the business of the post office, feloniously stole and took from a letter a bank post bill, a bill of exchange for 100/., a bill of exchange for -10/., and a promissory note for 20/., and it was not proved that the letter contained a bill of exchange for 100/., the prisoner being convicted, it was held by the judges, that the statement in the indictment not being descriptive of the letter but of the offence, the conviction was right. R. v. Ellim, Russ. Stark. X. P. (52. Where an intent is unnecessarily introduced in an indictment, it may be rejected. R. v. Jones, 2 B. & Ad. 611. Averments which need not be proved.'] By a strange inconsistency it was necessary under the old law to aver with great particularity both time and place ; but in no case, except where the offence was limited in respect of time or place, need it have been proved as laid. R. v. Townley, Fost. 7 ; R. v. Levy, 2 Starh X. J'. 458 ; K. v. Aylett, 1 T. It. 63. Whether, where value was not of the essence of the indictment, it was ever necessary to aver it, is doubted by Hawkins (Hawk. P. C. blc. 2, c. 25, s. 75), "for any other purpose than to aggravate the fine." Now by the 14 iV- 1.3 Vict. c. 100, s. 24, " no indictment for any offence shall be held insufficient forwant of the averment of anymatter unneces- sary to be proved, . . . nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indict- ment, or on an impossible day, or a day that never happened, nor for want of the statement of the value or price of anymatter or thing, or the amount of damage, injury, or spoil in any case where the value or price, or the amount of damage, injury, or spoil is not of the essence of the offence." By the above section also it is no longer necessary to con- clude an indictment contra formam statuti. Castro v. R., 6 App. Cos. 229 ; 50 L. J., H. L. 417. Notwithstanding these provisions, indictments frequently contain aver- ments of time, place, and value, although they be not, as the phrase is, of the essence of the offence. But the statement of them in no way restricts the proof which may be given under the indictment. Amendment.'] The nature and intent of powers of amendment will be considered under the head of Practice. It is only necessary to notice them here, because the practical effect of them is that many variances between the evidence and the offence charged in the indictment are passed over without notice ; it not bein,u- considered worth while to take an objection which would only produce an amendment. But the result is frequently to remove the offence for which the accused is ultimately tried still further from that with which he is apparently charged. Effect of the above rules and provisions.] It is evident that the effect of the above rules and provisions is materially to affect the nature of the issues raised by criminal pleadings. Frequently, indeed generally, a single count in an indictment traversed by a single plea of not guilty is capable of raising several issues more or less distinct from that which appears npon its face. No doubt the prosecutor will not be allowed to What Evidena is proper to the Issues. 75 inquire into several felonies al the same time merely because they all fall within the words of the indictment; he will in general be put to his election upon which he will proceed. Sec post, tit. Practice. But what is meant is that there may be several issues arising out of our count, any one of which may be selected for inquiry. In considering, therefore, what evidence is proper to the issue in criminal cases, we must always bear in mind that we are to Look for the issue not in the mere words of the indict- ment, but coupling those words with the rules and provisions which we have just explained. Substance of the issue to fa proved as laid."] Bearing in mind what has just been said as to what theissuein criminal cases really is, the substance of the issue must be proved as laid. "What follows must, of course, be taken subject to the powers of amendment above referred to, and it must also be recollected thai in certain offences descriptive averments need only be of the most general kind. The descriptive averments in an indictment are either of property, person, time, place, value, or mode of committing an offence. The decided cases on each of these averments will be in ven in their order. to* Averments descriptive of property .] Most of the cases of variance in the allegation and proof of property have occurred with respect to animals. See as to li\ e turkeys. It, v. Edioards, Russ. & Ry. 4!)7. As to cows. /,'. v. Cook, 2 East, /'. C. ; 1 Leach, 105. And as to a mare, It. v. Chalk- ley, Russ. & Ry. 258; and it. v. Wetland, Russ. & Ry. 494. Probably every one of these eases would now be amended. Averments dt tcriptive of person.'] The name both christian and surname of all persons mentioned in the indictment must, -unless amended, he proved as laid. But if the name lie that by which a person is usually called or known it is sufficient. 11. v. Norton, Russ. & Ry. 510; Anon., <> C. & I'. 408; see also /;. v. Berryman, 5 C. & I'. 601. "Where in an indictment a boy was called I >., and he stated that his right name was 1 >.. but that most persons who knew him called him 1'.. and that his mother had married two husbands, the fixsi named 1'. and the second D., and that he wastold by his mother thai lie was the son of the latter, and that she used always to call him I >., "Williams, J., after consulting Alderson, 1!.. held thai the evidence thai the hoy's mother had always called him D. musl he taken to be conclusive as to his name, and that therefore he was rightly described in the indictment. R. v. Williams, 7 C. & P. 298. Upon an indictment for the murder of a bastard child, described in the indict- ment as " George Lakeman ('lark." it appeared it had 1 a christened "George Lakeman," being the names of its reputed father; thai it was called George Lakeman. and not by any other name known to the witnesses; and that the mother called it George Lakeman. There was no evidence thai il had obtained, or was called by its mother's name of ( 'lark. The judges held, that as this child had not obtained his mother's name by reputation, he was improperly called Clark in the indictment, and as there was nothing hut the name to identify him in the indictment. the conviction could nol be supported. //. v. Clark, Russ. & Ry. 358. "Where an unmarried woman was robbed, and after the offence committed, lmt before the bill was presented to the grand jury, she married, and the indictment described her by her maiden name, this was held to he sufficient. //. v. Turn r, 1 Leach, 536. Although where there arc father and son of the same name, and that name is stated without any addition. it shall be prima facie intended to signify the father; Wilson v. Stubbs, 76 JVhat Evidence is proper to the Issues. Huh. 330; Sweeting v. Fowler, 1 Star/.-. 106; yet on an indictment containing the name without addition, it may be proved that either the father or son was the party intended. Thus on an indictment for an assault upon Elizabeth Edwards, it appeared that there were two of that name, mother and daughter, and that in fact the assault had been made on the daughter ; the defendant being convicted, the conviction was held good. R. v. Peace, 3 B. & A. 580. So where an indictment laid the property of a house in J. J., it was held by Parke, J., to be supported by proof of property in J. J. the vounger. 11. v. Hodgson, 1 Lew. 0. 0. 236; per Bolland, B., 11. v. Bland, lb. An indictment is good, stating that the prisoner stole or received the goods of a person to the jurors unknown; but in case the owner of the goods be really known, an indictment alleging the goods to be the pro- perty of a person unknown, would be improper, and the prisoner must be discharged of that indictment, and tried upon a new one for stealing the goods of the owner by name. 2 Hale, P. (J. 621. Where the property was laid in one count as belonging to a certain person named, and in another as belonging to persons unknown, and the prosecutor failed to prove the christian names of the persons mentioned in the first count ; it was held by Bichards, C.B., that he could not resort to the second count ; and the prisoner was acquitted, R. v. Robinson, Holt, X. F. (J. 595. An indictment against the prisoner as accessory before the fact to a larceny, charged that a certain person to the jurors unknown, feloniously stole, &c, and that the prisoner incited the said person unknown to commit the said felony. The grand jury had found the bill upon the evidence of one Charles lies, who confessed that he had stolen the property, and it was proposed to call him to establish the guilt of the prisoner, but Le Blanc, J., interposed and directed an acquittal. lie said he considered the indict- ment wrong, in stating that the property had been stolen by a person unknown, and asked how the witness, who was the principal felon, could be alleged to be unknown to the jurors when they had him before them, and his name was written on the back of the bill. R. v. Walker, 3 Camp. 264 ; see also II. v. I Hick, 4 C. has been said, in general, no time need lie alleged in tin' indictment, or, if alleged, need not he proved. But if it 1 1 ihi' essence of the offence, as in burglary, or the non- surrender of a bankrupt at the time appointed, then it must, subject to the power of amendment, lie strictly proved as laid. //. v. Broiuue, M. ,v M. 315. Averments descriptia of place.] In some particular cases it is necessary to prove the parish or place named in the indictment. Thus, as in an indictment against a parish for not repairing a highway, the situation of the highway within the parish is a material averment, see 2 Stark. C. I'. 693 (•«.), it musl be proved as laid. So if' the statute upon which the indictment is framed, drives the ) enalty to the poor of the parish in which the offence was committed, the offence must he proved to have been com- mitted in the parish stated in the indictment. 2 Russ. Cri. 4.'Jf>, (>/7< < Rep. 92, when- a man committed three burglaries in one night, and stole a shirt at one place and left it at another, and they were all so connected that the court heard the history of all three burglaries; Lord Ellenborough remarked that "if crimes do so intermix, the court must go through the detail " So where the prisoner was charged with setting tire to a rick, evidence was allowed to be given that he had set fire to two other ricks, belonging 1" differenl persons, at the >ame time and place. Per Grurney, 1!.. R. v. Long, <> 0. * /'. 179. The prisoner, who had been in the employ of the prosecutrix, was indicted for stealing six shil- lings; the son of tin- prosecutrix, suspecting the prisoner, had marked a quantity of money, and put it into the till, and the prisoner was watched by him ; on the firsl examination of the till it contained ] Is. <> explain motives and intention — Conspiracy ,~\ The evidence in conspiracy is wider than, perhaps, in any other case, other principles as well as that under discussion tending. to give greater latitude in ] (roving this offence. See tit. Conspiracy, post. Taken by themselves the acts of conspiracy are rarely of an unequivocally guilty character, and they can only be properly estimated when connected with all the sur- rounding circumstances. Thus, on the trial of an indictment against Movcral persons for a conspiracy in unlawfully assembling for the purpose ■of exciting discontent or disaffection, as the material points for the con- sideration of the jury are the general character and intention of the assembly, and the particular case of the defendant as connected with that general character, it is relevant to prove, on the part of the prosecution, that bodies of men came from different parts of the country to attend the meeting, arranged and organised in the same manner and acting in con- cert. It is relevant also to show, that early on the day of the meeting on i\ spot at some distance from the place of meeting (from which spot bodies of men came afterwards to the place of meeting), a great number of persons, so organized, had assembled, and had there conducted them- selves, in a riotous, disorderly or seditious manner. It. v. Hunt, 3 Jl. f the prisoner on other occasions, from which it might fairly be inferred that the prisoner was conscious of his guilt whilst he was doing the act charged upon him in the indictment. Heath, J., said, "The charge in this case puts in proof the knoivledge of the person, and as that knowledge cannot be collected from the circumstances of the transaction itself, it must necessarily be collected from other facts and circumstances." 11. v. Whiley, 2 Leach, 983 ; 1 New Rep. 92. Not only is evidence of the act of passing other forged notes admissible- to prove the prisoner's guilty knowledge, but proof of his general demeanor on a former occasion wdl be received for the same purpose. The prisoner was indicted for forging and knowingly uttering a bank note, and the question was, whether the prosecutor, in order to show that the prisoner knew it to be forged, might give the conduct of the prisoner in evidence, that is, whether from the conduct of the prisoner on one occasion, the jury might not infer his knowledge on another, and all the judges were of opinion that such evidence ought to be received. /.'. v. Tattershall, cited by Lord Ellenborough, 2 Leach, 984. It is not necessary that the other forged notes should be of the same description and denomination as the note in question. R. v. Harris, 7 ' '. & P. 429. The point was doubted in R. v. Millard, R. & R. 245 ; but in //. v. Ball, 1 Moo. <'. ('. 470, the prisoner was indicted for forging and uttering a note in the Polish language. In support of the scienter the prosecutor gave evidence of the particulars of a meetin»- at which the prisoner agreed with the prosecutor (who was an agent of the Austrian government, anil had been sent over to endeavoruto detect persons impli- cated in the forgeries of Austrian notes) to make him 1,000 Austrian notes for fifty florins. This evidence was objected to on the part of the prisoner, as it was a transaction relative to notes of a different description from the notes in the indictment, besides which no Austrian notes were in fact made. Littledale, J., however, admitted the evidence, and the prisoner was found guilty, but judgment was respited, that the opinion of the judg< ts might be taken, who held the evidence admissible. And the case of R. v. Foster, infra, p. 84, supports the same view ; for the same principle would apply to indictments for uttering forged instruments as to indictments for uttering counterfeit coin. Whether evidence is admissible of uttering other forged instruments where these are uttered subsequently to that with which the prisoner is charged se^ms to some extent doubtful. In one case the prosecutors offered to prove the uttering of another forged note five weeks after the uttering which was the subject of the indictment; but the Court (Ellen- borough, J., Thompson, C. B., and Lawrence, J.) held that the evidence What Evidence is proper to the Issues. 83 was not admissible, unless the latter uttering was in some way connected with the principal case, or unless it could be shown that the notes were of the same manufacture. R. v. Taverner, Carr. Sup. 19.3, 1st ed. ; 4 C. & P. 413 (n). Where in an indictment for uttering- a bill with a forged accept- ance, knowing- it to be forged, it being proposed, for the purpose of proving the guilty knowledge, to give in evidence other forged bills of exchange precisely similar, with the same drawers' and acceptors' names, uttered by the prisoner about a month after the uttering of the bill mentioned in the indictment, Gaselee, J., after consulting Alexander, C. B., was disposed to allow the evidence to be received, but said that he would reserve the point for the opinion of the judges, upon which the counsel for the prosecution declined to press the evidence. R. v. Smith, 4 0. & P. 411. See //. v. Foster, infra, p. 84. The prisoner was a stamp distributor of the Queen's Bench in Ireland. In the process of stamping, a second sheet placed inadvertently beneath the sheet to be stamped receives an impression. These second sheets are called blinds. These the prisoner obtained and sold. The defence was that he obtained them inno- cently (though the person giving them to him might be fraudulent). To meet this defence evidence was admitted of several documents with similar blinds, and identified by the prisoner's mark, and it was held in Ireland they were rightly admitted as evidence of guilty knowledge. R. v. Col- clough, 15 ( 'ox, 92. But no doubt there would be some limits both as to time and circum- stances beyond which evidence of uttering forged instruments on other occasions would not be permitted. What these limits are it is for the judge in his discretion to determine; they will probably be wider in forgery and coining than in some other cases, receiving stolen goods for instance. R. v. (.fret n, 3 C. n the trial of indictments for uttering or putting off counterfeit coin, knowing it to be counterfeit, it is the practice, as in cases of forgery, to receive proof of more than one uttering, committed by the party about the same time, though only one uttering be charged in the indictment. 1 Russ. Cri., Qth ed., 241 ; 3 ih. 411. In //. v. Whiley [see ante, p. 82), it was stated by the counsel for the prisoner, in argument, that upon an indictment for uttering bad money, the proof is always exclusively con- lined to the particular uttering charged in the indictment. Upon this Thompson, B., observed, " As to the "cases put by the prisoner's counsel of uttering bad money, I by no means agree in their conclusion, that the G 2 84 What Evidence is proper to the Issues. prosecutor cannot give evidence of another uttering on the same day, to prove the guilty knowledge. Such other uttering cannot he punished, until it has become the subject of a distinct and separate charge ; but it affords strong evidence of the knowledge of the prisoner that the money was bad. If a man utter a bad shilling, and fifty other bad shillings are found upon him, this would bring him within the description of a common utterer; but if the indictment do not contain that charge, yet these circumstances may be given in evidence on any other charge of uttering, to show that he uttered the money with a knowledge of its being bad." 2 Leach, 9>S6. Also proof of the prisoner's conduct in such other utterings (as, for example, that he passed by different names) is for the same reason clearly admissible. See E. v. Tatiershall, ante, p. 82; E. v. Phillips, 1 Lew. C. C. 10.3. Such evidence, far from being foreign to the point in issue, is extremely material ; for the head of the offence charged upon the prisoner is, that he did the act with knowledge, and it would seldom be possible to ascertain under what circumstances the uttering took place (whether with ignorance or with an intention to commit fraud), without inquiring into the demeanor of the prisoner in the course of other trans- actions. 1 Eli ill. Ev. 511, 10th ed. And the point is now finally settled that evidence of uttering counterfeit coin on other occasions than that charged is evidence to show guilty know- ledge ; and that utterings after that for which the indictment is laid may be given in evidence for this purpose, as well as those which take place before. Thus in E. v. Foster, 24 L. J., M. C. 134, the Court of Criminal Appeal held, that on an indictment for uttering a counterfeit crown piece knowing it to be counterfeit, proof that the prisoner, on a day subsequent to the day of such uttering, uttered a counterfeit shilling, was admissible to prove the guilty knowledge of the prisoner. " The uttering of a piece of bad silver," said the court, " although of a different denomination from that alleged in the indictment, is so connected with the offence charged, that the evidence of it was receivable." It is to be observed that this case also shows that the coins uttered need not be the same on each occasion. See as to the latitude to be allowed in this respect ante, p. 81. Evidence to explain motives and intention — Larceny and receiving stolen goods.~] With regard to the case of a receiver of stolen goods, it has been frequently held that as the question is one entirely of guilty knowledge, evidence of receiving other goods of a similar nature, stolen from the same prosecutor, may be given ; even though indictments are pending for the other larcenies. But it appears that the other occasions on which the stolen property was received must not be so far removed in point of time as to form entirely different transactions. Where, upon an indictment for receiving, it appeared that the articles had been stolen, and had come into the possession of the prisoner at several distinct times, the judge, after compelling the prosecutor to elect upon which act of receiving he would proceed, told the jury that they might take into their consideration the circumstance of the prisoner having the various articles of stolen pro- perty in her possession, and }dedging, or otherwise disposing of them at various times, as an ingredient in coming to a determination, whether, when she received the articles for which the prosecutor elected to proceed, she knew them to have been stolen. E. v. Dunn, 1 Moody, C. O. 14(J. But where the prisoner being indicted in one count for stealing certain cloth, in another for receiving it knowing it to have been stolen, it was proved that the cloth was stolen in the night of the 2nd and 3rd March, and found in the possession of the prisoner on the 10th March; and it was sought further to give in evidence, in order to show guilty knowledge, What Evidence is proper to the Issues. 85 that on his house being searched on 10th March, other cloth which had been stolen in the December previous from other parties, was found ; the Court of Criminal Appeal held that such evidence was inadmissible. Alderson, B., in giving his judgment, said, "The mere possession of stolen property is evidence prima /uric not of receiving but of stealing; and to admit such evidence in the present case would be to allow a prose- cutor, in order to make out that a prisoner had received property, with a guilty knowledge, which had been stolen in March, to show that the prisoner had in the December previous stolen some other property from another place and belonging to other persons. In other words, we ar< asked to say, that in order to show that the prisoner had committed one felony, the prosecutor may prove that he committed a totally different felony some time before; such evidence cannot be admissible." B. v. Oddy, -1 Den. G. C. JR. 264; 20 L. J., M. G. 19S. In B. v. Nicholls, 1 /*'. & F. 5, the prisoner was inflicted for receiving a quantity of lead knowing it to have been stolen. < "ockburn, ('. J., allowed evidence to be given that on several occasions, between the early part of January and the 1 ltli of February, the prisoner, in company with another person, had sold lead stolen from the same place, and taken a share of the money. By the Prevention of Crimes Act, o4 & 35 Vict. c. 112, s. 19, evidence may be given of the possession of other property stolen within the preceding period of twelve months. The section will be found post, Receiving Stolen Goods. Evidence to explain motives and intention Gen ral cases.'] In Ufalein v. Att.-Gen.for A. ,S. IT.. jjs<)4] J r. 57; 63 L. J., F. C. 41, the question asl to the admissibility of such evidence was fully discussed, and it was laid down thai evidence tending to show that the accused has been guilty of criminal acts, other than those covered by the indictment, is not admis- sible excepl upon the issue whether the acts charged in the indictment were designed or accidental, or in order to rebut a defence otherwise open to the accused. In thai case the prisoners were charged with the murder of a child whom thej had received from the mother on representation of t heir desire to adopt it, and whose body was subsequently found buried in their garden. It was held that evidence that several other children had been received by the prisoners on similar rejn*esentations, and that other bodies of infants had been found buried in gardens of houses occupied by the prisoners, was relevant to the issue. In R. v. Egerton, Hit*-*. & /'//. :i7o. the pri - mer was indicted for robbing the prosecutor of a coat by threatening to accuse him of an unnatural crime. Evidence was admitted by Eolroyd, J., that the prisoner had made another, but ineffectual, attempt to claim e 1/. note from the prosecutor on tin; following day to that on which he obtained the coat ; and it is said the this ruling was continued by the judges. In /,'. v. Yoke, RllSS. 62 Rt, 531, the prisoner was indicted for maliciously shooting at the prosecutoi. Evidence was given that the prisoner tired at the prosecutor twice during the day. In the course of tic trial it was objected that the prosecutor ought not tn give evidence of two distinct felonies, hut Burrough, J., held that it was admissible, on tic ground that the counsel for the prisoner, by his cross-examination of the prosecutor, had endeavoured to show that the gun might have gone off by accident; and the learned judge thought that the second firing was evidence to show that the first was wilful, and to remove the doubt, if any existed, in the minds of the jury. In R, v. Clewes, \ < ".. & P. 221, upon an indictment for the murder of one Hemmings, it was opened that great enmity existed between Parker, the rector of a parish, and his parishioners; and that the prisoner 86 II hat Evidence is proper to the Issues. had used expressions of enmity against the rector, and had said he would give 50/. to have bim shot ; that the rector teas shot by Hemmings, and that the prisoner and others who had employed him, fearing tbat they should be discovered, had themselves murdered Hemmings. Evidence of the malice of the prisoner against the rector was given without objection, and it was then proposed to show that Hemmings was the person by whom the rector was murdered; this was objected to, but Littledale, J., decided that it was admissible. In 11. v. Mogg, 4 C. & P. 3(54, the prisoner was indicted for administering .sulphuric acid to eight horses, with intent to kill them. Evidence that the prisoner had frequently mixed sulphuric acid with the horses' corn was objected to, but Parke, J., \held it was admissible, as showing whether the act was done with the intent charged in the indictment. In 11. v. Winhioorth, 4 C. & P. 444, prisoners came with a mob to the prosecutor's house, and one of the mob went up to the prosecutor, and civilly, and as he believed with a good intention, advised him to give them something to get rid of them, which he did. To show that this was not bond fide advice to the prosecutor, but in reality a mode for robbing him, it was proposed to give evidence of other demands of money made by the same mob at other houses, at different periods of the same day, when some of the prisoners were present. Parke, J., having conferred with Vaughan and Alderson, BB., said. •• "We are of opinion, that what was done by the mob, before and after the particular transaction at the prosecutor's house, but in the course of the same day, and when any of the prisoners were present, may be given in evidence." He afterwards stated that the judges (it was a special commission) had communicated with Lord Tenterden, who concurred with them in his opinion. In 11. v. Oerring, 18 L. J.. M. C. 215, the prisoner was indicted for the minder of her husband, in September, 1848, by administering arsenic to him. The prisoner was also charged, in three other indictments, with the murder, by similar means, of her son George, in December. 1848; of another son, James, in March. 1849; and of an attempt to murder, by similar means, another son, Benjamin, in April. 1849. On the part of the prosecution, evidence was tendered consisting of a medical post-mortem analysis of the intestines, heart, &c, of the husband. and two sons who were dead, and also a medical analysis of the vomit of Benjamin, showing the presence of arsenic in each case. Evidence was also tendered that all the parties lived together, and that the prisoner cooked the victuals. The evidence was objected to, but Pollock. < '. !>.. said that the domestic history of the family during the period that the four deaths occurred, was receivable in evidence, to show that during that time arsenic had been taken by four members of it. with a view to enable! the jury to determine as to whether such taking was accidental or notJ His lordship took time to consider whether he ought to reserve the point, but, after consulting Alderson, B., and Talfourd, J., resolved not to do so, and the prisoner was executed. The case of R. v. Garner, 4 F. & F. 346, is very similar. See also /,'. v. Cotton, 12 Cox, 400; R. v. Roden, 12 Cox, 63H; li. v. Heeson, 11 Cox, 40; R. v. Dale, 16 Cox, 703. In /.'. v. Roebuck, '!■'> I.. ■/.. M. C 51; D-nr*. & II. <'. ''.. the prisoner was indicted for obtaining money from a pawnbroker by falsely pre- tending that a chain was silver. The chain was of a very inferior metal, and evidence was admitted apparently without objection that twenty-six chains were found on the prisoner, and that these were of similar materials. Evidence was also admitted that the defendant, a few days after the occasion in question, offered a similar chain to another pawnbroker, under similar circumstances. This was objected to, and the point, with other points, reserved. There is no trace of any discussion on this point, or any What Evidence is proper to the Issues. 87 allusion to it in the judgment of the court in any of the reports; hut the conviction was affirmed. The prisoner did not appear by counsel. In 11. v. Holt, !> IF. 11. 74, the prisoner was tried for obtaining' by false pretences a sum of money from one Hirst. It appeared that the prisoner was employed by his master to take orders for goods, but was forbidden to receive money. On the 30th of April the prisoner obtained from Hirst the sum of nine shillings and sixpence in payment for goods bought by Hirst of the prisoner's master, and which sum the prisoner falsely repre- sented that he had authority to receive : this was the offence charged in the indictment. Evidence was also tendered that within a week after the 30th of April the defendant obtained from another customer of his master the sum of eleven shillings by a similar false representation. The evidence was objected to. but received on the ground that it showed the intent of the prisoner when he committed the act charged in the indictment, and the question was reserved for the consideration of the Court of Criminal Appeal. Xo counsel appeared on either side, and no reasons are given for the judgment ; but the conviction was quashed, Erie, J., merely saying that! upon the fact- stated in the indictment, the court thought the evidence objected to inadmissible. Perhaps the ground upon which this decision proceeded was this: that the only shape in which the evidence was admissible, if at all, was forthe purpose of showing that the prisoner knew he did not possess the authority which he represented himself to have; and it may have been thought that for this purpose the evidence was not relevant, because, if any bon a fide mistake existed upon this point, it would operate in one case as well as another, so that mere repetition of the net would not. as in many other cases, add anything to the evidence^/ of guilt ;fthough it mighl seem that this is rather an objection to the weight o ; f the evidence than to its admissibility. Where the prisoner was indicted for endeavouring to obtain an advance from a paw nbroker upon a ring by the false pretence that it was a diamond ring, evidence was held to have been properly admitted to show that two days before the transaction in question the prisoner had obtained an advance from a pawnbroker upon a chain, which he represented to be a gold chain, hut which was not so. II. v. Francis, L. II., 2 < '. C. I,'. 128; 43 /.../., M. C. !»T : see also post, False Pretences. It is still doubtful whether pretences made subsequently to the one charged are admissible ; but it seem-, both on authority (B. v. Fuidge, 1 /.. o ante, p. 81 ; and a- to counterfeit coin see //. v. Foster^ ante, p. 84. In //. v. Richardson, l' /•'. <•• /■'. 343, the prisoner was indicted for embezzlemenl ; three acts of embezzlement were charged in the indict- ment, [t appeared that the prisoner's duty was to make ^ arious payments on account of his employers, and to keep weekly accounts of the money so expended. The sum- so expended were correctly entered, but in cast- ing up the item at the end of each week th i totals were made to exceed the ieal amount, by sums varying from 1/. to '31. The prisoner, in accounting with his master, took credit for the larger sums. For the prosecution, in order to show that this was no1 the result of innocent mistake on the part of the prisoner. e\ idence was tendered that in nume- rous week-, both before and after that charged in the indictment, similar mistakes, always in favour of the prisoner, had been made. This evidence was objected to, but "Williams. .I., ruled that it was admissible to counter- act an obvious defence mi the part of the prisoner, and he said that Pollock, C !'>.. entirely agreed with him on the point. So also where the 8S Wliat Evidence is proper to the Issues. prisoner had to account weekly, and in the indictment he was charged with embezzling the gross weekly amounts, evidence was admitted of the separate items making up the gross amounts, partly on the ground that the fact of having omitted to account for the separate items would go to show that the not accounting was not mere accident. It. v. Bails, L. It., 1 ('.('. If. :32s; 40 L. J., M. C. 148. See this case, post, Embezzlement. See also Jl. v. Stephens, 16 < 'ox, 387. Where, however, on a charge of arson, there was some evidence that the prisoner had been seen going away from the burning rick, evidence to show that he and his wife had on a previous occasion been seen laughing at another fire on the same premises, and hindering a person from throwing water on it, was refused by Willes, J., on the ground apparently that the conduct sought to be proved in reference to the first case did not tend to explain what, was alleged to have occuired in the second. It. v. Harris, 4 F. <[■ F. 342. In Jt. v. dray, 4 F. &. F. 1102, evidence of other claims by the prisoner on other insurance companies in respect of fires was admitted by Willes, J., to show that the fire in question was not the result of accident. Evidence of character of the prisoner.^] A prisoner called on his own behalf under the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36) (see Appendix of Statutes), cannot be asked any question tending to show that he has comniitted or been convicted of any other offence, or that he is of bad character, unless the proof that he has committed or been convicted of such offence is admissible to show that he is guilty of the offence charged, or unless he has asked questions or given evidence to establish his good character, or the defence set up by him involves imputations on the cha- racter of the prosecutor and his witnesses, or he has given evidence against any other poison charged with the same offence. The principle on which general evidence of good character on behalf of a prisoner is admitted, and the limits within which it must be confined, are settled by the case of jR.y. Roiuton, I.. «t- ('. -320, and are thus stated in the judgment of Cockburn. C. J. : "It is necessary to consider what is the meaning of evidence of character. Does it mean evidence of reputation, or evidence of disposi- tion? I am of opinion that it means evidence of general reputation. What you want to get at is the tendency and disposition of the man's mind towards committing or abstaining from committing the class of crime with which he stands charged; but no one has ever hoard the question. What is the tendency and disposition of the prisoner's mind r put directly. The only way of getting at it is by giving evidence of his general character, founded on his general reputation in the neighbour- hood in which he lives. That, in my opinion, is the sense in which the word ' character ' is to be taken when evidence of character is spoken of. . . . It is quite true that evidence of character is most cogent when it is preceded by a statement showing that the witness has had opportunities of acquiring information upon the subject beyond what the man's neighbours in general would have ; and in practice the admission of such statements is often carried beyond the letter of the law in favour of the prisoner. It is, moreover, most essential that a witness who comes forward to give a man a good character should himself have a good opinion of him, for otherwise he would be deceiving the jury ; and so the strict rule is often exceeded. But when we consider what, in the strict interpretation of the law, is the limit of such evidence, in my judgment it must be restricted to the man's general reputation, and must not extend to the individual opinion of the witness. Suppose a witness is called who says that he knows nothing of the general character of the accused, but that he has abundant opportunities of forming an individual opinion as to his honesty. What Evidence is proper to the Issues. 89 or the particular moral quality that may be in question in the particular case. Surely it' such evidence were objected to it would be inadmissible." Erie, 0. J., and Willes, J., dissented from this view, holding that evidence might be given not only of reputation but of disposition also. The result of the doctrine laid down by the majority of the judges would appear to be, that, if a man were to obtain a high general reputation for honesty or morality by gross and systematic hypocrisy, he might call as witnesses in his favour persons equally well acquainted with the goodness of his reputation, the badness of his disposition, and the hypocrisy by which he had prevented the one from interfering with the other. Upon the other hand, it is to be remarked that if evidence of disposition were to be admissible, it is difficult to say where it would end; for how would it be possible to attach any weight to the evidence without ascertaining the tints upon which the opinion of the witness was grounded, and the facts, if any, tending to show that such opinion is groundless ? If evidence of good character is given, evidence of bad character (though not of bad disposition) may be given in reply. R. v. lioioton, L. his character had been called. Per Parke, ]>., //. v. /ir//, 8 C r denii 3 or do ■-, no1 admit the fact or refuses to answer, it shall he law t'u! for the cross-examining party to prove such conviction. As to tin- method of proving the conviction, see the same section, //ex/, tit. Documentary Evidence. Hut the person who calls a witness is always supposed to put him forward as a person worthy of belief; he cannot, therefore, it' Ins testimony should turn out unfavourably, or even it the witness should assume a position of hostility, give general evidence to discredil him. Bull. X. P. 297. EEowfara party may contradict his own witness, we shall see presently, p. 91. And if the character of any witness for credibility be impeached either by direct evidence or upon cross- examination, bis testimony may be supported by general evidence that bis character is such that he is worthy of credit. Evidence cannot be given of a prisoner's bad character for the purpose of showing that a policeman had good cause to suspeel him of a crime, and was therefore acting in the execution of his duty when he arrested him under 21 & 25 Vict. c. 96, '90 Wind Evidence is proper to the Issues. s. 104, post, tit. Apprehension of Offenders; R. v. Tuberfield, L. lC- C. 495. There is a provision in the Prevention of Crimes Act, by which, in proving the intent to commit a felony by a rogue and vagabond under the 5 Geo. 4. c. 83, amended by 36 & 37 Vict. c. 38, it is not necessary to show any par- ticular arts; lint the intent may lie gathered from the circumstances and the known character of the prisoner. See 34 & 35 Vict. c. 112, s. 15, and 54 & do Yict. c. 69, s. 7. These are the only cases in which evidence of character can be given in chief; as to the cross-examination of witnesses upon their character, see infra, and tit. Practice. "Evidence used for the purpose of contradiction only.] Any fact material to the issue which has been proved by one side may be contradicted by the other. The only fact material to the issue, with reference to which there is any peculiarity in this respect, is the credibility of a witness. As has already been said, that is a point upon which a witness may be inrpeached by direct evidence, showing generally his want of credibility; and. as we shall hereafter see, a witness may also be cross-examined as to par- ticular facts which go to discredit him. See past, p. 91. But whether it lie to contradict the direct evidence which impeaches the witness's credit, or to contradict the suggestions thrown out by the line of cross-examina- tion, it is clear that, in order to reinstate the witness, no evidence can be used but genera/ evidence that he is worthy of credit, in the same way as he may be impeached by general evidence that he is not so. In a precisely similar manner if a witness, on cross-examination. refuses to admit facts which damage his credit, he cannot be contradicted on these points, if they are not otherwise material to the issue. Spenceley v. De Willott, 7 East, 108; Ji. v. Yewin, 2 Camph. 63S. Except in the case of proof of previous conviction under the 28 Vict. c. IS, s. . See post, Examination of II itiiesst s. Evidence of former statements i<> confirm a party's own witness."] The only occasion on which, if at all, a party can confirm his own witness by proof of former statements made by him according with that made at the trial, is when the witness's credibility has been attacked, either on cross- examination or by independent evidence. Whether it is admissible in this case has been much controverted, [n some cases such evidence has 92 WJxd Evidence is proper to the Issues. been admitted. Luttrell v. Reynell, 1 Mod. 282 ; 1!. v. Friend, 13 7/o»>. fife. 2V. 32. See also 11. v. Harrison, 12 flow. fife. 2V. 861. So it is laid down by Gilbert, C. B., that though hearsay be not. allowed as direct evidence, yet it may be in corroboration of a witness's testimony, to show that he affirmed the same thing before on other occasions, and that the witness is still consistent with himself; for such evidence is only in support of the witness that gives in his testimony upon oath. Gilb. Er. 135, 6th ed. See also Hawk, !\ ('., b. 2, c. 36, s. 48. These writers were followed by Buller, J., in his treatise on the law of nisiprius, at p. 294, citing the case of J. nitre// v. Reynell, 1 Mod. 283, but in R. v. Parker, 3 Dougl. 242, the same learned judge said that the case of* Luttrell v. Reynell, and the passage in Hawkins were not now law. The case of A', v. Parker was a prosecution for perjury tried before Eyre, B. For the prosecution the depositions of a deceased person were given in evi- dence, and upon the cross-examination of one of the prosecutor's witnesses, it was proposed to inquire into certain declarations of the deceased person, not on oath, for the purpose of corroborating some facts in the deposition material to the prisoner. Eyre, B., rejected the evidence of these declara- tions, and the Court of King's Bench, on a motion for a new trial, held the rejection proper. This case was referred to by Lord Bedesdale in the Berkeley Peerage case, where his lordship gave his opinion in conformity thereto. Lord Eldon also concurred in that opinion. In conformity with these latter decisions the rule is laid down by Mr. Phillipps, with this exception, that where the counsel on the other side impute a design to misrepresent from some motive of interest or friendship, it may, in order to repel such an imputation, be proper to show that the witness made a similar statement at a time when the supposed motive did not exist. 2 Phil I. Er. .Yi:). 10th ed. As to evidence of complaints made at the time in the ease of rape, see R. v. TAllyman, post. Attendance of Witnesses. !*3 ATTENDANCE OF WITNESSES. Mode of compelling the attendance of witnesses — by recognizance.'] There are two modes of compelling the attendance of witnesses : first, by recog- nizance ; secondly, by subpoena. The power to bind witnesses by recognizance to appear and give evi- dence is now regulated by the 11 & 12 Vict. c. 42, s. 20, by which power- is given in all cases, whether of felony or misdemeanor, to bind by recognizance the prosecutor and witnesses to appear and give evidence at the next court of oyer and terminer and general gaol delivery, or the next court of quarter sessions, as the case may be. The same power is exercised by coroners under the 50 & 51 Vict. c. 71, s. 5, in cases of murder and manslaughter. So also witnesses for the defence may now be bound over to appear. See 30 & 31 Vict. c. 35, s. 3, incorporated with the 11 & 12 Vict. c. 42 ; see section 4, pod. Appendix of Statutes. "When a trial is postponed, the presiding judge, exercising the ordinary functions of a justice of the peace, usually binds over the prosecutor and witnesses to appear and give evidence at the next assizes or the next quarter sessions, as the case may be. If a witness on his examination before a magistrate refuse to be bound over, he may, by the express provisions of the 11 & 12 Vict. c. 42, s. 20, be committed. It seems doubtful whether, in any case, a witness can be compelled to find sureties for his or her appearance. Per Graham, B., Bodmin Sum. Ass. 1827; 1 Stark Ev. S3, 3rd ed.; per Lord Denman, Pro us v. Bees, 12 11. & E. oo. It was once thought that an infant was bound to find sureties in such a case and could be committed in default. Oil the ground that his own recognizances would be invalid ; but it has been since held that infancy is no ground for discharging a forfeited recognizance to appear at the assizes and prosecute for felony. Ex -parte Williams, 13 Prict . f witnesses — by subpoena for prosecution.^ "Where a witness is not bound by recognizance to appear, he may be compelled to do so by subpoena. This process is issued by the clerk of the peace at sessions, or by the clerk of the assize at the assizes, or it may be issued from the crown office. And the last is the most effectual mode, for not only, as will be seen presently, are the proceedings upon it for contempt more speedy and effective, but it is itself more effectual, as it may be served anywhere in the United Kingdom. In order to render the process to compel attendance of witnesses more effectual, it was provided by the 45 Geo. 3, c. 92, s. 3, that the service of a subpoena on a witness in any part of the United Kingdom, for his appearance on a criminal prosecution in any other part, shall be as effectual as if it had been in that part where he is required to appear. It has been held on this statute, that by the word "part" in this section is signified one of the great divisions, as Scotland or Ireland. R. v. Brownell, 1 Ad. & E. 598. It does not seem, therefore, that any increased validity is thereby given to writs of subpoena issued from courts of limited jurisdiction, which at common law are only available within such jurisdiction. Where there are writings or documents in the possession of a witness, which it is desired that he should produce on the trial, a clause of duces tecum, directing the witness to bring with him into court the documents in question, is added to the writ of subpoena. If the documents are in the possession of the party or his attorney, a notice to produce must be given. Where the documents are in the possession of the prosecutor, and the prisoner is desirous of having them produced upon the trial, the safest mode of proceeding appears to be to serve the prosecutor with a subpoena duces tecum, and not to rely upon a notice to produce, since it may be a question whether a prosecutor is so far a party to the proceeding as to be affected by a notice to produce. The subpoena duces tecum is compulsory on the witness, and though it is a question for the decision of the presiding judge, whether the witness in Attendance of Witnesses. 95, court should produce the documents required, yet he ought to be prepared td produce them, if the judge be of that opinion. Amey v. Long, 9 East, 47:;; B. v. Green ,m>/, 7 Q. B. 126. A solicitor served with a subpoena duces tecum is bound to produce a document in respect of which the prisoner is charged, although such document has been deposited with him by the prisoner on another occasion. B. v. Brown, 9 t. ox, 281. A person subpoenaed merely to produce a document need not be sworn; Perry v. Gibson, 1 .1. & E. 48; and if sworn by mistake, is not liable to- be cross-examined by the opposite party; Rush v. Smyth, 4 Tyrw. (J75 ; 1 Or. M. & li. 194. See further, post, Examination of Witnesses. The prosecutor ought not to include more than four persons in one subpoena. Doe v. Andrews, Cowp. 845; Tidd. 855. A subpoena requiring the party to attend a trial on the commission day extends to the whole assizes, which, by fiction of law, are supposed to last but one day. Scholes v. Hinlon 10 .1/. & W. 15. If the party whose attendance is required be a married woman, the service should be upon her personally. Goodwin v. West, Cro. Car. 522; 2 Phill. Ev. 428, 10/// ed. The witness must be personally served, by leaving with him a copy of the subpoena, or a ticket which contains the substance of the writ. 2 Phill. Ev. 427, 10th ed. ; 3 Buss. Ori. 0:37, 6th ed. ; 1 Stark. Ev. 77, 2nd ed. ; Maddeson v. Shore, 5 Mod. 355. Where a copy only is served, the original must be shown to the witness, whether he require it or not, otherwise he cannot be attached. Wadsioorth v. Marshall, 3 Tyrw. 218; 1 C. & M.87. It must be served a reasonable time before the day of trial. Service upon a witness at two in the afternoon, in London, requiring him to attend the sittings at "Westminster in the course of the same evening, has been held to be too short. Hammond v. Stewart, 1 Str. 510; 3 Tidd. 856, 8th ed. In a criminal case a person who is present in court, when called as a witness, is bound to be sworn and to give his evidence, although he has not been subpoenaed. An indictment for stopping up a way is a criminal ea>.' for this purpose. Per Littledale, J., li. v. Sadler, 4 >'. testimony of infants.! It is said by Blackstone, "thai where the evidence of children is admitted, it is much to he wished, in order to render it credible, that there should he some concurrenl testimony of time, place, and circumstances, in order to make out the fact ; and that the conviction should not he grounded solely on the unsupported testimony of an infant under years of discretion."' 4 Com. 214. In many cases undoubtedly the statements of children are to be received witli greal caution, but it is clear that a person may be legally convicted upon such evidence alone and unsupported; and whether the accounted' the child requires to be corroborated in anypart, or to what 102 Incompetency of Witnesses. extent, is a question exclusively for the jury, to be determined by them on a review of all the circumstances of the case, and especially of the manner in which the evidence of the child has been given. 1 Phill. Ev. 11, IQth ed. It may be observed that the preliminary inquiry usually made for ascer- taining their competency is not always of the most satisfactory nature, and sometimes is of such a description that merely by a very slight practising of the memory, a child might be made to appear competent and qualified as a witness. The inquiry is commonly confined to the ascertaining of the fact whether a child has a conception of divine jmnishment being a conse- quence of falsehood ; it seldom extends so far as to ascertain the child's knowledge of the nature of an oath, and scarcely ever relates to the legal punishment of perjury. Independently of the sanction of an oath, the testimony of children, after they have been subjected to cross-examination, is often entitled to as much credit as that of grown persons. What is wanted in the perfection of the intellectual faculties is sometimes more than compensated by the absence of motives to deceive. 1 PliiU. Ev. 11, 10th ed. Deaf and dumb persons.'] It was formerly held that a person born deaf and dumb was, prima facie, in contemplation of law, an idiot. R. v. Steel, 1 Lea. 0. C. 452. But this presumption has been disputed by Wood, V.-C, in Ilarrod v. Harrod, 1 Kay & J. 9. If it appear that such person has the use of his understanding, he is criminally answerable for his acts, 1 Hale, P. C. 37, and is also competent as a witness. Thus where a man deaf and dumb from birth, was produced as a witness on trial for larceny, he was allowed to be examined through the medium of his sister, who was sworn to interpret to the witness ' ' the questions and demands made by the court to the witness, and the answers made to them." The sister stated, that for a series of years she and her brother had been enabled to understand one another by means of certain arbitrary signs and motions, which time and necessity had invented between them. She was certain that her brother had a perfect knowledge of the tenets of Christianity, and that she could communicate to him notions of the moral and religious nature of an oath, and of the temporal dangers of perjury. II. v. Huston, 1 Leach, 408. So in Scotland, upon a trial for rape, the woman, who was deaf and dumb, but had been instructed by teachers, by means of signs, with regard to the nature of an oath, of a trial, and of the obligation of speaking the truth, was admitted to be examined. P. v. Martin, 1823, Alison's Prac. ('rim. Law of Scotl. 486; and see It. v. Whitehead, L. I'. 1 0. 0. II. 33, post, tit. Examination of Witnesses. Lliots and lunatics.'] Persons not possessing the use of their under- standing, as idiots, madmen, and lunatics, if they are either continually in that condition, or subject to such a frequent recurrence of it as to render it unsafe to trust to their testimony, are incompetent witnesses. An idiot is a person who has been non compos mentis from bis birth, and who has never any lucid intervals, Co. Litt. 247; Bac. Ab. Idiot {A. 1), and cannot be received as a witness. Coin. Dig. Testm. (J. 1). A lunatic is a person who enjoys intervals of sound mind, and may be admitted as a witness, in lucidis intervallis. Com. Big. Testm. (A. 1). He must, of course, have been in possession of his intellect at the time of the event to which he testifies, as well as at the time of examination ; and it has been justly observed, that it ought to appear that no serious fit of insanity has intervened, so as to cloud his recollection, and cause him to mistake the illusions of imagination for the events he has wit- nessed. Alison's Prac. C. P. of Scotl. 436. With regard to those persons Incompetency of Witnesses. 103 who are afflicted with monomania, or an aberration of mind on one parti- cular subject, not touching the matter in question, and whose judgment in other respects is correct, the safest rule appears to be to exclude their testimony, it being impossible to calculate with accuracy the extent and influence of such a state of mind. Where a lunatic is tendered as a witness, it is for the judge, assisted by medical testimony, to determine whether he shall be admitted, and if. upon his examination upon the voire dire, he exhibits a knowledge of the religious nature of an oath, and appears capable of giving an account of transactions of which he has been an eye-witness, it is a ground for his admission. It is for the jury to judge of the credit that is to be given to his testimony. R. v. Hill, 2 Den. C. C. 11. 2.34. From want of religious belief] The various statutes, and the cases upon them, with respect to the taking of oaths by witnesses, are of diminished importance in consequence of certain recent statutes to be presently noticed, •post, pp. 10."), 100 ; but it may still become necessary in some cases to refer to the old law upon the subject. It is an established ride that all witnesses who are examined upon any trial, civil or criminal, must give their evi- dence under the sanction of an oath, or some affirmation substituted in lieu thereof. This rule is laid down as an acknowledged proposition by some of our earliest writers; Sheppard's Abridtj. Tryal; and it appears to be of universal application, except in the few cases in which a solemn affirmation has been allowed by statute (see post) in lieu of an oath. No exemption from this obligation can be claimed in consequence of the rank or station of a witness. A peer cannot give evidence without being sworn ; Lord Shaftesbury v. L. Digby, 3 Keb. 631 ; R. v. Lord Preston, 1 Salk. 278 ; and the same appears to be the case in regard to the king himself. 2 Rol. Abr. 080; Omichund v. Barker, 117///*' /,',/>. 550. The rule also holds even in the case of a judge; Kel. 12 ; or juryman ; Bennett v. Hundred of Hertford, sin. 2;;.'i ; Fitzjames v. Moys, 1 Sid. 133; Kitchen v. Manwaring, cited Andr. 321 ; 7 C. & P. 648 ; who happens to be cognizant of any fact material to be communicated in the course of a trial. 1 Phill. Er. 13, 10th ed. An examination on oath implies that a witness should go through a ceremony of a particular import, and also that he should acknowledge the accuracy of that ceremony, to speak the truth. 1 Phill. Ev. 14, 10/,// ///. It is therefore necessary, in order that a witness's testi- mony should be received ] that he should believe in the existence of a God, ^ by wnOToTruth is enjoined and falsehood punished. Id. lo, 10/// ed. It i|~no~f sufficient that a witness believes himself bound to speak the truth from a regard to character, or to the eonmion interests of society, or from aTgarof the punishment which the law inflicts upon persons lt u i 1 1 y of periuryT - '//. v. Huston, 1 LeCCsJi, ''. <'. \~>~>. Although it was formerly held, that infidels (that is to say. persons professing some other than the Christian faith) could not be witnesses, on the ground that they were under none of the obligations of our religion, and therefore could not be under the influence of the oaths which our courts administer; Gilb. Ev. 142; yet a different rule has since prevailed ; and it is now well settled, since the case of Omichund \. Barker, Willes, o\U. that those infidels who believe in a God, and thai He will punish them if they swear falsely, may bo admitted as witnesses in this country. An adult witness will, of course, be presumed to profess those principles of religion which render him a competent witness. What the exact question is which is the subject of inquiry in such a case does not appear to he fully decided. The witness must believe in the existence of a Divine Tower, who would be offended by perjury, and 104 Incompetency of Witnesses. would be capable of punishing it. The doubt has been whether it is also necessary that the witness should believe in a future state of rewards and punishments ; from the case of Omichund v. Barker, it seems that Willes, C. J., thought that the expectation of temporal punishment proceeding from a Divine Power was sufficient. There has also been some dispute as to the mode in which the state of the witness's belief is to be ascertained. The preponderance of authority is in favour of the witness being himself examined as to his religious opinion. 1 Phill. Ev. 17, IQth ed. ; The Queen's case, 2 B. & B. 284 ; R. v. Taylor, 1 Peake, N. P. 11; It. v. White, 1 Lea. 430; R. v. Serva, infra; Best, Ev. 208. It is, however, the opinion of some writers (and this opinion is supported by the practice in America), that the witness ought not to be questioned at all, but that the fact should be proved by the oath of persons acquainted with him. Mr. Best [ubi supra) strongly contends that evidence both of the party himself and others is admissible on the point. The inquiry can never be carried further, if the witness himself asserts his belief. Thus in R. v. Serva, 2 C. & K. 53, a negro, who was called as a witness, stated, before he was sworn, that he was a Christian, and had been baptised ; Piatt, B.. held that he might be sworn, and that no further question could be asked before he was so. In R. v. James, 6 Cox, 5, after the jury had debvered their verdict, it was discovered that one of the witnesses had not been sworn ; the jury were then directed to reconsider their verdict, and to leave out of their consideration the evidence given by the unsworn witness. Form of the oath.'] The particular form or ceremony of administering an oath is quite distinct from the substance of the oath itself. 1 Phill. Ev. 14, lOtli ed. The form of oaths under which God is invoked as a witness, or as an avenger of perjury, is to be accommodated to the religious persuasion which the swearer entertains of (.rod ; it being vain to compel a man to swear by a God in whom he does ftol believe and whom he therefore does not reverence. Puffend. b. 4, c. 2, s. 4. The rule of our law therefore is, that witnesses may lie sworn according~To~Ihe peculiar ceremonies of their own religion, or in such a manner as they may consider binding on tlnir consciences. 1 I'hill. Er. 14, 10th ed. Per Aliierson. B., in Milhrx. 'BaTmncms, 1 Ex. R. 534, 535; and^er Pollock, B., Id. 558. A Jew consequently is sworn upon the Pentateuch, with his head covered. 2 Hate, P. C. 279; Omichund v. Barker, Willes, 53S. But a Jew who stated that he professed Christianity, but had never been baptised, nor even formally renounced the Jewish faith, was allowed to be sworn on the New Testament. R. v. Gfilham, 1 Esp. 285. A witness who stated that he believed both the Old and New Testament to be the word of God, yet as the latter prohibited, and the former countenanced swearing, he wished to be sworn on the former, was permitted to be sworn. Edmonds v. Roire, Ry. & Moo. N. P. C. 77. And where on a trial for high treason, one of the witnesses refused to be sworn in the usual manner, but put his hands to his buttons ; and in reply to a question, whether he was sworn, stated that he was sworn and was under oath ; it was held sufficient. R. v. Love, 5 How. St. Tr. 113. In Ireland it is the practice to swear Roman Catholic witnesses on a Testament with a crucifix or cross upon it. /'/. The following is also given as the form of a Scotch Covenanter's oath: "I, A. B., do swear by God Himself, as I shall answer to Him at the great day of judgment, that the evidence I shall give to the court and jury, touching the matter in question, is the truth, the whole truth, and nothing but the truth, So help me God." ] Leach, 412 (n.) ; R. v. Walh r. <>. li. 1788 ; Ibid. A Mahomedan is sworn (\ Incompetency of Witnesses. 105 on the Koran. The form in 1!. v. Morgan, 1 Leach, 54, was as follows: — j The witness first placed his right hand flat upon the book, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head. He then looked for some time upon it, and being asked what effect that ceremony was to produce, he answered \ that he was bound by it to speak the truth. The deposition of a Gentoo has been received, who touched with his hand the foot of a Brahmin. \ Omichund v. Barker, Willes, 538; 1 AtJe. 21. The following is given as | the form of swearing a < 'hincse. ( >n entering the box the witness imme- diately knelt down, and a china saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The ciii >r of the court then, by direction of the interpreter, administeredthe oath in these words, which was translated by the interpreter into the Chinese Language, " You shall tell the truth and the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer." 11. v. Entrehman, 0. n the witness, both as a religious and moral obligation; and Richardson, J., added, that if the witness hail sworn falsely, he would be subject to the penalties of per- jury. Sells v. Hoare, '■', l'>. a'- /;. 232 ; 7 /,'. Moore, 36. Affirmation in lieu of oath.~\ Formerly it was necessary in all cases that an oath, that LS a direct appeal to the Divine Power, should be made by the witness. Many conscientious persons have objected to this, and various sects have been established part of whose religious creed it is to do so. [n order to prevent the difficulty which arose from large classes of the community being thus rendered unavailable as witnesses, various statutes have from time to lime 1 n passed exempting such persons from the necessity of taking the usual form of oath, and allowing them to substitute ;i solemn affirmation in its stead. By the 3 & 1 Will. I. c !!), Quakers and Moravians are permitted to take an affirmation or declaration, instead of taking an oath, ••in all 10(i Incompetency of Witnesses. places, and for all purposes whatsoever, where an oath is or shall be required, either by the common law, or by any Act of Parliament " ; and any such affirmation or declaration, if false, is punishable as perjury. Where a prosecutor, who had been a Quaker, but had seceded from the sect, and called himself an Evangelical Friend, stated that he could not affirm according to the form, and was allowed to give evidence under a general form of affirmation; the judges 'were unanimously of opinion that his evidence was improperly received. R. v. Doran, 2 Leiv. C. C. 21 ; 2 Moo. C. C. 37. This case led to the passing of the 1 & 2 Vict. c. 77, which enacts that any person who shall have been a Quaker or a Moravian may make solemn affirmation and declaration, in lieu of taking an oath, as fully as it would be lawful for any such person to do if he still remained a member of either of such religious denominations of Christians, which said affirma- tion or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form; and such affirmation or declaration, if false, is punishable as perjury. Every such affirmation or declaration is to be in the words following: — " I, A. B., having been one of the people called Quakers [or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be'], and enter- taining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm." But besides the persons comprised within these sects, other persons called as witnesses not unfrequently refused to be sworn from what they asserted to be conscientious motives. It is, therefore, provided by the Oaths Act, 1888 (51 & 52 Vict. c. 46). s. 1, "Every person objecting to be sworn, and stating as the ground of such objection either that he has no religious belief or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath, in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath." By s. 2, "Every such affirmation shall be as follows : — ' I., A. B., do solemnly, sincerely, and truly declare and affirm,' and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness." By s. 3, " Vv 7 here an oath has been duly administered and taken, the fact that the person to whom the same was administered had at the time of taking such oath no religious belief, shall not for any purpose affect the validity of such oath." By s. 5, "If any person to whom an oath is administered desires to swear with uplifted hand in the form and manner in which an oath is usually administered in Scotland, he shall be permitted so to do, and the oath shall be administered to him in such form and manner without further question." Where a witness desires to affirm, the judge must ascertain either that he has no religious belief or that the taking of an oath is contrary to his religious belief. Unless one of these conditions is satisfied, he cannot be allowed to affirm. R. v. Moore, 17 Cox, 458. Persons excommunicated or under sentence of death.'] It was formerly considered that persons excommunicated could not be witnesses ; but by the 53 Geo. 3, c. 127, s. 3, persons excommunicated shall incur no civil disabilities. It seems that a person under sentence of death is incompe- tent to be a witness, and his capacity as a witness is not restored bv the (i & 7 Vict. e. 85, s. 1, per Lush, J. ' R. v. Webb, 11 Cox, 133. Incompetency <>f Witnesses. 107 Incompetency from interest — the person charged.'] It was for a long- time a rigid rule that a person charged with an offence could not give evidence either for or against himself. Gradually that rule became relaxed by statutory enactments such as the 48 & 49 Vict. c. 69, and others which will be found set out, post, p. Ill, which made the person charged a competent but not a compellable witness on his own behalf. By the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), this has been extended to all cases. The Act will be found set out in the Appi ndix <>/ Stat nt,*, and it is sufficient here to state that it provides that every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings whether the person so charged is charged solely or jointly with any other person. It is provided that he can only be called on his own application, and that his failure to give evidence shall not be made the subject of any comment by the prosecution. If he does elect to give evidence he cannot be asked any questions (except in certain specified circumstances) which tend to show that he has been previously convicted or is of bad character. The Act further provides that he shall give evidence not from the dock but from the witness box, and that if he is himself the only witness called for the defence he shall be called immediately after the close of the evidence for the prosecution. The fact that he gives evidence on his own behalf does not give the prosecution the right of reply. The Act came into operation on October 12, 1898. Incompetency from interest — husband and fife.] Incompetency from interest was removed to a, great extent by the 6 & 7 Vict. c. 85, and almost entirely by the 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83. An important exception, however, was expressly made in criminal cases with regard to husbands and wives, who remain, as at common law, incompetent witnesses against each other. The rule is, in general, absolute, and cannot be waived. It excludes them generally from giving evidence, not only of facts, but of statements made by either in the nature of admissions. But any conversation between husband and wife may be proved by third persons who are present at or overhear it. it. v. Smithie, 5 C. 4- /'. 332; R. v. Simons, 6 C. a /'. 510; A', v. Haiti, It, 7 C. & P. 832. And it lias been held that any statement made by the wife to a third person in the presence of the prisoner may in like manner be proved. A', v. Mallory, 13 Q. /!. I). 33; 53 /.. ■/., M. C. 134. But the rule only extends to cases where the husband or wife are actually on their trial. It was once thought otherwise, but the mistake seems to have arisen from not having drawn the distinction clearly enough between competency and privilege. See p. L09. Now by the Criminal Evidence -Vet, 1898 (61 & <12 Vict. c. 36). s. 1 (see AjijHiiili.r of i Stul nits " Every person charged with an offence and the wife or husband, as the case may be, of the person so charged shall be a competent witness for the def< n< < at every stage of the proceedings whether the jierson so charged is charged solely or jointly with an\ other person.' Provided that . . . the failure of the wife or husband of the person so charged to give evidence shall not be made the subject of any comment by the prosecution ; that the wife or husband id' the person charged shall not be called as a witness except upon the application of the party charged, and that a husband or wife shall not be compellable to disclose any communication made to him or her by the wife or husband during the marriage. By sect. 4 " The wife or husband of a person charged with an offence under any enactment mentioned in the schedule to this Act " (neglecting to maintain or deserting a wife or family under 5 Geo. IV. 108 Incompetency of Witnesses. c. 83 ; 8 & 9 Vict. c. 83, s. 80 ; 24 & 25 Vict. c. 100, ss. 48 to .3-3 ; 45 & 46 Vict, c. 75. ss. 12, 16 ; 48 & 49 Vict. c. 69, and 57 & 58 Vict. c. 41) may be called as a witness either for the prosecution or defence and without the consent of the person charged. Nothing in this Act shall affect a case where the wife or husband of a person charged with an offence may at common law be called as a witness without the consent of that person." The effect of this enactment is that the husband or wife of a prisoner may in all cases at the prisoner's desire be called as a witness on his behalf, but the cases in which such husband or wife may be called against the prisoner are left unaffected. "Where the relation of husband and wife has once subsisted, and the one is an inadmissible witness against the other, they remain so even after the relation has ceased, with respect to matters which occurred during the continuance of the relation. Thus, where a woman divorced by Act of Parliament, and married again, was called to prove a contract by her former husband, she was rejected by Lord Alvanley. If she might be a witness, his lordship observed, in a civil proceeding, she might equally be so in a criminal proceeding ; and it could never be endured that the confidence which the law had created whilst the parties remained in the most intimate of all relations, should be broken whenever by the misconduct of one party the relation has been dissolved. Monroe v. Tivisleton, Pealce, Ev.App. xci. oth ed. Upon the authority of this case, Best, C. J., rejected the testimony of a widow called to prove a conversa- tion between herself and her late husband. Bolter v. Hasker, By. & M., N. P. C. 198. In Beveridge v. Minter, 1 C. & P. 364, Lord Tenterden, C. J., received the evidence; but in O'Connor v. Marjorihanks, 4 M. & G. 435, the Court of Common Pleas held, that it was the sounder and better rule to exclude the testimony of each respecting the other in all cases, accord- ing to the law laid down by Lord Alvanley in Monroe v. Twisleton. The above cases must now be read subject to the Married Women's Property Act, infra, and, in matters of divorce to 32 & 33 Vict. c. 68. Only extends to laioful husband and wife.'] It is only where there has been a valid marriage that the parties are excluded from giving evidence against each other. Therefore, on an indictment for bigamy, after proof of the first marriage, the second wife is a competent witness against the husband, for the marriage is void. B. N. P. 287; Bac. Ab. Er. A. 1 ; 1 Past, P. C. -469. See p. 111. So where a woman had married the plaintiff, and lived with him as his wife during the time of the transactions to which she was called to speak, but had left him on the return of a former husband, who had been absent from England upwards of thirty years, and was supposed to be dead: Patteson, J., held that there was no objection to her giving evidence for the defendant. Wells v. Fisher, 1 Moo. & P. 99 ; 5 < '. ih P. 12. Of course, therefore, a woman who cohabits with a man as ln's wife, but not so in fact, is a competent witness for or against him. Batthews v. Galindo, 4 Bing. 610. See also P. v. Young, o Oox, 296; P. v. Chadwicke, 11 Q. B. 173; P. v. Blackburn, 6 Cox, 333. Where other persons arc indicted with husband or wife.] Where several persons are indicted together, an attempt has sometimes been made to call the wife of one prisoner as evidence for or against another. In very few cases has this been allowed to be done. In Ii. v. Smith, 1 Moo. C. C. 289, three prisoners were indicted f< >r a 1 lurglary. One of the prisoners, Draper, set up an alibi, and called Smith's wife in support of it, but Littledale, J., refused to let her be examined, saying that the evidence of the prosecution would be thereby weakened altogether, and that so the witness's husband Incompetency of Witnesses. 109 w< >uld bo benefited. The question was reserved, and all tbe judges, except Graham, B., and Littledale, J. (who seems to have changed his opinion), thought the evidence rightly rejected. Four years afterwards, the case of II. v. Hood, 1 Moo. C.C. 281, was reserved. Under what precise circum- stances the evidence was tendered does not appear, but the person who was tendered was the wife of a man who, though implicated in the offence, was not included in the indictment. But this distinction seems to have been overlooked, and the court refused to allow the point to be argued, saying that it was concluded by R. v. Smith, supra. So where upon an indictment against Webb and three other prisoners for sheep-stealing, the counsel for the prosecution proposed to call the wife of Webb to prove facts against the other prisoners, and urged that it was only in cases where the acquittal or conviction of one prisoner had a direct tendency to cause the acquittal or conviction of the other prisoners that the wife of one prisoner was incompetent to give evidence for or against the other prisi mere, Bolland, B., held that the witness was incompetent. R. v. Webb, Olouc. Spr. Ass. 1830, 3 Russ. Cri. 663, 6th ed. In R. v. Sills, 1 0. & K. 494, where A. and B. were indicted for burglary, and a part of the stolen property was found in the house of each of the prisoners, Tindal. C. J., allowed the wife of A. to be called on behalf of B. to prove that she took to B.'s house the property which was found there. But it seems very difficult to reconcile this decision with that of R. v. Smith, which was not referred to : indeed, the matter was not at all discussed. In R. v. Thomp- son, Jj. II. 1 C.C. R.S11 ; 41 Ij.J.,M. C. 112, three prisoners were on their trial, tw r o for larceny and one for receiving : and it was hold that the wife of one of the two could not be called to give evidence for the one charged with receiving, although the charge against him was contained in a sepa- rate count. By far the greater preponderance of authority is, therefore, in favour of the proposition, that in no such case, where the husband is on his trial, can the wife be called as a witness, and cirr versa. See also, •post, p. 114. Now, as lias been already pointed out, the husband or wife of a person charged is a competent witness for the defence whether the person charged is charged solely or jointly with any other person. See <;i & (!2 Vict. c. .'Jfi, s. 1. in Appendix of Statutes, U'hrrr husband or wife is not indicted, but implicated.'] Where the guilt of the husband or wife is not the subject of inquiry, though they may have been implicated in the transaction, then the question assumes a different aspect, and a different class of considerations is applicable. The witness, in this case, is not incompetent, and all that he or she can do is to refuse to answer certain questions. There is only one case in which the witness was held in such a case to be not competent, that of II. v. Cliviger, '_' '/'. A'. 263, but this Ls now no longer law. To what protection the husband or wife is entitled will lie found discussed on p. I'.i'I. Cases of personal violence."] It is quite clear that a wile is a competent witness againsl her husband in respect of any charge which affects her liberty or person. Per Eullock, 1'.., //. v. Wakefield, 2 Lewin, C.C. 1,279; 1 Deac. Dig. <'. C4: :i Russ. Cri. 666, 6th. ed. Thus in //.v. LordAudley, who was tried as a principal in the second degree, for a rape upon his own wife ; the judges resolved that though, in a civil case, the wife was not a competent witness, vet thai in a criminal case of this nature, being the party grieved, upon whom the crime is committed, she is to he admitted as a witness againsl her husband. :; //."•. St. Tr. 102; 1 Hale,P. C.301. So mii an indictment againsl the busband for an assault upon the wile //. v. Azire, 1 Str. o:j;5 ; /.'. A". /'. 287. So a wife is always permitted to swear the peace a<_rain-t her husband, and her allida\ it ha- been permitted 110 Incompetency of Witnesses. to be read, on an application to the Court of King's Bench, for an infor- mation against the husband, for an attempt to take her away by force, after articles of separation. Lady Lawley's case, B. N. P. 287/ Upon an indictment under the repealed statute, 3 Hen. 7, c. 2, for taking away and marrying a woman contrary to her will, she was a competent witness to prove the case against her husband, cle facto. B. v. Fulwood, Cro. Car. 488; B. v. Brown, 1 Vent. 243; B. v. Naagen Swenden, 14 How. St. Tr. •559, 575. And she was consequently a witness for him. B. v. Perry, coram Gibbs, C. J., 1794 ; Hawk. P. O. b. 2, c. 46, s. 79, cited By. & Moo. N. P. C. 353. But a doubt has been entertained, whether, if the woman afterwards assent to the marriage, she is capable of being a witness. In B. v. Brown [supra), it is said by Lord Hale, that most were of opinion that, had she lived with him any considerable time, and assented to the marriage by a free cohabitation, she should not have been admitted as a witness against her husband. 1 Hale, P. C. 302. But Blackstone, J., in his Commentaries, has expressed a contrary opinion. 4 Com. 209. And the arguments of Mr. East, on the same side, appear to carry great weight with them. 1 East, P. ''. 454. In a case before Hullock, B., where the defendants were charged, in one count, with a conspiracy to carry away a young lady, under the age of sixteen, from the custod}- appointed by her father, and to cause her to marry one of the defendants ; and in another count, with conspiring to take her away by force, being an heiress, and to marry her to one of the defendants ; the learned judge was of opinion, that even assuming the witness to be at the time of the trial the lawful wife of one of the defendants, she was yet a competent witness for the prosecution, on the ground of necessity, although there was no evidence to support that part of the indictment which charged force ; and also on the ground that the latter defendant, by his own criminal act, could not exclude such evidence against himself. R. v. Wakefield, supra ; 2 Stark. Ev. 552 (//.), 3rd ed. Upon an indictment under Lord Ellenborough's Act, against a man for shooting at his wife, the latter was admitted as a witness by Garrow, B., after consulting Holroyd, J., upon the ground of the necessity of the case. Holroyd, J., referred to the case of B. v. Jogger, 1 East, P. C. 455, York Assizes, 1797, where the husband attempted to poison his wife with a cake in which arsenic was introduced, and the wife was admitted to prove the fact of the cake having been given her by her husband, and it was held by twelve judges that the evidence was rightly admitted. Holroyd, J., however, said that he thought the wife could only be admitted to prove facts which could not be proved by any other witness. 3 Buss. < ';•/. 666, 6th ed. Upon the same principle that the evidence of the wife, if living, would be received to prove a case of personal violence, her dying declarations are admissible in case of murder by her husband. 7?. v. Woodcock, 1 Leach, 500 ; B. v. John, Id. 504 (u.) ; 1 East, P. C. 357. And in similar cases of personal violence, the examinations of the party (husband or wife), murdered, taken before a magistrate pursuant to the statute, wonld, as it seems, be admissible against the husband or wife, where the evidence of the husband or wife, if living, would have been admissible. See M'Nally, Ev. 175. Upon the hearing of an information for neglecting to maintain a wife whereby she becomes chargeable to the parish, the wife is not a competent witness against her husband, for such neglect is not a personal injury to the wife, but an offence against the parish; nor is there any necessity for calling the wife, as such neglect might be proved by other persons. Beeve v. Wood, 34 L. J., M. C. 15. On the same principle the husband would be admissible as a witness against the wife in cases of personal injury to him. Incompetency of Witnesses. Ill //; cases of bigamy.'] As has already been said (p. 108), after proof of the first marriage, no reliance can be placed on the second marriage as creating the relation of husband and wife, and, therefore, the parties to that marriage become competent witnesses for or against each other. It has been contended by two writers of authority (Alison's Pr. (Jr. Law, 463 ; Best, Ev. 228) that the evidence should be admitted in those cases on the ground of the personal injury. But that opinion has not yet received the sanction of author it}-. Exceptions by statute to incompetency of the defendant and of husband and wife."] In recent statutable offences the tendency of legislation has been to relax the rigidity of the common law rule by which husbands and wives are incompetent witnesses for or against each other in criminal proceed- ings ; and as has already been pointed out, now by the Criminal Evidence Act, 1898 (see Appendix if Statutes), the husband or wife of a prisoner is in all cases a competent witness for the defence if the prisoner desires it. Under s. 1 1 of the Conspiracy and Protection of Property Act, 1N75 (38 & 39 Vict. e. 86), upon the hearing and determining of any indictment or information under sections 4, 5, and 6 (see post, tit. Con- spiracy), the respective parties to the contract of service, their husbands or wives, shall be deemed and considered as competent witnesses. Under 40 Vict. c. 14, on the trial of any indictment for the non-repair of any public. highway or bridge, or for any nuisance to any public highway, river, or bridge, or for any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses, and compellable to give evidence. This Act is expressly saved by the Criminal Evidence Act, 1898 (61 ,V 02 Vict. c. 36), s. 0. By 47 & 48 Vict. c. 14, s. 1, it is enacted that "in any such criminal proceeding against a husband or a wife as is authorised by the Married Women's Property Act. 1882, the husband and wife respectively shall be competent and admissible witnesses, and except when defendant com- pellable to give evidence." Construing this enactment by the light of sects. 12 anil 16 of the Married Women's Property Act, 1882, it would seem that in all criminal proceedings authorised by that Act, husband prosecutor must give evidence against his wife, and a wife prosecutrix must give evidence against her husband. By sect. 4 of the Criminal Evidence Act, 1898 (01 & 02 Vict, c. 36) (see Appendix of Statutes), the wile or husband of a person charged with an offence under sects. 12 or 16 of the Married Women's Property Act, 1882, may be called as a witness either for the prosecution or defence and without the consent of the party charged. Sects. 12 and 10 .if the Married Women's Property Act, 1882, will he found set out post, tit. Larceny, Bv the Criminal Law Amendment Act, 18S5 (48 & 49 Vict. c. 69), s. 20, overy person charged with an offence under that Act, or Tinder sect. 48 and sects. 5] to 55, both inclusive, of 21 & 25 Vict. c. 100, and the husband and wife of the person so charged, shall he competent but not compellable witnesses on every hearing at every stage of such charge, except an inquiry before a grand jury. The offences included in the Criminal Law Amendment Act. 1885, relate chiefly to the detilemenl of women and girls. Those included in the sections of 24 iV: 2.") Vict. c. 100, are : seel. IN, rape; sect. .V2, indecent assault; sect. 53, abduction of heiresses ; sect. 54, abduction by force with intent to marry; sect. 55, abduction of girls under sixteen. A prisoner, charged with indecent assault, gave evidence under the 112 Incompetency of Witnesses. powers of sect. 20 of the Criminal Law Amendment Act, 18S5. He was convicted of a common assault, and the court held that he was properly convicted, although his evidence would not have been admissible in a. charge of common assault simply. II. v. Owen, 20 Q. B. D. 829 ■ 57 L. J., M. C. 46. In prosecutions for offences against the Merchandise Marks Act, 1S87 (50 & 51 Vict. c. 28), s. 10, the defendant and his wife, or her husband, are competent witnesses. In any proceeding against any person for a crime under the Explosive Substances Act, 1883 (46 Vict. c. 3), such person and his wife, or husband, as the. case may be, may, by sect. 4 (2), if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case. In any prosecution under the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), the person prosecuted may, by sect. 53 (2), and the husband or wife of such person, if he or she thinks fit, be examined as an ordinary witness in the case. Similarly, under the Law of Libel Amend- ment Act (51 & 52 Vict. c. 64), post, tit. Libel, and under the Prevention of Cruelty to Children Act (57 & 58 Vict. c. 41), s. 12, post, tit. Child, Ill-treatment of. And under the Betting and Loans (Infants) Act, 1892 (53 Vict. c. 4), see post, Gaming. By the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 4 (see Appendix of Statutes), the wife or husband of a person charged with an offence under 5 Ceo. IV. c. 83 ; 8 & 9 Vict. c. 83 ; 24 & 25 Vict. c. 100, sects. 48 to 55 (abduction, indecent assault and rape); 45 & 46 Vict. c. 75, sects. 12 and 16 ; the Criminal Law Amend- ment Act, 1885 (48 & 49 Vict. c. 69), and the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), may be called as a witness either for the prosecution or the defence and without the consent of the person charged. Xothing in the Act is to affect a case where the wife or husband of a person charged may at common law be called as a witness without the consent of that person. It would seem that the effect of this Act is to make the husband or wife of the prisoner compellable as well as competent witnesses in all the above-mentioned cases. Incompetency in other cases.~\ The only other case of incompetency is that of a grand juror, who has sometimes been rejected on account of the oath of secrecy which he takes before the inquiry. But even as to him the case has been considered doubtful. 1 I'hiU. Er. 140, \Wh ed. Indeed, Lord Kenyon allowed a grand juryman to be called to prove who was the prosecutor of an indictment, being of opinion that it was a fact the dis- closure of which did not infringe upon his oath. Sykes v. Dunbar, 2 Seliv. N. P. 1004. The Court of King's Bench refused to receive an affidavit from a grand juryman, as to the number of grand jurors who concurred in finding the bill. JR. v. Marsh, 6 A. C. ; by Williams, J., in //.v. Webb, 6 C, ,1- /'. 595; by Alderson, 15., in 11. v. Wilks. 7 C. & I'. 272; and by Lord Abinger, C. 1'.., in /,'. v. Farfar, K ('. ,('■ />. 101). And in the later case of /,'. v. Stubbs, 25 /.. J.. M. C. 16, Parke, B., said, "Mypractice always has been to tell the jury not to convicl the prisoner, unless the evidence of tiie accomplice be confirmed, not only as to the circumstances of the crime, but also as to the person of the prisoner"; and Cresswell, J., added. "You may take it for granted that the accomplice was at the committal of the offence, and may be corroborated as to the facts; but thai has no tendency to show that the parties accused were there." What appears to be required is, that there should be some fact depose 1 to i ndepe ndently altogethe r of the evide nce of the accomplice, which, taken by itself, lead- to the inference not only that a crime has been committed, b_utthatjf hc prisoner ^ is iniplicatc d in it . Thus upon an indictment for receiving a sheep knowing ItHxT havi • been stolen, an accomplice proved that a brother of the prisoner and himself had stolen two sheep, anil that the brother gave one of them to the prisoner, wh ° carried it into the house in which the prisoner and his father lived, and I 2 116 Incompetency of Witnesses. the accomplice stated where the skins were hid. On the honses of the prisoner's father and the accomplice being searched, a quantity of mutton was found in each, which had formed parts of two sheep corresponding in size with those stolen, and the skins were found in the place named by the accomplice. Patteson, J., held that this was sufficient: the finding of the mutton in the possession of the prisoner in itself raising an impli- cation of guilt on his part, which the testimony of the accomplice confirmed. R. v. Birkett, 8 0. & P. 7132. It is not necessary that the accomplice should be corroborated in every particular ; but there must be a sufficient amount of confirmation to satisfy the jury of the truth of his story. R. v. Gallagher, 15 Cox, 291. The point about which the opinions of judges appear to have fluctuated is as to whether, where several are indicted, and the evidence of the accomplice is confirmed as to some only and not as to others, the jury ought to be advised to acquit those against whom there is no corroboration. On the one hand, it is strongly urged in a note by Mr. Starkie to the case of H. v. Dawber, 3 Stark. N.'P. C. 34 (».), that a witness, if believed at all, must be believed in toto, and he cannot be considered as speaking the truth as to some of the prisoners and not as to the others. The view of Mr. Starkie is supported by the case to which the note is appended ; there, on the trial of several prisoners, an accomplice who gave evidence was confirmed in his testimony with regard to some of the prisoners, but not as to the rest ; Bay ley, J., informed the jury that if they were satis- fied by the confirmatory evidence that the accomplice was a credible witness, they might act upon his testimony with respect to others of the defendants, though as far as his evidence affected them, he had received no confirmation: and all the defendants were convicted. But to the argument used by Mr. Starkie it may be answered, that the whole practice of requiring corroboration is founded on the supposition that there are degrees of credibility, and that an accomplice, though not absolutely incredible, is only credible when confirmed ; and that he will only speak the truth in part is just as probable as that he will not speak the truth at all. And this is the view that has been taken in the majority of the cases ; thus in R. v. Wells, M. & M. 326, where an indictment was preferred against several as principals and accessories, the case was proved by the testimony of an accomplice, who was confirmed as to the accessories, but not as to the principal; Littledale, J., advised the jury that the case ought not to be considered as proved against the principal, and that all the prisoners ought, therefore, to be acquitted. So in R. v. Morris, 7 0. & P. 270, on an indictment against A. as principal and B. as receiver, where the evidence of an accomplice was corroborated as against A., but not as against B., Alderson, B., thought that it was not sufficient ; and in 11. v. Stubbs, supra, Jervis, C. J., said, "There is another point to be noticed; when an accomplice speaks as to the guilt of three prisoners, and his testimony is confirmed as to two of them only, it is proper, 1 think, for the judge to advise the jury that it is not safe to act on his testimony as to the third person in respect of whom he is not confirmed : for the accomplice may speak truly as to all the facts of the case, and at the same tune in his evidence substitute the third person for himself in his narrative of the transaction. rr ^~ Accomplice — by whom to be corroborated.^ The practice of requiring the evidence of an accomplice to be confirmed, appears to apply equally when two or more accomplices are produced againsl a prisoner. In a case where two accomplices spoke distinctly to the prisoner, Littledale, .).. told the jury, that, if their statements were the only evidence, he could t Incompetency of Witnesses. 11' not advise them to convict the prisoner, adding, that it was not usual to convict on the evidence of one accomplice without confirmation, and that in his opinion it made no difference whether there were more accomplices than one. /?. v. Nouhes, ~> < '. 0. & P. 632. Tt is said, that with regard to a prisoner, this is not a matter of right. 1 Stark, Ev. 189, Srded.; 4 St. Tr.9. But whether it be a matter of right or of discretion for the judge, in practice the case of a prisoner forms no exception to the general rule. The rule has been held not to extend to the attorney in the case, who may remain and still be examined as a witness, his assistance being in most cases necessary to the proper conduct of the ease. Pomeroy v. Baddelnj, By. ifc Moo. X. P. C. 430. But it extends to the prosecutor, if it be proposed to examine him as a witness. A', v- Newman, 3 ( '. & Kir. 200, per Lord Campbell, 0. J. So, as it seems, a physician, or other professional person, who is called to give an opinion as a "matter of skill upon the circumstances of the case, may be allowed to remain. If a witness remains in court after an order made for the witnesses on both sides to withdraw, the rejection of his evidence is entirely in the dis- cretion of the judge; per Coleridge, J.. Thomas v. David, 7 G. & /'. 350; Parker v. M k William, 6 Bingh. 683; R. v. Golley, Mop.&Malk. 329. But in Chandler v. Home, 2 Moo. A- Rob. 42:3, Erskine, J., stated that it was now settled by all the judges that the judge has no right to reject the witness on this ground, however much his wilful disobedience of the order may lessen the value of his evidence; and see also to the same effect, Cobb ft v. Hudson, 1 E. & 11. 11 ; 22 L. •/., V- #■ 11. Calling all witnesses whose names on- mi the indictment, i&c] Although a prosecutor was never in strictness bound to call every witness whose name is on the hack of the indictment: I!, v. Simmonds, 1 C. & /'• 84; /,'. \. Whitbread, / ; from which it appears that Parke, I'.., Cresswell, J., and' Lord Campbell, < '. J., agree in this ruling. The court has no power to oblige a prosecutor to give to a defendant the additions and places of residence of witnesses named on the hack of an indictment. //. \. Gordon, 2 Doiol. 417 ; 12 L. J., M. C. 84. 120 Examination of Witnesses. Calling all parties present at any transaction giving rise to a charge of homicide.'} On a trial for murder, where the widow and daughter of the deceased were present at the time when the fatal Mow was supposed to have been given, and the widow was examined on the part of the prose- cution, Patteson, J., directed the daughter to be called also, although her name was not on the indictment, and she had been brought to the assizes by the other side. The learned judge observed, " Every witness who was present at a transaction of this sort ought to be called ; and even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusions as to the real truth of the matter." R. v. Holden, 8 C. & P. 609. See also 11. v. Stroner, 1 0. & K. 650. And it seems that the same course should be pursued even when the party is a near relative of the prisoner, as a brother, R. v. Chapman. 8 G. .~\ It was formerly considered necessary to take the objection to the com- petency of a witness on the voire dire: R. v. Lord Lovat, !) St. Tr. 639, 046, 704 ; 1 Phil/. Ev. 85, 10th ed. ; but in modern practice the rule was relaxed. The examination of a witness, to discover whether he was interested or not, was frequently to the same effect as his examination in chief, so that it saved time, and was more convenient, to let him be sworn in the first instance. In Stone v. Blachbiime, 1 Esp. 37, it was said by Lord Kenyon, that objections, to the competency of witnesses never come too late, but maybe made in any stage of the case. See also Jacobs v. Layborn, 11 M. & W. 085. But the most convenient time to object to the competency of a witness is before he is sworn, Yardley v. Arnold, 10 M. & IT. 14u, when the witness is questioned by the court upon the points suggested by the objecting party, and extrinsic evidence upon the point may also be received; Bartlett v. Smith. 11 M. & IT. 483 ; Att.-Gen. v. Hitchcock, 1 Ex. 91 ; Cleave v. Jones, 7 Ex. 421. "Where a witness who was deaf and dumb had been examined on the voire dire, and an interpreter was sworn to interpret by signs which he said he could do but after the evidence had been proceeded with for souk; time he found that the witness and he could not understand one another, the judge at the trial refused to leave the evidence of the witness to the jury, but left the case to the jury upon other evidence adduced. And it was held that he had acted rightly. R. v. Whitehead, L. U. 1 CO. II. 33 ; 35 /.. -/., .1/. C. 180. Examination in chief — leading questions — adverse witness.~\ After the witness has been duly sworn by the officer of the court, he is examined in chief by the party calling him. Being supposed to be in the interest of that party, it is a rule, that upon such examination Leading questions shall not be put to him. Questions to which the answer " yes," or " no." would not be conclusive upon the matter in issue, are not in general objectionable. It is necessary, to a certain extent, to lead the mind of the witness to the subject of the inquiry. Per Lord Ellenborough, Nicholh v. Dowding, I Star/.-, si. Thus, where the question is, whether V. and B. were partners, a witness may he asked whether A. has inter- fered in the business of 1!. / Berenger, 1 Stark. Ev. H0,*'3rded. : 2 star/,-. X. I'. C. 129 («.). And in R. v. WaUon, 2 Stark. X. P. C. 128, the court held that the counsel for the prosecution might ask, in the most direct terms, whether any of the prisoners was the person meant and described by the witness. So where a question arose as to the . 122 Examination of Witnesses. (•(intents of a written instrument which had been lost, and in order to ■contradict a witness who had been examined as to the contents, another witness was called ; Lord Ellenborough ruled, that after exhausting the witness's memory as to the contents of the letter, he might be asked if it contained a particular passage recited to him, which had been sworn to on the other side, otherwise it would be impossible ever to come to a direct contradiction. Courteenv. Tome, 1 Campo. 42. Upon the same principle, viz., the difficulty or impossibility of attaining the object for which the witness is called, unless leading questions are per- mitted to be put to him, they have been allowed where they are necessary to establish a contradiction. Thus, where counsel, on cross-examination, asked a witness as to some expressions he had used, for the purpose of laying a foundation for contradicting him, and the witness denying having used them, the counsel called a person to prove that he had, and read to him the particular words from his brief, Abbott, C. J., held that he was •entitled to do so. Edmonds v. Walter, 3 Stark. X. P. C. 7. Where a witness, examined in chief, by his conduct in the box shows himself decidedly adverse to the party calling him, it is in the discretion of tlie judge to allow him to be examined, as if he were on cross-examination. Bastin v. Carew, By. & Moo. X. J'. C. 127; Clarke v. Saffery, Id. 126; Murphy's rase, 8 C. n the same indictment, and are separately defended, any witness called by one of them may be cross- examined on behalf of the others, if he gives any testimony tending to criminate them. R. v. Burdett, Dears. C. C. R. 431 ; 24 L. J., M. C. 03. The cross-examination of a prisoner called on his own behalf under :sect. 1 of the Criminal Evidence Act, 189.S, (51 & 62 Vict, c. 36 (see Appendix of Statutes), is verymuch limited. Such a person may be asked any question n< it withstanding that itwould tend to criminate him astothe offence charged, and it maybe assumed that he will be compelled to answer such questions, but he may not be asked, and if asked will not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged or is of bad character, unless the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged, or he has asked questions or given evidence to establish his good character, or the nature .and conduct of the defence is such as to involve imputations upon the ■character of the prosecutor or the witnesses for the prosecution, or he has given evidence against any other person charged with the same offence. Cross-examination of witnesses as to previous statements in writing.^ It was settled in The Queen's case, 2 II. <(* /.'. 292, that, when upon cross- examination a witness is asked, whether or no he has made any previous statement, the opponent party may interfere and ask, whether the repre- sentation referred to was in writing or verbal. If it appears to be in writing, then the writing itself must, if possible, be produced in order to show its contents, and they cannot be got from the witness under cross- examination. But if for any valid reason the writing cannot be produced, then the usual principles on which secondary evidence is admissible will apply, and the contents of the document may be proved by the admission •of the witness. By 28 Vict. e. 18, s. 4, if a witness upon cross-examination, as to a former statement made by him relative to the subject-matter of the in- dictment or proceeding, and inconsistent with its present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it ; but before such proof can be given the cir- cumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must he asked whether oi' not he has made such statement. By the 28 Vict. C. 18, S. 5, a witness may be cross-examined as to the previous statements made by him i.-, writing or reduced into writing rela- tive to the subject-matter of the indictment or proceeding, without such writing being shown to him, but if it is intended to contradict such wit- ness by the writing, his attention must, before such contradictory proof can he given, be called to those parts of the writing which are to lie used for the purpose of so contradicting him : provided always, that it shall be competent tor the judge, al any time during the trial, to require the pro- duction of the writing tor hi- inspection, and he may thereupon make such use of il for the purpose of the trial as lie may think tit. When the attention of the witness has been called to the writing, and it is desired to •contradict him. the statement must he put in evidence. I!, v. Riley, -1 /•'. & F. 964; /.'. v. Wright, hi. 967. In //. v. Hughes, l>rrl Dougl. 159. So it seems is the opinion of any person in the habit of receiving letters, of the genuine- ness of a post-mark. See Abbey v. Lill, ~> Bingh. 299. So antiquaries as to the date of ancient handwriting. Tracy Peerage, 10 CI. & Fin. 191. So the opinion of a shipbuilder on a question of seaworthiness. Thornton v. Roy. Ex/// ed. So also it seems skilled witnesses may refresh their memory by referring to professional treatises, although such treatises are not admissible in evidence; Taijl. on i'.e. Qth ed., p. 1230; and at all events a medical witness may he asked whether be has not in the course of his reading become acquainted with 12S Examination of Witnesses such and such results of scientific experience, and he may state that his judgment is founded in part on what he has read. Collier v. Simpson, 5 C. & P. 74. Where on an indictment for uttering a forged will, which together with the writings in support of such will, it was suggested, had heen written over pencil marks which had been rubbed out, Parke, B. (after consulting Tindal, C, J.), held, that the evidence of an engraver who had examined the paper with a mirror, and traced the pencil marks, was admissible on the part of the prosecution, but that the weight of the evidence would depend upon the way in which it would be confirmed. R. v. Williams, 8 C. & P. 434. Iti proving the laws of foreign countries also, the opinions of competent witnesses are admissible. The law of a foreign state must be proved by the parol evidence of witnesses possessing professional skill ; Sussex Pierage, 11 CI. <£' Fin. 85, 114; Nelson v. Lord Bridport, 8 Beav. 527; but they may refresh their memories by referring to books and other legal documents, lb. Thus on the trial of the Wakefields for abduction, a gentleman of the Scotch bar was examined as to whether the marriage, as proved by the witness, would be a valid marriage according to the law of Scotland. R. v. Wakefield, 2 Lewin, C. C. 1, 279; 2 Deac. Dig. C. C. 4. See also Dalrymple v. Dalrymple, 2 Hagg. Cons. 54; R. v. Povey, 22 L. J., M. C. 19. Foreign unwritten laws, customs, and usages, may be proved, and, indeed, must ordinarily be proved, by parol evidence. The proper course is to make such proof by the testimony of competent witnesses instructed in the law, under oath. Sussex Peerage case, 11 CI. <£■ Fin. 115 ; Socles v. Purday, 2 C. & K. 269. Privilege of Witnesses. 129 PRIVILEGE OF WITNESSES. Natun of privileged] We have already considered what questions may be put to a witness ; every such question the witness is bound to answer, unless lie ran show that he is privileged from so doing, from some peculiarity in his situation. Then; is a great difference between privilege and incompetency, though the difference has not always been kept in view. An incompetent witness cannot be examined, and if examined inadvertently, his testimony is not legal evidence; but a privileged witness may always be examined, and his testimony is perfectly legal if the privilege be not insisted on. If a witness be compelled to answer in cases where he claims and ought to have be m allowed his privilege, that is not a ground for reversing a conviction upon complaint of a party to the suit, as the only person injured is the witness. /'. v. Kingluke, 11 Cox, 499. The privilege of a witness arises in three ways: first, on the ground that to answer the question would expose him to consequences so injurious that he ought to he allowed to decline doing so; secondly, that to answer the question would he a la-each of confidence, which he ought not to be forced to commit; thirdly, that to compel the witness to answer the question would he against public policy. 117/'// tlu witness is 'privileged on the ground of injurious consequences of a civil kind.] It has generally been considered that a witness is privileged from answering any question, the answer to which might directly subject him to forfeiture of estate. (Forfeiture is now abolished except as to outlawry; see :;:; t \; :j| Vict. c. 23, s. 1.) And it is considered by Mr. Phillips (2 Phill. AY. 492, 10/// «*.), that the existence of this rule is impliedly recognized by the 4(5 Geo. o, c. 87, which after reciting that •'doubts had arisen whether a witness could by law refuse to answer a question relevant to the matter in issue, the answering of which had no tendency to accuse himself, or to expose him to any penalty or forfeiture, but the answering of which might establish or tend to establish that he owed a debt, oris otherwise subject to a civil suit at the instance of his Majesty or of some other person or persons," it was declared and enacted, •' that a witness cannot b\ law refuse to answer any question relevant to the matter in issue, the answering of which has no tendency to accuse himself and to expose him to a penalty or forfeiture of any nature whatso- ever, by reason only or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his Majesty or any other person or persons." It will be seen that this statute also excepts cases where the witness is exposed to a penalty. A doubt might arise whet her this exception extends to penalties to be recovered by a common informer, or otherwise in a civil manner. In none of the reported cases since the statute does the question seem to have arisen, nor is there any very clear indication of what was considered to be the law before the passing of the above statute; the ques- tion therefore remains yet to be discussed. R. K 130 Privilege of Witnesses. When ivitness is privileged on the ground of injurious consequences of an ecclesiastical kind.'] Questions subjecting a witness to ecclesiastical penal- ties have been generally considered as coming within those which he is entitled to decline answering, as under the 2 & 3 Edw. 6, c. 13, s. 2, for not setting out tithes ; Jackson v. Benson, 1 Y. & J. 32 ; on a charge of simony, Brownswood v. Edwards, 2 Ves. Sen. 244; or incest, Chetwyndv. Lindon, Id. 403. But there cannot be a doubt that a judge, in deciding whether or not a witness is entitled to the privilege, would consider whether the danger suggested by the witness was real and appreciable ; R. v. Boi/es, infra ; and the mere chance of an obsolete jurisdiction being set in motion would very likely not be considered as entitling the witness to his privilege. When witness is privileged on the ground of injurious consequences of a criminal kind.] (As to the questions which may be asked in cross- examination of a prisoner called on his own behalf, see the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), in the Appendix of Statutes.) That the witness will be subjected to a criminal charge, however punish- able, is clearly a sufficient ground for claiming the protection. Thus, a person could not be compelled to confess himself the father of a bastard child, as he was thereby subjected to the punishment inflicted by the 18 Eliz. c. 3, s. 2 (repealed). B. v. St. Mary, Nottingham, 13 East, 58 («). So, a witness could not be compelled to answer a question which subjected him to the criminal consequences of usury. Cates v. Hardacre, 3 Taunt. 424. And if a witness was improperly compelled, after objection taken by him, to answer questions tending to criminate him, it would appear that such answers would not be admissible in evidence against him should he be subsequently tried on a criminal charge. R. v. Coote, L. R., 4 P. C. 599; 42 L. J., P. (J. 45, ante, p. 51. But if the time limited for the recovery of the penalty have expired, the witness may be compelled to answer. Roberts v. Al/att, M. &~M. 192. Whether or no a witness who has been pardoned is bound to answer questions which tend to show hirn guilty of the offence for which the pardon has been granted, is perhaps doubtful. The question appears to have been decided in the negative by North, C. J., in R. v. Reading. 7 How. St. Tr. 226 ; but that case has been much doubted. See Moo. & M. N. P. C, 193 (//), and in R. v. Boyes, 1 B. & S. 311, it was held by the Court of Queen's Bench that a pardon took away the privilege of the witness in such a case. In the case last mentioned an objection was taken on behalf of the witness that though a pardon under the great seal might be a protection in ordinary cases, yet that under the peculiar circumstances of that case it was not so. The prosecution was for bribery, and the question put to the witness was objected to by him, on the ground that its answer woidd tend to show that he had received a bribe. A pardon under the great seal was thereupon handed to him by the solicitor-general, who was prosecut- ing for the crown, but the witness still refused to answer, on the ground that, inasmuch as by the exj>ress provisions of the 12 & 13 Will. 3, c. 2 (repealed), the pardon would not be pleadable to an impeachment for bribery by the House of Commons, the privilege still existed ; but the Court of Queen's Bench held that the danger to be apprehended must be real and appreciable ; and that an impeachment by the House of Commons for bribery was, under the circumstances, too improbable a contingency to justify the witness in still refusing to answer on that ground. (As to the effect of a pardon see Hay v. Justices of the Tower, 24 Q. B. D. 561.) By the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), Privilege of Witnesses. 131 8. 59, persons called as witnesses before any election court, or before election commissioners, are not excused from answering; but if they answer every question, they are to receive a certificate, which will be a bax to all proc lings against such persons for any offences under the Corrupt Practices Prevention Acts, and no answer shall, except in the case of any criminal proceedings for perjury be admissible in evidence in any proceeding, civil or criminal. By the interpretation clause of the same Act, s. 64, the word "indictment" includes "information." This interpretation was inserted to meet the case of R. v. Slator, 8 Q. B. J). 267 ; 51 L. •!., Q. II. 246; and the words "any criminal proceedings" seem to get rid of the objection raised in R. v. Buttle, L. R., 1 C. C. R. 268 ; 39 L. J., M. C. 115, where it was held that answers given before a commis- sion could not be used on a trial for perjury committed at the trial of an election petition. Similar provisions are applied to the case of witnesses examined in respect of any offence against the law relating to explosive substances as contained in the Explosive Substances Act, 1883 (46 Vict. c. 3), s. 6. As to compelling witnesses to answer in cases of bankruptcy, and fraudulent agents, bankers, &c, see ante, p. 44. Right to decline answering — //"«• decided.^ Of course the judge is to decide whether or not the witness is entitled to the privilege, subject to the correction of a superior court. What inquiries he ought to make in order to satisfy himself upon this point has been the subject of consider- able difference of opinion. In Fisher v. Ronalds, 12 C. B. 762, it was unnecessary to decide the point, but Maule, J., said, "It is for the witness to exercise his discretion, not the judge. The witness might be asked, 'Were you in London on such a day!"' and though apparently a very simple question, he mi "lit have good reason to object to answer it, know- ing that, if he admitted that he was in London on that day, his admission would complete a chain of evidence against him which would lead to his conviction. It is impossible that the judge can know anything about that. The privilege would he worthless, if the witness were required to point out how his answer would tend to criminate him." It was equally unnecessary to decide the point in Osborne v. The London Dock Company, Hi /•-'.»■. II. 7()1, but the question was a good deal discussed, the opinion of Parke, B., clearly inclining to the view that the witness ought to satisfy the court that the effect of the question will be to endanger him. The learned baron stated that this was the opinion of the majority of the judges who considered the case of A', v. (jarbett, 1 Den, C. C. 231), though they expressly refrained from deciding the point; and he also cited the opinion of Lord Truro, who, in the case of SJwrt v. Mercier, '■> .!/<"■. & ) . 205, said, "A defendant, in order to entitle himself to protection, is not bound to show to what extent the discovery sought might affect him, for to do that he might oftentimes of necessity deprive himself of the benefit hi' is seeking; but it will satisfy the rule if he states circumstances con- sistent on the face of them with the existence of the peril alleged, and which also render it extremely probable." In Sidebottom v. Atkyns, 3 Jur. X. S. 031, Stuart. Y.-('., compelled a witness to answer questions although he swore that he should thereby subject himself to a criminal prosecution. In Adams v. Lloyd, 3 Hurst. & .Ye/-. 351, Pollock. < '. 11.. admits the ri.n'ht of the judge to use his discretion, but seems to think that he ought to he satisfied by the oath of the witness, if there arc no circumstances in the case which lead him to doubt the real necessity for protection. In It. v. Boyes, su/.rn, p. 130. the Court of Queen's Bench, after consideration, held that " to cntitlea partv called as a witness to the K 2 132 Privilege of Witnesses. privilege of silence, the court must see from the circumstances of the case, and the nature of the evidence which the witness is called upon to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer." The rule in this case may be taken to be well established, and it has been adopted bv the Court of Appeal in Ex parte Reynolds, 20 Ch. I). 294 ; 51 L. J., Ch. 7,36. It will thus be seen that in all cases where the point has directly arisen, it has been held that the bare oath of the witness, that he is endangered by being compelled to answer, is not to be considered as necessarily sufficient : but that the judge is to use his discretion whether he will grant the privilege or not. Of course the witness must always pledge his oath that he will incur risk, and there are innumerable cases in which a judge would be properly satisfied with this without further inquiry, but, if he is not satisfied, he is not precluded from further investigation. Questions tending to degrade a witness.'] It is submitted that there cannot, by any possibility, be any doubt as to the rule upon this subject. Every question must be answered by a witness, whether it tend to degrade him or not, if it be material to the issue, unless it tend to render him liable to penalties and punishment. As the credibility of a witness is always in issue, he must, therefore, answer questions which are in no other way material than as affecting his credibility. On the other hand, every question which is not material to the issue is improper ; and it is not only improper, but unbecoming, to put questions to a witness, the very putting of which tends to degrade him, and which, not being material, he cannot be compelled to answer. And as every witness is- entitled to the protection of the court in which he appears, any attempt to degrade him unnecessarily will immediately be repressed, without waiting for the witness to object to the question. By 28 Vict. c. IS, s. 6, a witness may be questioned as to whether he has been convicted of any felony or misdemeanor. See the section, post, p. 143. Privilege of husband and wife.'] A doubt has arisen whether the prin- ciple of law which considers husband and wife as one person, extends to protect persons who stand in that relation to each other from answering questions which tend to criminate either, even although they are neither of them upon trial, or in a situation in which the evidence can be used against them. It was, indeed, at one time held that a husband or wife was an incompetent witness to prove any fact which might have a tendency to criminate the other; li. v. Cliviger,.2 T. 11. 263; but that decision i* no longer law ; all the subsequent cases, with one exception, treat the husband or wife as a competent witness under such circumstances. B. v. All Saints, Worcester, 6 M. & S. 194; B. v. Bathwick, 2 II. ,1 Ad. 639; 11. v. Williams, 8 0. <& P. 284. The case the other way is that of JR. v. Gleed, 3 Buss. Cri. 66.1, 6/7/ e. & Ji. 726. So a barrister's clerk. Foote v. Hayne, Ry. dc Moo. 165. Although some doubt has been entertained as to the extent to which matters communicated to a banister or a, solicitor in his professional character are privileged, where they do not relate to a suit or controversy either ] ling or contemplated, and although the rule was attempted to be restricted, by Lord Tenterden, to the latter cases only; see Clark v. Clark, 1 Moody & I!<>1>. '•'>; Williams \. Munday, Ry. & .1/"-/. :; i ; yet it seems to be at length settled, that all such communications are privileged, whether made with reference to a pending or contemplated suit or not. See all the cases commented upon by Lord Brougham, L. ('., in Green- hough v. Gaskell, 1 .'////. a A*, loo. See also Walker v. Wildman, (i Mao 1 , 1. 47 ;' Mynn v. Joliffe, \ Moo. <£ Ry. 326 ; Moore v. Tyrrell, i /!. & Ad. 870. As to when the client may be compelled by bill in equity to disclose com- 134 Privilege of Witnesses. munications made before any dispute arose, see Taylor on Ev. 6th ed., pp. 823, 824. A communication made to a solicitor, if confidential, is privileged in •whatever form made, and equally when conveyed by means of sight instead of words. Thus a solicitor cannot give evidence as to the destruc- tion of an instrument which he has been admitted in confidence to see destroyed, llobson v. Kemp, 5 Esp. 54. See post. The rule applies not only to the professional advisers of the parties in the case, but also to the professional advisers of strangers to the inquiry. Thus a solicitor is not at liberty to disclose what is communicated to him confidentially by his client, although the latter be not in any shape before the court. Jl. v. Wither, 2 Camp. 578. A communication in writing is privileged, as well as a communication by parol ; and deeds and other writings deposited with a solicitor in his professional capacity, will not be allowed to be produced by him. To prove the contents of a deed, the defendant's counsel offered a copy, which had been procured from the solicitor of a party under whom the plaintiff claimed, but Bay ley, J., refused to admit it. He said, " The attorney could not have given evidence of the contents of the deed, -which had been entrusted to him ; so neither could he furnish a copy. He ought not to have communicated to others what was deposited with him in confidence, whether it was a written or a verbal communication. It is the privilege of his client, and continues from first to last." Fisher v. HemiiKj, 1 Phitl. Ev. 116, 10*7* ed. But see Cleave v. Jones. 21 L. J., Ex. 105, 7 Exch. 421, supra, and Lloijd v. Mostyn, 10 M. & W. 481, 482, where Parke, B., questions the correctness of the decision in Fisher v. Kerning. In Volant v. Soyer, 13 C. B. 231; 12 L. J., C. P. 83, a solicitor refused to produce a document on the ground that it was his client's title deed ; he was then asked what the deed was, but the judge disallowed the question, and refused also to examine the deed : the court held that he was right. Nor where a solicitor holds a document for a client can he be compelled to produce it, by a person who has an equal interest in it with his client. Newton v. Chaplin, 10 C. B. 356. The information must have been obtained by the legal adviser in his professional capacity. Thus a solicitor, who has witnessed a deed pro- duced in a cause, may be examined as to the true time of execution ; or if a question arise as to a rasure in a deed or bond, he may be asked whether he ever saw the instrument in any other state, that being a fact within his own knowledge ; but he ought not to be permitted to discover any confession which his client may have made to him on that head. B. N. P. 284. It has been said that the above case applies only where the solicitor has his knowledge independently of any communication with his client. Wheatley v. Williams, 1 M. & W. 533. It was there held that a solicitor is not compellable to state whether a document shown to him by his client during a professional interview, was in the same state as when produced at the trial, namely, whether it w r as stamped or not. In Dwyer v. Collins, 7 E.rrh. 639 ; 21 L. J., Ex. 225. it was held, that the right of a solicitor not to disclose matters with which he has become acquainted in the course of his employment as such, does not extend to matters of fact which he knows by any other moans than confidential communication with his client, though, if he had not been employed as solicitor, he probably would not have known them ; and that upon this ground, a solicitor of a party to a suit is bound to answer on a trial, whether a particular document belonging to his client is in his possession, and is then in court. See also Coates v. Birch, 2 Q. B. 252. In It. v. Farley, 1 Pen. C. C. 197, when the wife of a prisoner took a forged will Privilege of Witnesses. 135 to a solicitor at the prisoner's request, and asked if lie could advance her husband some money upon the mortgage of property mentioned in the will ; it was held, that this was not a privileged communication. So where a forged will was put into a solicitor's hands not in professional confidence, but that by finding it among the title deeds of the deceased, which the prisoner sent with the will, he might be disposed to act upon it ; it was held, bv all the judges, that the communication was not privdeged. P. v. Jones, I Den. C. 0. R. 166. And the matter must also be one which is a subject of professional confidence. Thus the clerk of a solicitor may be called to identify a party, though he has only become acquainted with him in his professional capacity ; for it is a fact cognisable both by the witness and by others, without any confidence being reposed in him; Studdy v. Saunders, 2 Dow. «fc Ry, 347 ; though the contrary was, upon one occassion, ruled by Holroyd, J. Parkins v. Hawkshaw, 2 Stark. N. P. C. 240. So a sobcitor's clerk may be called to prove the receipt of a particular paper from the other party, for it is a mere fact. Eicke v. Nvkes, Moo. . 153; 54 A. ./., .1/. < '. -11, when the judgment of the court was delivered by Stephen, J. The court were unanimously of opinion that those com- munications only are privileged which pass between a solicitor and his client in professional confidence, and in the legitimate course of professional employment. It was further laid down that communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it are not privileged from disclosure. See also //. v. Farley, supra, p. 134; /<'. v. Avery, supra; Annesley v. Lord Anglesea, 17 How. St. Tr. 122!); and Russelly. Jackson, i) Hare, 392. When the witness is privileged on the ground of public policy- -persons in a judicial capacity.~\ In R. v. Watson, a witness was questioned by the 156 Privilege of Witnesses. prisoner's counsel, as to Lis having produced and read a certain writing before the grand jury. On this being objected to, Lord Ellenborough, ( '. J. , said, he bad considerable doubts upon the subject : he remembered a case in which a witness was questioned as to what passed before the grand jury, and though it was a matter of considerable importance, be was permitted to answer. The question was not repeated. 32 How. tit. Tr. 107. But it has since been held, that a witness for the prosecution in a case of felony, may be asked on cross-examination, whether he has not stated certain facts before the grand jury, and that the witness is bound to answer the question. R. v. Gibson, Carr. & M. 672. See also 11. v. Russell, i ' tl rr. & M. 247. According to an old case, a clerk attending before a grand jury shall not be compelled to reveal what was given in evidence. Trials per I'm'.--. 220; 12 Yin. Ab. 38; Evidence {/>'. a. 5). Where a bill of indictment was preferred for perjury committed at the quarter sessions, and it was proposed to examine one of the grand jury, who had acted as chairman at such sessions, Patteson. J., said, "This is a new point, but I should advise the grand jury not to examine him. He is the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court." 11. v. Gazard, 8 C. & P. <39<3. (See as to incom- petency, p. 112.) When the witness is privileged on the ground of public policy — disclosures 1))/ informers, &c.~\ Another class of privileged communications are those disclosures which are made by informers, or persons employed for the purpose, to the government, the magistracy, or the police, with the object of detecting and pxmishing offenders. The general rule on this subject is thus laid down by Eyre, C. J. : "It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner : but there is a rule, which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed; if it can be made to appear that it is necessary to the investigation of the truth of the case, that the name of the person should be disclosed, I should be very unwilling to stop it; but it does not appear to me, that it is within the ordinary course to do it, or that there is any necessity for it in the present case." 11. v. Hardy, 24 How. tit. Tr. 808. It is not of course every communication made by an informer, to any person to whom he thinks fit to make it, that is privileged from being inquired into, but those only which are made to persons standing in a 'certain situation, and for the purposes of legal investigation or state inquiry. Communications made to government respecting treasonable matters are privileged, and a communication to a member of government is to bo considered as a communication to government itself; and that person cannot be asked whether he has coin eyed the information to government. 7?. v. Watson, 2 Stark. N. P. ('. 136. So a person employed by an officer of the execu- tive government, to collect information at a meeting supposed to be held for treasonable purposes, was not allowed to disclose the name of his employer, or the nature of the connection between them. 1!. v. Hard)/, 24 How. tit. Tr. 753; 11. v. Watson, Gurney's Rep. 159; 32 How. St. Tr. 1(10. So where a prosecution is carried on by the Director of Public Prosecutions and be is called as a witness, he may refuse to give the names of persons from whom he has received information and the nature of that information, unless the judge should think the disclosure necessary Privilege of Witnesses. 137 in the interests of the prisoner. Marks v. Beyfus, '2o Q. B. D. 494.; 59 L. ./., Q. II. .07!). The protection extends to all communications made to officers of justice, or to persons who form links in the chain by which tli" informa- tion is conveyed to officers of justice. A witness who had given information, admitted on a trial for high treason that he had com- municated what he knew to a friend, who had advised him to make a disclosure to another person. He was asked whether that friend was a. magistrate, and on his answering in the negative, he was asked who was the friend? It was objected, that the person by whose advice the information was given to one standing in the situation of magistrate, was in tact the informer, and that his name could not he disclosed. The judges differed. Eyre, C. J., Hotham, 1!., and Grose. J., thought the question objectionable; Macdonald, ( '. B., and Buller, J., were of opinion it should he admitted. Eyre, C. J., said, "Those questions which tend to the discovery of the channels by which the disclosure was made to the officers of justice, are not permitted to he asked. Such matters cannot he disclosed, upon the genera] principle of the convenience of public justice. It is no more competent to ask who the person was that advised the witness to make a disclosure, than it is to ask to whom he made the dis- closure in consequence of that advice; or than it is to ask any other question respecting the channel of information, or what was done under it." Hotham, B., said, that the disclosure was made under a persuasion, that through the friend it would he conveyed to a magistrate, and that there was no distinction between a disclosure to the magistrate himself, and to a friend to communicate it to him. Macdonald, ( '. 1!.. said, that if he were satisfied that the friend was a link in the chain of communica- tion, he should agree that the rule applied, but that not being connected either with the magistracy or the executive government, the case did not appear to him to fall within the rule ; and the opinion of Buller, J., was founded on the same reason. /,'. v. Hardy, '1\ How. St. '/'/'. 811. The above cases were cited and considered in Att.-Gen. v. Brimnt, \o M.& II'. !id you give the information ? " lint on an indict- ment for administering poison with intent to murder, the police having, in consequence of certain information, found a bottle containing the poison, a policeman declined to state from whom he had received that information; hut Cockburn, ( '. J., ordered him to answer the question put to him. which in the particular instance was material. /«'. \. Richardson, :', /•'. ,i /•'. 693. When th<' witness is privileged < \ the ground of public policy — official communications.'] It has always been held that official communications relating to matters which affect the interests of the community at large may he withheld; thus the communications between the governor and law otlicers of a colony. Wyatt v. Gore, Holt, N, /'. <'. 'J!)!); between the governor of a colony and one of the secretaries of state, Anderson v. Hamilton, '1 l>. & B. 156; between a governor of a colony and a military officer, Coofo \. Maxivell, '1 Stark. 183, are privileged. So where, on a trial tor high treason. Lord Grenville was called upon to produce a Letter intercepted at the post-office, and which was supposed to have come to his hands, it was ruled that he could not he required to produce it. for that secrets of state were not to he taken out of the hands of his Majesty's confidential subjects. Anderson v. Hamilton, 2 II. a- />'. 157(h). What passes in parliament is in the same manner privileged. Thus, on a trial 138 Privilege of Witnesses. for a libel upon Mr. Plunkett, a member of the Irish parliament, the Speaker of the Irish House of Commons being called and asked, whether he had heard Mr. Plunkett deliver his sentiments in parliament on matters of a public nature, Lord Ellenborough said that the Speaker was warranted in refusing to disclose what had taken place in a debate in the House of Commons. He might disclose what passed there, and if he thought fit to do so, he should receive it as evidence. As to the fact of Mr. Plunkett having spoken in parliament, or taken any part in the debate, he was bound to answer. That was a fact containing no improper disclosure of any matter. Plunkett v. Cobbett, 5 Esp. 136; 29 How. St. Tr. 71, 72. On the same ground, viz., that the interests of the state are concerned, an officer of the Tower of London was not allowed to prove that a plan of the Tower, produced on behalf of the prisoner, was accurate. R. v. Watson, 2 Stark, iV. P. ('. 148. In Dickson v. Lord Wilton, 1 F. & F. 419, a clerk from the war office was sent with a paper which had been asked for, with instructions to object to its production and nothing more. Lord Campbell ordered it to be produced, not considering the mere objection of a subordinate officer sufficient. In Beatson v. Skene, 29 L. J., Ex. 430, the Secretary of State for the Home Department had been subpoenaed to produce certain docu- ments written to him by an officer in the army. He attended at the trial, but objected to produce the documents on the ground that his doing so would be injurious to the public service. Bramwell, B., thereupon refused to compel him to do so, and a new trial was moved for upon this amongst other grounds. It appeared on discussion that the documents, even if produced, would not have been admissible ; but Pollock, C. B., in delivering the considered judgment of the Court of Exchequer, said that the majority of the court entirely concurred in the ruling of Bramwell, B. He said: "We are of opinion that if the production of a state paper would be injurious to the public service, the general public interest must be considered paramount to the individual interest of a suitor in a court of justice; and the question then arises, how is this to be determined ? It is manifest it must be determined either by the presiding judge, or by the responsible servant of the crown in whose custody the paper is. The judge would be unable to determine it without ascertaining what the document was, and why the publication would be injurious to the public service — an inquiry which cannot take place in private, and which taking place in public may do all the mischief which it is proposed to guard against. It appears to us, therefore, that the question, whether the production of the document would be injurious to the public service, must be determined, not by the judge, but by the head of the department having the custody of the paper ; and if he is in attendance and states that, in his opinion, the production of the document would be injurious to the public service, we think the judge ought not to compel the pro- duction of it. . . . If, indeed, the head of the department does not attend personally to say that the production will be injurious, but sends the document to be produced or not, as the judge may think proper, or, as was the case in Dickson v. Lord Wilton, where a subordinate was sent with the document, with instructions to object and nothing more, the case may be different." Where, for revenue or other purposes, an oath of office has been taken not to divulge matters which have come to the knowledge of a party hi his official capacity, he will not be allowed, where the interests of justice are concerned, to withhold his testimony. Thus, where the clerk to the commissioners of the property tax being called to produce the books con- taining the appointment of a party as collector, objected on the ground Privilege of Witnesses. 139 1 that he had been sworn not to disclose anything he should learn in his capacity of clerk, Lord Ellenborough clearly thought that the oath con- tained an implied exception of the evidence to be given in a court of justice, in obedience to a writ of subpoena. He added that the witness must produce the books, and answer all questions respecting the collection of the tax, as if no such oath had been administered to him. Lee, q. t. v. Birrell, 3 Camp. 337. Objection to answer — how taken."] The mode of taking the objection depends on the person to whom the privilege belongs. If the objection! be on the ground that the answer would expose the witness to penal con- sequences, then it belongs to the witness himself, and to him only, who may insist on or abandon it, as he thinks lit. Thomas v. Newton, J/. /// ed. ; Doe (1. Gilbert v. Ross, 7 M. & II'. 102; Neiuton v. 'Chaplin, 10 ('. II. 356; Phelps v. Prew, '■'> K. & II. 430. If the professional adviser chose to take upon himself the risk of answering the question, the court could hardly prevent him, though it might express its indignation at a manifest breach of professional confidence. It was once thought that if the witness began to answer he must pro- c 1 ; but in R. v. Garbett, 1 l>nt. C. C. 258, nine judges against six held that this was not so ; and that the witness was entitled to his privilege at whatever stage of the inquiry he those to claim it. Effect of refusing t,, answer.] "Where a witness is entitled to decline answering a question, and does decline, the rule is said by Holroyd, J., to he, that his nut answering oue;ht not to have any effect with the jury. II. v. Watson, '2 Stark. 157. So where a witness demurred to answer a question, on the -round that lie had been threatened with a prosecution respecting the matter, and the counsel in his address to the jury remarked upon the refusal, Abbott, * '. ,1., interposed and said, that no inference was t<> he drawn from such refusal. Rose v. Blakemore, Ry. & Moo. X. P. ('. 384. A similar opinion was expressed by Lord Eldon. /,/<>// ry) that persons who forge such seals, stamps, or signatures as above mentioned, or who print any private Acts or journals of parliament with false purport, -are guilty of felony, further provides, "that whenever any such document as before men- tioned shall have been received in evidence by virtue of this Act, tin court, judge, commissioner, or other person officiating judicially, who shall have admitted the same, shall, on the request of any party against whom the same is so received, be authorized at its, or at his own dis- cretion, to direct that the same shall be impounded, and be kept in the custody of some officer of the court, or other proper person, until further order touching the same shall be given, either by such court, or the court to which such master or other officer belonged, or by the person or persons who constituted such court, or by some one of the equity or common law judges of the superior courts at Westminster, on application being made for that purpose." 142 Documentary Evidence. The 14 (f- 15 Vict. c. 99.] By this statute it is enacted by sect. 7, that " all proclamations, treaties, and other acts of state of any foreign state, or of any British colony, and all judgments, decrees, orders, and other judicial proceedings of any court of justice in any foreign state, or in any British colony, and all affidavits, pleadings, and other legal documents, filed or deposited in any such Court, may be proved in any court of justice, •or before any person having by law, or by consent of parties, authority to hear, receive and examine evidence, either by examined copies, or by copies authenticated as hereinafter mentioned ; that is to say, if the document sought to be proved be a proclamation, treaty, or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state, or British colony, to which the original document belongs ; and if the document sought to be proved be a judgment, decree, order, or other judicial proceeding of any foreign or colonial court, or any affidavit, pleading, or other legal document, filed or deposited in any such court, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of the foreign or colonial court to which the original document belongs ; or in the event of such court having no seal, to be signed by the judge ; or if there be more than one judge, by any one of the judges of the said court, and such judge shall attach to his signature a statement in writing on the said ■copy, that the court whereof he is a judge has no seal ; but if any of the aforesaid authenticated copies shall purport to be sealed or signed, as hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal where a seal is necessary, or of the signature, or of the truth of the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the jierson appearing to have made such signature and statement." By s. 8, "Certificates of the qualification of an apothecary, under the common seal, shall be received in evidence without any proof of the said seal, or of the authenticity of the said certificate, and shall be deemed sufficient proof of qualification." By ss. 9, 10, and 11 provision is made for the admission of documents in force in Ireland, in England or Wales, and vice versa ; and for docu- ments in force in England, Wales, or Ireland, in the colonies. And after reciting that it is expedient, as far as possible, to reduce the expense attending upon the proof of criminal proceedings, it is enacted : — By s. 13, "That whenever, in any proceeding whatever, it may be necessary to prove the trial and conviction or acquittal of any person charged with any indictable offence, it shall not be necessary to produce the record of the conviction or acquittal of such person, or a copy thereof, but it shall be sufficient that it be certified, or purport to be certified, under the hand of the clerk of the court or other officer having the custody of the records of the court where such conviction or acquittal took place, or by the deputy of such clerk or other officer, that the paper produced is a copy of the record of the indictment, trial, conviction, and judgment or acquittal, as the case may be, omitting the formal parts thereof." By s. 14, " Whenever any book or other document is of such public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof, or extract therefrom, shall be admissible in evidence in any court of justice or before any person, now or hereafter, having by law, or by consent of parties, authority to hear, receive, and examine evidence ; provided it be proved to be an examined Documentary Evidence. 143 copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding f ourpence for every folio of ninety words." By s. 15, " If any officer authorized or required by this Act to furnish any certified copies or extracts, shall wilfully certify any document as being a true copy or extract, knowing the same is not a true copy or extract, as the case may be, he shall be guilty of a misdemeanor, and be liable upon conviction to imprisonment for any term nut exceeding eighteen months." By s. 1(3, "Every court, judge, justice, officer, commissioner, arbitrator or other person, now or hereafter having by law, or by consent of parties, authority to hear, receive, and examine evidence, is hereby empowered to •administer an oath to all such witnesses as are legally called before them respectively." By s. 17*, " Persons forging the seal, stamp, or signature of any docu- ment, or tendering in evidence any such document with a false or counter- feit seal, stamp, or signature thereto, knowing the same to be false or counterfeit, shall be guilty of felony, and the court may direct that the same shall be impounded. For this section, see j>ost, tit. Forgery. 14 & 15 Vict. r. 100.] Sect. 22 of this statute, which is set outpost, tit. Perjury, provides for the proof of the previous trial upon a trial for perjury. 28 Vict. c. IS, s. (>.] A witness may be questioned as to whether he has been convicted of any felony or misdemeanor, and, upon being so ques- tioned, if he either denies or does not admit the fact, or refuses to answer, it shall be lawful for the cross-examining party to prove such conviction; and a certificate containing the substance and effect only (omitting the formal part) of the indictmenl and conviction for such offence, purporting to be signed by the clerk of the court or other officer having the custody of the records of the court where the offender was convicted, or by the deputy id' such clerk or officer (for which certificate a fee of os. and no more shall lie demanded or taken), shall upon proof of the identity of the person be sufficient evidence of the said conviction, without proof of the signature or official character of the person appearing to have signed the same; see infra, 34 & 35 A'ict. c. 112, s. 18, as to previous conviction in any legal proceedings against any person. .'31 <(■ .'32 Vict. c. .'57, s. 2.] Sect. 2 of this Act provides that prima facie evidence of any proclamation, &c., may lie given in all legal proceedings by the production of a copy of the Gazette, or a copy of the proclamation, &c, properly printed, or in cases of proclamations, &c, by the Privy Council, «fec, by a properly certified copy or extract, which may be in print or writing, and no evidence of the handwriting of the person certifying is required. 34 C. a /'. 1554 ; 4 Tyr. 456 ; 1 C. M. & /,'. 388. So it has been ruled on an indictment for perjury, that in order to prove that an appeal came on to be heard at sessions, it must be shown that a record was regularly made upon parchment. A', v. Ward, 6 C. <('• P. :S66 ; and see R. v. The Inhabi- tants of Pembridye, < 'arr. & M. 157. But where the object of the evidence- was merely to prove the tact of a former trial, it was held on an indictment for perjury committed at such trial that the production by the officer of the court, of the caption, the indictment with the indorsement of the prisoner's plea, the verdict and the sentence of the court upon it, was sufficient, without the production of the record, or a certificate of the same, under 14 & 15 Vict. c. 99, s. 13. /,'. v. Newman, 2 Den. C. C. 11. 390: 21 /,. •/., .)r. C. 75. In P. v. Scott, 2 Q. /!. D. 415; 4(i /,. ,/., M. C. 259 (see post, tit. Perjury), it was held that the existence of an action was suffi- ciently proved by the production, by the officer of the court, of the copy writ filed under < >rd. V., rule 12 of the Rules of the Supreme Court, 1883. So a judgment on paper signed by the master is not evidence, for it is not yet become permanent. B. X. P. 22. 469; Gyles v. Hill, Id. 171 (><). It must appear that the 1 original came from the proper place of deposit, or out of the hands of the officer in whose custody tin' records are kept. Adamthivait v. Synye, 1 stark. 183; 4 Campb. 572. Where a record is lost, an old copy has been allowed to be given in evidence, without proof of its being a true copy. Anon., 1 Ventr. 257; 11. X. /'. 22.S. With respect to the proof of records, before courts of criminal justice, as where a prisoner pleads autrefois icijuit to an indictment, he may remove the record by certiorari into chancery, and have it exemplified ; but it seems to be the usual practice for the clerk of assize or clerk of the peace to make up the record \\ ithout writ, or to attend with it at the trial. 3 Russ. Cri. 450. 6th ed. ; 2 Phill, Ev. 203, 10/// ed. Proof by ojffici copies, and n>j>i Price, 495. A copv of a judgment purporting to be examined by the clerk of the treasury (who is not intrusted to make copies), is not admissible without proof of examination with the original. P>. N. P. 229. A judge's order may be proved by the production of the order itself, or by an office copy of the rule by which it has been made a rule of court. Hill v. Halford, 4 ( 'ampb. 17. Office copies of rules of court being made out by officers of the court in the execution of their duty are sufficient evidence without being proved to have been examined. Selby v. Harris, 1 Ld. Raym. 745 ; Duncan v. Scott, 1 ('a m pit. 99. And printed copies of the rules of a court for the direction of its officers, printed by the direction of the court, are evidence without examination with the original. Dance v. Jl<>l>*<>it. Man. G. ; hut see Rees v. Boiren, M'''l. .1' Y. 'AX'o. A distinction has heen taken between cases where the copy is required to he proved in a civil suit, and where it forms the foundation of a criminal proceeding, as upon an indictment for perjury. In R, v. .limn*. 1 Show. 327: <', where Lord Mansfield said that on indictments fur perjury he thought the original should he produced. Buller, J., also observed that wherever identity is in question, the original must he produced. /iven. Per Mansfield, C. J., Manor of Doncaster v. Day, 3 Taunt. 262. Where depositions in chancery are offered in evidence, merely for the purpose of proving a fact admitted in them, or of contradicting a witness, it is not necessary to give evidence of the bill and answer. But where it is necessary to show that they were made in the course of a judicial pro- ceeding, as upon an indictment for perjury in the deponent, proof of the bill and answer will be required. But the judge only is to look at them for the purpose of determining whether the depositions sought to be put in are evidence. Chappellv. Purday, 14 M. & If. 303. Where the suit is so ancient that no bill or answer can be found, the depositions may be read without proof of them. Depositions taken by command of Queen Elizabeth upon petition without bill and answer, were upon a solemn heaiing in chancery allowed to be read. Lord Hunsdon v. Lady Arundell, Hob. 112 ; B. X. I'. 240. So depositions taken in 1686 were allowed to be read without such proof; Byam v. Booth, 2 Price, 234; and answers to old interrogatories were searched for and not found. Rowe v. Brenton. 8 />'. & C. 765. But, in general, depositions taken upon interrogatories Documentary Evidence, 149 under a commission cannot be read without proof of the commission. Bayley v. Wylie, 6 Esp. Xo. As to depositions of a child, see 57 & 08 Vict. c. 41, s. 14, post, p. 346. Proof of proceedings in bankruptcy. — See post, Bankruptcy. Proof of judgments and proceedings of inferior courts.l The judgments and proceedings of inferior courts, not of record, may be proved by the minute-book in which the proceedings are entered, as in the case of a judgment in the county court. Chandler v. Roberts, Peake, Ev. 72. oth.ed. So an examined copy of the minutes will be sufficient. Per Holt, C. J., Comb. 337; 12 Vin. Ah. Evid. A. pi. 26. If the proceedings of the inferior court are not entered in the books, they may be proved by the officer of the court, or by some person conversant with the fact. See Dyson v. Wood, 3 B. & C. 451, 453. Proof of records and proceedings in county courts.l It is enacted, by the 9 & 10 Vict, c 95, s. Ill, "that tbe clerk of every court holden under this act shall cause a note of all plaints and summonses, and of all orders, and of all judgments and executions and returns thereto, and of all fines, and of all other proceedings of the court, to be fairly entered from time to time in a book belonging to the court, which shall be kept at the office of the court ; and such entries in the said book or a copy thereof bearing the seal of the court, and purporting to be signed and certified as a true copy by the clerk of the court, shall at all times be admitted in all courts and places whatsoever as evidence of such entries, and of the proceeding referred to by such entry or entries, and of the regularity of such proceedings without any further proof." Under this section it has been decided that such minutes of proceedings cannot be contradicted by the evidence of tlie judge. Dews v. Ryley, 20 /-. -/., C. l\ 264. And the proceedings of the county court can be proved in no other way. II. v. Roioland, 1 /•'. & /■'. 72, ante, p. 2. Proof of probate and letters of administration.^ The probate of a will is proved by the production of the instrument itself; and proof of the seal of the court is not necessary. In order to prove the title of the executor to personal property, the probate must be given in evidence. Pinney v. Piuney, 8 l>. A C. 335. When the probate is lost it is not the practice of the Ecclesiastical Court to grant a second probate, but only an exemplification, which will be evidence of the proving of the will. Shep- Jierdv. iShortJwse, 1 Str. 112. To prove the probate revoked an entry of the revocation in the 1 k of the Prerogative ( 'ourt is good evidence. R. \. Ramsbotham, 1 Leach, 30 (»), ;>/•. A'. /'. 216. So the original book of acts of that court directine- the granting the letter- is evidence. /.'. N. /'. 246. And an examined copy of such act 1 k is also evidence. Davis \. Williams, 1:5 East, 232. By the 20 t v_ 21 Vict. e. 77, s. (ill, an official copy of a will, or certi- ficate of letters of administration, may he obtained, and it seems will he admitted in evidence where 1 he probate is lost. 2 r J'r on Ev. 1362, 6th <) 1 Q. 2?. 574 ; 65 L. J., Q. /!. 433. Proof of registers of births, <»- v. Mayan, 1 A'*/-. 53. So the seal of the superior ecclesiastical courts, and other superior courts, 8 & 9 Vict. c. 11 3, s. 1, emtfe, p. 141. But the seal of a foreign court must be shown to be genuine. Henry v. Adey, 3 East, 221 (but see 14 & 15 Vict. c. !'!». s. 7. ante, p. 142). So of the Bank of England, semb., Dae v. Chambers, 4 A. & E. 410 So of the Apothecaries' Company. Chadivick v. Buvning, R. ^ Moo. 306. For the provisions of the 8 & 9 Vict. c. 113, dispensing with proof of the seals of corporations, joint stock or other companies, further extended by 14 & 15 Vict. c. !>!». see <>»/<. p. 141. As to seals attached to documents in the course of proceedings out of England, see the statutes referred to, Tayl. on Ev., 0th ed., pp. 17 21. Although the seal need not be shown to bo affixed by the proper person, yet the deed may be invalidated by proof of the seal being affixed by a stranger, or without proper authority. Clarice v. Imperial. Gas Co., 4 11. & Ad. --Wo. Proof of privatt documents— attesting witness.^ The execution of a private document, which has been attested by a witness subscribing it, must be proved by calling that witness. Proof of private documents — attesting witness — a-Ian proof waived."] Where the attesting witness is dead; Anon., 12 Mod. GOT; or blind; Wood v. Drury, 1 Lord Raym. 734; Pedley v. Paige, 1 Moo. & Hah. 258; or insane ; Currie v. Child, 3 Campb. 283; or infamous (but now see the 6 iV- 7 Vict. c. 85, s. 1); Jones v. Mason. 2 Str. 833; or under sentence of death, see ante, p. 106; or absent in a foreign country, or not amenable to the process of the superior courts ; Prince v. Blackburn, 2 East, 252; as in Ireland; Hodnett v. Foreman, 1 Stark. 90 ; or where he cannot be found, after diligenl inquiry; Cunliffev. Sefton, 2 East, 183; in all these cases evidence of the attesting witness's handwriting is admissible. Some evidence must be given in these cases of the identity of the executing party; and although there are cases to the contrary, it is now held that mere identity of name is not sufficient proof of the identitv of the party. Whitelock v. Musgrave, 1 Crom. & Mee. 511 ; 3 Tyr. 541. 'The illness of a witness, although he lies without hope of recovery, is no sufficient -round fur letting in evidence of his handwriting. Harrison v. Blades, 3 <'ain/il>. 457. Where the name of a fictitious witness is inserted ; Fasset v. /Iron-,,, Peake, Ev. !"> ; or where the attesting witness denies all knowledge of the execution; Talbot v. Hodgson, 7 Taunt. 251 ; Fitzgerald y.Elsee, 2 Campb. 635; evidence of the handwriting of the party is sufficient proof of its execution. So where an attesting witness subscribes his name without the knowledge or consent of the parties. M'Craw v. Gentry, 3 Campb. 232. Where there are two attesting witnesses, and one of them cannot be produced, being dead, &c, it is not sufficient to prove his handwriting, hut the other witness must he called. GunUffe x. Sefton, 2 East, l^-'i; M'Crau x. Gentry, 3 Campb. 232. Hut if neither can he produced, proof of the handwriting of on ily is sufficient. Adam v. Kerr, 1 /<'. .i /'. 360. It is not necessary now to call the attesting witness in the case of any instrument to the validity of which attestation is not necessary. 28 Vict. c is. s. 7. Proof of private documents evidence oj handwriting.] Where a party cannot sign his name, hut make- his mark, that mark may he proved by a person who has seen him make the mark, and is acquainted with it. 154 Documentary Evidence. Per Tindal, ('. J., hcesit. George x. Surrey, Moo. & M. 516. Where a witness had seen the party execute a hail-bond, but had never seen him write his name on any other occasion, and stated that the signature to the bond produced was like the handwriting which he saw subscribed, but that he had no belief on the subject, this was held to be evidence of the handwriting to go to the jury. Garrets v. Alexander, 4 Esp. .'57. . But it is otherwise where the witness has only seen the party write his name onto, and then for the purpose of making the witness competent to give evidence in the suit. Stranger v. Searle, 1 Esp. 14. Where the witness stated that he had only seen the party upon one occasion sign his name to an instrument to which he was attesting witness, and that he was unable to form an opinion as to the handwriting, without inspecting that other instrument, his evidence was held inadmissible. Fill iter v. Minch in, Mann. Index, 131. In another case, under similar circumstances, Dallas. J., allowed a witness to refresh his memory, by referring to the original docirment, which he had formerly seen signed. Burr v. [In r per, Holt, X. P. C. 420. It is sufficient if the witness has seen the party write his surname only. Lewis v. Sapio, Moo. . 700, 63 L. J., M. C. 233. Where a party to a deed directs another person to write his name for him, and he does so, that is a good execution by the party himself. R. v. Longnor, 4 />'. & Ad. 647. In such cases the subscription of the name by the agent, and his authority to subscribe it, must be proved. Whether the evidence of persons skilled in detecting forgeries is ad- missible, in order to prove that a particular handwriting is not genuine, is a point not well settled. Such evidence was admitted in Good-title x. Braham, 4 T. B. 497. But in a subsequent case, Lord Kenyon, who had Documentary Evidence, loo presided in the case of Goodtitle v. Braham, rejected similar evidence. ( ary v. Pitt, Peake, Ev. !»!». It was admitted again by I lot ham, B., II. v. Cator, -i Esp. 117: and again rejected in Gurney x. Langlands, 5 /!. ife .1. 330. Upon the point coming before the Court of K. !>., in the last cited case, they refused to disturb the verdict, on the ground of the evidence having been rejected. In another case the Court of K. 15. was equally divided on the question whether, after the witness had sworn to the genuineness of his signature, another witness (a bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely founded on a comparison pending the trial with other signatures admitted to be those of the attesting witness. J><» \. Suckermore, ■'> . I. ,l- /•:. 733; 2 X. <»• v. /./<>!//>. 41: a bond; Chelsea II'. Co. \. Cooper, 1 Esp. 275; and other old writings ; Fry v. Wood, Selw. X. P. 495, \3th <■,/. Even if it appear that the attesting witness is alive, and capable id' being produced, it is unnecessary to call him where the deed is thirty years old. Doe v. Wolley, 8 B. & C. 22. If there is any erasure or interlineation in an old deed it ought to be proved in the regular manner by the witness, if living, or by proof of his hand- writing, and that of the party, if dead. B. X. P. 2,~>o. But perhaps this in strictness is onl\ necessary where the alteration on the face of it is material or suspicious. Where an old deed is offered in evidence without proof of execution, some account oughtto be given of its custody ; /!. .\ . /'. 255; or it should be shown that possession has accompanied it. Gill). Ev. 97. Where a party producing a deed upon a notice to produce, claims a beneficial interest under it, the party calling for the deed need not prove its execution. Pearce \. Hooper, '■'> Taunt. <>2. As where assignees pro- duce the assignmenl of the bankrupt's effects. Orr v. Morice, '■> />'. tfc B. 139. See also Carr v. Burdiss, ■'» Tyrwh. 136; 1 C. M. ; R. v. Green- wood, 2 Den. C. C. 4.33; 21 L. J., M. C. 127. Also in manslaughter it has been said that there ran be no accessories before the fact, f or the off ence is sudden and unpremeditated, 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, 616, referring to B. v. Bibithe, 2 Rep. 436 (b). In R. v. Gaylor, Dears. & B. C. C. 288, the above passage in Lord Hale's treatise was relied on, but Erie, J., said, "If the manslaughter be per infortu- nium, or se defendendo, there is no accessory; but there are other cases in which there may be accessories. " The conviction was upheld, but no judgment was delivered. With respect to accessories after the fact, it seems now settled (see A', v. Gree.nacre, 8 G. & P. 35; /,'. v. Richards, 2 Q. /.'. />. 311 ; 46 L. J., M. G. 200) that persons harbouring and receiving a prisoner afterwards convicted of manslaughter become accessories. See post, tit. Manslaughter. It is said in the older books that in forgery aU are principals (see 2 East, P. C. 973); but this must be understood'of forgery at common law, which is a misdemeanor, lb. Aiders and abettors, or principals in the second degree in felonies."] Aiding and abetting a person to commit a felony is in itself a substantive felony, whether the felony be such at common law or by statute. R. v. Tatter- 8all, 1 Russ. Gri. 162, 0/A ed. An aider and abettor is also called a prin- cipal in the second degree. R. v. Coal-heaver, 1 Lea. 64 ; Fast. 428. To make a man principal in the second degree he must be present at the commission of the felony. R. v. Soare, 2 East, /'. C. 974; Russ. & Ry. 25; It. v. Paris, Id. 113; H. v. Badcoch, Id. 219. and other cases in the same report. By presence is meant such contiguity as will enable the party to render assistance to the main design. With regard to what will constitute such a presence us to render a man a principal in the second degree, it is said by Poster, J., thai if several persons se1 ou1 together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned to him.; some to commit the act, others to watch at proper distance-, to prevent a surprise, or to favour, it' need be, the escape of those who are more immediately engaged, they are all, provided the act be committed, in the eye of the law present at it, Foster, 350. Thus, where A. wails under a window, while B. steals articles in the house, which be throws through the window to A., the latter is a principal in the offenoe. /,'. v. Owen, 1 Moody, C. C. 96, post. There must be a participation in the act, for although a man be present whilst a felony is committed, if be takes no part in it and does no1 act in concert with those ulm commit il. he will not be a principal in the second degree, merely because he did not endeavour to prevent the felony, or apprehend the felon. 1 Hale, 439; Foster, 350i So a mere participation in the act, without a felonious participation in the design, will not be 158 Aiders, Accessories, &c. sufficient. 1 East, P. C. 2-37; R. v. Plumer, 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, 466. Where several persons are in company together, engaged in one com- mon purpose, lawful or unlawful, and one of them, without the know- ledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in further- ance of the common intention . Several soldiers employed by the messenger of the secretary of state to assist in the apprehension of a person, unlaw- fully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony at all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain, for they could not justify the breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door ; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lav hands. Anon., 1 Leach, l(n); 1 Muss. Cri. 168 (n), 6th ed. See also 11 'v. White, 11. & 11. 99; R. v. Hawkins, 3 C. & P. 392, post. Three men went out into a field to shoot, and placed a target in a tree eight feet from the ground. They lay down on the ground, and each fired at it in turn. "Their rifles were sighted to shoot 950 yards, and would probably be deadly at a mile. A boy in an apple-tree 393 yards off was killed by one of the shots; but it was uncertain which of the prisoners had shot him. They were all held to be guilty of manslaughter. Pi. v. Sal num. Q. B. I). 79; 50 L. J., M. C. 25. It is, perhaps, open to doubt that if only one had fired his rifle, all would have been equally guilty. Lord Coleridge, C. J., said, "the death resulted from the action of the three," and Stephen, J., said, "they unite to Are at the spot in question." Where several are present, aiding and abetting, and the punishment of principals in the first and second degree is the same, an indictment may lay the fact generally as being done by all ; 2 Haivk. c. 25. s. 4 ; even, as in cases of rape, where from the nature of the offence only one can be a principal in the first degree. (For a case of rape where a woman was con- victed as principal, see -post, Rape.) And as in almost every _ case the punishment of all principals is the same, this is the course that is usually followed. It has been long settled that all those who are present, aiding and ahetting 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 ■ Benson v. Offley, 2 Show. 510 ; 3 Mod. 121 ; R. v. Walli-s, Sail: 334; R. v. Toivle, R. a : R. 314; 3 Price, 145; 2 Marsh. 465. Accessories before the fact in felonies — hare permission — countermand.^ An accessory before the fact is defined by Lord Hale to be one who, being absent at the time the offence was committed, does yet procure, counsel, command, or abet another to commit a felony. 1 Hale, P. C. (515. The bare concealment of a felony to be committed will not make the party concealing it an accessory before the fact. 2 Hank. c. 29, s. 23. So words amounting to a bare permission will not render a man an accessory, as if A. savs he will kill J. S., and B. says, "you may do your pleasure for Aiders, Accessories, &c. 139 me." Hawk. P. C. b. 2. c. 29, s. 16. The procurement must be continuing; for if before tbe commission of tbe offence by the principal, the accessory countermands him, and yet the principal proc Is to the commission of the offence, he who commanded him will not be guilty as accessory. 1 Hale, P. ft 618. If the party was 'present when the offence was committed he is not an accessory. R. v. Gordon, 1 Leach, olo ; 1 East, P. ft '■>~>2. In such case he should be indicted as a principal. R. v. Brown, 14 Cox, 144. Several persons may ho convicted on a joint charge against them as accessories before the fact to a particular felony, though the only evidence against them is of separate acts done bv each at separate times and places. R. v. Barber, 1 ft & K. 434. Accessories before the fact in felonies — by the intervention of a third person.] A person may render himself an accessory by the intervention of a third person, without any direct communication between himself and the prin- cipal. Thus if A. bids his servant to hire somebody to murder 15.. and furnishes him with money for that purpose, and the servant hires C, a person whom A. never saw or heard of, who commits the murder, A. is an accessory before the fact. Fost. 121; I!, v. Macdaniel, 1 Lea. 44; Hawk. I'. ft b. 2. c. 29, ss. 1. 11 ; 1 Russ. Cri. 172, 6th ed. ; //. v. Cooper, :> C. a P. 535. Accessories before the fact in felonies — . Com. 47a. The circum- stances of Saunders'' case, cited by Lord Hale, were these: Saunders, with the intention of destroying his wife, by the advice of one Archer, mixed poison in a roasted apple, and gave it to her to eat, and the wife having eaten a small part of it, and given the remainder to their child. Saunders making only a faint attempt to save the child, whom he loved and would not have destroyed, stood by and saw it eat the poison, of which it soon afterwards died. It was held that though Saunders was clearly guilty of the murder of the child, yet Archer was not accessory to the murder. Upon the law as laid down by Lord Hale, and upon B. v. Saunders, Foster, J., has made the following observations, and has suggested this case : B. is an utter stranger to the person of C, and A. therefore takes upon himself to describe him by his stature, dress, &c, and acquaints B. when and where he may probably lie met with. B. is punctual at the time and place, and D., a person in the opinion of B. answering the des- cription, unhappily coming by, is murdered under a strong belief on the part of B. that he is the man marked out for destruction. "Who is answerable ? Undoubtedly A. : the malice on his part egreditur personam. The pit which he, with a murderous intention, dug for C, D. fell into and perished. Through his guilt, B., not knowing the person of C, had no other guide to lead him to his prey than the description of A., and in following this guide he fell into a mistake, which it is great odds any man in his circumstances might have fallen into. ''I therefore," con- tinues the learned writer, "as at present advised, conceive that A. was answerable for the consequences of the flagitious orders he gave, since that consequence appears in the ordinary course of things to have been highly probable." Foster, 370. With regard to Archer's case, the same learned author observes, that the judges did not think it advisable to deliver him in the ordinary course of justice by judgment of acquittal, but for example's sake kept him in prison by frequent reprieves from session to session, till he had procured a pardon from the crown. Ibid. 371. Foster, J., then proposes the following criteria, as explaining the grounds upon which the several cases falling under this head will be found to rest. Did the principal commit the felony he stands charged with, under the Aiders, Accessories, &c. 161 flagitious advice, and was the event, in the ordinary course of things, a probable consequence of that felony ! J Or did he, following the sugges- tions of his own wicked heart, wilfully and knowingly commit a felony of another kind or upon a different subject y Foster, 372. See also Hawk. P. C. b. 2, c. 29, s. 22. Accessories before the fact in felonies — how indicted."] Before the 7 Geo. 4, c. 64, accessories could not, except by their own consent, be punished until the guilt of the principal offender was established. It was necessary, therefore, either to try them after the principal had been convicted, or upon the same indictment with him, and the latter was the usual course. 1 Buss. Cri. 180, 6th ed. This statute is now repealed, and by the 24 & 25 Vict. c. 94, s. 1, it is enacted, that " whosoever shall become an accessory before the fact to any felony, whether the same be a felony at common law or by virtue of any Act passed or to be passed, may be indicted, tried, convicted, and punished in all respects as if he were a principal felon." By s. 2, " whosoever shall counsel, procure or command any other person in commit any felony, whether the same be a felony at common law, or by virtue of any Act passed or to be passed, shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or after the con- viction of the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as an accessory before the fact to the same felony, if convicted as an accessory, may be punished." Soliciting and inciting a person to commit a felony is not a substantive felony under this section, unless the felony is actually committed, but only a misdemeanor, and it is doubtful whether a soliciting and inciting is equivalent to a counselling and procuring. R. v. Gregory, L. R. 1 C. C. //. 77: ;;i; /.. J., m. a ho. It was decided upon the 11 & 12 Vict. c. 46, s. 1 (which is in the same terms as the 24 & 25 Vict. c. 94, s. 1), that a person , charged as an accessory before the tut may he convicted even though the principal be acquitted. II. v. Hughes, lull, G.G. 242. The two first counts charged A. and B. with stealing, and the third count charged B. with receiving. No evidence was offered against A., who was acquitted and called as a witness. The evidence went to show that B. was an accessory be fore the fact, and the jury found a general verdict of guilty. It was held that the conviction was good. Erie, J., said, " We consider that being an acces- sory before the tact now stands as a substantive felony, and that now the conviction of an accessory would stfind good, and no wrong he done him though he should he tried before the principal." By the 24 & 2o Vict. c. 94, s. ."). "if any principal offender shall he in anywise convicted of any felony, it shall be lawful to proceed against any accessory either before or after the fact, in the same manner as if such principal felon had been attainted thereof, notwithstanding such principal shall die or he pardoned, or otherwise delivered before attainder; and every such accessory shall, upon conviction, suffer the same punishment as he would have suffered if the principal had been attainted." By s. 6, "any number of accessories at different times to any felony, and any number of receivers at differenl times of property stolen at one time, may he charged with substantive felonies in the same indictment, and may he tried together, notwithstanding the principal felon shall not be included in the same indictment, or shall he in custody or amenable to justice." K. M 162 Aiders, Accessories, &c. Accessories after the fact in felonies.'] An accessory after the fact, says Lord Hale, is where a person knowing the felony to be committed by another, receives, relieves, comforts, or assists the felon; 1 Hale, P. C. 61 S ; whether he be a principal, or an accessory before the fact. 2 Hawk. c. 29, s. 1 ; 3 P. Wins. 475. But a feme covert does not become an acces- sing- by receiving her husband. This, however, is the only relationship which will excuse such an act, the husband being liable for receiving the wife. 1 Hale, P. C. 621. So if a master receives his servant, or a servant his master, or a brother his brother, they are accessories, in the same manner as a stranger would be. Hawk. P. C. b. 2, c. 29, s. 34. If a husband and wife knowingly receive a felon, it shall be deemed to be the act of the husband only. 1 Hale, P. C. 621. But 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. Id. With regard to the acts which will render a man guilty as an accessory after the fact, it is laid down, that generally any assistance whatever, given to a person known to be a felon, in order to hinder his being appre- hended or tried, or suffering the punishment to which he is condemned, is a sufficient receipt for this purpose ; as where a person assists him with a horse to ride away with, or with money or victuals to support him in his escape : or where any one harbours and conceals in his house a felon under pursuit, in consequence of which his pursuers cannot find him ; much more, where the party harbours a felon, and the pursuers dare not take him. Hawk. P. O. b. 2, c. 29, s. 26. See R. v. Lee, 6 C. & P. 536. So a man who employs another person to harbour the principal may be con- victed as an accessory after the fact, although he himself did no act to relieve or assist the principal. R. v. Jarvis, 2 Moo. & R. 40. So it appears to be settled that whoever rescues a felon imprisoned for the felony, or voluntarily suffers him to escape, is guilty as accessory. Hawk. P. C. b.2, c. 29, s. 27. In the same manner conveying instruments to a felon, to enable him to break gaol, or to bribe the gaoler to let him escape, make the party an accessory. But to relieve a felon in gaol with clothes or other necessaries is no offence, for the crime imputable to this species of accessory is the hindrance of public justice, by assisting the felon to escape the vengeance of the law. 4 Bl. Com. 38. 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. 9 H. 4, st. 1 ; 1 Hale, 619. So if a person speak or write, in order to obtain a felon's pardon or deliverance ; 26 Ass. 47 ; or advise his friends to write to the witnesses not to appear against him at his trial, and they write accordingly; 3 Inst. 139; 1 Hale, 620 ; or even if he himself agree for money not to give evidence against the felon ; Moo. 8 ; or know of the felony, and do not discover it; 1 Hale, 371, 618; none of these acts will make a party an accessory after the fact. The felony must be complete at the time of the assistance given, else it makes not the assistant an accessory. As if one wounded another mor- tally, and after the wound given, but before death ensued, a person assisted or removed the delinquent, this did not, at common law, make him accessory to the homicide, for till death ensued there was no felony committed. Hawk. P. C. b. 2, c. 29, s. 35 ; 4 Bl. Com. 38. In order to render a man guilty as accessory, he must have notice, either express or implied, of the principal having committed a felony. Hawk. P. C. b. 2, c. 29, s. 32. It was formerly considered that the attainder of a felon was a notice to all persons in the same county of the felony committed, but the justice of this rule has been denied. Haiok. P C. b. 2, c. 29, s. 83. It was observed by Lord Hardwicke, that Aiders, Accessories, &c. 163 though this may be some evidence to a jury, of notice to an accessory in the same county, yet it cannot, with any reason or justice, create an absolute presumption of notice. A', v. Burridge,3 I'. RPms. 495. In order to support a charge of receiving, harbouring, comforting, assisting and maintaining a felon, there must he some act proved to have been done to assist the felon personally ; il is not enough to prove possession of various sums of money derived from the disposal of the property stolen. R. v. Chappie, 9 C. & /'. 355. As to harbouring thieves in public-houses and brothels, see 34 & 35 Vict. c. 112, ss. 10, 11. Accessories after t\e fact in felonies — hoiv indicted.'] "With regard to the trial of accessories after the fact, the 24 & 25 Vict. c. 94, s. 3, enacts that "whosoever shall become an accessory after the fact to any felony, whether the same be a felony at common law. or by virtue of any Act passed or to be passed, may be indicted and convicted either as an accessory after the fact to the principal felony, together with the principal felon, or after the conviction of the principal felon ; or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in like manner as any accessory after the fact to the same felony, if convicted as an accessory, may be punished." The "substantive" felony of which the accessory after the fact may be convicted is the felony of being an accessory after the fact, and does not mean the principal felony. R. v. Fallon, 32 L. J., M. C. 66; 1 L. & 0. 217. Where an indictment contains two counts, the first •charging the accused person as principal in a felony, the second charging him as accessory after the fact to the same felony, the prosecution must elect upon which count they will proceed. H. v. Brannou, 14 Cox, 394. Sections 5 and 6 of the 24 & 25 Vict. c. 94, supra, p. 161, apply to accessories after as well as before the fact. By the 24 & 25 Vict. c. 94, s. 4, " every accessory after the fact to any felony (except where it is otherwise specially provided), whether the same lie ;i felony at commonlaw or by virtue by any Act passed or to be passed, shall he liable (at the discretion of the court) to be imprisoned in the common gaol or house of correction foranyterm not exceeding two years, with or without hard labour; and it shall be lawful for the coiu't, if it shall think iit. to require the offender to enter into his own recognizances and to find sureties, both or either, for keeping the peace, in addition to such punishment: provided that no person shall he imprisoned under this chaise for not finding sureties for any period exceeding one year." An accessory may avail himself of every matter, botli of law and fact, to counteract the guilt of his principal. Foster, 365 ; 1 Euss. Cri. Inn, <;/// ed. ; and sec post, Receiving Stolen Goods. Aiders and abettors as principals in tin second degree in misdemeanors.] Aiding and abetting in the commission of a misdemeanor is itself a mis- demeanor. But it has always been the custom to indict principals in the second degree in misdemeanors, the same way as principals in the first degree. And now by the '2-1 & -■'> Vict. c. 94, s. 8, it is enacted that ■' whosoever shall aid. abet, counsel, or procure the commission of any misdemeanor, whether the same be a misdemeanor at common law or by virtue of any Act passed or to he pas>ed, shall he liable to be tried, indicted and punished as a principal offender." The same provision is repeated in the other consolidation statutes. As to what amount of participation will constitute aiding and abetting a prize-fight, see //. v. <'<>iinj, 8 Q. B. D. 5"34 ; 51 L. J., M. C. (><>. set out "post, tit. Manslaughter. M 2 164 Aiders, Accessories, tfec. Accessories in misdemeanors.] In misdemeanors all are principals, and there are no accessories in the technical sense of that term. Some diffi- culty about this was created by the cases of R. v. EJsee, Buss. & Ihj. 142, and R. v. Page, 2 Moo. C. C. 290 ; but the law was set right by R. v. Greenwood, 2 Ben. C. C. 453; 21 L. J., M. C. 127. Venue and jurisdiction.'] By 24 & 25 Vict. c. 94, s. 7, "where any felony shall have been wholly committed within England or Ireland, the- offence of any person who shall be an accessory, either before or after the fact, to any such felony, may be dealt with, inquired of, tried, determined and punished by any court which shall have jurisdiction to try the prin- cipal felony, or any felonies committed in any county or place in which the act, by reason whereof such person shall have become accessory, shall have been committed : and in every other case the offence of any person who shall be an accessory either before or after the fact to any felony, may be dealt with, inquired of, tried, determined and punished by any court which shall have jurisdiction to try the principal felony, or any felonies committed in any county or place in which such person shall be apprehended or be in custody, whether the principal felony shall have been committed on the sea or on the land, or begun on the sea and completed on the land, or begun on the land and completed on the sea, and whether within Her Majesty's dominions or without, or partly within Her Majesty's dominions and partly without." By the Explosive Substances Act, 1883 (46 & 47 Vict. c. 3), s. 5, any person who within or (being a subject of Her Majesty) without Her Majesty's dominions by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner what- soever, procures, counsels, aids, abets, or is accessory to, the commission of any crime under this Act, shall be guilty of felony, and shall be liable to be tried and punished for that crime, as if he had been guilty as a principal. Practice. 165 PRACTICE. 1. PROCEEDINGS BEFORE THE HEARING. Preferring and finding hill* of indictment.'] By 19 & 20 Vict. c. 54, s. 1, It is " lawful for the foreman of every grand jury in England and Wales, and he is authorized and required to administer an oath to all persons whomsoever, who shall appear before such grand jury to give evidence in support of any bill of indictment, and all such persons attending before any grand jury to give evidence may be sworn and examined on oath by such grand jury touching the matters in question; and every person taking an oath or affirmation in support of any bill of indictment who shall wilfully swear or affirm falsely shall be deemed guilty of perjury; and the name of every witness examined, or intended to be so examined, shall be indorsed on such bill of indictment; and the foreman of such grand jury shall write his initials against the name of each witness so sworn and examined touching such bill of indictment. By s. 3, "the word 'foreman' shall include any member of such grand jury who may for the time being act on behalf of such foreman in the examination of witnesses." It has been said that two indictments for the same offence, one for the felony under a statute, and the other for the misdemeanor at common law, ought not to he preferred or found at the same time. It. v. Doran, 1 Leach, 538 ; R. \ . Smith, 'A 0. & P. 413. But where two indictments had been found, one for stealing and another for a misdemeanor, and it was sworn that they were for the same identical offence, the Q. B. (into which court the indictments had 1 n removed by certiorari) refused to grant a rule for quashing one or both of such indictments. 11. v. Stockley, 3 Q. B. 328. The grand jury are not usually very strict as to evidence, as they only require thai a prima facie ease should be established; they often admit copies where the originals alone are evidence; and sometimes even e\ idence by parol of a matter which should be proved by written evidence. But as they may insist upon the same strictness of proof as must be observed at the trial, it may be prudent in all cases to be provided, at the time the bill is preferred, with the same evidence which is intended afterwards to suppori the indictment. A deposition has, however, been allowed to be read before them without proof of the illness of the witness or of the taking of the deposition. It. v. Q-errans, 13 Cox, 158. "When the -rand jury found, upon a hill preferred against A. and B. for murder, a true hill against A. tor murder, and against 15. for man- slaughter, Campbell, C. J., held that the finding againsl A. was good, and that against B. a nullity, and directed that a fresh bill should be preferred against B. for manslaughter. li. v. Bubb, l Cox, 455. Where the -rand jury have found a hill, the judge before whom the case comes on to hi' tried ought not to inquire whether the witnesses were properly sworn previously to their going before the jury; and it seems that an impropei mode of swearing them will not vitiate the indictment, as 166 Preferring 1 ml Id merits. the grand jury are at liberty to find a bill upon their own knowledge only. B. v. Russell, Carr. & M. 247. If the bill be not found, a fresh bill may afterwards be preferred to a subsequent grand jury, 4 Bla. Comrn. 305. And it would seem from Bacon's Abridgment, Indictment I)., that where a bill for one offence, such as murder, is ignored by the grand jury, another bill against the same part)', relating to the same subject-matter, but charging another offence, such as manslaughter, may be preferred to and found by the same grand jury : and this course is frequently adopted in practice. But if the grand jury at the assizes or sessions have ignored a bill, they cannot find another bill at the same assizes or sessions, against the same person for precisely the same offence, and if such other bill be sent before them they should take no notice of it. B. v. Humphreys, Carr. & M. 601 ; B. v. Austin, 4 Cox, 385. Where a true bill has been found by the grand jury at quarter sessions for a rape, the person against whom the bill is found may be tried upon it at the assizes. B. v. AUum, 2 Cox, 62. By the act to prevent vexatious indictments for certain misdemeanors, 22 & 23 Yict. c. 17, s. 1 : "no indictment for perjury, subornation of per- jury, conspiracy, obtaining by false pretences, keeping a gambling-house, keeping a disorderly house, or an indecent assault, is to be presented to, or found by any grand jury unless the person presenting it has been bound by recognizance to prosecute or give evidence against the accused, or unless the accused has been committed to, or detained in custody, or bound by recognizance to appear and answer to the indictment, or unless the indictment be preferred by the direction or with the consent in writing of a judge of one of the superior courts of law at Westminster, or of her Majesty's attorney or solicitor-general, or (in the case of an indictment for perjury) by the direction of any court, judge, or public functionary authorized by the 14 & 15 Vict. c. 100, so to direct." This act is amended by the 30 & 31 Yict. c. 35, ss. 1, 2, — see post, Appendix of Statutes; and misdemeanors by fraudulent debtors are now within the Act. See post, Bankrupts. So are offences under the Newspaper Libel Act, see 44 & 45 Vict. c. 60, s. 6. And misdemeanors under the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69, s. 17). The consent in writing of the judge may be given ex parte. B. v. Bray, 32 L. >/., M. C. 11. If a count be improperly added to an indictment without the authority of the court, the proper course is for the judge at the trial to quash it. An indictment contained two counts for obtaining goods by false pretences, one false pretence being laid on the 26th, the other on the 29th September. The defendant had been committed by the magistrates on the charge relating to the 26th, but not on that relating to the 29th. He moved to have the indictment or its second count quashed, which was refused. Evidence was admitted on both counts and a separate conviction and sentence passed on each. It was held upon a case reserved that the second count should have been quashed, and that as the evidence relating to it was inadmissible on the trial of the first count, the conviction on the first count was also bad. B. v. Fuidge, L. & C. 390 ; 33 L. J., M. C. 74. Since the passing of 30 & 31 Vict. c. 35, it would seem that the consent to add new counts to an indictment must not be general so as to authorize the prosecution to add any number of counts, nor must the consent include counts founded on facts and evidence which were not disclosed before the committing magistrate. B. v. Bradlaugh, 15 Cox, 156; 47 L. T. 477. An attempt to obtain money or other property by false pretences is not within this statute. B. v. Burton, 13 Cox, 71. In cases where the justices refuse to commit, the prosecutor is entitled to require them to Preferring Indictments. 167 take his recognizance to prosecute the charge. R. v. Lord Mayor of London, 1<> Cox, 77. Where a person, charged with an offence punishable summarily, elects, Tinder s. 17 of 42 & 43 Vict. c. 49, to be tried by a jury, he may be committed to take his trial for any indictable offence disclosed by the depositions, and subject to the Vexatious Indictments Act counts may be added to the indictment for any indictable offence disclosed by the depositions, although the accused was not summoned before the court of summary jurisdiction for such offence. R. v. Brown (1895), 1 Q. B. 119 ; 64 L. J., M. 0.1. It is not necessary that the indictment should state that the provisions of the Act have been complied with. R. v. Knowlden, o B. & S. 532; 33 L. J., M. 0. 219. As to this section with respect to perjury, see post. Perjury. Count for /iri vious conviction.] Various statutes have been passed per- mitting a statement to be made in the indictment that the prisoner has been previously convicted, and providing modes of proving that state- ment, and for arraigning the prisoner thereon, see post, p. 196. With respect to the mode of stating the previous conviction in the indictment, the 7 & 8 Geo. 4, c. 28, s. 11, provided that it should be suffi- cient to stale that the offender was at a certain time and place convicted of felony without otherwise describing the previous felony. The Larceny Act, 1861, 24 & 25 Vict. c. 96, s. 116, provided that in any indictment for an offence under that Act, it should be sufficient to state that the offender was at a certain tin r place convicted of felony or of an indictable mis- demeanor, or of an offence or offences punishable upon summary convic- tion without otherwise describing the previous felony, misdemeanor, offence, or offences. In offences relating to coin it is provided by the 24 & 25 Vict. c. 99, s. 37, that it shall be sufficient in any indictment after charging the subsequent offence to state the substance and effect only (omitting the formal part) of the indictment and conviction for the pre- vious offence .see /,'. v. Martin, /.. /,'., 1 C. C. R. 214 ; 39 L. J., M. 0. 31, •post, Ooin; and see the form for an indictment under s. 12 of the above statute in consequence of the decision in this case. Arch. Criminal PL, 7i*2, In/A ed. . In both the Larceny Act and the Coinage Act it is necessary that the subsequent offence should be first stated ; but in other cases it is immaterial which offence is first stated. R. v. Hi/ton, 28 L. J., M. 0. 28. The effecf of alleging a previous conviction in an indictment for littering counterfoil coin is to make the offence charged a felony, and if the jury negative the previous conviction, the prisoner cannot be found guilty on the charge of felony, as it is not proved, nor of a misdemeanor of uttering, as the indictmenl is for a felony. R.\. Thomas, L.R.,2 C.C.R. 141 ; 44 /.. ./.. M. 0. 42. The state of the law with respect to the -power to insert a count for a previous conviction is peculiar. The Act of (ieo. 4 enables a count for previous conviction for felony only to be inserted in an indictment for felony only. The Larceny Act (sect. L16, supra) seems to permit a count for previous conviction for any felony, misdemeanor, or offence punishable by summary conviction to be inserted in an indictment for any offend under that Act. The Coinage Act permits a count for previous conviction for any offence against that Act to be inserted in an indictment for nun offence against thai Act. The result of these Acts is that in indictments for misde- meanors and offences not felonies, which are not included in the Larceny or Coinage Acts, a previous conviction cannot be charged at all, and under the Coinage Act only a previous conviction for offences against that Act. In II. v. Deane, 46 /.. J., M. ('. 155, it has however been held that a count- 168 Preferring Indictments. for a previous conviction of felony may be inserted in an indictment for any crime punishable with penal servitude, and therefore in an indictment for false pi-etences, and the decision in B. v. Garland, 11 Cox, 224, is thus overruled. It is still doubtful whether in misdemeanors under the Larceny Act not punishable by penal servitude a previous conviction can be inserted in the indictment. In cases of receiving stolen goods, &c, it is not necessary under the 34 & 35 Vict. c. 112, s. 19, to charge in the indictment the previous con- viction of the person so accused, but seven days' notice of the intention to prove the conviction must be given to the accused. In order to affect the judgment of the court as to the term of penal servitude to be awarded, the previous conviction must be stated in the indictment, see post, p. 204. Copy of indictment.] A prisoner is not entitled as of right to a copy of the indictment in order to draw up his plea, but the court will direct the indictment to be read over slowly, in order that it may be taken down. R. v. Parry, 7 C. & P. 836. But the counsel for the prosecution may give a copy of the indictment with a view of saving time. lb. See also It. v. Newton, 1 ('. & K. 4l>9. In the case of an acquittal on a prosecution for felony, a copy of the indictment cannot be regularly obtained without an order from the court. The rule is confined to cases of felony. In prosecutions for misdemeanors the defendant is entitled to a copy of the record as a matter of right, without a previous application to the court. Morrison v. Kelly, 1 Blackst. 385 ; Evans v. Phillips, MS. ; 2 Selw. X. P. 952 ; 2 Phill. Ev. 162, IQth ed. See further, 3 Buss. Cri. 463 (n), Gth ed. Particulars. - ] With respect to the general law relating to the delivery of particulars in criminal cases, very little is to be found in the books. Now that the indictment is in many cases perfectly general, it seems to be a matter of right that the prisoner should have some information as to the particular charges intended to be brought against him. Carr. Supp. 321. Those offences in which the right of the accused to particulars has been recognized, and in which they are most commonly required, are barratry, nuisance, offences relating to highways, conspiracy, and embezzlement. The law so far as relates to each of these classes will be found under those titles. See especially, as to barratry, Carr. Supp. 321. The learned author of this work, in speaking of the generality allowed in indictments for larceny and embezzlement says, " Under these circum- stances, it is hardly possible for an innocent man to know what charges he has to meet, because all of them may be included in one indictment ; and, when there, they are wholly indefinite as to time, place, sum, and person, and from whom the money was received. It is true that the prisoner may, in his defence, say, that if he had had a knowledge of what particular stuns he was charged with embezzling, he could have procured the attendance of witnesses to show that he had applied those monies to his master's use, and not to his own ; but as this may be as easily said by the most guilty man as by the most innocent, it would not be much attended to by the jury." It seems that the proper course is for the defendant to apply to the prosecutor in the first instance for particulars of the offence : and, if they are refused, to apply to the court or a judge, upon an affidavit of that fact, and that the accused is unable to understand the precise charge intended. B. v. Booty man, 5 C. & P. 300 ; B. v. Hodgson, 3 C. & P. 422; B. v. Marquis of Downshire, 4 A. & E. 699. The application may be made to the judge at the assizes ; B. v. Hodgson, supra, where Vaughan, B., said he would, if necessary, put off the trial in order that particulars Preferring Indictments, 169 might be delivered. In barratry, however, it seems to be necessary to give particulars without any demand. 1 Curw. Hawk. 47o, s. 13; Carr. Supp. a hi supra. If particulars have been delivered, the prosecutor will not be allowed to go into other charges than those contained therein. If particulars have been ordered, but not delivered, it seems that the prosecutor cannot be precluded from giving evidence on that account. R. v. Esdaile, 1 F. & F. 213 — 227. The proper course is to apply to put off the trial. Jurisdiction.^ So far as locality is concerned, the jurisdiction of the court generally depends upon the venue; that is, the venue must be laid within the an 'a over which the court has jurisdiction; and this venue must be that indicated by the place where the offence is actually com- mitted, unless there be some rule or statute which permits any other venue. These are very numerous, and the whole subject will be found discussed under a separate chapter. See tit. Venue. So far as power is concerned, the only distinction to which it is necessary here to advert is that relating to courts of quarter sessions. The jurisdic- tion of these courts is now regulated by the o & 6 Vict. c. 38, s. 1, which enacts that, after the passing of that Act, "neither the justices of the peace acting in and for any county, riding, division or liberty, nor the recorder of any borough, shall, at any session of the peace, or any adjournment thereof, try any person or persons for any treason, murder, or capita] felony, or for any felony which, when committed by a person not previously convicted of felony, is punishable by transportation beyond the seas [now penal servitude] for life, or for any of the following offences: 1. misprision of treason; 2, offences against the Queen's title, prerogative, person, or government, or against either house of Parlia- ment ; 3, offences subject to the penalties of praemunire ; 4, blasphemy and offences against religion; o, administering and taking unlawful oaths; (J, perjury and subornation of perjury; 7, making or suborning any other person to make a false oath, affirmation, or declaration, punish- able as perjury, or as a misdemeanor; 8, forgery; !), unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze or fern; 10, bigamy and offences against the laws relating to marriage; 1 1, abduction of women and girls ; 12. endeavouring to conceal the birth of a child: 13, offences againsl any provision of the laws relating to bankrupts and insolvents (repealed by 32 & 33 Vict. c. 62. See post, tit. Bankrupts); 14, composing, printing, or publishing blasphemous, seditious, or defamatory libels; L5, bribery; 16, unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such justices or recorder respectively have or has jurisdic- tion to try when committed by one person; 17, stealing, or fraudulently taking, or injuring, or destroying records or documents belonging to any court of law or equity, or relating to any proceeding therein ; is, stealing, or fraudulently destroying, or concealing wills, or testamentary papers, or any documenl or written instruments, being, or containing evidence of tin' title to any real estate, or any interest in lands, titles, tenements or hereditaments." Burglary can now be tried at quarter sessions, oil & (><> Vict. c. 57. By the 24 & 25 Met. c. 96, s. 87, offences mentioned in the twelve previous sections (see tit. Agents, Bankers, &c, Frauds by) are not triable ai any quarter sessions. And no indictment under the provisions of the Criminal Law Amendment Act, 1885 (48 & 4!) Vict. c. 69), is triable at quarter sessions. See sect. 17. 170 Removal of Indictments. In Smith v. R., 18 L. J., M. C. 207, 212, it was held that the juris- diction of a recorder of a borough was not suspended by the arrival of the judges of assize in the same county, and that this would apply equally to the jurisdiction of the quarter sessions of the county. But Coleridge, J., said it was better for the quarter sessions not to proceed with the trial of prisoners after the business of the assizes had commenced. If the court have not jurisdiction, the defendant may take advantage either by a plea to the jurisdiction, or, if it appear on the record, by demurrer, or, as it seems, by motion in arrest of judgment, or by a writ of error. 11. v. Hewitt, II. & II. 158. But the objection may also be taken under the general issue, and this is by Ear the most usual course. As to relieving the assize courts from the trial of offences triable at quarter sessions, see 52 & 53 Vict. c. 12, and as to altering the time for holding quarter sessions, so as not to interfere with the assizes, see 57 Vict. c. (!. Certiorari.^ Any proceeding in a criminal court may be removed by a writ of certiorari into the Court of Queen's Bench, which writ is issued by that court. It is demandable as of right by the crown ; II. v. Eaton, 2 T. II. 89; and issues, as of course, where the attorney-general or other officer of the crown applies tor it, either as prosecutor, or as prosecuting the defence on behalf of the crown ; hi. ; R. v. Lewis, 4 Burr. 245N ; and this, even though the certiorari is expressly taken away by statute; for, unless named, the crown is not hound. The granting of the writ of cer- tiorari for the purpose of removing indictments into the Queen's Bench Division is regulated by rules 28 -32 of the Crown Office Rules, L886. See //. v. Wilkes, 5 /■:. ,f : 5.690; II. v. Jewell, 7 E. '. HO; II. v. Mayor <;/' Manchester, id. 4513. It lias been held that the mere necessity for a special jury was not alone suilicient ground for granting the writ; II. v. Green, 1 Wil. Wol. & Hod. 35. A much stronger case of difficulty would have to he made out now than formerly. See /,'. v. Wartnaby, 2 Ail. & !•]. 435; II. x. Duchess of Kingston, ('<>/r/,. 283. The rule has been granted on the ground of a reasonable probability of partiality in the jurisdiction within which the indictment would otherwise he tried, in cases where the charge had been made the subject of much public discussion ; I!, v. Mead, 3 I). & I!. 301 ; R, v. Lever, 1 Wil. lie/. ,(■ //<»/. ;!,"): where the person accused is a person of influence in the court below ; Reban v. Trevor, l Jur. 292 ; I!, v. Grover, !S Dowl. /'. ('. 32,"); II. v. Jones, 2 Har. & IT. 203; where the prosecutor or his attorney is sheriff or undersheril'f ; R. v. Webb, 2 For. 1068; R. x. Knatchbull, 1 Selw. 150. The affidavil on which the application is made should state the particular facts relied on very explicitly. R. x. Green, ah! supra ; I!, x. Jowle, 5 Ad. if- A'. 539. The effect of the writ is to remove all proceedings described therein, which have taken place between the teste and return. R. v. Battams, 1 East, 298; 2 Hawlt. c. 27. s. 23. Where there are several defendants, all should concur cither on their own behalf, or on behalf of the applicant. R. x. Hunt, 2 Chit. Rep. 130. I f the defendant remove an indictment by certiorari he will, if convicted, be liable for costs to the prosecutor or party grieved, on the counts on which he is convicted. II. v. Hawdon, 11 Ad. & K. 1430; 11. v. Oastler, L. A'., Q. 11. 132; 43 /.. -/., .)/. G. 89. Where an indictment containing several counts had been removed to the High Court by certiorari, and the prisoner was acquitted on si • counts, but convicted on others, it was held that the prisoner was not entitled to he paid by the prosecutor the costs in respeci of the counts on which she had been acquitted ; R. v. /: ask him whether he would cross-examine the witnesses on the inquest, or would offer any remarks on evidence. 11. v. Goode, 7 .1. Vict. c. 100, s. 27, enacting that "no person prosecuted shall he entitled to traverse or postpone the trial of any indictment found against him at any session of the peace, session of oyer and terminer, and general gaol delivery: provided always, that if the court, upon the application of the person so indicted or otherwise, shall he of opinion that he ought to be allowed a further term, either to prepare for his defence or otherwise, such court may adjourn the trial of such person to the next subsequent session, upon such terms as to bail or otherwise as to such court shall seem meet, and may respite the recognizances of the prosecutor and wit- nesses accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence at such subsequent session without entering into any fresh recognizance for that purpose." Instances have occurred in which a principal witness has been of such tender years and so ignorant as not to understand the nature and obliga- tion of an oath, that the judge has ordered the trial to be put off until the next assizes, and directed the child in the meantime to be instructed in religion. Ante, p. 101. Also, where it appears by affidavit that a necessary witness for the prisoner is ill, R. v. Hunter, S C. <(■ P. 591, or that a witness for the prosecution is ill (see ante, p. 60), or unavoidably absent, or is kept out of the way by the contrivance or at the instigation of the prisoner, the court will postpone the trial, unless it appear that the requirements of justice can be satisfied by reading the witness's depo- sitions before a magistrate. If it is moved on the part of the prosecution in a case of felony, to put off the trial on the ground of the absence of a material witness, the judge will require an affidavit stating the points which the witness is expected to prove, in order to form a judgment whether the witness is a material one or not. R. v. Sun:,/,, \ <'. a- A'. 7,3. An affidavit of a surgeon, that the witness is the mother of an unweaned child afflicted with an inflamma- tion of the lungs, who could neither be brought to the assize town nor separated from the mother without danger to life, is a sufficient ground on which to found a motion to postpone the trial. 1 ' h. Where a prisoner's counsel moved to postpone a trial for murder, on an affidavit which stated that one of the witnesses for the prosecution, who had been bound over to appear at the assizes, was absent, and that mi cross- examination this witness could give material evidence for the prisoner, ( 're-swell. .1.. after consulting Patteson, J., held that this was a sufficient -round for postponing the trial, without showing that the prisoner had at all endeavoured to procure the witness's attendance, as the prisoner might reasonably expect, from the witness having been bound over, that he would appear. R. \. Macarthy, Carr. A M. 625. In /,'. v. Palmer, 6 ('. & I'. (i.")2, the judges of the Central Criminal Court postponed until the next session the presentment of a bill for a capital offence to the grand jury, upon the affidavit of the attorney for the prosecution, that a witness, whose evidence was sworn to be material, was too ill to attend,. 174 Postponing Trial. and they refused to refer to the deposition of the witness to ascertain whether he deposed to material facts. Where, in a case of murder com- mitted in Newcastle-upon-Tyne, which had created great excitement, a newspaper published in the town had spoken of the prisoner as the murderer, and several journals down to the time of the assizes had pub- lished paragraphs, implying or tending to show his guilt, and it appeared that the jurors at such assizes were chosen from within a circle of fifteen miles round Newcastle, where such papers were chiefly circulated, but that at the summer assizes they would be taken from the more distant parts of the county of Northumberland (into which the indictment had been removed), Alderson and Parke, BB., postponed the trial until the following assizes. Alderson, B.. however, said, "I yield to the peculiar circumstances of the case, wishing it to be understood that I am by no means disposed to encourage a precedent of this sort." R. v. Bo/am, Newcastle Spring Ass. 1839, MS.; 2 Moo. & R. 192. See also R. v. Joliffe, 4 T. R. 285. And in R. v. Johnson, 2 C. & K. 354, the same learned judge refused to postpone the trial of a prisoner charged with murder, on the ground that an opportunity might be thereby afforded of investigating the evidence and characters of certain witnesses who had not been examined before the committing magistrate, but who were to be called for the prosecution to prove previous attempts by the prisoner on the life of the deceased. A trial for murder was postponed till the next assizes by Channell, B., upon an affidavit of a medical man as to a witness being unable to travel, although such witness was not examined before the magistrate, and although the trial had been fixed for a particular day. R. v. Lawrence, 4 F. & F. 901. In general, a trial will not be postponed to the next assizes before a bill is found. R. v. Heesom, 14 Cox, 40. But where it was shown that the attendance of witnesses, inmates of a workhouse in which small-pox had broken out, was necessary, Baggallay, L. J., did not require any bill to be sent up before the grand jury, but postponed the trial to the next assizes, admitting the prisoner to bad in the meantime. R. v. Taylor, 15 Cox, 8. No objection appears to have been taken on the part of the prisoner to the postponement. In no instance will a trial be put off on account of the absence of wit- nesses to character. R. v. Jones. 8 East, 34. Where the prisoner applies to postpone the trial, he will be remanded and detained in custody till the next assizes or sessions, or will be admitted to bail, but he is never required to pay the costs of the prose- cutor. It. v. Hunter, 3 0. & P. 591. Where the application is by the prosecutor, the court in its discretion will either detain the prisoner in custody, or admit him to bail, or discharge him on his own recognizances. R. v. Heard more, 7 0. & P. 497 ; R. v. Parish, id. 7. & Ad. 1113. When the second indictment is preferred at the same assizes as the first, the original indictment and minutes of the verdict are receivable in evidence in support of the plea without a record being drawn up. R. v. Parry, 7 C. & /'. 836. The jury have to try these pleas as a matter of fact. In autrefois acquit it is necessary to prove that the prisoner could have been convicted on the first indictment of the offence charged in the second. This appears by the record, hut as was pointed out by Parke, B., in //. v. Bird, 2 Den. C. (J. 94- 98, something more is necessary; because, as the lan- guage of an indictment describing any offence is in general not material as to the date ui' place, or many other circumstances, the indictment would lie equally descriptive of many offences of the same character, and an acquittal of the offence charged on one indictment, describing it in proper terms sufficient in point of law, would be an acquittal of every offence of the same sort, and against the same person. The learned baron then says. "This being clearly the rule, there would notbemuch difficulty in applying it to an ordinary charge of felony — larceny, for instance, of the goods of A. B., or an ordinary charge of assault upon A. B. The prisoner charged on such an indictment would have to satisfy the court, first, that the former indictment, on which an acquittal took place, was sufficient in point of law. so that he was in jeopardy upon it ; and secondly', that in that indictment the same offence was charged, for the indictment is in such a form as to apply equally to several different offences. To prove the identity of the offence may not always be easy. If more or 1 76 Pleading. less evidence is gone into on the first trial the difficulty is little ; if none is offered and the acquittal takes place, it is still an acquittal, entitling' the prisoner to an exemption from any subsequent trial for the same offence. In such a case there is more difficulty in showing what the offence charged was, but it may be proved by the testimony of the witnesses who were subpoenaed to go, and did go, before the grand jury, by the proof of what they swore, or perhaps by a grand juryman himself, or by the evidence of the prosecutor, or by proof how the case was opened by the counsel for him ; in short, by any evidence which would show what crime was the subject of the inquiry, and would identify the charge, and limit and confine the generality of the indictment to a particular case." The difficulties pointed out by the learned baron have not been removed by decided cases ; on the other hand, they have been increased by statutes which provide that on an indictment which charges one crime, the prisoner may be convicted of another crime of a similar nature, and other statutes which provide that a man may be convicted on an indictment which charges one crime though the facts show that the crime was somewhat different. Thus by the" 14 & 15 Vict. c. 100, s. 9, on the trial of an indictment for felony or misdemeanor, the jury may find the person charged guilty of an attempt to commit the same ; by the 24 & 25 Vict. c. 96, s. 41, on the trial of an indictment for robbery the jury may convict of an assault with intent to rob ; by sect. 12, if upon the trial of any person for any misdemeanor it shall appear that the facts in evidence amount in law to a felony, such person shall not be entitled to be acqvritted of the misdemeanor; by sect. 72, a person indicted for embezzlement may be convicted of larceny, and vice versa ; by sect. 88, a person indicted for obtaining property by false pretences is not to be acquitted if the facts show that he was guilty of larceny ; by sect. 94, on an indictment against several for jointly receiving, any one, or more, may be convicted for separately receiving. So by the 24 & 25 Vict, c. 94, accessories may be indicted as if they were principal felons. So by 24 & 25 Vict. c. 100, s. 60, a woman tried for the murder of her child may be found guilty of endeavouring to conceal its birth. In most of these cases it is provided, that the person who might have been convicted on the first indictment, shall not be liable to be tried again for the offence for which, though not indicted, he might have been convicted. The question as to when the prisoner is entitled to plead the plea of autrefois convict or autrefois acquit is frequently one of considerable difficulty. The prisoner must have received judgment of death, imprison- ment, or the like if he be convicted, or, if acquitted quod eat sine die. 2 Stark. Criin. Plead. 311. But a judgment reversed by a court of error is the same as no judgment, and in that case, therefore, the plea is not available. R. v. Drury, 3 C. cfc K. 193; 18 L. J., M. C. 189. Until reversed, however, judgment upon an erroneous record is good. Id. In this case, Coleridge, J., gave an elaborate, considered judgment. And in R. v. Charlesworth, 31 L. J., M. C. 25, the court appears to take the same view. A prisoner will not be considered to have been in jeopardy where the prosecution fails by reason of a defect in the indictment which might have been amended. R. v. Green, Dears. & B. C. C. 113. In R. v. Walker, 2 Moo. & R. 446, it was held that a prisoner who had been convicted summarily of a common assault before two justices could plead autrefois convict to an indictment for feloniously stabbing under the repealed statute 9 Geo. 4, c. 31, the circumstances out of which the charge Pleading. 177 arose being the same in both cases. (As to summary proceedings for assaults being- a bar to further proceedings, see post, Assault.) On the other hand, in R. v. Vdndercomb, 2 Leach, 70S; 2 East, P. C. 59, it was held that a prisoner, indicted for burglary in breaking and entering a dwelling-house with intent to steal, cannot plead in bar an acquittal upon an indictment for burglary in the same dwelling-house on the same occasion, which charged a breaking and entering the same dwelling-house and stealing there. So a conviction for assault is no bar to an indictment for manslaughter. R. v. Morris, L. R., 1 C. C. 11. 90 ; 36 L. J., M. C. 84. B. v. Friel, 17 Cox, 325. An acquittal upon an indictment for murder is a good plea to an indictment for manslaughter, but whether an acquittal or conviction for manslaughter is a bar to an indictment for murder does not appear to be certain. R. v. Holcroft, 4 Co. 466. ; 1 Russ. Cri. 42, 6th ed. : R. v. Tancock, 13 Cox, 217. In R. v. Champneys, 2 Moo. & 11. 26, l'atteson, J., held that an acquittal on an indictment against an insolvent debtor for omitting certain goods out of his schedule was no bar to a second indictment for the same offence in which the same goods and some others were specified; but the learned judge said that, except under very peculiar circumstances, such a course ought not to be pursued. The prisoners were indicted for larceny at common law, and for feloniously receiving the goods, the subject of the indictment, and were acquitted on the ground that the goods were fixtures in a building. On a second indictment for stealing the fixtures, it was held that they were not entitled to plead autrefois acquit, as they had not been in peril on the count for receiving in The first indictment. 11. v. O'Brien, 15 Cox, 29. So an acquittal upon an indictment under 24 & 25 Vict. c. 97, s. 35, and 24 & 25 Vict. c. 100, s. 32, charging the prisoner with the felony of obstructing a railway with intent to endanger the safety of passengers, &c, was held to be no bar to a subsequent indictment, under ss. 36 and 34 of the same statutes respectively, preferred on the same facts charging him with the misdemeanor of endangering the safety of passengers, &c, by an unlawful act. /.'. v. Oilmore, 15 ( 'ox, 85. Formerly by the 7 Will. 4 & I Vict. c. 85, s. 11, on the trial of any person, for any felony whatever, where the crime charged included an assault against the person, it was lawful for the jury to acquit of the felony and to find a verdict of assault against the person indicted, but that section is repealed by the 14 & 15 Vict. e. 100, s. 10, so that now, on an indictment for the assault, the acquittal on the previous charge of felony could not lie pleaded. Thus where a man had been acquitted of rape and also of an assault with intent to ravish, he was convicted of a common assault. R. v. Dingley, 4 F. & F. 99 (Willes, J.). Where an offence is triable in more than one county an acquittal in one county would be a good bar to a second indictment in another county ; but where the offence is triable in one county only, an acquittal in the wrong county would be no bar. 2 Hawk. I'. C. c. 35, s. 3. An acquittal of murder before a court of competent jurisdiction, in a foreign country, is a good bar to an indictment for the same murder in this country. R. v. Roche, 1 Leach, 184 ; //. v. Hutchinson, 3 Keb. 785; 1 Rues. Cri. 51 (»), i\th ed. A pardon must be specially pleaded, unless it be by statute ; R. v. Louis, 2 Keb. 25 ; otherwise it is waived. Formerly a pardon could only be pleaded under the great seal ; Bulloch- v. Dodds, 2 11. & Aid. 258; but now by the 7 & 8 Geo. 4, c. 28, s. 13, where the sovereign by warrant under the sign manual, counter- signed by one of the principal secretaries of state, grants a tree or con- ditional pardon, the discharge of such offender out of custody in the case of a free pardon, and the performance of the condition in the case of a R. N 178 Election. conditional pardon, has the effect of a pardon under the great seal. See R. v. Ilarrod, 2 C. & K. 294. A discharge or composition in bankruptcy under 46 & 47 Vict. c. 52, s. 167, does not exempt the debtor from criminal proceedings. General issue.'] By the 7 & 8 Geo. 4, c. 28, s. 1, "If any person not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto a plea of not guilty, he shall by such plea, without any further form, be deemed to have put himself upon the country for trial, and the court shall in the usual manner order a jury for the trial of such person accordingly." As has already been stated, ante, p. 172, if the person charged with the offence stand mute of malice, or will not answer directly to the indict- ment, a plea of not guilty will be entered for him. Pleading over — demurrer.] If the defendant demur in misdemeanor, the judgment is final; but, by the permission of the court, the defendant may plead over. R. v. Birmingham and Gloucester Railway Co., 3 Q. B. 223 ; 9 C. & P. 469. As to felonies, the question has been much doubted, but in R. v. Faderman, 1 Den, C. C. 565; 19 L. J., M. C. 147, it was held by Alderson, B., Cresswell and Vaughan Williams, JJ., that on a general demurrer judgment for the crown was final, inasmuch as the prisoner thereby confesses all the material facts charged against him in the indict- ment. In cases of demurrer of a special nature, usually called demurrer in abatement, they thought it might be otherwise, and they intimated that the various dicta which appeared in the books, in opposition to the above riding, were probablv to be accounted for by this distinction not having been sufficiently attended to. See R. v. Duffy, 4 Cox, 24, and the cases collected in 1 Den. C. C. 293, a, If the defendant plead a special plea in misdemeanor, the judgment is final. Per Holt, C. J., R. v. Goddard, 2 Lord Raym. 920. But in treason and felony it is not so. Id. 2 Hale, P. C. 257. Whether in misdemeanor the defendant might plead over by leave of the court does not seem to have been decided. See R. v. Strahan, ubi supra. Joinder of distinct offences in the indictment — election.] If two offences be charged in the same count of an indictment it is bad, but, even before the passing of the 14 & 15 Vict. c. 100, there was no objection in point of law to inserting, in separate counts of the same indictment, several distinct felonies of the same degree and committed by the same offender ; 2 Hale, 173; 1 Leach, 1103 ; and it is not a ground for arrest of judg- ment ; Id. 1 Chit. C. L. 253 ; 3 T. R. 98 ; R. v. Hinley, 2 Moo. & R. 524 ; CConnell v. R., 11 CI, & F. 155; R. v. Heywood, L. & C. 451 ; nor is it any ground for arrest of judgment after a prisoner has been convicted of felony, that the indictment contains a count for a misdemeanor. R. v. Ferguson, 1 Dears. C. C. 427; 24 L. J., M. C. 61. In practice, where a prisoner was charged with several felonies in one indictment, and the party had pleaded, or the jury were charged, the court in its discretion would quash the indictment ; or if not found out till after the jury were charged, would compel the prosecutor to elect on which charge he would proceed. R. v. Young, 3 T. R. 106 ; 2 East, P. C. 515 ; 2 Camp. 133; 3 Camp. 133 ; 2 M. & S. 539. Now by the 24 & 25 Vict. c. 96, s. 5, it is enacted "that it shall be lawful to insert several counts in the same indictment against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person within the space of six calendar months from the Election. 179 first to the last of such acts, and to proceed thereon for all or any of them." And by s. 6, " if, upon the trial of any indictment for larceny, it shall appear that the property alleged in such indictment to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that mure than the space of six calendar months elapsed between the first and the last of such takings ; and in either of such last-mentioned cases the prosecutor shall be required to elect to proceed for such number of takings, not exceeding three, as appear to have taken place within the period of six calendar months from the first to the last of such takings." The same Act contains a similar provision as to embezzlement (s. 71). It would seem that the effect of this statute is to restrain the right of the judge to put the prosecutor to his election merely because the indictment contains three charges of larceny committed within six months, or because the property turns out upon the evidence to have been taken at different times. The Act does not supersede the common law so as to compel the court to put the prosecutor to his election in other cases in which several felonies are charged in different counts, and in which the court does not in its discretion consider that the prisoner will be embarrassed in his defence, ]{. v. Heywood, L. & C. 451. It seems that where three acts of larceny are charged in separate counts there may also be three counts for receiving. R. v. Heywood, supra. With respect to joining a count for stealing and a count for receiving in the same indictment, the practice of doing so was condemned by the judges in /,'. v. Galloway, 1 Moo. C. 0. 234. Hut now it is enacted, by the 24 & 25 Vict. c. 96, s. 92, that "in any indictment containing a charge of feloniously stealing any property, it shall be lawful to add a count or several counts for feloniously receiving the same or any part or parts thereof knowing the same to have been stolen," and vice versa; "and where any such indictment shall have been preferred and found against any person, tin 1 prosecutor shall not be put to his election, but it shall he lawful for the jury who shall try the same to find a verdict of guilty, either of stealing the property, or of receiving the same or any part or parts thereof knowing the same to have been stolen; and if such indict- ment shall have been preferred and found against two or more persons, it shall be lawful for the jury who shall try the same to find all or any of the said persons guilty either of stealing the property or of receiving the same or any pari or parts thereof knowing the same to have been stolen, or to find one or more of the said persons guilty of stealing the property, and the other or others of them guilty of receiving the same or any part or parts thereof knowing the same to have been stolen." By the Explosive Substances Act, 1883(46 Vict. c. 3), s. 7. the same criminal act may be charged in different counts in the same indictment, and the prosecutor shall not ho put to his election as to the count on which ho must proceed. With respect to offences not provided for by the above enactments: where the prisi mers were charged, in one count with robbing, and in a second with an assault with intent to rob. Hark, J., seemed to think that the two counts ought not to be joined in the same indictment, and called upon the prosecutor to elect mi which he would go to the jury. /?. v. Gough, 1 Moo. & //. 71. Where, however, 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 giievous bodily harm, it was held that the prosecutor was not bound to elect on which count he wovdd pro- ceed. It. v. Strange, 8 C. 6. 132; 7,'. v. 'Wro, 6 4p. ( Ws. 229 ; 50 L. ./.. i/. Z. 497. Where, however, two defendants were indicted for a con- spiracy, and also for a libel, and at the close of the case for the prosecution there 'was evidence against both as to the conspiracy, but no evidence against one as to the libel ; Coleridge, J. , put the prosecutor to his election, on which charge he would proceed, before the counsel for the defendants entered upon their defence. B. v. Murphy, 8 C. . 620. The application, if made on the part of the defendant, must, it should seem, be before plea pleaded. Fast. 231 ; R. v. Rookwood, 4 How. tit. Tr. 684 ; but where the indictment had been found without jurisdiction, the court quashed it after plea pleaded. R. v. Heane, 4 B. usually upon terms, namely, that the prosecutor shall pay to the defendant such costs as he may have incurred by reason of such former indictment; //. v. Webb, .'5 Burr. 140!); that the second indictment shall stand in the same plight and condition to all intents and purposes thai the first would have done if it had not been (plashed; II. v. (Hen, .', II. & Aid. :;7:J: //. v. Webb, '■'< linn-. 1468; 1 II*. Bl. 460; and (particularly where there has been any vexatious delay on the part of the prosecution, 3 Burr, 1458) that the name of th.' prosecutor he disclosed. II. v. Glen, supra. A. was indicted for perjury at the spring assizes. L843, and entered into recognizances to try ;it the summer assizes. 1S44. It being discovered that the indictment was defective, another indictment was pre- pared and found at the latter assizes, on which the prosecutor \\ Lshed the defendant to he tried. Wightman, J., held that the defendant was entitled to have the tii-t indictment disposed of before he could be tried 1S2 Amendment. on the second, but quashed the first indictment upon the terms of the prosecutor paying the defendant his costs of the traverse and recognizances, and the defendant proceeded to trial on the second indictment without traversing. R. v. Dunn, 1 C. i£' K. 730. Amendment.'] The power of amendment in criminal cases was first conferred by the 9 Geo. 4, c. 15, but was confined to cases of mis- demeanor, and the power was only conferred on courts of oyer and ter- miner and general gaol delivery. It was at first considered that the power ought to be very sparingly exercised ; R. v. Cooke, 7 C. & P. 559 ; it being considered that one objection to an amendment was that the presentment on oath of the grand jury was thereby altered. R. v. Hewins, 9 C. tt' P. 786. But the legislature does not appear to have had any such scruples, for by the 11 & 12 Vict. c. 46, s. 4, the power of amendment was extended to cases of felony ; and this enactment was again replaced by the more sweeping provision of the 14 & 15 Vict. c. 100, s. 1, by which, after reciting that ' ' offenders frequently escape conviction on their trials by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case, and that such technical strictness may safely be relaxed in many instances so as to insure the punishment of the guilty, without depriving the accused of any just means of defence, and that a failure of justice often takes place on the trial of persons charged with felony and misdemeanor, by reason of variances between the state- ment in the indictment on which the trial is had and the proof of names, dates, matters and circumstances therein mentioned not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced in his defence," it is enacted that " whenever on the trial of any indictment for any felony or misdemeanor there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township or place men- tioned or described in any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the name or description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offence, or in the christian name or surname, or both christian name and surname or other description what- soever of any persons whomsoever therein named or described, or in the name or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order such indictment to be amended, according to the proof, by some officer of the court or other person, both in that part of the indictment wherein such variance occurs, and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable ; and after such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred." In R. v. Frost, 1 Dears, ('. <'. 474; 24 L. J., M. ('. 61, the prisoners Amendment. 183 were charged in an indictment with having by night in pursuit of game entered the lands of George William Frederick Charles Duke of Cambridge ; on the trial a witness proved that George William were two of the duke's christian names, and that he had others ; no proof was given what they were. The prosecutor prayed an amendment of the indictment by strik- ing out the names " Frederick Charles." This the court refused, and left the case to the jury, who, being satisfied as to the identity of the duke, convicted the prisoners. On a case reserved, the Court of Criminal Appeal quashed the conviction. Parke, B., said, "The court of quarter sessions have a power of amending given them by the statute 14 & 15 Vict. c. 100, s. 1, but they have a discretion, they are not bound to allow an amendment. Having omitted to amend at the trial, they cannot amend now. If they had asked us whether they ought to have done so, it is clear that upon the evidence before them they were perfectly right in refusing to make the amendment prayed for ; but that they would have been equally wrong in refusing to amend, had the amendment asked for been to strike out all the christian names of the Duke of Cambridge ; who was described in the indictment as George William Frederick Charles Duke of Cambridge. According to the usual rule, the prosecutor must prove all matter of description alleged, though it was not necessary to allege it. The proper course would have been for them to have found that the person mentioned was a person who had the title of Duke of Cambridge, and to have omitted all the christian names." It has been held that an indict- ment for an attempt to murder A. W. maybe amended by substituting for A. W., " a certain female child whose name is to the said jurors unknown," although the act refers only to variances in the name, or christian or surname. R. v. Welton, 9 Cox, 297. An indictment charged D. T. as a receiver of stolen goods, "he, the said A. B., knowing them to have been stolen " ; upon verdict of guilty he moved in arrest of judgment, but the court of quarter sessions struck out the words "A. B.," and substi- tuted "D. T." It was held by the Court of Criminal Appeal that the court had no power to amend after verdict, so as to alter the finding of the jury, and that the prisoner was entitled to move in arrest of judgment. '/,'. v. Larkin, Dears. C. <'. 305 ; 23 A. ,/., M. C. 125. See R. v. Oliver, 13 ( 'ox, 5:5S. On an indictment against the defendant for obstructing a footway leading from A. to G., it appeared that the so-called footway was for half-a-mile from its commencement, as described in the indictment, a carriage-way; the obstruction was in the part beyond. The Court of Queen's Bench held that this was a misdescription, which ought to be amended under the 1-1 & 15 Vict. c. loo. s. 1. A', v. Sturge, 3 K. a- II. 734; 23 A. J., M. ('. 172. On an indictment for stealing 19s. 6c/., the court held that the indictment might he amended by altering the words "nineteen and sixpence" to "one sovereign." R. v. Oumble, A. A'., 2 C. C. //. 1 ; -12 /,. ./. .1/. C 7; and see //. v.' Bird, 42 A. -/., .1/. C. 44; 12 Cox, 257. Indictment for embezzlement laid the property in A. B. and others, to which was added by amendment the words "trustees of, &c." //. v. Murks, 10 Cox, 367. The tendency of the later cases is to give the statute " a wide construction." See /;. \. Welton, supra, per Byles, J. ; 1 Rus8. Cri. •">", ill// 1,1. Where an indictment charged the prisoner with supplying a noxious drug to procure the miscarriage of "a certain woman," Stephen, J., on objection, amended by altering the description to "a woman to the jurors unknown." A', v. Titley, 14 Cox, 502. But the same learned judge refused In allow an indictment charging the defendants with " endeavouring to persuade T. to supply a noxious drug" to be amended by supplying the name of any person to whom the drug was supplied, or for whom it was intended. A', v. O 1 Callaghan, 14 Cox, 199. It may, 184 Jury. however, be mentioned that in the latter case the learned judge was influenced by the fact that there had been no preliminary inquiry before a magistrate, and that therefore there was the need for greater caution. It probably was not intended by section 25 (supra, p. 181) to increase the power of amendment given by s. 1 (supra, p. 182), but merely to pre- vent formal defects apparent on the face of the indictment being taken advantage of after verdict, by motion in arrest of judgment, or otherwise. The term " formal defect apparent on the face of the indictment" is rather indefinite ; probably it would be held to mean such formal defects as may be amended by virtue of s. 1. See B. v. Goldsmith, L. IL, 2 C. C. B. 74; 42 L. J., M. C. 94, post, False Pretences. As to the amendment of the record after judgment, see B. v. Gregory, 4 D. & L. 777; Gregory v. II. , infra, p. 198; Bowers v. Nixon, 12 Q. B. 546. Jury de medietate lingua?.'] The 28 Edw. 3, c. 13, s. 2, which provides for the trial of aliens by a jury de medietate linguce, and the 6 Geo. 4, c. 50, s. 47, which contained further provisions as to such trials, have been repealed, and by the 33 Vict. c. 14, an alien shall not be entitled to be tried by a jury de medietate linguce, but shall be triable in the same manner as if he were a natural-born subject." Challenges.] Challenges are either to the array or to the polls ; they are also either peremptory or for cause. Time and mode of taking them.'] When one or more defendants have pleaded the general issue, they are informed by the officer of the coirrt that the persons whose names he is about to call will form the jury which is to try them, and that they are at liberty to challenge any who may be called, as they come to be sworn. The practice as to the mode of getting a jury together is not very clearly defined, and probably differs consider- ably in different parts of the country. It is difficult to understand whether the rule laid down in" Vicars v. Langham, Hob. 235, that there can be no challenge either to the array or to the polls until a full jury appear, is of perfectly general application. It is repeated, and no limits indicated, in B. v. Edmonds, 4 B. & Aid. 471 ; 3 Burn, Just., ed. 30, p. 90 ; and Joy on Confessions and Challenges, s. 10. It is probably stated some- what too broadly, and what is meant is, that before the prisoner is put to his challenges, he has a right to have the whole panel called over to see who does and who does not appear. Fast. (V. ('a., fol. ed. p. 7; B. v. Frost, 9 C. '. ( '. a. 375. The challenge to the array must, of course, be before any juryman is sworn. Where the indictment charged a subsequent felony in one count, and a previous conviction in another, and the prisoner, at the request of his counsel, was arraigned separately on the subsequent felony, and afterwards on the previous conviction, it was doubted if it was necessary to re-swear the jury, and ^ive the prisoner his challenges. 11. v. Key, 3 C. & K. 371. Hut an express provision for separate arraignment without re-swearing the jury is now made in most cases. >See p. 196. Challenges to ///<• array."] The learning on this subject has to be sought out of old books; and there is great difficulty in deriving from them any precise rules. It is. however, quite clear that any partiality in the sheriff, under-sheriff, or other officer who is concerned in the return of the jury, is a good cause of challenge to the array. And that this partiality will be assumed to exist, if the sheriff or other officer be of kindred or affinity to either party ; or if any dispute be pending between the sheriff and either party which would be likely to influence the sheriff ; or if the sheriff or other officer have been concerned for either party in the same matter, either as counsel, attorney, or the like. Co. Lift. 156 a ; Bac. Abr. tit. Juries, F. There can be no challenge to the array on the ground of the partiality of the master of the crown office, in a case where he is the officer by whom the jury is to lie nominated under a rule of court. R. v. Edmonds, 4 />. Ahi. 171. The only remedy in such a case is to apply to the court to appoint another officer to nominate the jury. Whether there i- the same right in a subject as in the crown to challenge for favour has been doubted; sec 2 Hawk. /'. <". <•. \4. s. .'>"_>. Hut that doubt is obsolete. A challenge to the array should be in writing, so that it may be put upon the record, and the other party may plead or demur to it; and the cause of challenge must he stated specifically. R, v. Hughes, 1 C. .1- A". 235. When the opposite party pleads to the challenge, two triers are ap- pointed by the court ; either two coroners, two attorneys, or two of the jury, or indeed any two indifferent persons. If the array he quashed against the sheriff, a venire facias is then directed instanter to the coroner; if it be further quashed against the coroner, it is then awarded to two persons, called elisors, chosen at the discretion of the court, and it cannot he afterwards ((Hashed. Co. /.ill. 158 a. It has been said that there is some distinction between trying challenges ; 1(S6 Jury. those that are manifest or principal challenges, as they are called, being tried by the court without the appointment of any triers ; see Co. Lift. 156 a; Bac. Abr., tit. Juries, E. 12; but triers would probably now be appointed in all cases. The truth of the matter alleged as cause of challenge must be made out by witnesses to the satisfaction of the triers. The challenging party first addresses the triers, and calls his witnesses ; then the opposite party addresses them, and calls witnesses if he thinks fit: in which case the challenger has a reply. The judge then sums up to the triers, who give their decision. See R. v. Dolby, 2 B. & C. 104. If a challenge to the array be found against the party, he may afterwards, notwithstanding, challenge to the polls. Challenges to the polls.'] Challenges to the polls are either peremptory or for cause. By the common law, the king or the prosecutor who repre- sented him might challenge peremptorily any number of jurors ; simply alleging quod non boni sunt pro rege ; but by the 33 Edw. 1, st. 4, this right is taken away, and the king is bound to assign the cause of his challenge ; and this enactment is repeated in the same words in the 6 Greo. 4, c. 50, s. 29. A practice, however, which has continued uniformly from the time of Edw. 1 to the present, enables the prosecutor to exercise practically the right of peremptory challenge; because, when a man is called the juror will, on his request, be ordered to stand by ; and it is only when the panel has been exhausted, that is, when it appears that, if the jurors ordered to stand by are excluded, there will be a defect of jurors, that the prosecutor is compelled to show his cause of objection. Mansell v. R., Dears. & B. C. C. 375. When it appears that, in consequence of the pereniptory challenges by the defendant, and the jurymen ordered to stand by at the request of the prosecutor, a full jury cannot be obtained, then the proper course is to call over the whole panel again, only omitting those that have been peremptorily challenged by the defendant. R. v. Geach, 9 Car. <('■ B. 499. And even on the second reading over of the panel a juryman may be ordered to stand by at the request of the prosecutor, if it reason- ably appears that sufficient jurymen may yet appear. Mansell v. R., supra. The prisoner has, in cases of felony, twenty peremptory challenges and no more ; 6 Geo. 4, c. 50, s. 29 : and the right exists whether the felony be capital or not. Gray v. R., 11 CI. <( Fin. 427. In cases of misdemeanor there is no right of peremptory challenge. Co. Litt. 166. But the defen- dant is generally allowed to object to jurors as they are called, without showing any cause, till the panel is exhausted ; and that practice was approved of by Williams, J., in 11. v. Blakeman, 3 C. & K. 97. If the panel be thus exhausted, the list must be gone through again, and then no challenge allowed except for cause. If a juror be challenged for cause before any juror sworn, two triers are appointed by the court ; and if he be found indifferent and sworn, he and the two triers shall try the next challenge : and if he be tried and found indifferent, then the first triers shall be discharged, and the two first jurors tried and found indifferent shall try the rest. Co. Litt. 158 ; 2 Hale, P. C. 275 ; Hue. Abr., tit. Juries, K. 12.* The trial proceeds in the same manner as a challenge to the array. The juror challenged may be himself examined as to any cause of unfitness. Bar. Abr., ubi supra. A juror may be challenged on the ground that he is not liber et Jegalis homo ; and this woidd hold good against outlaws, aliens, minors, villeins. Jury. 187 and females. lie may also be challenged on the ground of infamy ; which ground is said not to be removed by pardon ; Bac. Abr., tit. Juries, E. 2; or that he is not fit to serve from age, but see Mulcahy v. J!., L. 11., 3 H. L. 306 ; or some other personal defect ; or that he is not qualified. The qualification of jurors is fixed by the 6 Oreo. 4, c. 50, s. 1, which provides, that "all persons between the ages of twenty-one and sixty years, residing in any county in England, who shall have in his own name or in trust for him, within the same county, ten pounds by the year above reprizes, in lands or tenements, whether of freehold, copyhold, or customary tenure, or of ancient demesne, or of rents issuing out of any such lands or tenements, or in any such lands, tenements, and rents taken together, in fee simple, fee tail, or for the life of himself or some other person ; or who shall have within the same county twenty pounds by the year above reprizes in lands or tenements, held by lease or leases for the absolute term of twenty-one years, or some longer term, or for any term of years determinable on any life or lives, or who, being a householder, shall be rated or assessed to the poor-rate, or to the inhabited house duty in the county of Middlesex, on a value of not less than thirty pounds, or in any other county on a value of not less than twenty pounds, or who shall occupy a house containing not less than fifteen windows, shall be qualified to serve on juries on all issues in all the superior courts, both civil and criminal, and in all courts of assizes, nisi prius, oyer and terminer, and gaol delivery, and in all issues joined in courts of sessions of the peace, such issues being respectively in the county in which every man so qualified respectively shall reside." And every man, being between the aforesaid ages, " residing in any county in Wales, and being there qualified to the extent of three-fifths of any of the foregoing quali- fications," shall be qualified to serve on juries in all issues joined in the courts of great sessions, and in courts of sessions of the peace, in every county in Wales in which every man so qualified shall reside. By the •1") iV 4<> Vict. c. .">(), s. 186, every burgess of a borough having a separate court of quarter-sessions is qualified and liable to serve on juries in that court unless exempted by law, but by the schedule of 33 & 34 Vict. c. 77, they are exempt from serving on county sessions. By 33 & 34 Vict, c. 77, schedule, members of the council, justices of the peace, the town clerk, and treasurer within the borough, are disqualified from serving on any jury in the county where the borough is situate. Justices are also exempt from serving on any sessions for the jurisdiction of which they are justices. A juror may also be challenged on the ground that he is not indifferent. The same circumstances which would support a challenge to the array for uninditferency in the sheriff would support a challenge to the poll for the same defect in a juryman. It is no cause of challenge of a juror by the prosecutor thai the juror is a client of the prisoner, who is an attorney; 11. v. Geach, it ( '. & I'. -!!'!» ; nor that the juror lias visited the prisoner as a friend since he has been in custody. A/. It is not allowable to ask a juryman if he has not previously to the trial expressed himself hostilely to the prisoner, in order to found a challenge, hut such expressions must be proved by some other evidence. /,'. \ . /■/,///, e/r/x, -I /.'. & Ahl. 171 ; It. V. Cooke, 13 How. St. Tr. 333. And they must amount to something mure than an expression of opinion in order to constitute a good cause of challenge ; they must lead directly to the conclusion that the juryman is not likely to act impartially after he has heard the evidence. Joy on Confessions '. C. >'. 468, and see R. v. Martin, I.. //., 1 C. C. II. 378; 41 L. J., M. C. 113. Giring the prisoner in charge.^ When the jury have been brought together and sworn, the usual proclamation is made, and then the prisoner or prisoners, intended to be tried, are given in charge to the jury as their turn comes. It is not necessary that after a jury has been once got together, and the prisoner had his challenges, that that jury should try him if he be not given in charge; a fresh jury may be got together for the purpose, each of the prisoners, of course, having the same Trial. 189 right of challenge as before. x\s the prisoner is not to be arraigned upon a previous conviction charged in the indictment until a verdict has been given for the subsequent offence, so also he cannot be given in charge upon the count charging the previous conviction until he is arraigned upon it. See post, p. H»(). "Where two or more prisoners are jointly indicted it is in the discretion of the judge to decide whether they shall be tried separately or not. /<*. v. Ram, 17 Cox, 610. 2. THE HEARING . Opening th<' case — conversations and confessions. ] Where there is counsel for a prisoner in a case of felony, the counsel for the prosecution ought always to open the case. ft. v. Gascoine, 7 C. & P. 772. But sometimes, he does not open it if the prisoner has no counsel, ft. v. Jackson, Id. 773, unless there is some peculiarity in the circumstances. Per Parke, B., 11. v. Bowler, Id. Where there is no counsel for the prosecution there can be no opening, as the prosecutor himself is never allowed personally to address the jury. II. v. Brice, 2 II. & Aid. 606. Where the counsel for the prosecution was proceeding to state the details of a conversation which one of the witnesses had had with the prisoner, upon an objection beinfz; taken, the court said that in strictness he had aright to pursue that course ; //. v. Deering, o C. & 1\ 10.3 ; R. v. Hartel, 7 C. & P. 773 ; and the same rule was laid down in 11. v. Swatkin, 4 C. & J*. 048 ; but the judges in that ease stated, that the correct practice was only to state the general effect of the conversation, o ., the drivers of rival omnibuses, were indicted for the man- slaughter of C, caused by their negligence in chiving. After the case for the prosecution had closed, and A.'s counsel had addressed the jury, witnesses were called on behalf of B., for the purpose of throwing all the blame on A. ; it was held that the counsel for A. was entitled to cross- examine 15. 's witnesses, and again to address the jury. R. v. Wood, 6 Cox, C. C. 224 ; J,', v. Burdett, 24 L. J., M. C. 63. Where there were cross-indictments for assault to be tried as traverses at the assizes, and the same transaction was the subject-matter of both indictments, Gurney, B., directed the jury to be sworn on both traverses and the counsel for the prosecution of the indictment first entered to open his case and call his witnesses; and then the counsel on the other side to open his case and call his witnesses ; neither side to have a reply. R. v. Wanklyn, 8 C. & P. 290. The attorney-general of England, prosecuting for the crown in person, has the right to reply, whether witnesses be called or not. This is admitted; but it is doubtful whether the crown has the right in any, and, if any, what other cases. In R. v. Esdaile, 1 F. & F. 213, a prosecution instituted by the crown, the right was exercised without objection by the counsel for the crown, who was not attorney- general. In R. v. Beckwith, 7 Cox, 505, a prosecution instituted by the poor-law board, Byles, J., refused to permit it, saying that the right was confined to the attorney- general of England in person, and that he wished it were not allowed even in that case. In //. v. Christie, 1 /•'. & /•'. 75, a prosecution at Liverpool directed by the Board of Trade, Martin, B., refused to permit it to the attorney-general of the county palatine, and said that he thought the practice in any case was a bad one. In /,'. v. Taylor, 1 F. & /•'. 535, Byles, J., said, he did not admit the right in the case of counsel, not the attorney-general, prosecuting for the mint. On the other hand, in R. v. Gardner, 1 C. & K. (Vis, where it was stated by the counsel for the prose- cution that he appeared as the representative of the attorney-general, it was held by Pollock, C. B., that he was entitled to the right. Discharge of jury without verdict."] If a juryman be taken ill so as to be incapable of attending through the trial, the jury may be discharged and the prisoner tried »/< n<>r<> ; another juryman may be added to the eleven ; but in that case the prisoner should be offered his challenges E. O 194 Discharge of Jury. over again, as to the eleven, and the eleven should be sworn de novo. B. v. Edward, Buss. & By. 224; 4 Taunt. 309; 2 Leach, 621 (n); B. v. Ashe, 1 Cox, C. C. 150. So if during the trial the prisoner be taken so ill that he is incapable of remaining at the bar, the judge may discharge the jury, and, on the prisoner's recovery, another jury may be returned, and the proceedings commenced de novo. The court, on a trial for a misdemeanor, doubted whether in such a case the consent of counsel was sufficient to justify the proceeding with the trial in the absence of the defendant. B. v. Streek, coram Park, J., 2 C. & P. 413; B. v. Oourmon, 2 Leach, C. C. 546. "When the evidence on both sides is closed, or after any evidence has been given, the jury cannot be discharged, unless in case of evident necessity (as in the cases above mentioned), till they have given in their verdict, but are to consider of it and deliver it in open court. But the judges may adjourn while the jury are withdrawn to confer, and may return to receive the verdict in open court. 4 Bl. Com. 360. And when a criminal trial runs to such length that it cannot be concluded in one day, the court, by its own authority, may adjourn till next morning. B. v. Stone, 6 T. B. 527. B. v. Lanyhorn, 7 How. St. Tr. 497 ; B. v. Hardy, 24 Id. 414. In the latter case, on the first night of the trial, beds were provided for the jury at the Old Bailey, and the court adjourned till the next morning. On the second night, with the consent of the counsel on both sides, the court permitted the jury to pass the night at a tavern, whither they were conducted by the under-sheriffs and four officers sworn to keep the jury. Id. 572. In misdemeanors the practice has been to allow the jury to separate. See B. v. Kin near, 2 B. & Aid. 462. Now by 60 Vict. c. 18, " Upon the trial of any person for a felony other than murder, treason or treason felony, the court may, if it see fit, at any time before the jury consider their verdict, permit the jury to separate in the same way as the jury upon the trial of any person for misdemeanor are now permitted to separate." It is not a sufficient ground for discharging a jury, that a material witness for the crown is not acquainted with the nature of an oath, though this is discovered before any evidence is given. B. v. Wade, 1 Moody, C. C. 86, ante, p. 101. So 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. B. v. Wardle, C. & M. 647. It it should appear in the course of a trial that the prisoner is insane, the judge may order the jury to be discharged, that he may be tried after the recovery of his understanding. 1 Hale, P. C. 34; 18 St. Tr. 411; Bxiss. & By. 431 (n). On a trial for manslaughter, it was discovered, after the swearing of the jury, that the surgeon who had examined the body was absent, and the prisoner prayed that the jury might be dis- charged ; they were discharged accordingly, and the prisoner was tried the next day. B. v. Stoke, 6 C. & P. 151. As to postponing the trial, see supra, p. 101. In the case of B. v. Davison, removed by certiorari into the Central Criminal Court, the prisoner demurred on the ground that he had been tried before for the same offence, and that the jury were discharged, and that no sufficient reason was alleged why the jury were so discharged. The fact that the prisoner had previously been tried, and that the jury had been discharged because they could not agree, was stated on the record. The learned judges, however, who tried the case (Williams and Hill, JJ.), said, that the discharge of the jury was a matter for the dis- cretion of the judge, and which must be assumed to be for some valid Verdict. 195 reason, and they overruled the demurrer. They also said that no notice of the reason why the jury were discharged need have been taken on the record. 2 F. & F. 250. The power to discharge a jury was very much discussed in a case of R. v. Gharlesworth, :>1 L. J.. M. C. 25, which came before the court on several occasions. It was an information for bribery, at the suit of the crown, and at the trial a witness refused to give evidence. Hill, J., committed the witness to prison, and a conviction being impossible, dis- charged the jury. The defendant then applied for leave to place upon the record a plea setting out these facts, but this the court refused to permit, on the ground that there was already a plea of not guilty upon the record, and that in misdemeanor a defendant could not plead two different pleas ; but they said the facts stated in the plea might be placed upon the record as part of the proceedings, which was accordingly done. A rule was then obtained, calling upon the crown to show cause why judgment '<»/ eat sine die should not be entered for the defendant, and why the award of jury process and all other proceedings should not be set aside. The rule was discharged, the court being of opinion that, whether the judge had power to discharge the jury or not, the defendant was not entitled to final judgment, and that the new trial ought to proceed ; it being open to the defendant to take advantage of the objection (if any) upon a writ of error. The judgments of the court contain a great deal of extra-judicial opinion as to what power a judge has to discharge a jury, and the weight of opinion seems to incline to that power being limited in Ian- only by the discretion of the judge ; but that it oughtnot to be exercised, except in some cases of physical necessity ; or where it is hopeless that the jury will agree, or where there have been some practices to def( at the ends of justice. Much reliance is placed by the court on the opinion of Crampton, J., in the case of Conway v. It., 7 Ir. Law Rep. 149 ; 1 Cox, 210, where that learned judge differed from his brethren, and took substantially the view taken by the Court of Queen's Bench in England in I!, v. Charlesworth. This question was fully discussed in Wimor v. #., L. /,'., 1 Q. B. 390; 35 L. J., M. 0. 121, 161, in which it was held by the Court of Exchequer Chamber, that a judge had power in the case of murder to discharge the jury before verdict, when a high degree of need for such discharge was made evident to his mind from the facts which he had ascertained. They held further, that the exercise of this discretion could not be reviewed by a court of error, and that such a discharge did not prevent the prisoner from being tried a second time. So where in the course of a trial for murder a juryman separated himself from his fellows and mingled with the public during an adjournment Kennedy, J., discharged the jury, and a fresh jury being subsequently impannelled the prisoner was tried and convicted. /.'. v. Macrae, Northampton Assizes. December, 1892. Verdict.'] If by mistake the jury deliver a wrong verdict (as where it is delivered without the concurrence of all), and it is recorded, and a few minutes elapse before they correct the mistake, the record of the verdict may also be corrected. I!, v. Parkins, 1 Moody, C. C. 46. In II. v. Vodden, Dears. C. C. 22!» ; 2:5 /,. J., M. 0. 7, one of the jury pronounced a verdict of "not guilty," which was entered by the clerk of the peace in his minute book, and the prisoner was discharged ; other jurymen then interfered, and said their verdict was " guilty " ; whereupon the prisoner was brought hack, and the jury being again asked for their verdict, thev all said it was "guilty," and that they had been unanimous; a verdict of guilty having been recorded, it was held by the Court of 2 196 Verdict. Criminal Appeal that the verdict was properly amended, and that the conviction must stand. The jury have a right to find either a general or a special verdict. 4 Bl. Comm. 361; 1 CHtty, C. L. 637, 642; Mayor, &c, of Devizes v. Clark, 3A.& E. 506 ; B. v. Dudley, 14 Q. B. D. 273 ; 54 L. J., M. C. 32. _ And in a case of felony, although a judge may make the suggestion, he will not direct the jury to find special facts, and they may, if they think proper, return a general verdict, instead of finding special facts, with a view to raise a question of law. Per Lord Abinger, C. B., B. v. All day, 8 C. & P. 136. Upon an indictment for stealing a watch, the jury returned the following verdict: — "We find the prisoner not guilty of stealing the watch, but guilty of keeping it, in the hope of reward, from the time he first had the watch." Held, by the Court of Criminal Appeal, that this- finding amounted to a verdict of " not guilty." R. v. York, 1 Den. C. C. P. 335 ; 18 L. J., M. C. 38. Special verdicts which may be returned by statute, in cases in which the prisoner is proved to have been guilty of a minor offence to that with which he is charged, will be found ante, p. 71. The verdict which under 46 & 47 Vict. c. 38, s. 2, is returnable in cases of insanity, will be found set out, post, tit. Insanity. A judge is not bound to receive the first verdict which the jury give unless the jury insist on having it recorded. He may direct them_ to reconsider it, and the verdict ultimately returned is the true verdict. B. v. Meany, 32 L. J., M. C. 24; L. & C. 213. But where a prisoner was charged with larceny, and the jury, being unable to_ agree, were asked whether they believed the evidence for the prosecution and replied that thev did, it was held that that could not be entered as a verdict of guilty. B. v. Farnborough, (1895) 2 Q. B. 484; 64 L. J., M. C. 270. Arraignment mi previous conviction.] By the 24 & 25 Vict. c. 96, s. 116, "in any indictment for any offence punishable under that Act (larceny and offences connected therewith), "the offender shall, in the first instance, be arraigned upon so much of the indictment as charges- the subsequent offence ; " and after the inquiry into the subsequent offence is concluded, "he shall then, and not before, be asked whether he had previously been convicted as alleged in the indictment, and if he answer that he had been so previously convicted the court may proceed to sentence him accordingly ; but if he deny that he had been so previously convicted, or stand mute of malice, or will not answer directly to such question, the jury shall then be charged," &c. The 24 & 25 Vict. c. 99, s. 37, contains a precisely similar provision with respect to offences relating to the coin, and under this section, also, the prisoner must first be arraigned and tried for the subsequent offence and a verdict be taken ; and this section applies to offences under sect. 12 of that Act, see post, tit. Coining, and B. v. Martin, L. P., 1 C. C. P. 214 ; 39 L. J., M. C. 31. Evidence may, however, be given of the previous conviction during the trial for the subsequent offence if the prisoner gives evidence of good character (24 & 25 Vict, c 96, s. 116 ; 24 & 25 Vict. c. 99, s. 37). By the 31 & 35- Vict. c. 112, s. 19, see ante, p. 85, after evidence has been given that the stolen property has been found in the prisoner's possession, evidence of a previous conviction may be given at any stage of the proceedings. It seems that it is not necessary that judgment should have been given on the previous occasion. If the prisoner either pleaded guilty or was found guiltv, that amounts to a conviction. P. v. Blaby, (1894) 2 Q. B. 170, 63 L. J., M. C. 133. Judgment. 197 3. THE JUDGMENT. A rrest of judgment.] A motion in arrest of judgment maybe made for any substantial defect which appears on the face of the record. It is made at the time when the defendant is called up to receive judgment, and cannot be made after judgment is given. Formal defects, apparent on the face of the indictment, which were formerly ground for arrest of judgment, can now only be taken advantage of by demurrer, or motion to quash the indictment, and not afterwards ; 14 & 15 Vict. c. 100, s. 25. See this statute and the cases cited ante, p. 181. If the objections taken in arrest of judgment be valid, the whole proceedings will be set aside; but the party may be indicted again. 4 Rep. 45 ; 4 HI. Comm. 375. Judgment.] On a trial at bar, the Court may appoint such days as they shall think fit for the trial, and may pass sentence out of term, if on one of the days so appointed. It. v. Castro, 6 Ap. Ca. 229 ; 50 L. J., II. L. 497/ It is not necessary in recording sentence to refer to the statute which gives the punishment. Murray v. /.'., 7 Q. H. 700; 14 /.. J., Q. B. 357. "Where judgment on a record of the Q. B. is pronounced at the assizes, the court on motion may, if they think fit, amend the judgment by ordering it to be arrested. /,'. v. Nott, 4 Q. B. 70S. A sentence of imprisonment passed at nisi prius, under the above section, the defendant not being present, may declare that the imprisonment shall commence on the day on which ho shall be taken to and confined to prison. King v. II., 7 <>. II. 782; 14 L. ./., M. ('. 172. Where there are several felonies or misdemeanors charged in the indictment, care must be taken in passing sentence, and also in making up the record, that no error is made which will vitiate the judgment. There is some obscurity as to what will constitute error in this respect. In It. v. Powell, 2 B. .1' Ad. 75, the first count of the indictment charged an assault with intent to ravish, the second a common assault. The record stated that the jury found that "the said II. P. is guilty of the misdemeanor and oit'ence in the said indictment specified, in the manner and form as by the said indictment is alleged against him : whereupon all and singular the premises being seen, &c, it is considered and adjudged by the court here, that the said II. P., for the said misdemeanor, be imprisoned in the house of correction at Guildford, in the said county of Surrey, tor the space of two years, and be there kept to hard labour." The Court of '.. 11 Q. I!. 79!) ; 11 /.../.. .1/. ( '. 76, there were two counts in the indictment, one charging a stealing in the dwelling-house of I)., the monies of D., above the value of 5/.. the other for a simple larceny of the monies of I >. (not other monies). The record stated the finding of the jury against the prisoners to be •• guilty of the felony aforesaid on them above charged as 198 Judgment. aforesaid," and the judgment to be that the said prisoners " be transported beyond the seas, &c, for the term of ten years." The Court of Queen's Bench held that the word "felony" in this record could not be construed in the same way as the word "misdemeanor" in R. v. Powell, supra, namely, as nomen collectivum, so that it was uncertain to which of the felonies charged the finding of the jury applied ; and that as the judgment of transportation for ten years was applicable to the first felony charged only, the judgment was erroneous and reversed. The Court of Exchequer Chamber confirmed this decision. It was said in the course of the discussion in this case that, even if the word "felony" cordd be construed in the way contended for, the judg- ment was erroneous, on the authority of O'Connel v. R., supra ; but the Court of Exchequer Chamber seemed to think otherwise, and that in that case the judgment would have been good. In Gregory v. R., 15 Q. B. 957 ; 19 L. J., Q. B. 367, the sentence passed by the judge was, that " for and in respect of the offences charged upon him in and by each and every count of the said indictment, he the said defendant be imprisoned in the Queen's prison for the space of six calendar months now next ensuing." The judgment as stated in the record was that the said B. G., for his offences aforesaid, whereof he is convicted as aforesaid, be imprisoned in the Queen's prison for the space of six calendar months now next ensuing. The Court of Exchequer Chamber seemed to think that the judgment as stated in the record was in form a sentence of one term of six months' imprisonment upon the whole indictment, and would, therefore, be erroneous if any count were bad. No final opinion was, however, expressed, because on an application on the part of the prosecution, the court below allowed the judgment to be amended according to the sentence passed, a note of which was contained in the master's book. Where the record set out the finding and judgment on the second count of an indictment, but omitted to notice the finding or judgment on the first, it was held that each count for the purpose of the verdict was a distinct indictment, and that, as there was a good finding upon a good count, the defendant might be convicted upon it. Latham v. R., 9 Cox, 516 ; 5 B. & S. 635 ; 33 L. J., M. C. 197. The difficulty may now be frequently got over by the power conferred by the 11 & 12 Vict. c. 78, s. 5, which provides that " whenever any writ of error shall be brought upon any judgment on any indictment, infor- mation, presentment, or inquisition in any criminal case, and the Court of Error shall reverse the judgment, it shall be competent for such Court of Error either to pronounce the proper judgment or to remit the record to the court below, in order that such court may pronounce the proper judgment upon such indictment, information, presentment, or inquisition." Under this statute, where the prisoner is convicted on good and bad counts, and judgment is entered generally on all or on a bad count, the Court of Error may arrest the judgment on the bad counts, and enter judgment, or direct it to be entered on the good ones. Hollmuay v. A'., 2 Bears. C. C. 287; 17 Q. B. 319. The form in which sentence was passed in Gregory v. R. supra, was said by Lord Denman (p. 968 of the report) to be that which the judges had adopted in order to avoid the objection raised in < J '< lonnell v. R. And the best plan in making up the record will be to state a separate judgment for each count. See Gregory v. R., p. 973 of the report. An offender, upon whom sentence of death has been passed, ought not, while under that sentence, to be brought up to receive judgment for another felony, although he was under that sentence when he was tried Judgment. 199 for the other felony, and did not plead his prior attainder. Anon., Russ. & By. 268. By the 24 & 25 Viet. c. 100, s. 2, " Upon every conviction for murder the court shall pronounce sentence of death, and the same may be carried into execution, and all the proceedings upon such sentence and in respect thereof may be had and taken, in the same manner in all respects as a sentence of death might have been pronounced and carried into execution, and all the proceedings thereupon and in respect thereof might have been had and taken, before the passing of this Act, upon a conviction for any other felony for which the prisoner might have been sentenced to suffer death as a felon." By s. 3, " the body of every person executed for murder shall be buried within the precincts of the prison in which he shall have been last con- fined after conviction, and the sentence of the court shall so direct." See as to the sentence for murder under the old law, B. v. Fletcher, Ihtss. & 11. 58 ; 11. v. WyaU, ib. 230. Where the defendant has been convicted of a misdemeanor, in the Queen's Bench, the prosecutor upon the motion for judgment may produce affidavits to bo read in aggravation of the offence, and the defen- dant may also produce affidavits to be read in mitigation. Affidavits in aggravation are not allowed in felonies, although the record has been removed into the Court of Queen's Bench by certiorari. 11. v. Ellis, 6 B. & C. 145; 3 Burn's Justice, 933, 29th ed. Where a prisoner pleaded guilty at the Central Criminal Court to a misdemeanor, and affidavits were filed, both in mitigation and aggravation, the judges refused to hear the speeches of counsel on either side, but formed their judgment of the case by reading the affidavits; R, v. Gregory, 1 C. . 594 (;/). Semble, that the rule is not to be varied where several defendants are jointly indicted, and some suffer judgment by default, and others are convicted on verdict. And in Mich ;i case, where there was no affidavit in aggravation, but affidavits were offered in mitigation, the court heard the counsel for the defendant first. R. v. Sutton, ib. By 33 & 31 Vict. c. 23, s. 2, a conviction for felony is to be a disqualifi- cation for offices, and causes n forfeiture of pension or superannuation allowance payable out of the public funds; and by sect. 4, the court by which judgment is pronounced or recorded may, if it shall think tit, on application of any person aggrieved, and immediately after conviction for felony, award (to the limit of ll)<)/.) compensation for loss of property, to he deemed a judgment debt. &c, and may also condemn the prisoner to pay tin' prosecutor's costs; see s. ;;. post, Costs, p. 212. In the case of a husband convicted of an aggravated assault upon his wife, the court may under certain circumstances give an order having the effect of a judicial separation, together with an order on the husband to pay some weekly sum to the wife for her support and for the custody of the children. 58 iv. 59 Vict. c. 39, s. 4. 200 Recording Judgment of Death. Recording judgment of death."] By the 4 Geo. 4, c. 48, s. 1, "when- ever any person shall be convicted, of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the court before which such offender shall be convicted shall be of opinion that, under the particular circumstances of the case, such offender is a fit and proper subject to be recommended for the royal mercy, it shall and may be lawful for such court, if it shall think fit so to do, to direct the proper officer then being present in court to require and ask, whereupon such officer shall require and ask, if such offender hath or knoweth any- thing to say, why judgment of death should not be recorded against such offender ; and, in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the court shall and may, and is hereby authorized to abstain from pronouncing judgment of death upon such offender ; and, instead of pronouncing such judgment, to order the same to be entered on record, and thereupon such proper officer as aforesaid shall and may, and is hereby authorized to enter judgment of death on record against such offender in the usual and accustomed form, and in such and the same manner as is now used, and as if judgment of death had actually been pronounced in open court against such offender by the court before which such offender shall have been convicted." Under the repealed statute the court was held to be empowered to direct the sentence of death to be recorded in cases of murder. R. v. Hogg, - Moo. & R. 380. It seems doubtful whether the same would be held under the 24 & 25 Vict. c. 100, s. 2, but probably not. See Greave's Criminal Acts, p. 30. Juvenile offenders.'] By 56 & 5 "7 Vict. p. 48, s. 1, where a youthful offender, who in the opinion of the court before whom he is charged is less than sixteen years of age is convicted ... of an offence punish- able with penal servitude, or imprisonment, and either appears to the court to be not less than 12 years of age or is proved to have been previously convicted, the court may, in addition to or instead of any other punishment, order him to be sent to a reformatory school for not less than three and not more than five years, provided that the period of his detention there expire at or before the time at which he attains the age of nineteen years. By s. 2, the court has power to remand him to prison or to any place the court thinks fit, for a period not exceeding 14 days, or until an order is sooner made for his discharge or his being sent to a reformatory. The 29 & 30 Vict. c. 117, s. 14, contains directions as to the particular school to which the youthful offender is to be sent. By the Probation of First Offenders Act, 50 & 51 Vict. c. 25, s. 1 (1), it is enacted : In any case in which a person is convicted of larceny or false pretences, or any other offence punishable with not more than two years imprisonment before any court, and no previous conviction is proved against him, if it appears to the court before whom 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 coiu't 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 may direct, 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 the offender shall pay the costs of the prosecution, or some portion of the same, within such period and by such instalments as may be directed by the court. Juvenile Offenders. 201 By s. 3 : The court, before directing the release of an offender under this act, 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. Judgment upon persons found to be insane.'] By 46 & 47 Viet. c. 38, s. 2, the jury may return a special verdict that the accused was guilty of the act or omission charged against him, but was insane at the time he did the act or made the omission. The court shall thereupon order him to be kept in custody as a criminal lunatic, in such place and in such manner as the court shall direct till Her Majesty's pleasure shall be known. The disposal of persons found to be insane at the time of the commission of the offence is regulated by the 39 & 40 Geo. 3, c. 94, ante, p. 172 ; and the 46 & 47 Vict. c. 38, see ;>e.sf, tit. Insanity. As to other regulations with respect to criminal lunatics, see the 23 & 24 Vict. c. 75 ; and 47 & 4cS Vict. c. 64. Fines ■'> Geo. 3, c. 50, s. 4. extended by the 8 & !» Vict. c. 114, provision is made that "every person charged with any felony or any other crime, or as an accessory thereto, before any court holding criminal jurisdiction within England and "Wales against whom no hill of indictment shall he found by the grand jury, or who on his or her trial shall he acquitted, or who shall be discharged for want of prosecution, shall lie immediately set at huge in open court, without payment of any fee or sum of money for or in respect of his or their discharge to any person or persons whomsoever." Property found on the prisoner.] It has been said by some judges that a constable has no right to take away from a prisoner any property which. he has about him, unless it is in some way connected with the offence with which he is charged ; per Patteson, J., 11. v. O'Donnell, 7 0. & I'. 138; R. v. Jones, 6 0. & /'. 343; per Gurney, 15., R. v. Kinsey, 7 C. . 314 ; 55 L. J., M. C. 183; 56 L. J., M. C. 25. By the Pawnbrokers Act, 1872 (35 & 36 Vict. c. 93), s. 30, sub-s. 2, if any person is convicted in any court of feloniously taking, or fraudulently obtaining any goods and chattels, and it appears to the court that the same have been pawned with a pawnbroker, the court, on proof of the ownership of the goods and chattels, may. if it thinks fit, order the delivery thereof to the owner either on payment to the pawnbroker of the amount of the Loan or of any part thereof, or without payment thereof or of any part thereof, as to the court, according to the conduct of the owner, and the other circumstances of the case, seems just and fitting. The rest of the section applies only to summary jurisdiction. By the Prosecution of Offences Act, 1879 (42 & 43 Vict. c. 22). part of s. 7. the prosecution of an offender by the Director of Public Prosecutions shall, for the purpose of enabling a person to obtain a restitution of pro- perty, or of obtaining, exercising, or enforcing any right, claim, or advantage whatsoever, bave the same effect as if such person had been bound over to prosecute, and had prosecuted the offender, subject to this proviso, thai such poison shall give all reasonable information and assist- ance to the said 1 tirector in relation to the prosecution. 1't i,nl Servitudt and Imprisonment."] By the 7 <& 8 Geo. 4, c. 28, s. 11, if any person was convicted of felony, after a previous conviction for felony, he was liable to be transported beyond the seas for life. Penal servitude i> now substituted for transportation, and by 54 & oo Vict. c. 69, " Where under any enactment in force when this section comes into operation a court has power to award a sentence of penal servitude, tin sentena may at the discretion ofthe court be for any period not less than thru years and not exceeding either fivi years or any greater period authorised by tin i nactmt nt." " Where under any Act now in force or under any future Act a court is empowered or required to award a sentence of penal servitude, the court may in its discretion, unless such future Act otherwise provides, award imprison- ment for a a y term not exceeding two years with or without hunt labour." In consequence of this section considerable alteration has been made by recent Statute Law Revision Acts in the Consolidation Acts and other 204 Appeal. criminal statutes. The words "at the discretion of the court" and the limitation of the minimum sentence of penal servitude, as well as the alternative power of imprisonment for any term not exceeding two years with or without hard labour have been repealed in all cases, and at the same time the power to award solitary confinement — a form of punish- ment which had fallen into disuse — has been taken away. It has been thought better to print in this book the sections as they now stand, giving a reference in every case to this page, so as to enable a court to at once appreciate what its powers are in regard to punishment. Where a person is convicted of any felony or the offence of uttering or of possessing false coin, or of obtaining money by false pretences or of conspiracy to defraud, or of being found by night armed with intent to break into any house, after a previous conviction the court may, in addi- tion to any other punishment, direct that he be under police supervision for any period not exceeding seven years, 34 & 35 Vict. c. 112, s. S. It was pointed out by Hawkins, J., in R. v. King, (1897) 1 Q. B. 214, 00 I j. J., Q. 11, 87, that where there is an unexpired term of penal servi- tude against a prisoner which he may be sent back to serve out, there is no power in the tribunal to make the new sentence run concurrently with this term, as such term can only commence to run after the new punish- ment has been undergone. See 27 & 28 Vict. c. 47, s. 9, amended by 54 & 55 Vict. c. 69, s. 3 (3). In order to affect the judgment of the court it is necessary that the previous conviction should be stated in the indictment, in order to give the prisoner an opportunity of having his identity tried. R. v. Willis, L. R., 1 G. C. R. 363; 41 L. J., M. C. 102, confirming R. v. Summers, L. R., 1 C. C. R. 182; 38 L. J., M. C. 62. See ante, p. 167. _ The punishment provided for special offences, when committed after a previous conviction, will be found under the head of those offences, but the provisions of 54 & oo Vict. c. 69, supra, must be borne in mind. 4. APPEAL. Writ of Error.] A writ of error lies from all inferior criminal jurisdic- tions to the Queen's Bench, for mistakes appearing in the judgment or other parts of the record. 4 III. Cumin. 391. There were formerly many objections which were matter of error, but which now, by the 14 & 15 Vict. c. 100, s. 25, supra, p. 181, must be taken by demurrer or motion to quash the indictment, and not afterwards. It has been held that error will lie in the following cases : — where the oath upon which perjury is assigned does not appear to have been taken in a judicial ])roceedin»' ; II. v. Overton, 4 Q. B. 90; or the court has not competent authority to administer the oath; R. v. Hattett, 2 Den. C. C. 237; /.'. v. Chapman, 1 Den. C. C. 432; Lavey v. 7.'., 2 Den. C. C. o04. So if in an indictment for libel the words do not appear to be libellous ; R. v. Perry, 1 Lord Raym. 158; or are insufficiently set out ; II. v. Bradlaugh, 3 (f II. D. 607; 48 L. J., M. C. 5; but see 51 & 52 Vict. c. 04, s. 7; if an indictment for obtaining by false pretences does not show the false pretences; R. v. Mason, 2 T. R. 581, but this ease seems to be overruled by Heymann v. 7?., infra; Hollowayv. I!., 2 Dm. C. 0. 296. If in an indictment for burglary it appears from the indictment that the prisoner broke and entered the dwelling-house with intent to commit a trespass or misdemeanor and not a felony, error would lie. R. v. Powell, 2 Den. C. C. 403. These and other eases are collected in Arch. Cr. Law, 18th ed., p. 196. It must, however, be borne in mind that in some cases the verdict will cure a defect in the indictment. See Heymann v. R., L. R.. 8 Q. B. 102 ; //. v. Goldsmith, Appeal. 205 L. /?., 2 C. C. R. 74 ; 42 L. J., M. C. 94 ; R. v. Aspindll, 2 Q. B. D. 48 ; 46 A. J.. M. C. 145; 11. v. Bradlaugh, supra ; J,', y. Knight, 14 Cox, 31 ; 7/. v. Oliver, 13 (Vr, 588; i?. v. Kelleher, 14 Cocc, -IS; 7 ( '. v. Stroulger, 17 (?. /A D. 327: .").") A. ,7"., Jf. C 137. In what cases error will lie for improperly allowing or disallowing challenges is somewhat doubtful. See Mansell v. A'., Dears. & II. C. C. 375; ante, p. 188. If a verdict of the jury were returned during the absence of one of the jurors, it would be a matter of error. It is in all cases necessary before suing out the writ of error to obtain the fiat of the attorney-general ; but in cases of misdemeanor, on probable cause being shown, this fiat is understood to be granted as of course ; Ex parte Newton, 4 E. & B. 869; 4 Bl. Corrim. 391; and it is not generally refused if reasonable ground of error be shown to exist in other cases. But it is entirely in the discretion of the attorney-general whether or not he will grant it, and the court will not control him. Ex parte Newton, supra; R. v. Lees, 1 E. B. & E. 828; R. v. Castro, 6 Ap. Cos. 229; 50 L. J. {H. L.) 497. It seems that the defendant ought to be in court personally to receive sentence in the event of the judgment of the court being against him. R. v. Howanl, 10 Cox, 54. As to the procedure and practice on writs of error, see Crown Office Eules, 1886, rules 183 — 215. In capital cases the prisoner must appear in person to assign errors. Corn, Cr. Pr. 102 ; Holloway v. /'., supra. But where a person convicted of felony alleges error on the record, the court may, if he be in custody, dispense with his attendance in court upon the argument of the writ of error. Richards v. A'., (18971 1 Q. B. 574; 0(5 A. ./., Q. B. 459. When the judgment is reversed upon a writ of error in any criminal case, the court of error may, by the provisions of the 11 & 12 Vict. c. 78, s. 5, supra, p. 198, pronounce the proper judgment itself, or remit the record back to the interior court, in order that that court may do so. The Court of Q. 15. has power to set aside a writ of error sued out for purposes of collusion. A', v. Alleyne, 5 E. & B. 399 ; 24 L. J., Q. li. 282 ; Dears. C. C. 505. Bill of exceptions."] In the case of R. v. Alleyne, an indictment for obtaining money by false pretences, Lord Campbell, C. J., after hearing an argument at chambers, sealed a bill of exceptions to the admissibility of certain documents in evidence; Arch. Cr. Law, 18M ed., p. 108; but in H. v. Esdaile, 1 /•'. & F. 213, 228, a prosecution for conspiring to defraud, the same learned judge, on a bill of exceptions to the evidence being tendered, said, "a 1 >i 1 1 of exceptions cannot be tendered in a criminal case; I once thought otherwise, but I have fully considered the subject, and am satisfied that it cannot be." It seems, at any rate, formerly to have been thought that a bill of exceptions might be tendered to the ruling of a judge in improperly disallowing a challenge; see p. 188. Neir- Trial.] There can be no new trial in cases of felony whether the defendant be convicted or acquitted. In R. v. Scai/e, 17 Q. J!. 238, where a conviction for felony was removed into the Court of Queen's Bench, a new trial was moved for on the ground of the improper reception of depositions in evidence, and was granted; but that case has not been followed, and cannot be considered to be the law. A', v. Bertrand, L.R., 1 /'. C. 520; 30 A. ./., /'. C. 51; J!, v. Duncan, 7 Q. B. D. 198; 50 A, J., M. ('. 95, post, p. 20(5. See /,'. v. Murphy, L. A'.. 2 P. C. 535; 38 A. J. y I'. ('. 53; and see Winsor v. A'., A. A'., 1 Q. U. 390; 35 L. J., M. C. 161. 206 Appeal. In- case of a conviction for misdemeanor a new trial may be granted at the instance of the defendant, where the justice of the case requires it; R. v. Mawbey, 6 T. R. 608; though inferior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (See the cases collected on this point in note (b) to R. v. TnJiub. of Oxford, 13 East, 416.) A new trial will be granted on the ground of surprise. R. v. Whitehouse, Dears. ('. 0. R. 1. It must be moved within the first four days of term. R. v. Neivman, 1 E. & R. 268; 22 L. J., Q. R. 156. Where several defendants are tried at the same time for a misdemeanor, and some are acquitted and others convicted, the court may grant a new trial as to those convicted, if they think the conviction improper. R. v. Mawbey, 6 T. R. 619 ; R. v. Gompertz, 9 Q. R. 824 ; 16 L. J., Q. R. 121. It is a rule that all the defendants convicted upon an indictment for a misdemeanor must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. R. v. Teal, 11 East, 307; R. v. Askew, 3 M. & S. 9. In R. v. Caudwell, 2 Den. C. C. R. 372 (n) ; 21 L. J., M. C. 48, the defendant had been convicted of perjury, and sentenced to seven years' trans- portation. On application on his behalf being made for a new trial, Campbell, C. J., inquired whether the defendant was present or in custody; and being answered in the negative, the court refused to hear the motion, the Chief Justice saying, " I have always considered it to be a hardship, where there are several defendants who have been found guilty on an indictment, not to allow one of them to move for a new trial, unless all the other defendants are present when the motion is made. But there can be no such hardship when there is but one defendant. In this case pecu- liarly, the defendant ought to be in court. Sentence has been passed, which he has hitherto evaded ; and the court will not permit him to make the experiment of obtaining a new trial, without coming into court to abide the consequences in case we should refuse the rule." Where the defendant is liable to a fine only, it is not necessary that he should be present in court. R. v. Parkinson, 2 Den. C. C. R. 459 ; 21 L. J., M. C. 48 (»). No new trial can be had when the defendant is acquitted, although the acquittal was founded on the misdirection of the judge ; R. v. Jacob, 1 Stark. N. P. 516; R. v. Sutton, 5 R. <£• Ad. 52; or where a verdict is found for a defendant on a plea of autrefois acquit, although that raises a collateral issue which may have been found in favour of the defendant on insufficient evidence. R. v. Lea, 2 Moo. C. C. R. 9; 7 C. & P. 836; 3 Russ. Cri. 354, 6th ed. In R. v. RusseU, 3 E. & B. 942; 23 L. J., M. C. 173, Coleridge, J., was of opinion that whenever the substance of a criminal proceeding is civil, a new trial may be granted after a verdict for the defendant, on the ground either of misdirection or of the verdict being against the evidence : but Campbell, C. J., and Crompton, J., con- sidered that the practice as to granting a new trial in a criminal case, after a verdict for the defendant, did not extend to the case where the defendant, if found guilty, might suffer fine and imprisonment : and they therefore held, that where an indictment charged the defendant with erecting an obstruction to the navigation of the Menai Straits, and the right to an oyster fishery was in question, the court ought not to grant a new trial after a verdict for the defendant. R. v. Johnson, 29 L. J., M. C. 133. Upon a trial of an indictment for obstructing a highway, the defendant was acquitted ; and it was held that a new trial on the ground of mis- reception of evidence, misdirection, and that the verdict was against evidence, could not be granted. R. v. Duncan, 7 Q. R. D. 198 ; 50 L. J., M. C. 95. See post, tit. Highways. ' 'ourt for Crown Cases Reserved. 207 Court for Crown Cases Reserved.'] It must be borne in mind that if any evidence not legally admissible against the prisoner is left to the jury, and they find him guilty, the conviction is bad, notwithstanding that there is other evidence sufficient to warrant it. H. v. Gilson, 18 Q. />'. />. 537 ; 56 L. J., M. C. 49; Connor v. Kent, (1891) 2 Q. /,'., at pp. 547, 556 ; 61 L. J., M. C. 9 ; Makins v. AU.-Gen. of V. S. If'., (1894) A. C. 57 ; 63 L. J., /'. C. 41. By 11 & 12 Vict. c. 78, s. 1, "when any person shall have been con- victed of any treason, felony, or misdemeanor, before any court of oyer and terminer or gaol delivery, or court of quarter sessions, the judge, or commissioner, or justice of the peace before whom the case shall have been tried, may, in his or their discretion, reserve any question of law which shall have arisen on the trial for the consideration of the justices of either bench and barons of the exchequer" (see now 44 & 45 Vict. C. 68, s. 15, post, p. 208), "and thereupon shall have authority to respite execution of the judgment on such conviction, or postpone the judgment, until such question shall have been considered and decided, as he or they may think fit ; and in either case the court in its discretion shall commit the person convicted to prison, or shall take a recognizance of bail, with one or two sufficient siueties, and in such sum as the court shall think fit, conditioned to appear at such time or times as the court shall direct, and receive judgment, or to render himself in execution, as the case maybe." By s. 2, " That the judge or commissioner, or court of quarter sessions, shall thereopon state, in a case signed in the manner now usual, the question or questions of law which shall have been so reserved, with the special circumstances upon which the same shall have arisen ; and such case shall be transmitted to the said justices and barons ; and the said justices ami barons" (see now 44 & 45 Vict. c. 68, s. 15, post, p. 208), "shall thereupon have full power and authority to hear and finally determine the said question or questions, and thereupon to reverse, affirm or amend any judgment which shall have been given on the indictment or inquisition on the trial whereon such question of questions have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the said justices and barons the party convicted ought not to have been convicted, or to arrest the judgment, or order judgment to he given thereof at some other session of oyer and terminer or gaol delivery or other sessions of the peace, if no judgment shall have been before that time given, as they shall he advised, or to make such other order as justice may require ; and such judgment and eiiler, if any, of the said justices and barons shall be certified under the hand of the presiding chief justice or chief baron to the clerk of assize or his deputy, or to the clerk of the peace or his deputy, as the case may be, who shall inter the same on the original record in proper form ; and the certificate of such entry under the hand of the clerk of assize or his deputy, or the clerk of the pence or his deputy, as the case may be, in the form, as near as may he, . 357. In II. v. Clark, the objection was, not to the indictment, but to the sufficiency of the proof, which seems to distinguish the case from R. v. Brown, where the objection was to the indictment. In the latter case the indictment was in fact read to the prisoner, and he might have objected to it, and the Court for Crown I 'a sos Reserved held that the objection was in effect taken, and that, therefore, they had jurisdiction to entertain the case, as it was a point arising at the trial. In R. v. Mellor, Dears. & /!. C. C. 468, the prisoner was found guilty of murder, and sentenced to death ; the foUowing day it was discovered that J. II. T. had been called as one of the jury to try the case, but that AV. T. had. by mistake, answered to that name and had been sworn by it. Wightman, J., respited execution, and reserved the point for the con- sideration of the court; seven judges out of fourteen who were present held that this was nol a question of law arising at the trial over which the court had jurisdiction. See supra, p. 188. In this case it was doubted whether the court had power to order a venire '. 01 ; in which case the court refused to send hack the case for amendment. The court will look at the indictment for the purpose of assisting their judgment, although it he not sd out in the case; R. v. Williams, 2 Den. 0. C. 01 ; 20 /.. ./., .1/. C. 100; but they wiU not consider an objection which has not been reserved, even though it be fairly de- ducible from the case itself, nor will they go into any matter of evidence which occurred at the trial, if it is not stated in the case. 1'. \. Smith, Temp. (ft .1/. 214; 14 Jur. 92. Where there are two judges of assize, ami the one of them, who tries a criminal case, reserves a point for the con- sideration of the Court of Criminal Appeal, hut dies before the case is stated, the other judge may state and sign the case. /,'. v. Featherstone, Dears. C. C. 369 ; 23 /.. ./..' .1/. C. 127. The Court of Criminal Appeal has no power to order the costs of the prosecution incurred by the case being reserved. II. v. Dolan, Dears. C. C. 436; 24 /.. ./., .1/. C. 59; R. v. Hornsea, Dears. C. C. 291. Bui in //. v. Cluderoy, 3 C. & A". 205, Williams, J., held that he had power, under the 7 Geo. 4, c. 04. s. 22, infra. to allow the costs of the prosecution in such a case reserved. In A'. \. Lewis, 1 JDear8. & B. C. C. 227, this was confirmed, ami Coekhurn, C. J.. said, "We think it would he convenienf that the officer of this conn should examine into costs, incurred in this court ; and although this certi- R. • '' 210 Court for Crown Cases Reserved. ficate cannot, in law, bind the taxing officer below, yet we have no doubt those officers will accept and consider as binding the certificate of the experienced officer of this court." The invariable practice of this court is for the defendant's counsel to begin. 11. v. Gate Fulford, Dears. & B. C. C. 74. Where a case reserved has been restated by order of the court, an appbeation supported by affidavit to have it again restated will be refused. II. v. Studd, 4 W. R. 806. By the Judicature Act, 1875 (38 & 39 Vict. c. 77), s. 19, it is enacted that, subject to the first schedule (of the Act) and any rules of court to be made under this Act, the practice and procedure in all criminal causes and matters whatsoever in the High Court of Justice and in the Court of Appeal respectively, including the practice and procedure with respect to Crown Cases Reserved, shall be the same as the practice and procedure in similar causes and matters before the commencement of this Act. By the interpretation clause, s. 100, of the Act of 1873, " Crown < 'ases Beserved" shall mean such questions of law reserved in criminal trials as are mentioned in the Act of the 11 & 12 Vict. c. 78; see also sect. 15 of the Act of 1881 (44 & 45 Vict. c. 68, ante, p. 208) as to the constitution of the court. By s. 47 of the Act of 1873, " the determination of any such question of law arising in criminal trials by the judges of the said High Court in manner aforesaid shall be final and without appeal, and no appeal shall lie from any judgment of the said High Court in any criminal cause or matter, save for some error of law apparent upon the record as to which no question shall have been reserved for the considera- tion of the said judges under the 11 & 12 Vict. c. 78. See R. v. Steele. 2 Q. H. J). 37 ; 46 L. J., M. C. 1 ; R. v. Fletcher, 2 Q. Jt. D. 43; 46 L. J., M. C. 4. 5. COSTS. Costs in cases of felony.'] At common law there was no provision for the payment of costs in criminal cases. By the 7 Geo. 4, c. 64, s. 22 : — " The court, before which any person shall be prosecuted or tried for any felony, is hereby authorized and empowered, at the request of the prose- cutor, or of any other person who shall appear on recognizance or subpoena to prosecute or give evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses which such prosecutor shall incur in preferring the indictment, and also payment to the prosecutor and witnesses for the prosecution, of such sums of money as to the court shall seem reasonable and sufficient to reimburse such prose- cutor and witnesses for the expenses they shall severally have incurred in attending before the examining magistrate or magistrates and the grand jury, and. in otherwise carrying on such prosecution ; and also to com- pensate them for their trouble and loss of time therein ; and although no bill of indictment be preferred, it shall still be lawful for the court, where any person shall, in the opinion of the court, bond fide have attended the court in obedience to any such recognizance or subpoena, to order payment unto such person of such sum of money as to the court shall seem reason- able and sufficient to reimburse such person for the expenses which he or she shall bond fide have incurred, by reason of attending before the examining magistrate or magistrates, and by reason of such recognizance or subpoena, and also to compensate such person for trouble and loss of time, and thf amount of expenses <;/' attending before the examining magistrate or magistrates, and the compensation for trouble and loss of time therein shall be ascertained by the certificate of such magistrate or magistrates granted before the trial or attendance in court, if such magistrate or Coats. 211 magistrates shall think lit to grant the same ; and the amount of all the other expenses and compensation shall be ascertained by the proper officer < if the court, subject nevertheless to the regulations to he established in the manner hereinafter mentioned." By the 19 Vict. c. 16, s. 13, the expenses of a prosecution removed into the Centra] Criminal Court under that Act may be ordered by that court to be paid, in the same way as if that court were holden under a commis- sion of oyer and terminer and gaol delivery for the county or place in which the indictment was found. By s. 2"), when the trial at the ( lentral Criminal Court is obtained by the crown, a sum not exceeding 20/. may be ordered by the ( 'ourt of Queen's Bench, or by a- judge in vacation, to be paid by the Treasury to the person charged with the offence, to defray the charges and expenses of the attendance of his witnesses. By s. 2d*. the Central Criminal Court may order reimbursement to be made to any person tried before that court under the provisions of the Act, and who shall be acquitted, "of such sum as shall appear to them to have been properly expended for such removal of the trial of such person." It has been much doubted whether, under the 7 Geo. 4, c. 04, s. 22, upon which most of the other statutes depend, any costs can be awarded to a prosecutor or witness who had not been bound over or subpoenaed. Where, however, the prisoner had been apprehended under a bench warrant, and neither the prosecutor nor any of the witnesses were under recognizance to prosecute or to give evidence, and only one of the latter had been subpoenaed, Parke, 1!.. said that on comparing the words of the 7 Ceo. 1, c. 64, s. 22, relating to felonies, with those of the subsequent section, relating to misdemeanors (s. 2.'>), it appeared to him that the court had authority in prosecutions for felony to award the prosecutor his costs, even although he was not under any recognizance ; and his lordship accordingly granted the costs of the prosecution generally, including those of the witnesses. //. v. Butterwick, 2 Moo. & It. 196. This section is extended by the 29 iV. 150 Vict. c. 52, to expenses incurred in attending before an examining magistrate, although the parties may not be bound over by recognizance or subpoena, and although no committal for trial may take place. But a person not bound over, and who is not the prose- cutor, but who assists in getting up a prosecution, is not entitled to any costs. II. v. Coole, 1 F.& /■'. 389; It. v. Yates, 7 Cox, 361. In A', v. Bushel!; Id Cox, 367, a wife was allowed the' costs of her prosecution againsl her husband for assault, although she was not bound over to prosecute, the clerk to the magistrate having bound over the police to prosecute. It seems that in general no costs will he allowed before the trial has taken place; as when it is postponed. It. v. Hunter, 3 C. & P. -391. However, in a case of murder, which was postponed until the following assizes on the application of the prisoner, and in which the costs of the prosecution were very heavy, Alderson, 1!., made an order for their pay- at. R. \. Bolam, Newc. Spr. Ass. 1839, MS. ; S. C. 2 Moo. & It. 192. where, however, (lie point is not reported. So where a trial for murder was postponed, as the prisoner had been removed to a lunatic asylum. Pollock, ( '. 15.. did nol allow the costs; hut at the next assizes, on an allidavit of 1 1n 1 prisoner being in a hopeless state of insanity, Paterson, J., allowed the costs and bound over the witnesses. I!, v. Dwerryhouse, 2 Cox, 446. And where on an indictmenl lor felony in administering noxious drugs to procuie abortion, an essential witness was ill and the trial was postponed, costs were allowed by Lush, J., upon an affidavil by the prosecutor thai he had paid 12?., birl that he was poor and quite unable to defray any further expenses. It. v. Wilson, 12 <'<>.r. 622, and r 2 212 CosU. li. v. Dooley, in the note. By the 33 & 34 Vict. c. 23, s. 3, the court by which judgment is pronounced may condemn any person convicted of treason or felony to payment of the costs of the prosecution, such payment to be made out of the moneys taken from the prisoner or to be enforced by the party in the usual way in which costs are enforced in civil actions ; and see s. 4 as to compensation for injury to property, ante, p. 199. An order under this section is valid, notwithstanding that the prisoner was adjudged bankrupt between the arrest and the conviction, li. v. Roberts, L. JR., 9 Q. 11. 77 ; 43 L. J., M. C. 17. But it is doubtful whether the court could make the order where there was an act of bankruptcy before the arrest. As to costs under the Probation of First Offenders Act. see ante, p. 200. As to " Costs of the accused," see post. Costs in cases of misdemeanor.'] There is no general provision for the payment of costs in cases of misdemeanor, but in the case of nearly every misdemeanor of common occurrence it is specially provided for. By the 7 Geo. 4, c. 64, s. 23, it is enacted that " where any prosecutor or other person shall appear before any court, on recognizance or subpoena, to pro- secute or give evidence against any person indicted for any assault with intent to commit felony — of any attempt to commit felony — of any riot-- of any misdemeanor for receiving stolen property knowing the same to have been stolen — of any assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer, or of any neg- lect or breach of duty as a peace officer — of any assault committed in pursuance of any conspiracy to raise the rate of wages — of knowingly and designedly obtaining any property by false pretences — of wilful and indecent exposure of the person — of wilful and corrupt perjury, or of sub- ornation of perjury — every such court is hereby authorized and empowered to order payment of the costs and expenses of the prosecutor and witnesses for the prosecution, together with a compensation for their trouble and loss of time, in the same manner as courts are hereinbefore authorized and empowered to order the same in cases of felony ; and although no bill of indictment be preferred, it shall still be lawful for the court, where any person shall ha\e.bo7ia fide attended the court in obedience to any such recognizance, to order payment of the expenses of such person, together with a compensation for his or her trouble and loss of time, in the same manner as in cases of felony. Extended by 29 & 30 Vict. c. 52, see supra. By the 14 & 15 Vict. c. oo, s. 2, the power of coiu'ts to allow expenses of prosecutions is extended to the following misdemeanors, namely. " unlawfully taking or causing 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 care or charge of her — conspiring to charge any person with any felony, or to indict any person of any felony — conspiring to commit any felony." Extended by 29 & 30 Vict. c. 52, see supra. By sect. 18 of 48 & 49 Vict. c. 69, the court before which any misde- meanor indictable under the Act, or any case of indecent assault, shall be prosecuted or tried may allow the costs of the prosecution in the same manner as in cases of felony, and may, in like manner, on conviction, order payment of such costs by the person convicted. By the 24 & 25 Vict. c. 100, s. 74, "where any person shall be con- victed on any indictment of any assault, whether with or without battery and wounding, or either of them, such person may, if the court think tit, in addition to any sentence which the court may deem proper for the offence, be adjudged to pay to the prosecutor his actual and necessary Costs. 213 costs and expenses of the prosecution, and such moderate allowance for the loss of time as the court shall by affidavit or other inquiry and exami- nation ascertain to be reasonable ; and unless the sum so awarded shall be sooner paid, the offender shall be imprisoned for any term the court shall award, not exceeding three months, in addition to the term of imprisonment (if any) to which the offender may be sentenced for the offence." By sect. '">. "the court may, by warrant under hand and seal, order such sum as shall be so awarded, to be levied by distress and sale of goods and chattels of the offender, and paid to the prosecutor, and that the surplus, if any, arising from such sale shall he paid to the owner; and in case such sum shall he so levied, the imprisonment awarded until payment of such sum shall thereupon cease." By th<' 24 t \; 25 Vict. c. 100 (Offences against the Person Act), s. 77, •■ the court, before whom any misdemeanor indictable under the provisions of this Act shall be prosecuted or tried may allow the costs of the pro- secution in the same manner as in cases of felony, and every order for the payment of such costs shall he made out, and the sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in :al! respects as in cases of felony." Tt seems, therefore, that in the case of a prosecution for common assault the costs cannot he granted by the court except as against the prisoner, under s. 74. See 1 Rus8. Cri., !)4, (\th ed. In It, v. Waldron, IS Oox, 373, however, Grantham, J., held that the court had power under s. 77 to allow costs where a prisoner was convicted of common assault. If a person committing an indictable offence by night is apprehended under M iV. 15 Vict. c. 19, s. 11. and assaults the person who apprehends him, or any of that person's assistants, and is convicted of such assault under s. 12. the costs of the prosecution may he allowed as in cases of felony, under s. 14. (As to costs in casesof prosecutions by guardiansfor assaults, &c, xeepost, tit. Assault.) By the 24 & 25 Vict. c. 96 (the Larceny Act), s. 121. the 24 Vict. c 98 (the Forgery Act}, s. -VI, similar provisions to the 2.4 & 25 Vict. c. 100, s. 77, are made with respect to indictable misdemeanors against those Acts. By the 24 & -I.; Vict. c. iti) (Offences relating to the Coin), s. 42, in all prosecutions for any offence against this Act in England, which shall he conducted under the direction of the solicitors of her majesty's treasury, the court before which such offence shall be prosecuted or tried shall allow t In' expenses of the prosecution in all respects as in cases of felony ; and in all prosecutions for any such offence in England which shall not be so conducted, it shall be lawful for such court, in case a conviction shall take place, but not otherwise, to allow the expenses of tile prosecution in like manner; and every order for the payment of such costs shall be made out. and tin' sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in all respects as in cases of felony. The payment of expenses of prosecutions for misdemeanors removed into the Centra] Criminal Court, under the 10 Vict. c. 16, are provided for by s. 13 of that Act: supra, p. 211 ; see also ss. 2.") and 20. By the .")7 iV 58 Vict. c. 00. s. 687, the costs of prosecutions against British seamen for offences committed ashore or afloat in places out of her Majesty's dominions may be ordered to be paid "as in the case of costs and expenses of prosecutions for offences committed within the jurisdiction of the Admiralty of England." See -<. 700 and 701 and 7 < ieo. 4, c. 04. s. 22. 214 Costs. In prosecutions relating to highways, the court has power under 5 & G Will. 4, c. 50, s. 9S, to order the costs of the prosecution to be paid where the defence is frivolous. See post, tit. Highways. The provisions are somewhat complicated, and are too long for insertion in this place. See Shelford on Highways, pp. 93, 158. Under the Debtor's Act. 1869 (32 & 33 Vict. c. 62, s. 17), " Where the prosecution of the bankrupt under this Act is ordered by any court, then on the production of the order of the court, the expenses of tin'' prosecution shall be allowed, paid, and borne as expenses for prosecutions for felony are allowed, paid, and borne." Under the 34 & 35 Vict. c. 31 (The Trade Union Act, 1871), and by s. 12, sub-s. 5, of the Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), the Court of Quarter Sessions may, on appeal from the Court of Summary Jurisdiction, "make such order as to costs to be paid by either party as the court thinks just." Costs under the Corrupt Practices Act, 1883 (4G & 47 Vict, c. 51), are regulated by s. 57 of that Act. Under the Merchandize Marks Acts, 1887, see 50 & 51 Vict. c. 28, s. 14, and 54 Vict, c. 15, s. 2; the Public Bodies Corrupt Practices Act, 1889, see 52 & 53 Vict, c. 69, s. 5 ; the Official Secrets Act, 1889, see 52 & 53 Vict. c. 52, s. 4. Under the Prevention of Cruelty to Children Act (57 & 58 Vict. c. 41), s. 20, the expenses of the prosecution are to be defrayed in like manner as in the case of a felony ; and by s. 21, the guardians of the poor may pay the reasonable expenses of any proceedings which they have directed to be taken. In misdemeanors, the expenses of witnesses who have not been sub- poenaed cannot be allowed. /,'. v. Dunn, 1 C. & K. 730. And it is very doubtful indeed whether the costs of a prosecutor, not bound over to prosecute, can be granted; 11. v. Jeyes, 3 A. & J:'. 416; from which it would seem they cannot ; and see It. v. Buttemvick, supra, p. 211. But if the prosecutor's name be included in a subpoena, they may. 7,'. v. Sheering, 7 G. d- J'. 440. In the case of misdemeanors not provided for by statute, if the defen- dant submits to a verdict on an understanding that he shall not be brought up for judgment, the prosecutor is net, without a special agreement, entitled to costs. 11. v. Rawson, 9 B. & G. 598. As to costs upon postponement of trial, see ante, p. 211. Costs of the arci(seJ.~\ By the 30 & 31 Vict. c. 35, s. 2, provision is made for the payment by the prosecutor of the costs of the accused in the case of certain vexatious indictments where he is acquitted. The public prosecutor stands by virtue of 42 & 43 Vict. c. 22, s. 7, in the same position with regard to costs as a private prosecutor, and may lie ordered to pay the costs of the accused, but only if the original prosecutor lias given security for costs. Stubbs v. Director of Public Prosecutions, 24 <>. 11. I>. 577; 59 A. -/., (>. 11. 201. /,'. v. Stubbs, 16 Cox, 219. And by ss. 3, 5, witnesses for the accused maybe allowed their expenses whenever they give material evidence in his favour (except as to character) in the opinion of the justice, and have been bound over by him. See the statute in the Appendix. Rewards for tin- apprehension of offenders.] By the 7 Geo. 4, c. 64, s. 28, 'Where any person shall appear to any court of oyer and terminer, gaol delivery, superior criminal court of a county palatine, or court of great sessions, to have been active in or towards the apprehension of any person charged with murder, or with feloniously and maliciously shooting at, or attempting to discharge any kind of loaded firearms at any other person. Costs. 215 or with stabbing, cutting, or poisoning, or with administering anything to procure the miscarriage of any woman, or with rape, or with burglary, or felonious house-breaking, or with robbery on the person, or with arson, or with horse-stealing, bullock-stealing, or sheep-stealing, or with being accessory before the fact to any of the offences aforesaid, or with receiving any stolen property, knowing the same to have been stolen, every such court is hereby authorized and empowered, in any of the eases aforesaid, to order the sheriff of the county in which the offence shall have been committed to pay to the person or persons who shall appear to the court to have been active in or towards the apprehension of any person charged with any of the said offences, such sum or sums of money as to the court shall seem reasonable, and sufficient to compensate such person or persons for his, her, or their expenses, exertions, and loss of time, in or towards such apprehension; and where any person shall appear to any court of sessions of the peace, to have been active in or towards the apprehension of any party charged with receiving stolen property knowing the same to have been stolen, such courts shall have power to order compensation to such persons in the same manner as the other courts hereinbefore men- tioned ; provided always, that nothing herein contained shall prevent any of the said courts from also allowing to any such persons, if prosecutors or witnesses, such costs, expenses and compensation, as courts are by this Act empowered to allow to prosecutors and witnesses respectively." By the 14 & 15 Vict. c. oo y the power of the court of sessions in this particular is extended to all the offences mentioned in 7 Geo. 4, c. 64, s. 28, "which such sessions may have power to try," and " provided that such compensation to any one person shall not exceed the sum of five p muds, and that every order for payment to any person of such compen- sation be made out and delivered by the proper officer of the court unto such person without fee or payment for the same. It was held by Ilullock, IS., that the case of sacrilege was not included in the above section, not coining within the words burglary or house- breaking. It. v. Robinson, 2 Lew. C. ('. 129. Bui on the authority of this case, Holland, B., refused a similar application, though both he and Parke, B., would otherwise have been disposed to put a different construc- tion upon the statute. lb. But where a woman was indicted for an attempt to murder her child by suffocating it, Patteson, J., allowed the c instable his extra expenses in apprehending the prisoner, being of opinion that the case was within the spirit and intention of the foregoing clause, though iml within the words. /,'. \. Durkin, 2 Lew. <'. C. HJ.'J. It has been held, however, by Maule, J., that a stealing from the person is not within the words "robbery on the person." It. v. Thompson, Vork Spr. Ass. 1845, MS. Under the word "exertions" in the above clause, Parke, B., ordered a prosecutor a gratuity of five pounds for his courage in apprehending the prisoner. //. v. Womersly, 2 Lew. <'. <'. 162. By the stat. 7 Geo. 4. c. 64, s. 29, "Every order lor payment to any person, in respect to such apprehension as aforesaid, shall he forthwith made out and deli\ ered by the proper officer of the court unto such person, upon being paid tor the same the sum of five shillings and no more ; and the sheriff of the county for the time being is hereby authorized and required, upon sight of such order, forthwith to pay such person, or to any one duly authorized on his or her behalf, the money in such order mentioned; and every such sheriff may immediately apply for repayment of the same to the commissioners of his majesty's treasury, who, upon inspecting such order, together with the acquittance of the person entitled to receive the money thereon, shall forthwith order repayment to the sheriff of the money so by him paid, without any fee or reward whatsoever." 216 ( 4. s. 30, "H any man shall happen to be killed in endeavouring to apprehend any person who shall lie charged with any of the offences hereinbefore last mentioned [in sect. 28], it shall he lawful for the court, before whom such person shall be tried, to order the sheriff of the county to pay to the widow of the man so killed, in case he shall have been married, or to his child or children, in case his wife shall he dead, or to his father or mother in case he shall have left neither wife nor child, such sum of money as to the court in its discretion shall seem meet : and the order for payment of such money shall be made out and delivered by the proper officer of the court unto the party entitled to receive the same, or unto some one on his or her behalf, to be named in such order by the direction of the court, and every such order shall be paid by and repaid to the sheriff in the manner hereinbefore mentioned" [in the 29th section]. 'enue. 21' VENUE. 14 tfc 15 Vict. c. 100, s. 2:5.] In general, the offence must on the face of the indictment appear to have been committed within the jurisdiction of the court before whom the prisoner is tried: and if it appear by the evidence that the venue of the offence, i.e., the place where it was com- mitted, is not the same as that mentioned in the indictment, the variance unamended would be fatal. But the strictness of this rule lias been modified in various ways, so that of late years but little attention has been paid to questions of venue ; this and the number of provisions scattered through various Acts of parlia- ment relating to this subject render such questions, when they do arise, very difficult of solution. Formerly, it was necessary in the narrative of the offence itself to show the venue ; now, by the 14 & 15 Vict. c. 100, s. 23, it is enacted, that " it shall not be necessary to state any venue in the body of any indictment; but the county, city, or other jurisdiction named in the margin thereof shall be taken to be the venue for all the facts stated in the body of such indictment ; provided that, in cases where local description is or hereafter shall be required, such local description shall be given in the body of the indictment; and provided also, that where an indictment for an offence committed in the county of any city or town corporate shall be preferred at the assizes of the adjoining county, such county of the city or town shall bedeemedthe venue, and may either be stated in the margin of the indictment, with or without the name of the county in which the offender is to be tried, or be stated in the body of the indictment, by way of venue." By s. 21 of the same Act. no indictment for any offence shall beheld insufficient for want of a proper or perfect venue. See the statute in the Appendix. By a previous section of the same statute, s. 1. supra, p. 182, power is given to tlic court in any indictment for felony or misdemeanor to amend a variance "in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described in such indictment." The effect of these provisions appears to be that only two objections are now of much importance with respect to the venue. First, that on the face of the record it appears that the court has no jurisdiction ; secondly. that the evidence shows that the court has no jurisdiction. And even the first of these objections may sometimes be got over by an exercise of the above pow er of amendment. If it appears upon the face of the record that the court has no jurisdic- tion a conviction cannot be sustained without amendment, notwithstanding that tlie court really had jurisdiction to try the offence. A', v. Mitchell, 2 Q. /;. 636. Offences committed on tin boundary of counties, <>r jntrt/i/ in one county and partly in another.] By the 7 Geo. 1, c. 64, s. 12, " where any felony or misdemeanor shall be committed on the boundary or boundaries of two or 2 18 Venue. more counties, or within the distance of five hundred yards of any such boundary or boundaries, or shall be begun in one county and completed in another, every such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished, in any of the said counties, in the same manner as if it had been actually and wholly committed therein." It has been held, that the section does not extend to trials in limited jurisdictions, but only to county trials. 11. v. Welsh, 1 Moody, 0. U. 17-3. Xor does it enable the prosecutor to lay the offence in one county and try it in another ; but only to lay and try it in either. II. v. Mitchell, 2 Q. 11. 636. It applies to offences which are local in their nature, such as bur- glary, as well as to larcenies and other transitory felonies. II. v. Ruck, Hereford tipr. Ass. LS29; 2 Russ. Cri. 46, Gt/i ed. Questions frequently arise as to whether any material part of an offence has been committed in a particular county where the trial is had, and instances will be found post, tits. Embezzlement, False Pretences, and Larceny. Offences committed in detached parts of counties.] By the 2 & 3 Yict. c. 82, s. 1, justices of the peace for any county may act as justices in all things relating to any detached part, of any other county, which is sur- rounded in whole or in part by the county for which such justices act, and all offenders in such detached part may be committed for trial, tried, con- victed and sentenced, and judgment and execution may be had upon them, in like manner as if such detached part were to all intents and purposes, part of the county for which such justices act. It has been held that the grand jury for the county which wholly sur- rounds a detached part of another county, may find an indictment for an offence committed in such detached part, and that the prisoner may be tried by a jury of such surrounding county. R. v. Louder, 1 Russ. < 'ri . 7, (ith ed. Offences committed on persons or property in coaches employed, on journeys, or in vessels employed in inland navigation.] The 7 Geo. 4, c. 64, s. 13, enacts, "that where any felony or misdemeanor shall be committed on any person, or on or in respect of any property in or upon any coach, waggon, cart, or other carriage whatever, employed in any journey, or shall be committed on any person, or on or in respect of any property on board any vessel whatever, employed in any voyage or journey upon any navigable river, canal, or inland navigation, such felony or misdemeanor may be dealt with, inquired of, tried, determined, and punished in any county through any part whereof such coach, waggon, cart, carriage, or vessel shall have passed in the course of the journey or voyage, during which such felony or misdemeanor shall have been committed, in the same manner as if it had been actually committed in such county ; and in all cases where the side, centre, or other part of any highway, or the side, bank, centre or other part of any such river, canal, or navigation shall constitute the boundary of any two counties, such felony or misdemeanor may be dealt with, inquired of, tried, deter- mined, and punished in either of the said counties through or adjoining to or by the boundary of any part whereof such coach, waggon, cart, carriage, or vessel shall have passed in the course of the journey or voyage, during which such felony or misdemeanor shall have been com- mitted, in the same manner as if it had been actually committed in such county." The offence must be committed "in or upon the coach," to bring it within the above Act ; therefore, where a guard of a coach, on changing horses near Penrith, carried a parcel to a privy, and, while there, took two Venue. 21if sovereigns from it. Parke, B., held, that he must be tried in Westmore- land. '//. v. Sharpe, 2 Lew. C. C. 233. Offences committed in the county of o. city or Unoii curporuie.^\ By the 38 Geo. .'>, e. ">2, a prosecutor may prefer his hill of indictment for any offence committed within the county of any city or town corporate, to the jury of the county next adjoining, and the offender may be there tried in the same way as if the offence had been committed in the county. Formerly the cities of London and Westminster, the borough of Kouth- wark, and the cities of Bristol, Chester, and Exeter, were exempted from the operation of this Act; but as to Bristol, Chester and Exeter, the exception is repealed by the \~> & •!(> Vict. c. 50, sched. <>. Now, by the 11 & 15 Vict. c. .">."). s. 1!>. " whenever any justice or justices of the peace, or coroner, acting for any county of a city or county of a town corporate within which, her Majesty has not been pleased for five years next before the passing of this Act to direct a com- mission of oyer and terminer and gaol delivery to be executed, and until her Majesty shall be pleased to direct a commission of oyer and terminer and gaol delivery to be executed, within the same, shall commit for safe custody to the gaol or house of correction of such county of a city or town any person charged with any offence committed within the limits of such county of a city or town not triable at the court of quarter sessions of tin- said county of ;i city or county of a town, the commitment shall specify that such person is committed pursuant to this Act, and the recognizances to appear to prosecute and give evidence taken by such justice, justices, or coroner, shall, in all such cases, be conditioned for appearance prosecu- tion, and giving evidence at the court of oyer and terminer and gaol delivery for the next adjoining county; and the justice, justices, or coroner, by whom persons charged as aforesaid may be committed, shall deliver or cause to be delivered to the proper officer of the court the several examinations, informations, evidence, recognizances, and inquisi- tions relative to such persons, at the time and in the manner that would bo required in ease such persons had been committed to the gaol of such. adjoining county by a. justice, or justices, or coroner having authority so to commit, and the same proceedings shall and may be had thereupon at the sessions of oyer and terminer or general gaol delivery for such adjoining county, as in the case of persons charged with offences of the like nature committed within such county." By s. 24, " for the purposes of this Act the counties named in the second column of schedule ( '. to ! he 5 & 6 Will. 1. C. 76, shall be considered next adjoining the counties of cities and towns corporate in the first column of the same schedule in conjunction with which they are respectively named." That is to say, Northumberland is the next adjoining county to Berwick-upon-Tweed and Newcastle-upon-Tyne; Gloucestershire to Bristol; Cheshire to Chester; Devonshire to Exeter; and Yorkshire to Kingston-upon-Hull. The same provision with respeel to 1 1 u ! ! and Newcastle is contained in the 38 Geo. :;. c. 52. By the 14 & 15 Vict. c. loo. s. 2:;. "where an indictment for an offence committed in the comity of any city or town corporate shall he preferred at the assizes of the adjoining county, such county of the city or town shall be deemed the venue, and may either he stated in the margin of the indictment, with or without the name of the county in which tic offender is to be tried, or he stated in the body of the indictment by way of \ enue." This is a. very clumsy provision; probably what it means is, that the offence maybe laid in the county corporate, and tried in the county adjoining; but that is exceedingly awkward, audit is better to follow 220 Venue. the direction given in Arch. I'r.. lot// ed. s p. 24. and state it tlius : " County of Chester (being the next adjoining county to the comity of the ■city of Chester), to wit." An important alteration has been made in the boundaries of some counties by the Boundary Act, 2 & 3 Will. 4, c. 64. and the Municipal Eeform Act, 5 & 6 Will. 4. c. 7/., .1/. ( '. 194), whether by a subject of this country or a foreigner, is within the jurisdiction of the court of admiralty. A', v. Lopez and A'. \ . Sattler, Bears. & I',. C. 0. 525J Whether or no at common law an offence committed on board a British ship within the dominions of a foreign state was cognizable in this country was thought doubtful, but it has been decided that even when such ship is within foreign dominions, if it be where great ships go, it is in effect upon the high seas, and the Admiralty have jurisdiction. /,'. v. Anderson, A. A'., 1 CO. I!. 161; 38 L. ./., M. C. 12, the offence having been committed oh the < iaronne, a river "where great ships go." In II. v. Garr, 10 Q. B. 1>. 7(5 : 52 A. ,/., M. 0. 12, it was attempted to distinguish the above case, on the ground that the basis of the decision was the fact that the person committing the offence was at the time a sailor serving on board the ship; but the court considered the distinction to be immaterial, holding tin; true principle to be that a person coming on board an English ship where the English law is reigning becomes entitled to our law's protection, and as a correlative becomes amenable to its jurisdiction. By the 57 & 58 Vict. c. (SO. s. <>N7, "all offences against property or person, committed in or at any place, either ashore or afloat, out of her Majesty's dominions 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, shall be deemed to be offences of the same nature respectively and be liable to the same punishments respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if s>uch offences had been committed within the jurisdiction of the admiralty <>f England." There seems no express decision as to whether the jurisdiction of the court of admiralty extends at common law to offences committed by British subjects on board foreign vessels on the high seas. But it seems very doubtful whether an offence committed within the territorial limits of a foreign country by a subject of this country is cognizable by any of our courts, infra, p. 224 ; and, as the foreign ship is in law a part of the territory of the country to which it belongs, offence.-, committed on board her would seem to be equally excluded. Whatever may be the case with respect to British subjects on board foreign vessels on the high seas, it is clear that foreign subjects upon foreign vessels on the high seas are not subject to our jurisdiction (see A', v. Keyn, infra), though they are so when they enter our English rivers, &c. A', v. Cunningham, supra. It was sought to extend the jurisdiction of the admiralty beyond the rivers, &C, to three miles below low water mark, in A', v. Keyn (The Pranconia), 2 Ex. />. 63; -Hi A. ■/.. M. 0. 17, 63, and by 41 & 42 Vict. c. 73, an indictable offence committed either by a British or foreign subject on the open sea within the three-miles limit, is within the jurisdiction of the Court of Admiralty. In the case of a foreigner the certificate of the secretary of state to the effeel that it is expedient that proceedings should he instituted must first he obtained. The rule that the ship is pari of the territory of the state to which she belongs (-eases t<> operate as regards a private ship as soon as she enters the part of the sea which is infra dominium of any other sovereign. But public ships, even in a Eoreign port, are still considered as coming within the rule ; so that offences on board these are offences against the muni- cipal law of the country to which the ship belongs, and in this country •222 Venue. such an offence would at common law be cognizable by the court of admiralty. By engaging in piracy a person becomes hostis humani generis, and for- feits all claim to protection from bis own country. Any country, there- fore, may assume to punish him, whether he be a subject of that country or not, and wherever the offence is committed. In England this offence ■conies within the jurisdiction of the admiralty court. As to offences against the customs, see tit. Smuggling. Offences committed within the jurisdiction of the admiralty — where tried. ~\ By the Central Criminal Court' Act, 4 & 5 Will. 4, c. 36, s. 22, "it, shall and may be lawful for the justices and judges of oyer and terminer and gaol delivery, to be named in and appointed by the commission to be issued under the authority of this Act or any two or more of them to inquire of. hear or determine any offence; or offences committed, or alleged to have been committed on the high seas, or other places within the jurisdiction of the admiralty of England, and to deliver the gaol of Xewgate of any person or persons committed to, or detained therein for any offence or offences alleged to have been done or committed upon the high seas within the jurisdiction of the admiralty of England; and all indictments found and trials and other proceedings had and taken by and before the said justices and judges shall be valid and effectual to all intents and purposes whatsoever." A more general provision was subsequently made by the 7 & 8 Vict, c. 2, which enacts by s. 1, "that her Majesty's judges of assize or others her Majesty's commissioners, by whom any court shall be holden under any of her Majesty's commissions of 03-er and terminer and general gaol delivery, shall have, severally and jointly, all powers which by any Act are given to the commissioners named in any commission of oyer and terminer for the trying of offences committed within the jurisdiction of the admiralty of England, and to deliver the gaol within every county .and franchise within the limits of their several commissions of any person committed or imprisoned therein for any offence alleged to have been committed on the high seas and other places within the jurisdiction of the admiralty of England; and all indictments found, and trials and other proceedings had by and before the said justices and commissioners shall be valid." By s. 2, " in all indictments preferred before the said justices and commissioners under this Act the venue laid in the margin shall be the same as if the offence had been committed in the county where the trial is had : and all material facts, which in other indictments would have been averred to have taken place in the county where the trial is had, shall in indictments preferred under this Act be averred to have taken place on the high seas." By the 21 & 25 Vict. c. 96 (the Larceny Act), s. 115, " all indictable offences mentioned in this Act which shall be committed within the juris- diction of the admiralty of England or Ireland shall be deemed to be offences of the same nature, and liable to the same punishments, as if they had been committed upon the land in England or Ireland, and may be dealt with, inquired of, tried and determined in any county or place in which the offender shall be apprehended or be in custody ; and in any indictment for any such offence, or for being an accessory to any such offence, the venue in the margin shall be the same as if the offence had been committed in such county or place, and the offence itself shall lie averred to have been committed on the ' high seas ' ; provided that nothing herein contained shall alter or affect any of the laws relating to the government of her Majesty's land or naval forces." Venue. '12',) The prisoner having stolen goods in a British ship on the high seas was afterwards apprehended and tried in the borough of Southampton, and it was held under the above section he was rightly tried there. It. v. Peel, A. cfc C. 231; 32 L. J., .1/. C. 65. The 24 & 25 Viet. c. 97 (malicious injuries to property), s. 72, contains precisely similar provisions: so also do the 24 & 25 Vict. c. 98 (forgery), s. .-»<>; the 2\ & 25 Vict. c. 99 (coinage), s. 36 ; and the 24 & 25 Vict. c. 100 (offences against the person), s. 68. By tlie 24 & 25 Vict. c. 94, s. 9, "where any person shall, within the jurisdiction of the admiralty (if England or Ireland, hecouie an accessory to any felony, whether the same he a felony at common law or by virtue of any Act passed or to he passed, and whether such felony shall be com- mitted within that jurisdiction or elsewhere, or shall be begun within that jurisdiction and completed elsewhere, or shall be begun elsewhere and completed within that jurisdiction, the offence of such person shall he felony; and in any indictment for any such offence the venue in the margin shall he the same as if the offence had been committed in the county or place in which such person shall he indicted, and his offence shall be averred tohave been committed ' on the high seas ' : provided that nothing herein contained shall alter or affect any of the laws relating to the governmenl of her .Majesty's land or naval forces." Offences committed part/// at sea a/a/ parti// on liut \ ict. c. 100, s. 10, it is enacted that. " where any person being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England or Ireland, shall die of such stroke, poisoning, or hurt in England or Ireland, or being feloniously stricken, poisoned, or otherwise hurt at anyplace in England or Ireland, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England or Ireland, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or id' being accessory to murder or manslaughter, may he dealt with, inquired of, tried, determined, and punished in the county or place in England or Ireland in which such death, stroke, poisoning, or hurt shall happen, in the sain • manner in all respects as if such offence had been committed in that county or place." This section would not apply to the ease of a person standing on the shore and firing a loaded musket at a cutter on the high seas, which would he an offence committed entirely within the jurisdiction of the admiralty; A', v. Coombe, 1 Lea, 0. C. 388; 1 East, I'. 0. 367; nor would it apply to the case of a foreigner feloniously struck by another foreigner on hoard a foreign ship, and dying on land in England, which is not an offence cognizable by our laws. II. v. Lewis, Dearsley & />'. 0. C. 182. Offences committed abroad."] It has already been said (supra, p. 221) that the question whether an offence committed by a. British subject in a foreign country is to he considered as an offence againsl the laws of this country, is one of some difficulty. Some information on this subjed may he derived from the American eases which are collected in the first volume of Kent's Comm., but it must be borne in mind that it is fully settled thai the criminal courts of that country have no common law jurisdiction, hut only such as is conferred upon them by the Acts of Congress. It may also he borne in mind that no principle of international law is in any way violated by the assumption of jurisdiction in these cases; for. of course, the British tribunal does not presume to act until the party 224 Venue. accused comes within the Queen's dominions, from which moment the question becomes one entirely of municipal law. In the case of B. v. Kohn, a Prussian ship's carpenter, conspired at Eamsgate with certain other Prussians to scuttle a Prussian ship, either on the high seas or on the bar of Eamsgate harbour. The ship was scuttled on the high seas. Kohn, the ship's carpenter, was indicted for a conspiracy to cast away the ship with intent to defraud the under- writers, and also (in another count) for a conspiracy with intent to defraud generally. The question left to the jury was, whether it was agreed and consented to by and between the prisoner and any other person at Eamsgate, that the ship should be destroyed whether at sea or in port. As the conspiracy in this case was in the alternative, namely, to scuttle either on the high seas, or on the bar, it does not expressly decide the question, whether a conspiracy in England to injure on the high seas is a crime when all the parties arc foreigners; but, upon principle, it would seem that such a conspiracy ought to be criminal, for a conspiracy may be a crime, although the act proposed to be done is not in itself a crime, and thus a conspiracy between foreigners in England to injure a foreigner out of the jurisdiction might be a crime against the law of England, though the injury itself might not be under the jurisdiction of English law, and in that sense not criminal. 11. v. Kohn, 4 F. & F. 68 ; R, v. Most, ■infra. To a certain extent the matter has been made the subject of legislation: for the ol & 58 Vict. c. 60, s. 6S7 (supra, p. 221), applies to offences- ashore as well as afloat ; and by the 24 & 2.3 Vict. c. 100, s. 9, it is enacted that •' where any murder or manslaughter shall bo committed on land out of the United Kingdom, whether within the Queen's dominions or without, and whether the person killed was a subject of her Majesty or not, every offence committed by any subject of her Majesty, in respect of any such case, whether the same shall amount to the offence of murder or of man- slaughter, or of being accessory to murder or of manslaughter, may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland in which such person shall be apprehended < >r be in custody, in the same manner in all respects as if such offence had been actually committed in that county or place ; provided that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any rnurder or manslaughter committed out of England or Ireland, in the same manner as such persons might have been tried before the passing of this Act." As to s. 4 of the above Act, see B. v. Moat, 7 Q. II. D. 244; oO L. J., M. (!. 113, post, tit. Conspiracy. By the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90), s. - 2, "The Act shall extend to all the dominions of her Majesty." By s. :>. • • This Act shall come into operation in the United Kingdom immediately on the passing thereof, and shall be pi'oclaimed in every British possession by the governor thereof as soon as may be after he receives notice of this Act, and shall come into operation in that British possession on the day of such proclamation." By s. 11, "If any person within the limits of her Majesty's dominions, and without the licence of her Majesty, prepares or fits out any naval or military expedition to proceed against the dominions of any friendly state the following consequences shall ensue : — Every person engaged in such preparation or fitting out or assisting therein or employed in any capacity in such expedition shall be guilty of an offence." On an indictment alleging that within the limits of her Majesty's dominions, and after the coming into operation therein of the Act, certain offences were committed, it was held that the indictment sufficiently Veil tu\ 225 alleged the Act to have been in operation in that part of her Majesty's dominions in which the alleged offences were committed, and further, that if there be an unlawful preparation of an expedition by some person within her Majesty's dominions, any British subject who assists in such preparation will be guilty of an offence, although he renders assistance from a place outside her Majesty's dominions. //. v. Jameson, (1896) 2 Q. B. 425 ; 65 L. J., M. 0. 218. ' By 53 & 54 Vict. c. 37, the law relating to the jurisdiction of the Queen over British subjects in foreign countries is consolidated. As to the extradition of criminals, and the trial of criminals surrendered by foreign states to this country, see 33 & 34 Vict. c. 52 ; 36 & 37 Vict. c, 60; 44 & 45 Vict. c. 69, and 58 & 59 Vict. c. 33. Ex parte Bouvier, 42 L. J., Q. B. 17; 12 Cox, 303; //. v. Weil, 9 Q. B. J). 701; Re Castioni, (1891) 1 Q. B. 149; 60 L. J., M. C. 22 ; Re Bellertcmtre, (1891) 2 Q. B. 122; 60 L. J., M. C. 83; Re Meunier, (1894) 2 Q. B. 415; 63 /,. J., M. C. 198; Re Arton, (1896) 1 Q. B. 108, 509; 65 L. J., M. C. 23, 50; Re Gahvey, (1896) 1 Q. 11. 230; 65 L. J., M. C. 38. As to the depositions taken in the foreign country, see 33 & 34 Vict. c. 52, s. 15, ante, p. 68. Property feloniously taken in one part of the United Kingdom and carried ■into another.'] By the 24 & 25 Vict. c. 96, s. 114, "If any person shall have in his possession in anyone part of the United Kingdom any chattel, money, valuable security, or other property whatsoever, which he shall have stolen, or otherwise feloniously taken in any other part of the United Kingdom, he may be dealt with, indicted, tried, and punished for larceny or theft in that part of the United Kingdom where he shall have such pro- perty, in the same manner as if he had actually stolen or taken it in that part : and if any person in any one part of the United Kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever which shall have been stolen or otherwise feloniously taken in any other part of the United Kingdom, such person knowing such property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, and punished for such offence in that part of the United Kingdom where he shall so receive or have such property, in the same manner as if it had been originally stolen or taken in that part." See further as to this section, tit. Receiving. Venue and jurisdiction of the Central Criminal Court.'] By the 4 & 5 Will. 4, c. 36, s. 2, the jurisdiction of the Central Criminal Court extends over all offences committed within the city of London and county of Middlesex, and those parts of the counties of Essex. Kent, and Surrey, within the parishes of Barking, East Ham, West Ham, Little llford, Low Layton, Walthamstow, Wanstead, St. Mary Woodford, and Chingford, in the countv of Essex; Charlton, Lee, Lewisham, Greenwich, Woolwich, Lltham, Plumstead, St. Nicholas Deptford, that part of St. Paul Dept- ford which is within the said county of Kent, the liberty of Kidbrook and the hamlet of Mottingham in the county of Kent; and the borough of South wark, the parishes of Battersca, Hennondsey, Caniberwell, Cnrist- church, Clapham, Lambeth, St. Mary Newington, Rotherhithe, Streatham, Barnes, Putney, and that part of St. Paul Deptford which is within the said county of Surrey, Tooting Craveney, Wandsworth, Merton, Mortlake, Lew, Richmond. Wimbledon, the clink liberty, and the district of Lambeth palace, in the county of Surrey. By s. 3, the district situated within the limits of the jurisdiction therein- before established is to be deemed one county for all purposes of venue, R. Q 226 Venue. local description, trial, judgment, and execution not therein specially provided for ; and in all indictments and presentments the venue laid in the margin shall be " Central Criminal Court, to wit," and all offences and material facts are to be laid to have been committed and averred to have taken place " within the jurisdiction of the said court"; and see also 9 & 10 Vict. c. 24. Where an indictment for misdemeanor was preferred at the Central Criminal Court, and the marginal venue was "Central Criminal Court, to wit," and in the body of the indictment the facts were stated to have taken place ' ' at the parish of St. Mary, Lambeth, Surrey , within the jurisdiction of the said court," and the indictment was removed by certiorari, it was held that the trial must be at the assizes for Surrey. R. v. Connop, 4 A. & E. 942. See also, as to the venue of the Central Criminal Court, R. v. Gregory, 1 Cox, 198; 14 L. J., M. C. 82. An indictment for misdemeanor found at the Central Criminal Court had in the margin the words, " Central Criminal Court," and stated that M. A., "late of the parish of St. Stephen, Coleman-street, in the city of London, and within the jurisdiction of the said Court, labourer," intending, &c, on, &c, "at the parish aforesaid, and within the jurisdiction," &c, unlawfully, &c. ; alleging the offence without further statement of venue. The indictment was removed by certiorari and tried in London, and the defendant was convicted. On motion in arrest of judgment ; sernble, that the venue assigned to the material fact appeared sufficiently to be in the city of London ; and it was held, assuming this to be otherwise, that the defect was only want of a proper or perfect venue, and was cured by the 7 Geo. 4, c. 64, s. 20, for that the indictment showed jurisdiction in the court at nisi prius to try the case in London. R. v. Albert, 5 Q. B. 37. An indictment was laid in the Central Criminal Court, the venue in the margin being "Central Criminal Court, to wit," and the material facts being laid only as having taken place " within the jurisdiction of the said court." The defendant, having removed it by certiorari, was tried at nisi prius in Middlesex and found guilty. The Court of Queen's Bench arrested the judgment, the description of place not being made sufficient by the 4 & 5 Will. 4, c. 36, s. 3, in cases not tried at the Central Criminal Court, and the defect not being cured by the 7 Geo. 4, c. 64, s. 20 (repealed), the Nisi Prius Court not appearing " by the indictment, " " to have had juris- diction over the offence." The court refused, after verdict, to enter a suggestion for a trial in Middlesex, nunc jjro tunc. And, semble, such an application would not be granted at any period. An indictment preferred in the Central Criminal Court should, with a view to the possibility of its removal, contain, besides the statutory venue, a venue of the county where the offence really took place. And if that has not been done, it should be made a condition of the removal by certiorari that the defendant consent to the insertion. R. v. Stoivell, 5 Q. B. 44 ; and see also R. v. Gregory, 7 Q. B. 274 ; R. v. Hunt, 10 Q. B. 925 ; 17 L. J., M. C. 14 ; and R. v. Smytldes, 1 Den. C. C. R. 498 ; 19 L. J., M. C. 31. On an indictment found by the grand jury of the Central Criminal Court for perjury com- mitted in London, within the jurisdiction of the Central Criminal Court, and which was afterwards removed by certiorari into the Queen's Bench at Westminster, and Middlesex was specified in the certiorari as the county in which the indictment should be tried, and the jury were taken from that county, it was held that the Court of Queen's Bench in West- minster had a discretion to name in the certiorari the county or jurisdiction in which the trial was to take place, and that by the jurors summoned from that jurisdiction, the same issues could be tried that would have been tried in London in the Central Criminal Court, had the indictment Venue. 227 not been removed. R. v. Castro, 6 Ap. Ca. 229 ; 50 L. J. (II. L.) 497. By the 19 & 20 Vict. c. 16, the Court of Queen's Bench has power to order certain offenders, against whom indictments have been found for felonies or misdemeanors committed out of the jurisdiction of the Central Criminal Court, and which indictments have been removed by certiorari, to be tried at the Central Criminal Court. By 46 & 47 Vict. c. 51, s. 50, indictments for offences under the Corrupt Practices Prevention Acts may, under certain circumstances, be tried at the Central Criminal Coiirt. Offences under the Official Secrets Act, 1889 (52 & 53 Vict. c. 52), if alleged to have been committed out of the United Kingdom, may by s. 6 be tried at the Central Criminal Court. For other cases of venue in particular offences, see Index, tit. Venue. Change of venue.'] When a fair and impartial trial cannot be had in the county where the venue is laid, the Court of King's Bench (the indict- ment being removed thither by certiorari, ante, p. 170) will, upon an affidavit stating that fact, permit a suggestion to be entered on the record, so that the trial may be had in an adjacent county. Good ground must "be stated in the affidavit for the belief that a fair trial cannot be had. It. v. Clendon, 2 Str. 911 ; R. v. Harris, 3 Burr. 1330; 1 TV. Bl. 378. This suggestion need not state the facts from which the inference is drawn that a fair trial cannot be had. R. v. Hunt, 3 B. & A. 444. This suggestion when entered is not traversable. 1 Chitty Grim. Laiv, 201. And the venue in the indictment remains the same, the place of trial alone being changed, /hid. In R. v. Casey, 13 Cox, 614, which was a case of libel, the Irish Court for Crown Cases Reserved appear to have been of opinion that the venue in a criminal case will not be changed, but in two subse- quent cases of murder the Court of Queen's Bench in Ireland changed the venue on the ground that an impartial trial could not be had, and no reference seems to have been made to the previous case. R. v. McEneany, 14 Cox, 87; R. v. Walter, Ibid. 579. It is only, however, in case of misdemeanor that the Court of King's Bench will, in general, award a riu ire to try in a foreign country, though cases may occur in which the court woiild change the venue in felony. R. v. Holden, 5 B. tfe Ad. 347 ; 2 Nev. <£• M. 167. And even in cases of misdemeanor, the court has not •exercised its discretionary power, unless there has been some peculiar reason which made the case almost one of necessity. lb. Upon an indictment for a misdemeanor, the application to change the venue •ought to be made before issue joined. R. v. Forbes, 2 Bowl. P. C. 440. Q2 228 Apprehension of Offenders. APPREHENSION OF OFFENDERS. By private persons at common law.'] At common law all private persons are justified, without a warrant, in apprehending and detaining until they can be carried before a magistrate all persons found committing or attempting to commit a felony. B. v. Hunt, 1 Moo. 0. C. 93. But in cases of suspicion of felony, and in cases of offences less than felony, a private person has at common law no right to apprehend offenders. Fost. 318. Whether or not a private person may arrest a person who stands indicted for felony does not appear to be well settled. 2 Hah P. C. 84 ; Balton, c. 170, s. 5 ; 1 East, P. C. 300. Where a breach of the peace is actually being committed any private person may interfere to prevent it, even though no felony be committed or attempted, after proper warning, and calling upon the parties to desist. Fost. 272, 311. It is said by Hawkins that at common law every private person may arrest any suspicious night walker, and detain him till he give a good account of himself. Hawk. P. C. b. 2, c. 13, s. 6. But this would be an authority even more general than that of peace officer {infra, p. 229), and the passage is not law. See 3 Buss. Cri. 89, 6th ed. By private persons by statute.'] By the 24 & 25 Vict. c. 96 (larceny), s. 103, "Any person found committing any offence punishable either upon indictment or upon summary conviction, by virtue of this Act, except only the offence of angling in the daytime, may be immediately apprehended without a warrant by any person and forthwith taken, together with such property, if any, before some neighbouring justice of the peace, to be dealt with according to law ; and if any credible witness shall prove upon oath before a justice of the peace a reasonable cause to suspect that any person has in his possession or on his premises any property whatsoever on or with respect to which any offence punishable either by indictment or by summary conviction, by virtue of this Act, shall have been committed, the justice may grant a warrant to search for such property, as in the case of stolen goods ; and any person to whom any property shall be offered to be sold, pawned, or delivered, if he shall have reasonable cause to suspect that any such offence has been committed on or with respect to such property, is hereby authorized and, if in his power, is required to apprehend and forthwith to take before a justice of the peace the party offering the same, together with such property, to be dealt with according to law." By the 24 & 25 Vict. c. 99 (coining), s. 31, "It shall be lawful for any person whatsoever to apprehend any person who shall be found commit- ting any indictable offence, or any high crime and offence, or crime and offence against this Act, and to convey or deliver him to some peace officer, constable, or officer of police, in order to his being conveyed, as soon as reasonably may be, before a justice of the peace, or some other proper officer, to be dealt with according to law." By the 24 & 25 Vict. c. 97 (injuries to property), s. 61, " Any person Apprehension of Offenders. 229 found committing any offence against this Act, whether the same be punishable upon indictment or upon summary conviction, may be imme- diately apprehended without a warrant, by any peace officer, or the owner of the property injured, or his servant, or any person authorized by him, and forthwith taken before some neighbouring justice of the peace to be dealt with according to law." By the 14 & 15 Vict. c. 19, s. 11, "It shall be lawful for any person whatsoever to apprehend any person who shall be found committing any indictable offence in the night, and to convey him or deliver him to some constable or other peace officer, in order to his being conveyed, as soon as conveniently may be, before a justice of the peace, to be dealt with according to law." So also in the Rural Police Act, 10 & 11 Vict. c. 89, s. Id (infra, p. 231), persons found committing offences against that Act may be apprehended by the owner of the property, on or in respect to which the offence is committed, or his servant, or any person authorized by him. By 9 Geo. 4, c. 69, s. 2, owners and occupiers of land and their game- keepers, &c. have power to arrest persons committing offences under that Act. See the section, post, tit. dame. By peace officer without warrant at common law.~] The power of a peace officer to apprehend and detain offenders is much greater than that of private persons. Por they may exercise all the powers of the latter, and their light to apprehend persons indicted for felony is undoubted. 1 East, I'. ('. 298, .'500. .And they may, which private persons cannot do, apprehend persons on a reasonable suspicion of felony. Samuel v. Payne, Dougl. 3.")!); 1 East, /'. C. 301 ; 2 Hale, P. C. S3, 84,69. Although no felony has been committed. Beckwith v. Philby, 6 />'. t having committed any offence, and may take him before a court of summary jurisdiction to be dealt with according to law." By the 34 & 35 Vict. c. 112, ss. 3, 7, extended by 54 & 55 Vict. c. 69, s. 6, a constable may apprehend without warrant a convict who appears to him to be getting his living by dishonest means, or who is guilty of any offence under s. 7. By the 52 & 53 Vict. c. IS, s. 6, any constable may arrest without warrant any person whom he shall find committing any offence against the Indecent Advertisements Act, 1 Cox, 658, the prisoner had used no force or fraud on the boy himself to induce him to leave. An acquittal was directed by Smith, J., on the ground that the force or fraud mentioned in the section must lie proved to have been exercised on the child himself. This case has now been overruled by the Court for Crown Cases Eeserved in B. v. Bellis, IT Cox, 660, when; a fraud on the mother of the child was held sufficient. The principles upon which the above cases were decided will probably be held applicable to cases under s. 7 of 4/' father, mother, (fee] A similar difficulty has been suggested on this point, namely, that where the girl leaves the house of the person in whose custody she is of her own accord, the offence cannot be committed, because the words of the statute are, "take out of the possession," and it is urged that, if taken at all in this case, she is not taken out of fh' possession of her father, &c. But in R. v. Mankletow, ubi supra, the court held that an actual possession of her father or other person was not necessary ; and that though the girl may leave home of her own accord, still that possession continues in law until put an end to by the accused taking the girl into his own possession. Maule, J., seems to have ruled in the same way in a case of //. v. Ki]>]is, 4 <'<>.i\ 167. In It. v. (Iriii, iiml Bates, '•> /'. & F. 1274, the prisoners found the girl in the street by herself, and invited her to go with them, giving her drink which made her dizzy. Green then had intercourse with her in an empty 236 Abduction of Women and Children. house, where he kept her with him all night. Martin, B., directed an acquittal on the ground that the girl was not taken out of the possession of any one. It must, however, be observed that in this case no evidence appears to have been given as to the purpose for which the girl had left home. The case might now be held to be an offence within 48 & 49 Vict. c. 69, s. 3 (3). See post, tit. Rape. In R. v. Olifier, 10 Cox, 402, Bramwell, B., ruled that when a girl leaves her father of her own accord without any inducement on the man's part, the man is not bound to restore her to her father. But it seems there must be no intention to return on her part, for if there be an intention to return, the girl is still in the constructive custody of her father. Per "Willes, J., R. v. Mycoek, 12 Cox, 28. In R. v. Mankletow, supra, Jervis, C. J., said, " A manual possession is not necessary. If the girl were a member of the family, and under the father's control, there is a sufficient possession. If a girl leaves her father's house for a particular purpose with his sanction, she cannot legally be said to be out of her father's possession." Where a girl lived with her father, and left home to go to a Sunday school, and the prisoner met her and seduced her, and then brought her back, not knowing who she was or whether she had a father, but not believing she was a girl of the town ; it was held that, as there was no evidence to show that the prisoner had reason to know that the girl was under her father's protection, the conviction was wrong. R. v. Ilibbert, L. R., 1 C. C. R. 184; 38 L. J., M. C. 61. A girl, between the ages of sixteen and twenty-one, entitled to real property, came home to her mother's house from school for the Christmas holidays. Her mother, who was married again, insisted that she should go to her grandmother's according to a previous arrangement. Upon this she went to the house of her uncle H. B., and when her mother heard where she was, she desired her to come home to her, the mother. The girl did not return to her mother's house, but, with the knowledge of her uncle II. B., went away with and was married to another uncle F. B. F. B. was indicted for fraudulently alluring the girl, and taking her out of her mother's jjossession, and H. B. for being an accessory before the fact. A majority of the court held that these facts did not sustain the conviction. R. v. Burrell, 1 L. & C. 354 ; 33 L. J., M. C. 54. The principles of the above cases will probably be held to apply to cases under s. 7 of the 48 & 49 Vict. c. 69. Upon an indictment under that section for taking a girl under the a#e of eighteen out of the possession of her father, it was proved that she was employed as a barmaid at a distance from her father's home, and it was held that she was not in the possession of her father. R. v. Henhers, 16 Cox, 257. Proof of the teant of consent.'] The want of consent of the father must be presumed, if it appears that, had he been asked, he would not have consented. Per Wightman, J., in R. v. Handley, 1 F. t.~\ Tn cases of abduction of a girl under sixteen, it is no defence that the act was committed from no bad motive, or even from philanthropic and religious motives. R. v. Booth, supra. It is only in the case of a female over sixteen years that the intent to marry or carnally know is an ingredient in the offence. See now 48 & 49 Vict. c. 69, s. 7, ante, p. 233. Tin's intent may be inferred either from the solicitations addressed to the woman herself, or from the preparations made by the prisoner. The only intent which is necessary to prove under s. bb is the intent to deprive the parent or other person of the possession of the child. R. v. Timmins, 30 /.. ./., M. ('. 45. The same intent as that last mentioned will constitute an offence under s. 56; but under this section it is also an offence to entice or take away the child, without any intent to deprive the father or other person having lawful custody of it, of the possession of it, but with the intent of steal- ing any article upon or about the person of such child, to whomsoever such article may belong. •.-• Proof of the woman being an heiress, /i. 237. And see i?. v. Hariri/, 4 C. & P. 370. wlnre the report of this case in 1 Moo. (J. C. 114, is stated to be inaccurate. But to constitute an administering there need not be an actual delivery by the hand of the prisoner. B. v. Hurley, supra. Upon an indictment under this section, it was proved that the woman requested the prisoner to get her something to procure miscarriage, and that a drug was both given by the prisoner and taken by the woman with that intent, but that the taking was not in the presence of the prisoner. It was held, nevertheless, that the prisoner had caused the drug to be taken within the meaning of the statute. B. v. Wilson, Bears. & B. C. C. 127; B. v. Farrow, id. 164, ace. See B. v. FretweU, 31 L. J., M. C. 145. See further as to administering, infra, tit. Poison. Proof of the nature of the thing admin istrrrd.~\ The nature of the poison or other noxious thing must be proved. Where the prisoner was indicted 240 Abortion. for supplying " a certain noxious thing," and the evidence was, that the thing supplied was of a perfectly harmless character in itself, though if taken with the helief that it would procure a miscarriage, it might, by acting on the imagination, produce that effect ; it was held, that the con- viction must be quashed, as there was no evidence that the thing supplied was noxious. R. v. Isaacs, 1 L. & C. 220; 32 L. J., M. C. 52. But where there was no evidence of the ingredients of the thing administered, or of its character being harmless or otherwise, except that in fact it made the witness ill and produced miscarriage, it was held that there was evidence of its being a noxious thing. R. v. Hollis, 12 Cox, 463. If the drug be innocuous if taken in small quantities, but harmful if taken in large, it would appear to be a noxious thing, but, query, if it be a recognized "poison," it would perhaps come within the Act even if administered in so small a dose as to be innocuous. 24 & 25 Vict. c. 100, s. 58; R. v. Cramp, 5 Q. B. D. 307 ; 49 L. J., M. C. 44 ; R. v. Hennah, 13 Cox, 547. Proof of the intent.^ The intent will probably appear from the other circumstances of the case. That the child was likely to be born a bastard, and to be chargeable to the reputed father, the prisoner, would be evidence to that effect. Proof of the clandestine manner in which the drugs were procured or administered would tend to the same conclusion. The statute is satisfied if the person who supplies the thing intends it to be used for the purpose of procuring abortion, though the person to whom it was supplied had no intent to use it for any such purpose. R. v. Hillman, L. tfc C. 343 ; 33 L. J., M. C. 60. Affray. 241 AFFRAY. An affray is the fighting of two or more persons in some public place, to the terror of the king's subjects ; for if the fighting be in private, it is not an affray, but an assault. 4 Bl. Com. 145. See Timothy v. Simpson, 1 C, M. & R. 757. It differs from a riot, in not being premeditated. Thus if a number of persons meet together at a fair or market, or upon any other lawful or innocent occasion, and happen on a sudden quarrel to engage in fighting, they are not guilty of a riot, but of an affray only (of which none are guilty but those who actually engage in it) ; because the design of their meeting was innocent and lawful, and the breach of the peace happened without any previous intention. Hawk. P. G. b. 1, c. 65, s. 3. Two persons may be guilty of an affray, but it requires three or more to constitute a riot. Vide post. Mere quarrelsome words will not make an affray. 4 Bl. Com. 146; 1 Buss. Cri. 588, 6th ed. To support a prosecution for an affray, the prosecutor must prove— 1, the affray, or fighting, &c. ; 2, that it was in a public place ; 3, that it was to the terror of the king's subjects ; 4, that two or more persons were engaged in it. The principals and seconds in a prize fight were indicted in one count for a not, and in another for an affray. The evidence was that the two first prisoners had fought together amidst a great crowd of persons, and that the others were present aiding and abetting; that the place where they fought was at a considerable distance from any highway, and when the' officers made their appearance the fight was at an end. The prisoners, on l>eing required to do SO, quietly yielded. Alderson, B., said, "it seems to me thai there is no case against these men. As to the affray, it must occur in some public place, and this is to all intents and purposes a private one. As to the riot, there must be some sort of resistance made to lawful authority to constitute it, some attempt to oppose the constables who are there to preserve the peace. The case is nothing more than this: — Two persons choose to fight, and others look on. and the moment the officers present themselves, all parties quietly depart. The defendants may be indicted for an assault, bu1 nothing morel" R. v. Runt, 1 Cox, 177; and see //. v. Ih n, Car. & M. 314; R. v. Coney, 8 Q. />'. D. 66; 51 /.. J., M. C. 66. The punishment of common affrays is by fine and imprisonment; the measure of which must be regulated by the circumstances of the case ; for where there is anv material aggravation, the punishment will be propor- tionally increased. 1 Bl. Com. L45; 1 Hawk. P. C. c. 63, s. 20. r. R 242 Agents, Bankers, Factors, &c. AGENTS, BANKERS, FACTORS, &c— FRAUDS COMMITTED BY. Agents, hankers, factors, &c, embezzling money or selling securities or goods.'] By 24 & 25 Vict. c. 96, s. To, " Whosoever, having been intrusted, either solely, or jointly with any other person, as a banker, merchant, broker, attorney, or other agent, with any money or security for the payment of money, with any direction in writing to apply, pay or deliver such money or security or any part thereof respectively, or the proceeds or any part of the proceeds of such security, for any purpose, or to any person specified in such direction, shall, in violation of good faith, and contrary to the terms of such direction, in anywise convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such money, security, or proceeds, or any part thereof r e spectively ; and whosoever, having been intrusted, either solely, or jointly with any other person, as a banker, merchant, broker, attorney, or other agent, with any chattel or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of the United Kingdom, or any part thereof, or of any foreign state, or in any stock or fund of any body corporate, company, or society, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, shall in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him, sell, negotiate, trans- fer, pledge, or in any manner convert to his own use or benefit, or the use or benefit of any person other than the person by whom he shall have been so intrusted, such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years" (seeawie, p. 203). Provisions not to affect trustees, or mortgagees, or bankers in certain cases.] By the same section, "nothing in this section contained relating to agents shall affect any trustee in or under any instrument whatsoever, or any mortgagee of any property, real or personal, in respect of any act done by such trustee or mortgagee, in relation to the property comprised in or affected by any such trust or mortgage, nor shall restrain any banker, merchant, broker, attorney, or other agent, from receiving any money which shall be or become actually due and payable upon or by virtue of any valuable security, according to the tenor and effect thereof, in such manner as he might have done if this Act had not been passed, nor from selling, transferring, or otherwise disposing of any securities or effects in his possession, upon which he shall have any lien, claim, or demand, entitling him by law so to do, unless such sale, transfer, or other disposal shall extend to a greater number or part of such securities or effects than shall be requisite for satisfying such lien, claim, or demand." Agents, bankers, merchants, &c, fraudulently selling property. .] Bys. 76, " Whosoever, being a banker, merchant, broker, attorney, or agent, and Agents, Bankers, Factors, &c. 243 being intrusted, either solely, or jointly with any other person, with the property of any other person for safe custody, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate the same, or any part thereof, to or for his own use or henefit, or for the use or benefit of any person other than the person by whom he was so intrusted, shall he guilty of a misdemeanor, and being convicted thereof, shall he liable, at the discretion of the court, to any of the punishments which the court may award, as hereinbefore last mentioned." Fraudulently selling property under powers of attorney.~\ By s. 77, "Whosoever, being intrusted, either solely, or jointly with any other person, with any power of attorney for the sale or transfer of any pro- perty, shall fraudulently sell or transfer or otherwise convert the same or any part thereof to his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the dis- cretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned." Factors or agents fraudulently obtaining advances on property^ By s. 78, "Whosoever, being a factor or agent intrusted, either solely or jointly with any other person, for the purpose of sale or otherwise, with the pos- session of any goods, or of any document of title to goods, shall, contrary to or without the authority of his principal in that behalf, for his own use or benefit, or the use or benefit of any person other than the person by whom he was so intrusted, and in violation of good faith, make any consignment, deposit, transfer or delivery of any goods or document of title so intrusted to him as in this section before mentioned, as and by way of a pledge, lien, or security, for any money or valuable security borrowed or received by such factor or agent at or before the time of making such consignment, deposit, transfer, or delivery, or intended to be thereafter borrowed or received, or shall, contrary to or without such authority, for his own use or benefit, or the use or benefit of any person other than the person hy whom he was so intrusted, and in violation of good faith, accept any advance of any money or valuable security on the faith of any contract or agreement to consign, deposit, transfer, or deliver any such goods or document of title, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award as hereinbefore last mentioned." Clerks wilfully as.th of July preceding they had been adjudged bankrupts, and on the 20th of the same month, while the above prosecution was pending againsl them, being examined in the court of bankruptcy at the instance of a creditor, they made a statement to the same effect as that proved against them before the magistrate, and amounting to a confession of guilt. When the trial came on the defendants pleaded not guilty, and after the case for the prosecution had closed, tendered in evidence the depositions made by them in the court of bankruptcy in bar of prosecu- tion under the proviso in the above section. The prisoners were convicted ; two points being reserved for the opinion of the Court of Criminal Appeal : first, whether the evidence was admissible under a plea of not guilty; secondly, whether it showed a disclosure within the meaning of the proviso, so as to constitute a defence. All the court thought that the •evidence was admissible, and also expressed an opinion that it was tendered at the proper lime. But on the other point there was a difference of opinion. Lord Campbell, < '. J.. Pollock, C. B., Wightman, Willes, and Hill, JJ., Martin. Bramwell, Watson, and Channell, BB., thought that the statement in the court of bankruptcy was not, under the circum- stances of its having been previously proved by other evidence, a disclo- sure within the meaning of the above section. Cockburn, C. J. , Williams, Crowder. Crompton, and Bvles, JJ., thought that it was. The conviction was. therefore, affirmed. R. v. Sheen, 1 Bell, C. C. 97; 28 /.. ./.. Jl. <'. 91. See also //. v. Scott, 25 /,. ./., .1/. ('. 128; Dears. ,f /,'. C. C. 47, and /;. v. Robinson, I.. //.. 1 t '. < '. II. no : :'>(> /.. ./., .1/. r. 78; A', v. Widdop, I.. I!., 2 0. 0. /,'. 3 : 42 /.. ./., .1/. C. 9. ante, p. 45. In the present enactment the word "first" is introduced hefore the word "disclosed," m order to obviate any doubt which may arise in future on this point. Greaves' Crim. Stat., p. 92. See /,'. \. Gunnell, 16 Cox, 154. 246 Agents, Bankers, Factors, &c. Persons -intrusted as banker, merchant, broker, attorney, or other agent. Cases under sections "to and 76.] The prisoner, an insurance broker, had, as such, effected insurances on a ship for the prosecutor ; and the ship having been lost, the prosecutor sent him the policies with other docu- ments necessary for recovering the loss ; the prisoner received the amount of the policies in cheques to his order, which he then paid into his own bank to his own credit, but did not account to the prosecutor at the time, though pressed to do so. He afterwards became bankrupt, when it was discovered that his balance at the bank was much less than the sum received on the policies. The prisoner, having been convicted on an indictment framed on the second branch of s. 75, it was held that the conviction could not be upheld. Cockburn, C. J., held that it must be shown that the prisoner at the time he received the money for the policies intended to embezzle it. Kelly, 0. B., appeared to doubt this view, and joined with Pollock, 13., in thinking the evidence as to the course of dealing between the parties too vague to enable them to come to any decision. Bramwell and Amphlett, JJ. A., and Field, J., thought that the second branch of the section only applies to cases where an agent has been intrusted with securities without authority to obtain money upon them, and has got the money by some unauthorized act of his own. R. v. Tatlock, 2 Q. B. D. 157 ; 46 L. J., M. C. 7. It was pointed out in another case that s. 75 is limited to a class, and does not apply to every one who may happen to be intrusted as prescribed by the section. The words ' ' other agent" mentioned in the section mean one whose business or profession it is to receive money, securities, or chattels for safe custody, or other special purpose, and do not include any ordinary agent who may from time to time be intrusted with valuable securities. The prisoner, who was employed by a firm, of contractors to procure for them a contract for the construction of a foreign railway, was charged with misappropriating* valuable securities with which he had been intrusted in the course of his employment. The prisoner was not a banker, merchant, broker, or attorney, and it was held that no offence within the section had been disclosed. R. v. Portugal, 16 Q. B. J). 487 ; 55 L. J., Q. B. 567. A solicitor who had misappropriated money intrusted by a client to invest on mortgage, was held not to be guilty of an offence under s. 76, there being no evidence to show that any specific sum was intrusted, or that there were any specific directions as to the custody of it. R. v. Newman, 8 Q. B. D. 706; 51 L. J„ M. C. 87. But otherwise, where a solicitor was intrusted with the money of his client to keep it safely until a certain day, and then invest it, for in such case he would be intrusted with the money " for safe custody," within s. 76. 11. v. FuHager, 14 Cox, 1370 ; 41 /,. T., N. S. 448. Re Bettencontre, (1891) 2 Q. B. 122 ; 60 L. J„ M. C. 83. Direction in writing.'] In order to support a conviction under s. 75 of 24 & 25 Vict. c. 96, there must be a direction in writing under the first part of the section. Thus, where the defendant, an attorney, was employed to raise a loan of money on mortgage, of which he was orally instructed to apply a part in paying off an earlier mortgage, and to hand over the rest to the mortgagor ; and having prepared the mortgage deed, and received the mortgage money, and handed over the deed to the mort- gagee in exchange, he then misappropriated a part of the money to his own use, it was held that he could not be convicted of any offence under s. 75 or s. 76. R. v. Cooper, L. R., 2 C. C. 11. 12:3; 43 '/.. J., M. C. 89. lie Bellencontre, supra. The prisoner, a stock and share dealer, was employed by the prosecutrix Agents, Bankers, Factors, i&c. 247 to purchase securities for her. lie bought in his own name, and received money from her from time to time to cover the amounts he had paid or had to pay for the securities. Such payments were not made against any particular item, but in cheques for round sums. On one occasion he wrote to her, " I enclose a contract note for £300, J. bonds, at 112, £336 " ; and the contract note ran, " sold to Mrs. S. (the prosecutrix) £300, J., at 112, £336," and was signed by the prisoner. The prosecutrix wrote in reply, " I have just received your note and contract note for three J. shares, and enclose a cheque for £336 in payment." The prisoner never paid for the bonds, but in violation of good faith appropriated to his own use the proceeds of the cheque. It was held that the letter of the prose- cutrix was a direction in writing to apply the proceeds of the cheque to pay for the bonds, if they still had to be paid for, within the meaning of s. 75. B. v. Christian, L. /.'., 2 C. <'. B. 94; 43 L. J., M. 0. 25. A stockbroker who received (with a direction in writing) a cheque -to be used as " cover," which he had paid instead into his own account, was held to have been rightly convicted under s. 75. B. v. Cronmire, 16 Cox, 12. Misappropriation under the Municipal Corporations Act, 1882.] The provisions of the above Act are applied to persons misappropriating money arising from the sale of annuities or securities purchased or transferred Tinder the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 117. 248 Arson. ARSON. At common law.] The offence of arson, -which is a felony at common law, is defined by Lord Coke to be the malicious and voluntary burning the house of another, by night or by day. 3 Inst. 66 ; 1 Hale, C. P. 566. The setting fire to the house of another, maliciously to burn it, is not at common law a felony, if either by accident or timely prevention the fire does not take place. 1 Hale, P. (J. 568. By statute.'] The offence is regulated for the most part bv the 24 & 25 Vict, c, 97. ( '/lurches and chapels.] By s. 1, "whosoever shall unlawfully and maliciously set fire to any church, chapel, meeting-house or other place of divine worship, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for life, or to be imprisoned (see aide, p. 203), and, if a male under the age of sixteen years, with or without whipping." Dwelling-hovse, any person being therein.] By s. 2, "whosoever shall unlawfully and maliciously set fire to any dwelling-house, any person being therein, shall be guilty of felony." The same punishment as in s. 1. House, out-liouse, manufactory, farm, cfcc] By s. 3, "whosoever shall unlawfully and maliciously set fire to any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, store-house, granary, hovel, shed, or fold, or to any farm-building, or to any building or erection used in farming land, or in carrying on any trade or manufacture or any branch thereof, whether the same shall then be in the possession of the offender or in the possession of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony." The same punishment as in s. 1. Railway stations and buildings belonging to ports, docks, and harbours.'} By s. 4, " whosoever shall unlawfully and maliciously set fire to any station, engine house, warehouse, or other building belonging or apper- taining to any railway, port, dock, or harbour, or to any canal or other navigation, shall be guilty of felony." The same punishment as in s. 1. Public buildings.] By s. 5, "whosoever shall unlawfully and mali- ciously set fire to any building other than such as are in this Act before mentioned belonging to the Queen, or to any county, riding, division, city, borough, poor law union, parish, or place, or belonging to any university, or college, or hall of any university, or to any inn of court, or devoted or dedicated to public use or ornament, or erected or maintained by public subscription or contribution, shall be guilty of felony." The same punishment as in s. 1. Arson. 249 Other buildings.] By s. 6, " whosoever shall unlawfully and mali- ciously set fire to any building other than such as are in this Act before mentioned shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years (see ante, p. 203), or to be imprisoned, and if a male under the age of sixteen years, with or without whipping." Goods in buildings.'] By s. 7, "whosoever shall unlawfully and mali- ciously set fire to any matter or thing, being in, against, or under any building under such circumstances that if the building were thereby set fire to, the offence would amount to felony, shall be guilty of felony." The same punishment as in s. 6. Attempting to set fire to huildings.] By s. 8, "whosoever shall unlaw- fully and maliciously by any overt act attempt to set fire to any building, or any matter or thing in the last preceding section mentioned under such circumstances that if the same were thereby set fire to the offender would be guilty of felony, shall be guilty of felony." The same punishment as in s. (i. Crops of corn, woods, plantations, r.ie, &c] By s. l(i, " whosoever shall unlawfully and maliciously set fire to any crop of hay, grass, corn, grain, or pulse, or of any cultivated vegetable produce, whether standing or cut down, or to any part of any wood, coppice, or plantation of trees; or to any heath, gorse, furze, or fern, wheresoever the same may be growing, shall be guilty of felony." The same punishment as in s. (>. Stacks of corn, straw, wood, coals, &c] By s. 17, "whosoever shall unlawfully and maliciously set fire to any stack of corn, grain, pulse, tares, hay, straw, haulm, stubble, or of any cultivated vegetable produce, or of furze, gorse, heath, fern, turf, peat, coals, charcoal, wood, or bark, or to any steer of wood or bark, shall be guilty of felony." The same punishment as in s. (>. Attempting In set Jin In crops or stacks of corn, &c~] By s. 18. " whosoever shall unlawfully and maliciously by any overt act attempt to set fire to any such matter or thing as in either of the last two preceding sections mentioned under such circumstances that if the same were thereby set lire to the offender would lie under either of such sections guilty of felony, shall be guilty of felony." With the exception of the maximum term of penal servitude reduced to seven years, the same punishment as in s. 0. Coal mints.] By s. 26, "whosoever shall unlawfully and maliciously set fire to any mine of coal, cannel coal, anthracite, or other mineral fuel. shall he guilty of felony."' The same punishment as in s. (i. Attempt to set fire to coal minis.] By s. 27, " whosoever shall unlawfully and maliciously by any overt act attempt to set lire to any mine, under such circumstances that if the mine were thereby set lire to the offender would be guilty of felony, shall be guilty of felony." The same punish- ment as in s. (i. Ships "/■ vessels.] By s. 42, "whosoever shall unlawfully and mali- ciously set lire to, east away, or in anywise destroy any ship or vessel, whether the same be complete or in an unfinished state, shall be guilty of felony." The same punishment as in s. 1. 250 Arson. As to the setting fire to ships with intent to commit murder, see 24 & 25 Vict. c. 100, s. 13, infra, tit. Attempt to Murder. Ships or vessels, ivith intent to prejudice owner or underwriter.'] By s. 43, " whosoever shall unlawfully and maliciously set fire to, or cast away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that has underwritten, or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall be guilty of felony." The same punishment as in s. 1. Setting fire to ships of war, (fee] By the 12 Geo. 3, c. 24, s. 1, "if any person or persons shall, either within this realm, or in any of the islands, countries, forts, or places thereunto belonging, wilfully or maliciously set on fire or burn, or otherwise destroy, or cause to be set on fire or burnt, or otherwise destroyed, or aid, procure, abet, or assist in the setting on fire, or burning, or otherwise destroying any of his Majesty's ships or vessels of war, whether the said ships or vessels of war be on float or building, or begun to be built, in any of his Majesty's dockyards, or build- ing or repairing by contract in any private yards for the use of his Majesty, or any of his Majesty's arsenals, magazines, dockyards, ropeyards, vic- tualling offices, or any of the buildings erected therein or belonging thereto ; or any timber or materials there placed, for building, repairing, or fitting out of ships, or vessels, or any of his Majesty's military, naval, or victualling stores, or other ammunition of war, or any place or places, where any such military, naval, or victualling stores, or other ammunition of war is, are, or shall be kept, placed or deposited ; that then the person or persons guilty of any such offence, being thereof convicted in due form of law, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy." By s. 2, " any person who shall commit any of the off en ces before men- tioned, in any place out of this realm, may be indicted and tried for the same, either in any shire or county within this realm, in like manner and form as if such offence had been committed within the said shire or county, or in such island, county or place where such offence shall have been actually committed, as his Majesty, his heirs or successors, may deem most expedient for bringing such offender to justice: any law, usage, or custom notwithstanding." This offence is still capital, 7 & 8 Geo. 4, c. 28, ss. 6 and 7. By the Naval Discipline Act, 1866 (29 & 30 Vict, c. 109, s. 34), persons subject to that Act are liable to the punishment of death for setting fire to dockyards, ships, &c. Setting fire to ships, &c., in the ]><>rt of London.'] The 39 Geo. 3, c. 69, a public local Act for rendering more commodious and for better regulating the port of London, enacts (by s. 104), " that if any person or persons whomsoever shall wilfully and maliciously set on fire any of the works to be made by virtue of this Act, or any ship or other vessel lying or being in the said canal, or in any of the docks, basins, cuts, or other works to be made by virtue of this Act, every person so offending in any of the said cases shall be adjudged guilty of felony without benefit of clergy." Attempting to set fire to ships or vessels.] By the 24 & 25 Vict. c. 97, s. 44, "whosoever shall unlawfully and maliciously, by any overt act, attempt to set fire to, cast away, or destroy any ship or vessel, under such Arson. 251 circumstances that it' the ship or vessel were thereby set fire to, cast away, or destroyed, the offender would be guilty of felony."' The same punish- ment as in s. 6. Malice against owner of property unnecessary.] By s. 58, "every pun- ishment and forfeiture by this Act imposed on any person maliciously committing any offence, whether the same he puuishable upon indictment or upon summary conviction, shall equally apply and he enforced, whether the offence shall be committed from malice conceived against the owner of the property in respect of which it shall be committed or otherwise." Where person committing the offence is in possession of the property injured.'] By s. 59, "every provision of this Act not hereinbefore so applied, shall apply to every person who, with intent to injure or defraud any other person, shall do any of the acts hereinbefore made penal, although the offender shall be in possession of the property against or in respect of which such act shall be done." Intent to injure or defraud a particular person need not be stated.] By s. 60, "it shall be sufficient in any indictment for any offence against this Act, where it shall be necessary to allege an intent to injure or defraud, to allege that the party accused did the act, with intent to injure or de- fraud (as the case may be), without alleging an intent to injure or defraud any particular person ; and on the trial of any such offence it shall not be necessary to prove an intent to injure or defraud any particular person, but it shall be sufficient to prove that the party accused, did the act charged with an intent to injure or defraud (as the case maybe)." Proof of the setting fire.] To constitute arson at common law it must be proved that there was an actual burning of the house or of some part of it, though it is not necessary that any part should be wholly consumed, or that the lire should have any continuance. 2 East, I*. 0. 1020; 1 //"/'. /'. 0. 50!). In the !) Geo. 1. c. 22, the words " set fire" are used, and Mr. East observes, that he is not aware of any decision which has put a larger construction on those words than prevails by the rule of thecommon law. 2 East, I'. C. 1020. And he afterwards remarks, that the actual burning at common law, and the "setting fire" under the statute, in effect mean the same thing. Id. 10:>,S. The words "set fire" are used in all the subsequent statutes, so that this passage and the following decisions arc still applicable. The prisoner was indicted (under the 9 Geo. 1. c. 22) for setting lire to an outhouse, commonly called a paper- mill. It appeared that she had set fire to a large quantity of paper, drying in a loft annexed to tne mill, but no part of the mill itself was consumed. The judges held that this was not a setting fire to the mill within the statute R. v. Taylor, 2 East, P. O. 1020; 1 Leach, 19. So on a charge of arson, it appeared that a small faggot was set on hie on the boarded Boor oi a room, and the faggot was nearly consumed; the boards of the floor were " scorched black, hut not burnt," and no part of the wood of the floor was consumed. Cresswell, -I., said, " //. v. Parker (see infra) is the nearest case to the present, but I think it is distinguish- able. ... 1 have conferred with my brother L'atteson, and he concurs with me in thinking, that as the wood of the floor was scorched, but no part of it consumed, the present indictment cannot be supported. We think that it is not essentia] to this offence that the wood should be in a blaze, because some species of wood will burn and entirely consume without blazing al all." R. v. Russell, C. '.. 1 Lewin, <'. C. 8. A shed or cabin, though built of stone, roofed, and with low fireplace and window, does not in a case of arson constitute a house within the 7 Will. 4 & 1 Vict. c. 89, s. 3, where the building was erected not for habitation, but for workmen to take their meals and dry their clothes in, and had not been slept in with permission of the owner. R. v. England, 1 C. & K. 533. Proof of property set fire to — outhouse.~\ Upon the meaning of the word '• outhouse," in the repealed statutes the following cases were decided : It appeared that the prisoner (who was indicted for setting fire to an out- house) had set fire to and burnt part of a building of the prosecutor, situated in the yard at the back of his dwelling-house. The building- was four or five feet distant from the house but not joined to it. The yard was enclosed on all sides, in one part by the dwelling-house, in another by a wall, and in a third by a railing, which separated it from a field, and in the remaining part by a hedge. The prosecutor kept a. public-house, and was also a flax-dresser. The buildings in question consisted of a stable and chamber over it, used as a shop for the keeping and dressing of flax. It was objected, that this was part of the dwelling- house, and not an outhouse ; hut the prisoner having been convicted, the judges weir of opinion that the verdict was right. It was observed that though, for some purpose, this might be part of the dwelling-house, yet thai in tact it was an outhouse. /.'. v. North, 2 East, I'. C. 1021. The prisoner was indicted in some counts for setting fire to an outhouse, in others to a house. The premises burned consisted of a school-room, which was situated very near to the house in which the prosecutor lived, being separated from it only by a narrow passage about a yard wide. The roof of the house, which was of tile, reached over part of the roof of the school, which was thatched with straw: and the school, with a garden and other premises, together with a court which surrounded the whole, were rented of the parish by the prosecutor at a yearly rent. There was a continued fence round the premises, and nobody but the prosecutor or his family had a righl to come within it. It was objected for the prisoner that the building was neither ,i house nor an outhouse; but the judges were of opinion that it was correctly described either as an outhouse or part of a dwelling-house, within the meaning of the statute. /'. v. Winter, Rnss. & Ry. 2!».">; 2 Russ. Cri. !";:;. 6th ed. In another case the place in question stood in an inclosed field, a furlong from the dwelling-house, and not in sight. It had been originally divided into stalls, capable of holding eighl beasts, partly open and partly thatched. Of late years it was boarded all round, the stalls taken away and an open- ing left for cattle to i ie iii of their own accord. There was neither window nor door, and the opening was sixteen feet wide, so that a waggon might he drawn through it, under cover. The hack part of the roof was supported by posts, to which the side hoard- were nailed. Pari of it internally was hoarded and locked up. There was no distinction in the roof between the inclosed and the uninclosed part, and the in- habitants and owners usually called it tin' cow-stalls. Park, J., did not 254 Arson. consider this an outhouse within the statute ; but reserved the point for the opinion of the judges. Six of the judges were of opinion that this was an outhouse within the statute ; but seven of their lordships being of a contrary opinion, a pardon was recommended. R. v. Ellison, 1 Moody, C. 0. 336. See also Hi lies v. Inhab. of Shrewsbury, 3 East, 457; 11. v. Woodward, 1 Moody, C. C. 325. The prisoner was charged with setting fire to an outhouse of W. D. The prosecutor was a labourer and poulterer, and had between two and three acres of land, and kept three cows. The building in question was in the prosecutor's farm-yard, and was three or four poles distant from the dwelling-house, from which it might be seen. The prosecutor kept a cart in it, which he used in his business of a poulterer, and also kept his cows in it at night. There was a barn adjoining the dwelling-house, then a gateway, and then another range of buildings which did not adjoin the dwelling-house or barn. The dwelling-house and farm formed one side of the farm-yard, and the three other sides were formed by a fence inclosing these buildings. The building in question was formed by six up- right posts nearly seven feet high, three in the front and three at the back, which supported the roof : there were pieces of wood laid from one side to the other. Straw was put upon these pieces of wood, laid wide at the bottom and drawn up to a ridge at the top ; the straw was packed up as close as it could be packed ; the pieces of wood and straw made the roof. The front of the building to the farm-yard was entirely open between the posts. The back adjoined a field and was a rail fence, the rails being six inches wide ; these came four or five feet from the ground, within two feet of the roof, and this back formed part of the fence before mentioned. One of the witnesses for the prosecution, a considerable farmer, said he should consider the building an outhouse. The prisoner was convicted, and sentence of death passed upon him, but execution was respited to take the opinion of the judges. All the judges present (except Tindal, 0. J.) thought the erection an outhouse, and that the conviction was right. B. v. Stallion, 1 Moody, C. C. 398. The prisoner was convicted before Patteson, J., at the Bedfordshire Spring Assizes, 1844, for feloniously setting fire to an outhouse of Thomas Bourn. The building set fire to was a pig-sty, that shut up at the top, with boarded sides, having three doors opening into a yard in the possession of the prosecutor ; the back of the pig- sty formed part of the fence between the prosecutor's and the adjoining property. The case was considered at a meeting of all the judges, except Coleridge and Maule, JJ., in Easter term, 1844, when their lordships were unanimously of opinion that the conviction was right. R. v. Amos Jones, 2 Moody, ('. C. 308 ; 2 Russ. Cri. 964, 6th ed. Proof of property set fire to — shed.^\ In R. v. Amos, 2 Ben. C. C. B. 65; 20 L. J.. M. <'. 103, it was held that a building twenty-four feet square, with wooden sides, glass windows, slated roof, and commonly called ' ' the workshop," used as a storehouse for seasoned timber, as a place for deposit of tools, and for the working up of timber, may be described as " a shed," under 7 & 8 Vict. c. 62 (repealed). Proof of property set fire to — stacks.^ A stack of flax with seed in it is "grain" within the meaning of the above enactments. R. v. Spencer, Dears. & B. (J. C. 131. In R. v. Reader, 4 ( '. & P. 245 ; 1 Moody, C. 0. 239, the prisoner was indicted under the 7 & 8 Geo. 4. c. 30, s. 17, for setting fire to " a stack of straw." It appeared in evidence that the stack in question was made partly of straw, there being two or three loads at the Arson. 255 bottom, and the residue of haulm. The judges held that this was not a stack of straw within the statute. See It. v. Brown, 4 O. & P. 553 (n) ; 11. v. Tottenham. 7 0. & /'. 237 ; 1 Moo. C. 0. 461. It was held sufficient under the last-mentioned statute, if the indictment charge the prisoner with setting fire to a stack of barley ; II. v. Swatkins, 4 < '. & P. 54S ; or a stack of beans ; 11. v. Woodward, 1 Moody, G. C. 323, the words of that statute being "any corn, grain, pulse, straw, hay, or wood." In R. v. Arts, 6 C. goods in a house.~\ In //. v. /.//mis. 2S L. J., M. 0. 33, a question was raised whether a man could be indicted for setting fire to goods in his own house with intent thereby to defraud an insurance com- pany. The house was not set fire to. It was contended that as merely setting fire to a man's own house without any special intent was not felony at common law, nor was made so by any statute, setting fire to goods in a man's own house even with a fraudulent intent was nol felony either, as the 1 J A: 15 Vict. C ]'■>. 8. 3, only made it felony to set fire to goods in a building, the setting fire to winch is made felony by that or any other statute. But the court held that the conviction was good, as the offence charged clearly came within the true meaning and intention of the legislature, giving the section a reasonable construction. An opinion was, however, expressed in the course of the argument, that the indictmenl ought to follow the words of the statute and expressly to state that the goods were set fire to in a building the setting fire to winch was a felony, which was not done here; but the omission was not considered to be a ground for quashing tlie conviction. The terms of the present statute (24 & 25 Vict. c. 97, s. 7, supra, p. 249) are somewhat different. The effect of the decision in II. v. Lyons, supra, has been very extra- ordinary. The statute in force at the time that case was decided made it a felony to set fire to goods in any house the setting fire to which is felony, e.g., a dwelling-house. Lyons' house, however, was his own property, 256 Arson. and it would not be a felony to fire it unless with an intent to injure or defraud with, respect to the house, of which there was no evidence. Pollock, C. B., said, "We think the offence is complete if there be a setting fire to the goods under such circumstances as, if shoivn luith respect to a house set on fire, would render the setting fire to the house a felony. Here the intent to defraud is alleged with respect to the goods. The setting fire to the house with the like intent would be felony." Instead of adhering strictly to the language of Pollock, C. B., the present statute (s. 7, ante, p. 249) speaks of setting fire to goods under such circumstances that if the building were thereby set fire to, the offence would amount to felony. It has accordingly been held that the jury must be asked, sup- posing the house caught fire, would it have been wilful and malicious firing, and if the jury negative any malice or recklessness with respect to the house, the prisoner cannot be convicted of the felony, notwithstanding that he set fire to the goods maliciously meaning to destroy them. The facts of the case were as follows : — the prisoner, from ill will to the pro- secutrix, broke up her chairs, tables, and other furniture, made a pile of them and her clothes on the stone floor of the kitchen of her lodgings, and lit them at the four corners, so as to make a bonfire of them. The building would almost certainly have been burned in consequence, had not the police, who were sent for, succeeded in extinguishing the bonfire. The learned judge (Blackburn, J.) directed the jury, if they thought the prisoner was aware of what he was doing, and that it would probably set the building on fire, or was at best reckless whether it did or not, they would find him guilty of the felony. The jury, however, found him " guilty, but not so that if the house had caught fire, the setting fire to the house would have been wilful and malicious." It was held that the conviction was bad. R. v. Child, L. R„ 1 C. C. R. 307 ; 40 L. J., M. C. 127; R. v. Vattrass, 15 Cox, 73; 11. v. Harris, 15 Cox, 75. When persons are considered as being in the house when set fire to.'] A stable which adjoined a dwelling-house was set on fire : the flames com- municated to the dwelling-house, in which members of the family had been sleeping; but it did not appear whether the house took fire before they left the house or after. Alderson, B., in summing up the case to the jury, directed them to say by their verdict, should they find the prisoner guilty, whether the house took fire before the family were in the yard or after. If they were of opinion that it was after the family were in the yard, his lordship said that he thought they ought to acquit the prisoner of the capital charge, as to sustain that, in his opinion, it was necessary that the parties named in the indictment should be in the house at the very time the fire was communicated to it. But his lordship added that he should reserve the point for the decision of the judges. The prisoner was acquitted of the entire charge, if", v. Warren, 1 Cox, 68. In li. v. Fletcher, 2 < '. & A'. 215, Patteson, J., held in a similar case that, if the fire caught the house after the inmates had left it, the charge could not be sustained. Where a prisoner set fire to a house in which he was alone Lord Coleridge, C. J., held that this was sufficient to support a charge under 24 & 25 Vict. c. 97, s. 2. R. v. Pardoe, 17 Cox, 715. Possession — how to be described.] The house burned should be described as being in the possession of the person who is in the actual occupation, even though the possession be wrongful. Thus where a labourer in husbandry was permitted to occupy a house as part of his wages, and after being discharged from his master's service, and told to quit the house in a month, remained in it after that period, it was held by the Arson. 2.37 judges, upon an indictment for setting fire to the house, that it was rightly described as being in the possession of the labourer. II. v. Wall is, 1 Moody, C. C 344. Proof of malice and toil fulness."] It' the act of burning be done under a bona Jiil a belief in the existence of a right to burn (as where a woman set fire to some furze on a common in the exercise of a bond fide claim of right), there is no criminal offence. R. v. Twose, 14 Cox, 327. It must be proved that the act of burning was both wilful and malicious, otherwise it is only a trespass and not a felony. 1 Hale, P. C. 509. Therefore if A. shoot unlawfully at the poultry or cattle of 13., whereby he sets the house of another on fire, it is not felony ; for though the act he was doing was unlawful, he had no intention to btirn the house. Ibid. In this case, observes Mr. East, it should seem to be understood that he did not intend to steal the poultry, but merely to commit a trespass ; for otherwise, the first attempt being felonious, the party must abide all the consequences. 2 East, P. C. 1019. But where a sailor on board a ship entered the hold for the purpose of stealing rum, and the rum coming in contact with a lighted match in his hand, the ship was set on fire and destroyed, it was held by the Court of Crown Cases Reserved in Ireland that a conviction for arson could not be upheld. II. v. Faulkner, 13 Cox, 550. See ante, p. 21. It is at least very doubtful whether the proposition laid down by Mr. East can now be considered law. See post. tit. Murder, " proof of malice, death ensuing from unlawful act."' If A. has a malicious intent to burn the house of B., and without intending it burns that of C, it is felony. 1 Hale, I'. C. .309; 2 East, I'. C. 1019. So if A. command B. to burn the house of C, and he do so, and the fire burns also another house, the person so commanding is accessory to the burning of the latter house. Plowd. 475; 2 East, /'. C. 1019. On an indictment for wilfully setting fire to a rick by firing a gun close to it, evidence was allowed to be given by Maule, J., with a view of showing that the fire was not accidental, that on a previous occasion the prisoner was seen near the rick with a gun in his hand, and that the rick was then also on fire. II. v. Dossett, 2 C. & K. 300. Upon this point it was said by Tindal, C. J. : " Where the statute directs, that to complete the offence it must have been done with intent to injure or defraud some person, there is no occasion that either malice or ill-will should subsist against the person whose property is destroyed. It is a malicious act in contemplation of law. when a man wilfully does that which is illegal, and its necessary consequence must injure his neighbour, and it is unnecessary to observe that the setting fire to another's house, whether the owner be a stranger to the prisoner, or a person against whom he had a former grudge, must be equally injurious to him : nor will it be necessarv to prove that the house which forms the subject of the indict- ment in any particular case, was thai which was actually set on fire by the prisoner. It will he sufficient to constitute the offence, if he is shown to have feloniously set on tire another house, from which the flames com- municated to the rest. No man can shelter himself from punishment on the ground that the mischief he committed was wider in its consequences than he originally intended." 5 C. & 1'. 266(«). But where two lads threw a lighted paper into a post-office letter-box. forming pari of a house, whereby several letters were burnt. Williams, J.. said, thai no doubt if they intended the fire to do its worst they would be guilty, bul if they only set fire to the letters, and it was contrary to their intention to burn the house, they would not be guilty, and would not be guilty even if the house had been burnt. II. \. Batstone, 10 Cox., 20. R. S 258 Arson. In B. v. Gray, 4 F. & F. 1102, evidence of other claims on other insurance companies in respect of fires, in other houses previously occupied by the prisoner, was admitted to show that the fire in question was not the result of accident. A woman indicted for arson with intent to defraud an insurance office was allowed to give evidence that she was in easy circumstances, and so had no pecuniary motive for the crime. B. v. Grant, 4 F. & F. 322. See, too, B. v. Harris, 4 F. & F.342, and supra, p. 88. As to malice against the owner of the property being unnecessary, see 24 & 25 Yict. c. 97, s. 58, supra, p. 251. Proof of the intent.'] The intent to injure or defraud is an important ingredient in this offence. But like the proof of malice and wilfulness, it will generally be assumed. Thus where a man was indicted for setting fire to a mill, with intent to injure the occupier thereof, and it appeared from the prosecutor's evidence, that the prisoner was an inoffensive man, and never had any quarrel with the occupier, and that there was no known motive for committing the act: the judges held the conviction right, for that a party who does an act wilfully, necessarily intends that which must be the consequence of his act. 11. v. Farrington, Buss. . 534; 51 L. J.. M. ('. 66. where the majority of the Court of Crown Cases Reserved held that a spectator could not be held guilty by being merely present. < 'onsent.~\ In consequence of the natural desire not to permit a flagrant act of immorality to go unpunished, an attempt has frequently been made to treat that as an assault which is consented to on the part of the person who is the subject of the act, But on examination it will be found that there is no authority for such a position. Thus in R. v. Nichols, Russ. & Ry. 130, which is sometimes quoted in support of such a doctrine, where a master took indecent liberties with a female scholar to which she did not resist. Graham, B., distinctly told the jury that thci'e was some evidence to show that the acts of the prisoner were against the girl's will. And in P. v. Lay, 9 C. <£■ P. 722, a similar case, Coleridge, J., pointed out the distinction between consent and submission. He said. " every consent involves a submission; but it by no means follows that a mere submission involves consent. It would be ton much to say that an adult submitting quietly to an outrage of this description was not consenting; on the other hand, the mere submission of a child, when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law." So where two boys of eight years of age were ignorant of the moral nature of the Assault. 265 act done to them, it was held that mere submission to an indecent act was not consent. It. v. Loch, 42 /.. J., M. C. 5; A. //., 2 C. C. It. 10. It is otherwise if thev willingly and intentionally consent. Jt. v. Wdllerston, 12 Cox, 180. If the consent of the injured person has been obtained by fraud, then the outrage is considered as not the less an assault because it is consented to. B. v. Saunders, 8 C. & P. 265. See now 48 & 49 Vict. c. 69, s. 4, jjost, tit. Rape. It has also been said, though the law is not so clear upon this point, that where the act is in itself unlawful, it will, though consented to, be punishable as an assault. Coleridge, J., in Jt. v. Lewis, 1 C. & K. 419, said, that if two parties go out to strike one another, and do so, that it was an assault in both, and that it was quite immaterial who struck the first blow. And see per Cave, J., in It. v. Coney, ante, p. 204. It is indeed said in Butter's N. I'. 16, that in an action for assault and battery, it is no defence that the plaintiff and defendant fought by consent, for that the fighting being unlawful, the plaintiff would still be entitled to a verdict for the injury done him. But in Christopherson v. Bare, 17 L. J., Q, Ji. 109, the Court of Queen's Bench held that a plea of leave and licence to an action of assault, amounted to a plea of not guilty. It. v. Knock, 14 ( 'ox, 1. Lawful chastisement .] If a parent in a reasonable manner chastise his child, or a master his apprentice, or a schoolmaster his scholar, in such circumstances it is no assault. Hawk. I'. C. I>. 1, c. 90, s. 23; Com. Dig. /'trailer (3 M. 13). In all cases of chastisement it must, in order to be justifiable, appear to have been reasonable; 1 Kast, I'. C. 406; and the law as above stated with respect to children is said to have reference only to such children as are capable of appreciating correction, and not to infants only two and-a-half years old. B. v. Griffin, 11 Cox, 402, per Martin, B., after consulting with Willes, J. ; and see post, tit. Murder. The right of chastisement is expressly preserved by .37 & 58 Vict. <■. 41, s. 24. post, ]>. 348. Self-defence.'} A blow or other violence necessary for the defence of a man's person against the violence of another, will not constitute a battery. Thus, if A. lift up his stick, and offer to strike B., it is a suffi- cient assault to justify 1!. in striking A. ; for he need not stay till A. has actually struck him. /!. A'. /'. Is. Hut every assault will not justify every battery, and it is matter of e\ idence whether the assault was pro- portionable to the battery : an assault may indeed be of Mich a nature as to justify a mayhem : but where it appeared that A. had lifted tin 1 form upon which l'». sat, whereby the latter fell, it was held no justification for B.'s biting off A.'- finger, it. X. /'. is. In cases of assault, as in other- cases of trespass, the party ought not. in the first instance, to beat the assailant, unless the attack is made with such violence as to render the battery necessary. Weaver v. Bash, 8 '/'. It. 78. Wherea man strikes at another within a distance capable of the latter being struck, he is justified in using such a degree of force as will prevent a repetition. /' C. & I'. 474. On a trial for murder of a wife by her husband, evidence that the wife had on other occasions tried to strangle him with his neckerchief, was allowed to be given in order to show the character of the assault he had 266 Assault. to apprehend. It appeared from the evidence that the prisoner was very sensitive about the neck from old abscesses, and that the wife on several occasions had twisted his neckerchief round his neck until he became black in the face. B. v. Hopkins, 10 Cox, 229. Defence of other persons.'] It would seem that a person has no right to commit an assault merely in defence of other persons, unless he stand in a particular relation to the person assaulted. Such relations are, husband and wife, and vice versa ; parent and child, and vice versa ; and a servant in defence of his master, but not a master in defence of his servant. The law is so laid down in Dalton's Justice, ch. 121 ; though he treats the last point as doubtful. He also says that neither can the farmer or tenant justify such an act in defence of his landlord, nor a citizen in defence of the mayor of the city or town corporate where he dwelleth. Haivkins. bk. 2, c. 60, s. 4, follows Bolton exactly. It is true that both these writers are speaking of the forfeiture of recognizances to keep the peace, but probably what is said would be applicable to prosecutions for assaults also. Whether the interference can be justified on the ground that a breach of the peace is being committed, see infra. Prevention vf unlawful t(cts.~] There can be no doubt that any person may interfere to prevent the commission of a felony or any broach of the peace, and that he may proceed to any extremity which may be necessary to effect that object ; commencing of course with a request to the offender to desist, then if he refuses gently laying hands on him to restrain him ; and if he still resist, then with force compelling him to submit. Precisely the same rules apply as in cases of self-defence, it being in every case a question for the jury whether or no the degree of force actually used was necessary for the object which renders it legitimate; if there be any excess the party using it will be guilty of an assault. It has been attempted in some cases to draw a distinction between laying hands upon a person in order to restrain him, and proceeding to use force in order to attain thatobject ; Seiva>d v. Barclay, 1 /.'/■ Raym. 62 ; 1 Hawk. c. 60, s. 33 ; but there seems no ground for such a distinction ; the slightest imposition of hands if not justified is an assault ; and the necessity of a greater or less degree of violence depends on the circumstances of the case, to be judged of by the jury. Whether the assault may be carried to the extent of depriving the offending party of his life is doubtful. See post, tit. Murder. Of course the right to apprehend persons who have committed offences stands on a different footing. As to this see supra, tit. Apprehension. A man may justify an assault in defence of his house or other property even though no felony or breach of the peace is threatened. 2 Boll. A It. ■">49. And if the trespasser use force, then the owner may oppose force to- force. Green v. Goddard, 2 Salk. 641 ; Weavers. Hush, 8 T. R. 78. Proof of Hie aggravating circumstances. ~] The aggravating circumstances frequently consist in the intent. Sometimes, however, the consequences alone are' sufficient to subject the prisoner to the more serious punishment ; thus a man who commits an assault, the result of which is to produce grievous bodilv harm, is liable to be convicted under s. 47 of the 24 & 2d Vict. c. 100, ante, p. 262, though the jury think that the grievous bodily harm formed no part of the prisoner's intention. B. v. Sparroiu, 30 L. J., M. C. 43. On an indictment for an assault occasioning actual bodily harm, and Assault. 267 charging on other counts an unlawful wounding and the infliction of grievous bodily harm, a conviction may be had for a common assault; R. v. Y<'<;. It was also held, on the former statute, that the granting of the certifi- cate by the justices on one of the grounds mentioned in the statute was not discretionary or a judicial act, hut ministerial only, and that it was valid, although not applied for when the summons was heard. Hancock x. Sim us, 28 A. -/., .1/. ('. 196. And a»ain, that the word "forthwith" did not mean " forthwith upon the hearing of the summons," bat " forth- with on tlie application of the party." Gostary. Hetherington, 28 A. J., ilf.C.198. The Court of Queen's Bench, in R. v. Robinson, 10 L.J.,M. G.9, seem to have acted on an opinion at variance with these decisions, but Lord ( 'ampbell, in Hancockv. Somes, said that he could not approve of the reasoning in that case. The granting of the certificate must, however, he altera hearing upon the merits, and where the prosecutor offered no evidence it was held that tin- magistrates had no jurisdiction to grant a certificate. Reed \. Nutt, 24 Q. B. />. 669; 59 /,.'•/., (J. />'. oil. Under >ect. -HI. the justices have no jurisdiction where a question of title arises, and have no power to consider whether the violence was excessive. R. v. Pearson, I.. A'., ■> 'J. IS. 237 : 39 I.. ./., .1/. C. 76; 11 Gox, 4!t;5. Assnii// i,u peact officer."] The fact that the defendant did not know that the man whom he assaulted was a peace officer or was in the execution of his duty is no defence. /,'. v. Forbes, 10 Gox, <'. C. 362. In R. v. Prince, I,. A'., 2 G. G. I!. 154 ; 44 A. ./.. .1/. G. 122, ante, ]». 2:57. Brett, J., in commenting on the above case of A. v. Forbes, said, thai although the policeman was in plain clothes, the prisoners certainly had strong ground to suspect, if not to believe, that lie was a policeman; but Bramwell, B., cited the case with approval, saying, that the act of assaulting a police officer in the execution of his duty was a wrong in itself. As to the absence or invalidity of a warrant affording a ground of defence, -ee tit. Muni' r. Indecent assaults.] By 43 & 4-1 Vict. c. 45, the consent of a young person under thirteen is no longer a defence to an indecent assault. 268 Assault. Section 52 of the 24 & 25 Vict. c. 100, aide, p. 262, provides for the punishment of indecent assaults on females. In all charges preferred under s. 52, the accused, or the husband or wife of the accused, is a competent witness. 48 & 49 Vict. c. 69, s. 20. If it appears that the consent of the woman was obtained by fraud, such consent has been held to constitute no defence. See R. v. Case, 1 Den. C. C. 580; 19 L. J., M. C. 174 ; R. v. Bennett, 4 F. & F. 1105; and see ante, p. 265. In charges of indecent assault, the woman may be cross-examined as to connection with other men ; but she need not answer. If she does answer in the negative, her answer is conclusive, and no evidence can be given to contradict her. The same rule prevails in cases of rape, notwithstanding several decisions to the contrary. R. v. Holmes, L. R., 1 C. C. R. 334; 41 L. J., M. C. 12. Otherwise as to previous connection with the prisoner. R. v. Riley, 18 Q. B. D, 481 ; 56 L. J., M. C. 52. On an indictment for indecent assaidt, the jury may, if they think fit, find the prisoner guilty of common assault. Per Charles, J., R. v. Bostock, 17 Cox, 700. As to what constitutes Wounding, or Grievous Bodil// Harm, see those titles; as to Apprehension, see that title, and also tit. Murder. Attempts to commit Offences. 2(59 ATTEMPTS TO COMMIT OFFENCES. At common law.~] At common law every attempt to commit a felony or misdemeanor is in itself a misdemeanor. So long as the act rests in bare intention it is not punishable. But if that intention be unequivocally manifested by some overt act, then it becomes an offence cognizable by the law. And the mere soliciting another to commit a felony is a sufficient overt act to constitute the misdemeanor of attempting to commit a felony. Thus, to solicit a servant to steal his master's goods is a misdemeanor, though it be not charged in the indictment that the felony was actually committed. Per Grose, J., I!, v. Higgins, 2 East, N. So an endeavour to provoke another to send a challenge to fight has been held to be a mis- demeanor. 11. v. Phillijia, 6 East, 464. So, to endeavour by some act to induce another person to attempt to commit a felony is a misdemeanor. B. v. Hansford, 13 Cox, 9. And it makes no difference whether the offence which is attempted be one which is an offence at common law, or created by statute. Per Parke, 13.. A', v. Roderick, 7 C. & P. 795. So it has been frequently held that attempts to bribe, and attempts to suborn a person to commit perjury, are indictable misdemeanors. 1 Russ, i'ri. 197, 443, (Stli c'/., post, tit. Bribery and Perjury. And by the 14 & 15 Vict. c. 100, s. 9, infra, a prisoner may be found guilty of this common law offence of the attempt upon an indictment for the principal offence IUj statute.^ Many attempts to commit offences are provided for by statute. Most of them would be offences at common law, but, by statute, severe penalties arc attached to them, or thev are even made independent felonies. Thus, by the 24 & 25 Vict. c. 100,' ss. IN, 21 (supra, p. 260), the attempt to commit any of the offences therein mentioned is made a felony. By s. 15 of the same statute, " Whosoever shall, by any means other than those specified in any of the preceding sections of this Act, attempt to commit murder, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life (see ante, p. 203). In s. 21 [supra, p. 260), the attempt to choke, &c, is specially mentioned. By s. 62 (supra, p. 262), any attempt to commit an infamous crime is specially provided for. In almost all cases provisions Eor the offence <>!' setting fire to various kinds of property are followed by provisions directed against the attempt tn commit the same offence. See 2i & 25 Vict. c. 97, ss. S. 10, IS, 27. 38, 44, *,npr<< , tit. A rson. Conviction for attempt on indictment for principal offence, ,] By the 11 & 15 Vict. c. Kio, s. 9, •■\'i. upon tin 1 trial of any person charged with any felony or misdemeanor, it shall appear to the jury upon the evidence that the defendant did nut coin] >lete the offence charged, but that he was guilty only of an attempt to commit the same, such person shall not by reason thereof be entitled to l>e acquitted, but the jury shall he at Liberty to return as their verdict that the defendant is not guilty of the felony or misdemeanor charged, but is guilty of an attempt to commit the same. '270 Attempts to commit Offences. and thereupon such person shall he liahle to he punished in the same manner as if he had been convicted upon an indictment for attempting to commit the particular felony or misdemeanor charged in the said indict- ment; and no person so tried as herein lastly mentioned, shall be liable to be afterwards prosecuted for an attempt to commit the felony or mis- demeanor for which he was so tried." It has been suggested that the above section only applies to offences created by statutes passed subse- quently to that Act, and that it does not apply to felonies at common law. If that is so, the prisoner ought to be separately indicted for the attempt to commit the common law felony. But the words of the statute seem to be verv general, and would probably be held to include felonies at common law. See note to 11. v. Bain, L. & C. 129 ; R. v. Hapgood, L. R. . 1 C.C.R. 221 ; 39 L. J., M. G. S3, post, p. 272. Nature of the attempt.] It is not easy always to decide whether or not an indictable attempt has been committed. The following cases may serve to illustrate the subject. In 11. v. Carr, Russ. A Ry. 377, the prisoner was indicted for attempting to discharge a loaded gun at a person with intent to murder ; the jury found that the gun was loaded, but not primed; it was held that the prisoner could not be convicted. So where the touch-hole was plugged, so that the arm could not be dis- charged. R. v. Harris, 5 C. & P. 153. Lord Coleridge, however, in R. v. Duckworth, infra, expresses a doubt as to the correctness of this. In 11. v. Williams, 1 Den. ('. C. 39, the prisoner was indicted under the last-mentioned section for attempting to administer poison. It appeared that he had delivered poison to V., and desired him to put it into B.'s beer ; V. delivered the poison to B. and told him what had passed. It was held that the prisoner could not be convicted on this indictment. But quaere if this is not an attempt indictable at common law ; see the case of 7?. v. Higgins, supra. After some doubt it has now been decided that where a man raised his arm and pointed a loaded pistol at another, and had his finger on the trigger, but was stopped by the bystanders, that was an attempt to shoot within the statute. R. v. Duckworth, (1892) 2 Q. B. 83, overruling R. v. St. George, 9 ( '. lbs. less, and the quantity remaining over, which would in the course of business have been carried away to the contractor, was about 45 Lbs. more than it ought to have been. The fraud was detected before the weighing was completed, and the prisoner absconded. The jury found that he intended to dispose of the 4o lbs. surplus for his own purposes. Upon these facts he was convicted of attempting to steal 4o lbs. of meat, the property of his master. The Court for Crown Cases Reserved upheld the conviction. Erie, 0. J., observed, " It is said that the evidence does not show any such proximate overt act as is sufficient to support the conviction for an attempt to steal the meat. In my opinion there were several overt acts which brought the attempt close to completion. These were the preparation of the false weight, the placing it in the scale, and the keeping back the surplus meat. It is almost the same as if the prisoner had been sent with two articles, and had delivered one of them as if it had been two. To com- plete the crime of larceny there only needed one thins:, the beginning to 272 Attempts to commit Offences. move away with the property." Blackburn, J., observed, "There is no doubt a difference between the preparation antecedent to an offence and the actual attempt, but 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." R. v. Cheeseman, 1 L. & C. 140. To write and send a letter to another person with intent to incite that person, was held to be an attempt to incite, though the person to whom the letter was sent did not read it. R. v. Ransford, 13 Cox, 9. Aiding in an attempt.] Where one prisoner was charged with com- mitting a rape and another with assisting in the rape, and the jury found the principal offender guilty of an attempt to commit a rape and the accessory of aiding in the attempt, it was held that the conviction was right. R. v. Wi/att, 39 L. J., M. 0. 83 ; R. v. Hapgood, L. R., 1 C. 0. R. 221 ; 39 L. J., M. 0. 83. Bankrupt, Offences by. 273 BANKRUPT, OFFENCES BY. Offences against the bankrupt laws.} The "Debtors Act, 1869 " (32 & 33 Vict. c. 62), contains provisions with respect to the offences of fraudulent debtors which are very similar to those which were formerly contained in the Bankruptcy Acts. "Words and expressions contained in the Debtors Act are to have the same meaning as the same words and expressions have in the Bankruptcy Act as they are there defined or explained. The Bankruptcy Act, 1869, was repealed by the Bankruptcy Act, 1883 (46 &47 Vict. c. 52), which by s. 149 (2) enacts that where by any act or instru- ment, reference is made to the Bankruptcy Act, 1869, the act or instrument is to be construed and have effect as if reference was made therein to the corresponding provisions of this Act. By s. 162 (2) the provisions of the Debtors Act, 1869, as to offences by bankrupts are to apply to any person whether a trader or not, in respect of whose estate a receiving order has been made, as if the term "bankrupt" in that Act included a person in respect of whose estate a receiving order had been made. As to the making, &c, of a receiving order, see s. o et seq. Punishment of fraudulent debtors.] By s. 11 of the Debtors Act, 1869, any person adjudged bankrupt (including a person in respect of whose estate a receiving order has been made (46 & 47 Vict. c. .32, s. 1(33)), shall, in each of the cases following, be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be imprisoned for any time not exceeding two years, with or without hard labour ; that is to say, Failure to make full discovery.} (1.) If he does not, to the best of his knowledge and belief, fully and truly discover to the trustee administering Ins < state fin- the benefit of bis creditors all his property, real and personal, and how, and to whom, and for what consideration, and when be disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade [if any), or laid out in the ordinary expense of his family, unless the jury is satisfied that he had no intent to defraud: Failure to deliver up property."] (2.) If be does not deliver up to such trustee, or as he directs, all such part of bis veal and personal property as is in bis custody or under bis control, and which he is required by law to deliver up, unless the jury is satisfied that he had no intent to defraud : Wailwre to delirrr ///> hook*. hlaimn credit.] (15.) If within four months next before the presentation of a bankruptcy petition (by or) against him, (or in case of a receiving order made under s. 103 of the Bankruptcy Act, LS83, before the date of the order— these alterations are made by 53 & 54 Vict. c. 71, s. 26), he, being a. trader (or not — 46 & 47 Vict. c. 52, s. 163), pawns, pledges, or disposes of otherwise than in the ordinary way of his trade any property which he has obtained on credit and has not paid for, unless the jury is satisfied that he had no intent to defraud : Obtaining consent of creditors hy false representation.] (16.) If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to any agreement with reference to his affairs or his bankruptcy. Penalty for absconding with property.] By s. 12, if any person who is adjudged a, bankrupt (or in respect of whose estate a receiving order has hemi made 16 & -17 Vict. c. 5i'. s. 163), <>r has his affairs liquidated by arrangemenl alter the presentation of a bankruptcy petition (byor— 46 & 47 Vict. c. 52, s. 163) against him, or the commencement of the liquida- tion, or within four months before such presentation or commencement, quits England and takes with him, or attempts or makes preparation for quitting England and lor taking with him, any part of his property to the amount of 20/. or upwards, which ought by law to be divided amongsl his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for a time not exceeding two years, with or without hard labour. Penalty on fraudulently obtaining credit, &c] By s. 13, any person shall in oach'of the cases following he deemed guilty of a misdemeanor, and on conviction thereof shall he liable to he imprisoned for any time not exceeding one year, w ith or w itlnait hard labour ; that is to say. (1.) If in incurring any debl or liability lie has obtained credit under false pretences, or by means of any other fraud : (2.) If he has, with intent to defraud his creditors, or any of them, made or caused to be made any gift, delivery, or transfer of, or any charge on his property : (3.) If he lias, with intent to defraud his creditors, concealed or removed any part of his property since or within two months before the date of any unsatisfied judgmenl or order for payment of money obtained againsl him. A plaintiff in an action lor unliquidated damages is not a creditor of the defendanl within the meaning of sub-section 2 until the judgment is recovered. /,'. v. Hopkins, (1896) 1 'J. />'. 652; 65 /.. ,1., M. C. 125. c '_' 276 Banlcrupt, Offences by. Fills,' claims, &c] "By s. 14, if any creditor in any bankruptcy, wilfully and with intent to defraud, makes any false claim, or any proof, declara- tion, or statement of account which is untrue in any material particular, he shall be guilty of a misdemeanor, punishable with imprisonment not exceeding one year, with or without hard labour. Order by court for prosecution on report, of trustee."] By s. 16, where a trustee in* any bankruptcy (or the official receiver of a bankrupt's estate (46 & 47 Vict. c. 52, s. 164) reports to any court exercising jurisdiction in bankruptcy that in his opinion a bankrupt (including a person in respect of whose estate a receiving order has been made, 46 & 47 Vict. e. 52, s. 163) has been guilty of any offence under this Act (or under the Bankruptcy Act, 1883, see 46 & 47 Vict. c. 52, s. 164), or where the court is satisfied upon the representation of any creditor or member of the com- mittee of inspection that there is ground to believe that the bankrupt lias been guilty of an offence under this Act (or under the Bankruptcy Act, 1883, see 46 & 47 Vict, c. 52, s. 164), the court shall, if it appears to the court that there is a reasonable probability that the bankrupt may be con- victed, order the trustee (or the official receiver of the bankrupt's estate — 46 & 47 Vict. c. 52, s. 164) to prosecute the bankrupt for such offence. Expenses of prosecution.] By s. 17, where the prosecution of the bankrupt under this Act is ordered by any court, then, on the production of the order of the court, the expenses of the prosecution shall be allowed, paid, and borne, as expenses of prosecutions for felony are allowed, paid, and borne. Application of Vexatious Indictments Act.] By s. IS, every misdemeanor under the second part of this Act (i.e., ss. 11 — 23), shall be deemed to be an offence within and subject to the provisions of the 22 & 23 Vict. c. 17, intituled "an Act to prevent vexatious indictments for certain misde- meanors"; and when any person is charged with any such offence before any justice or justices, such justice or justices shall take into consideration any evidence adduced before him or them tending to show that the act charged was not committed with a guilty intent. k t)^ Form of indictment.] By s. 19, in an indictment for an offence under this Act it shall be sufficient to set forth the substance of the offence charged, in the words of this Act, specifying the offence or as near thereto as circumstances admit, without alleging or setting forth any debt, act of bankruptcy, trading, adjudication, or any proceedings in, or order, warrant, or document of any court acting under the Bankruptcy Act, 1 869 (or the 46 & 47 Vict. c. 52, s. 149, ante, p. 273; see_pos<, p. 282). Quarter sessions to 1, are jurisdiction.] By s. 20, jurisdiction over offences against any provision of the laws relating to bankruptcy is given to quarter sessions. Pun ish nunts cumulative.] By s. 23, where any person is liable under any other Act of parliament or at common law to any punishment or penalty for any offence made punishable by this Act, such person maybe proceeded against under such other Act of parliament or at common law or under this Act, so that he be not punished twice for the same offence. Undischarged bankrupt obtaining credit to the extent of 201.] By 46 & 47 Vict. c. 52, s. 31, where an undischarged banknipt who has been adjudgi d Bankrupt, ({(fences by. 277 bankrupt under this Act obtains credit to the extent of twenty pounds or upwards from any person without informing such person that he is an undischarged bankrupt, he shall be guilty of a misdemeanor, and may be dealt with and punished as if he had been guilty of a misdemeanor under the Debtors Act, 1869, and the provisions of that Act shall apply to pro- ceedings under this section. An intent to defraud is not a material ingredient of this offence. R. v. Dyson, (1894) 2 Q. 11. 176 ; 63 L. the goods concealed from the time when he became, or was likely to become, bankrupt. Concealment of goods in the houses of neighbours or of associates, or in secret places in the bankrupt's own house, or sending them away in the night, endeavouring to escape abroad with part of his effects, &c, constitute the usual proofs in cases of this description. Where the prisoner executed an assignment of the property on his farm to trustees for the benefit of his creditors which was not registered as a bill of sale, and afterwards fraudulently removed stock from the farm to the extent of 10/. and then liquidated his affairs by arrangement, it was held that he could not properly he convicted under s. 11, sub-s. 5. The assignment, not having been registered as a bill of sale, was void as against the trustee in liquidation; but was otherwise in force; and the property in the stock removed was not the prisoner's, within the section, but was at the time of the fraudulent removal the trustee's under the assignment. B. v. Creese, I.. /.'.. 2 C. C. 11. 10.3; 43 /.. ./., .1/. C. 51. It must be borne in mind that by the Bills of Sale Act, 1SS2 (4.3 & 46 Vict, c. 43), unregistered bills of sale are now absolutely void. Obtaining credit.'] The expression "credit" has been given a wide meaning by the Court for ( 'nnvn Cases Reserved, and it has been held that it does not matter how short the period of credit may be, and that if a man parts with his goods without insisting on prepayment or inter- changeable payment, he gives credit. Where, therefore, the prisoner making no verbal representation of his ability to pay, but being in fact penniless, ordered and consumed a meal at a restaurant, it was held that 280 Bankrupt, Offences by. he was rightly convicted of obtaining credit by fraud on an indictment under s. 13, sub-s. 1. B. v. William Jones, (1898) 1 Q. B. 118. An obtaining goods on approval is not an obtaining of credit within sect. 221 of the former Bankruptcy Act. B. v. Lyons, 9 Cox, 299. Sub- sect. 15 of sect. 11 {ante, p. 275) speaks of disposing " otherwise than in the ordinary way of bis trade," and upon these words it was ruled by Lush, J., after consulting Martin, B., that the disposing by bill of sale of a portion of a trader's goods not paid for was clearly within the section. B. v. Thomas, 11 Cox, 535. "Where a trader, being in insolvent circum- stances, purchased goods on credit, and shipped them to Australia and obtained advances by pledging the bills of lading, it was held that in the absence of any evidence of having obtained the goods on false representa- tions, his conduct did not constitute an offence under sect. 11, sub-sects. 13, 14, or 15 of the Debtors Act, 1869. Ex parte Brett, In re Hodqaon. 1 Ch. I). 151 ; 45 L. J., Bank. 17. Sect. 13 of the Debtors Act, 1869, applies to "any person" whether bankrupt or not. Where a judgment had been recovered against a person not a bankrupt, and on the very next night he removed his property from his house in order to defeat the creditor who had obtained the judgment, it was held that he could be brought within sub-s. 3 ; but, inasmuch as the indictment charged an intent to defraud his "creditors," and there was no proof, beyond the intention to defraud the particular judgment creditor which was not left to the jury as evidence of an intent to defraud creditors generally, and no evidence to show there were other creditors, it was held that the conviction could not be sustained. B. v. Rowlands, 8 Q. B. D. 530; 51 L. J„ M. C. 51. In order to convict an undischarged bankrupt under 46 & 47 Vict. c. 52, s. 31, of the offence of " obtaining credit to the amount of 20/. or upwards from any person without informing such person that he is an undischarged bankrupt," it is not necessary that there should be a stipulation to grant credit in the contract between the parties ; it is sufficient if a credit in fact is obtained. The prisoner, an undischarged bankrupt living in Newcastle-on-Tyne, bought a horse from the prose- cutor, a farmer in Ireland, for 22/., free of expense to the vendor, who by the prisoner's direction delivered the horse on board a steamer at Larne ; no stipulation was made as to the time or mode of payment, and the prisoner did not disclose the fact that he was an undischarged bankrupt. The prisoner paid for the carriage of the horse on its delivery to him at Newcastle, and immediately sold it, and refused to pay the price to the prosecutor. A conviction on the above facts for obtaining credit within the meaning of s. 31, was upheld by the Court for Crown Cases Beserved. B. v. Peters, 16 Q. B. I). 636 ; 53 L. J., M. C. 173. Intent to defraud.'] Since the Debtors Act, 1869, declares, in most instances, that the debtor shall be guilty of a misdemeanor, "unless the jury arc satisfied that he had no intent to defraud," it is now, in general, for the prisoner to rebut the presumption of fraud. See B. v. Thomas, 11 Cox, 535; B. v. Bolus, 11 Cox, 610; 11. v. Cherry, VI Cox, 32. The only instances m which the onus is not on the prisoner are in those sections of the Act, such as s. 1], sub-ss. 5, 11, 12, 13, 16, and s. 13, where the conduct of the prisoner is charged to be fraudulent, and where, therefore, the fraud must be proved by the prosecution as in ordinary cases. An intent to defraud is not a material ingredient of the offence created by s. 31 of the Act of 1883 — the obtaining of credit by an undischarged bankrupt. B. v. Dyson, (1894) 2 Q. II. 176; 63 L. J., M. C. 124. The following authorities on the earlier statutes have some application to the Bankrupt, Offences by. 281 present state of the law. The absconding of the bankrupt, with the view of avoiding the examination, is good evidence of the intent, although by- reason of such absconding the bankrupt may have had no knowledge of the proceedings in bankruptcy. In R. v. Gordon, 25 L. J., M. C. 19; Dears. G. C. 586, an indictment for not surrendering, the jury found that there was no evidence that the prisoner had actual knowledge of the adjudication of the summons to surrender, but that the prisoner and his partner had left this country before the adjudication, believing that they should be made bankrupts, and that they stayed abroad with the intent to defraud their creditors, by depriving them of their rights to examine the bankrupts and to make them responsible. The court held that this finding was sufficient to support a conviction. In It. v. Ingham, 29 L. J., M. (\ IS, an indictment for making false entries under s. 252 of the repealed statute, 12 & 13 Vict. c. 106, the jury found that the false entries were made l>y the bankrupt with intent to deceive his creditors as to the state of his accounts, and to prevent the examination and investigation of them in due course of bankruptcy, and to save him from having to account for a deficiency which appeared in the genuine account; but they also found that it was not done to defraud the creditors of any money or property, or in any way to prevent them from recovering or receiving any part of liis estate, or in conceal any misappropriation by him. The Court of Criminal Appeal quashed the conviction, on the ground that, though there might be an intention to deceive, the jury had expressly negatived an intention to defraud. See also It. v. Hughes, 1 F. A F. 726. Proof of the value of fin- iff' cts.~] Where the prosecution is on the ground of concealing effects, it must be proved that those effects were of the value (if \()l. In It. v. Davison, 7 Cox, 158, Alderson, B., doubted whether embezzling -mall sums on different days, not in any instance amountingto 10/., could be considered within the Act. Examination of bankrupt.] As to compulsory evidence under bank- ruptcy proceedings, see ante, pp. 45, 2-15. The examination of the bankrupt may also he conducted under 46 & 47 Vict. C. 52, s. 165, '>(>, an undischarged bankrupt, while at Lowestoft, in the county of Suffolk, purchased a quantity of tishal an auction, for which he obtained credit. By the custom of the trade, the fish were deemed to he in the sole possession and ai the risk of the buyer eai the fall of the hammer. Pari of the fish he disposed of at Lowestoft, and the remainder he sent to Grimsby, in the county of Lincoln, where he resided. CJpon an indictment laid in the county of Lincoln which charged him with having, while he was an undis- charged bankrupt, unlawfully obtained credit to the extenl of 20/. and upwards, without informing the persons from whom credit was obtained of the fact that he was an undischarged bankrupt, contrary to 46 & 47 Vict. c. 52, s. 31, it was held thai credit was obtained in the county of Suffolk, and that the indictment was therefore wrongly laid in the county of Lincoln. 282 Bankrupt, Offences by. Arrest of bankrupt.'] By 46 & 47 Yict. c. 52, s. 25, amended by 53 & 54 Vict. c. 71, s. 7, the court may by warrant arrest a debtor under certain circumstances. Indictment.'] As to the form of the indictment, see the Debtors Act, 1869, s. 19, ante, p. 276. Under this section, an indictment under s. 13 (1) of the Debtors Act, 1869, was held sufficient which charged the prisoner with having obtained credit under "false pretences," or "by means of fraud," without setting out the false pretences or the means by which the credit was obtained, R. v. Pierce, 56 L. J., M. C. 85, following R. v. Watkinson, 12 Cox, 271, and dissenting from R. v. Bell, 12 Cox, 37. But where the offence charged is within a section in which the adjudication of bankruptcy is a necessary ingredient, e.g., s. ll,sub-s. 15, an averment of that fact must be stated in the indictment. R. v. Oliver, 13 Cox, 588. In R. v. Harris, 1 Den. C. C. R. 461; 19 L. J., M. C. 11, an indict- ment under 5 & 6 Vict. c. 122, s. 32, charged that the bankrupt surrendered himself, &c, and was then and there duly sworn, &c, and duly submitted himself to be examined, &c, and that at the time of his said examination, &c, he was possessed of a certain real estate, to wit, &c, and that at the time of his said examination, and being so sworn as aforesaid, he then and there feloniously did not discover when he disposed of, assigned and transferred the said real estate, &c. It was held that the indictment was bad for repugnancy, as it charged the prisoner with not discovering at the time of his examination when he disposed of an estate, which was averred to be in his possession at the time of his examination. Barratry. 283 BABBATBY. A barrator is defined to be a common mover, exciter, or maintainer of suits or quarrels either in courts or in the country, and it is said not to be material whether the courts be of record or not, or whether such quarrels relate to a disputed title or possession, or not ; but that all kinds of dis- turbances of the peace, and the spreading of false rumours and calumnies, whereby discord and disquiet may grow amongst neighbours, are as proper instances of barratry as the taking or keeping possession of lands in controversy. But a man is not a barrator in respect of any number of false actions brought by him in his own right, unless, as it seems, such actions should be entirely groundless and vexatious, without any manner of colour. Nor is an attorney a barrator, in respect of his maintaining his client in a groundless action, to the commencement of which he was in no way privy. Hawk. I'. C. b. 1, c. 81, ss. 1, 2, 3, 4; 1 Buss. Cri. 489, (ttlt ed. Barratry is a cumulative offence, and the party must be charged as a common barrator. It is, therefore, insufficient to prove the commission of one act only. Hawk. P. (,'. b. 1, c. 81, s. o. For this reason the prose- cutor is bound, before the trial, to give the defendant a note of the parti- cular acts of barratry intended to be insisted on, without which the trial will not bo permitted to proceed. Ibid. .s. 13. The prosecution will be confined by these particulars. Qoddard v. Smith, 6 Mod. 2(52. See Car. Supp. 321 ; supra, p. 168. The punishment of this offence is fine and imprisonment, and being held to good behaviour, and in persons of any profession relating to the law, the further punishment is added of being disabled to practisefor the future. Hawk. J'. >'. h. I, c. 81, s. 14 ; 34 Edw. 3, c. 1. By the 12 Geo. 1, c. 29. s. 4, if any person convicted of common barratry shall practise as an attorney, solicitor, or agent, in any suit or action in England, the judge or judges of the court where such suit or action shall be brought, shall, upon complaint or information, examine the matter in a summary way in open court, and if it shall appear that the person com- plained of lias offended, shall cause such offender to he transported for seven years. This act was revived and made perpetual by 21 Geo. 2, c. 3, which is repealed, but the above enactment is now made perpetual by the repeal of the section which provided for its expiration, viz., the last section of the Act. See the Stat. Law Rev. Act, l7. As to maintenance, see post, tit. Maintenance. 2N4 Bigamy. BIGAMY. By statute.'] The offence of bigamy was originally only of ecclesiastical cognizance, but was made a felony by the 1 Jac. 1, c. 11. This statute is now repealed, and by the 24 & 25 Vict. c. 100, s. 57, " whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England, or Ireland, or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years (see ante, p. 203) ; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended, or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place : Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England and Ireland by any other than a subject of her Majesty; or to any person marrying a second time whose husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time ; or shall extend to any person who at the time of such second marriage shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction. Proof. ,] Upon an indictment for bigamy, the prosecutor must prove : 1. The two marriages ; 2. The identity of the parties; 3. That the first spouse is alive ; and if he or she has been absent for seven year's, then, 4. That the prisoner knew he or she was alive. I. The two Marriages. Proof of valid marriage — second marriage.^ Very considerable difficul- ties occur, in some cases, in ascertaining how far either or both marriages must be shown to be valid. So far as relates to the first marriage, the question, what marriages will be considered void for the purpose of bigamy, will be found discussed infra, pj3. 285 et seq. With regard to the necessity of proving the validity of the second marriage, but for the existence of the first marriage, considerable doubt used to exist, for it was thought that it was necessary to prove such a legal marriage as would, but for the prior marriage, have been a binding marriage for all purposes. But it was held, that where a woman already married, and having a husband alive, marries with the widower of her deceased sister, she was guilty of bigamy, though by the 5 & Will. 4, c. 54, such a marriage is declared to be mdl and void to all intents and purposes whatsoever. R. v. Brawn, 1 C. & K. 144. And in //. v. Allen, L. Jl., 1 0. C. H. 307 : 41 L. J., M. C. 97, confirming the above decision, and disapproving of R. v. Fanning, 10 Cox, 411, it was held that where a Bigamy. 285 person already bound by an existing- marriage goes through, a form of marriage known to and recognized by the law as capable of producing a valid marriage, that will be a bigamous marriage, although invalid by reason of some legal disability in the parties. If, however, the form of marriage gone through is not shown to be one recognized by the law, it is not a bigamous marriage. Burt v. Burt, 29 L. J., P. & M. 133, approved in II. v. All, ,,, su pra. Where in a marriage before a registrar the prisoner, who had been pre- viously married, gave a false name without the knowledge of the woman, it was held that this would not invalidate the marriage so as to acquit the prisoner of the charge of bigamy. II. v. Ilea, L. //., 1 C. C. I!. 365; 41 L. J., 31. ('. 92. See also 'post, Marriages by banns, p. 290. Proof of valid first marriage — not presumed.] The law will not in cases of bigamy presume a valid marriage to the same extent as in civil cases. Per Bailey, J., Smith v. Huson, 1 Phill. 287. It is not sufficient to prove cohabitation and marriage by reputation. Catherwood v. Caslon, 13 M. & II'. 2(51. Nor by a copy of the certificate of marriage without evidence of the identity of the parties, although it can be proved that the prisoner cohabited with a person of the same name afterwards. II. v. Simpson, 1.3 Cox, 323. Proof of valid first marriage — 'prisoner's admission.'] In P. v. Newton, 2 Moo. & Rob. 503, Wightman, J., held that the jmsoner'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. And the same learned judge held the same in P. v. Simmonds, 1 ( '. & K. Ki4; but in II. v. Flaherty, 2 G. & K. 782, where a man went to a police station, and stated that he had committed bigamy, and when and where 1lu' first marriage took place, and while in custody signed a statement to the same effect, Pollock, < '. B., thought this, though some evidence of the first marriage, was not sufficient. Probably this opinion was founded on some suspicion, in the particular case, of the truth of the admission. Proof of valid first marriage — sen, ml wife a competent witness.'] After proof of the first marriage, the second wife is a competent witness, for then it appears that the second marriage is void. Bull. N. P. 287 ; lEast, I'. G. 469. Proof of valid first marriage. — proof that valid ceremony was perform',/ — marriages in England.] It is clear that unless the first marriage be valid, the crime of bigamy cannot be committed. Where the marriage has taken place in Kngland, it may have been celebrated either in a church or chapel where marriages have been usually solemnized, or which is duly licensed by a bishop, according to the rites of the Church of England, or in a duly registered chapel according to such form as the parties please, before some registrar of the district and two witnesses, or before a superintendent registrar and some registrar of the district. With regard to the first, it is sufficient to call a, person who was present at the ceremony, and it will he presumed to have been in all respects duly performed : or, without calling any person who was present at the mar- riage, it will be sufficient, coupled with some evidence of the identity of the parties (see yes/, p. 293) to produce either the register or an examined copy of the register, or a certified copy of the register from the general registry office, which is made evidence by the (J & 1 Will. -1, c. 86, s. 38, 286 Bigamy. aide, p. 152 ; and see now 14 & 15 Vict. c. 99, s. 14, ante, p. 142. And a marriage in a chapel where marriages have been usually solemnized, or duly licensed, will stand on the same footing as a marriage in a church. See as to non-parochial registers, 21 & 22 Vict. c. 25; as to licensing by a bishop, 6 & 7 Will. 4, c. 85, s. 3G. If the marriage has taken place in a chapel where marriages have not been usually celebrated, then it is necessary that the chapel should have been duly registered for that purpose under 6 & 7 Will. 4, c. 85, s. 18, and that the marriage took place with open doors between the hours of 8 and 12 in the forenoon (now 8 in the forenoon to 3 in the afternoon (49 Vict. c. 14)), in the presence of some registrar of the district in which the chapel is situate, and of two or more credible witnesses. Id. s. 20. The marriage may be performed between the parties according to such form and cere- mony as they see fit to adopt. /'/. But, during some part of the ceremony, and in the presence of the registrar and witnesses, each of the parties must declare as follows : " I do solemnly declare, that I know not of any lawful impediment why I, A. B., may not be joined in matrimony to 0. D." And each of the parties must say to the other, ' ' I call upon these persons here present to witness that I, A. B., do take thee, 0. D., to be my lawful wedded wife [or husband]." By s. 23, the registrar is bound forthwith to register every marriage solemnized in his presence in a marriage register book, of which, under 6 & 7 Will. 4, c. 86, s. 38, a certified copy may be given in evidence. The certificate was held to be sufficient prima facie evidence of the marriage having been duly performed in B. v. Ilaives, 1 Den. C. C. 270 ; but it has nevertheless been the general practice to adduce some evidence both of the presence of the registrar and that the chapel was duly registered. In B. v. Mamvarivg, D. A B. C. C. 132, however, four of the judges were of opinion that proof that the marriage was cele- brated in a chapel, in presence of the registrar, was sufficient without proving that the chapel was registered ; and this was followed by Willes, J. , after consulting Pollock, C. B., in the case of B. v. CraddocJe, 3 F. & F. 837. If it should be necessary to prove that the chapel in which the marriage took place was registered, it may be proved by an examined or certified copy of the register. See 14 & 15 Vict. c. 99, s. 14. Where a witness was called, who produced a certificate by which the superintendent registrar certified that the chapel was duly registered, which certificate did not purport to be an extract from or copy of the register, but which the witness said he received from the superintendent registrar at his office, and which he compared with the register book and found to be correct, this was held to be sufficient evidence of the due registration of the chapel. B. v. Man war in (j, supra. While the parish church was under repair, divine service had been several times performed by a clerk in holy orders in a chamber at a private hall, and the marriage of the prisoner with his wife was solemnized there. Though there was no evidence that the chamber at the hall was licensed for the performance of divine service or for marriages, it was presumed in favour of the marriage to have been duly licensed. Lord Coleridge, C. J., said: "We are of opinion that the marriage service having been performed in a place where divine service was several times performed, the rule ' omnia presumuntur rite esse acta ' applies, and that we must assume that the place was properly licensed, and that the clergyman performing the service was not guilty of the grave offence of marrying persons in an unlicensed place." B. v. Cresswell, 13 Cox, 127 ; see also 1 Q. B. D. 446; 45 I. J., M. (J. 77, where the case is not so fully reported. It is a felony to solemnize matrimony in an unauthorized place or during unauthorized hours, or while falsely pretending to be in Bigamy, 287 holy orders to solemnize matrimony according to the rites of the Church of England. 4 Geo. 4, c. 76, s. 21, amended by 49 Vict. c. 14, s. 1 ; 6 & 7 Will. 4, c. 85, s. 39. And see 26 Vict. c. 27, post, p. 288. If the marriage has taken place before the superintendent registrar under 6 & 7 Will. 4, c. 85, s. 21, then the marriage must have taken place in the presence of that officer, and of some registrar of the district, and of two witnesses, with open doors, and between the hours of 8 and 1 2 in the forenoon (now 8 in the forenoon to 2 in the afternoon : 49 Vict. c. 14); and the parties must make the declaration and use the form of words above mentioned. The marriage is registered, like other marriages, under s. 23, of which register, as has already been said, a certified copy may be given in evidence, ante, p. 285. How far the validity of the ceremony would be presumed upon the production of the certificate does not appear to have been yet discussed. If the prisoner should assert that the first marriage was void by reason of a prior marriage he will be allowed to prove that prior marriage by evidence of cohabitation and reputation, although the prosecutor is bound to prove the first marriage strictly. It. v. Wilson, 3 F. .1' F. 119. Proof of valid first marriage — Jews and Quakers.} — These persons stand upon a peculiar footing. They have long been in the habit of celebrating marriages according to well-established rituals of their own, and such marriages have been recognized by the legislature. They are excepted out of the operation of the 4 Geo. 4, c. 76, by s. 31 ; and by the 6 & 7 Will. 4, c. 85, s. 2, it is provided, " that the Society of Friends, commonly called Quakers, ami all persons professing the Jewish religion, may continue to contract and solemnize marriage according to the usages of the said society and of the said persons respectively; and every such marriage is hereby confirmed and declared good in law, provided that the parties to such marriage be both members of the said society, or both persons professing the Jewish religion respectively: Provided also, that notice to the registrar shall have been given, and the registrar's certificate shall have been issued in manner hereinafter provided." By 7 Will. 4 <& 1 Vict. c. 22, s. 1, for " registrar " is to be read "superintendent registrar" in this section. By the 19 & 20 Vict. c. 119, s. 21, marriages between Jews and Quakers respectively may be solemnized by licence granted by the superintendent registrar in the form given in schedule (C) to that Act. .See 23 & 24 Vict. c. IS. In a Jewish marriage a written contract being an essential part of the ceremony such contract must be produced and proved, R. v. Althausen, 17 Cox, 630. Proof af valid first marriage — marriages in Wales."} By the 7 "Will. 4 & 1 Vict. c. 22, s. 2;;. provision is made for an authentic translation of the form of words given in the n the other hand, if a man marry his deceased wife's sister, and in the latter's lifetime marry another woman, he cannot then be indicted for bigamy. //. v. Chadwiclc, 11 Q. B. 17:5: 17 /.. ./.. .1/. C. 33. Although it was formerly held thai the marriage of an Idiot was valid, yet, according to modern determination, the marriage of a lunatic uol ra a lucid interval, is void. 1 Bl. Com. 438, 439. And by the 51 ("Jeo. 3. c 37. if persons found lunatics under a commission, or committed to the care of trustees by any .Vet of parliament, marry before they are declared of soundmind by the Lord Chancellor, or the majority of such trustees, the marriage shall be totally void. It was held, under the former law, that where the second marriage was R. U 290 Bigamy. contracted in Ireland, or abroad, it was not bigamy, on tlie ground that that marriage, which alone constituted the offence, was a fact done in another jurisdiction, and though inquirable into here for some purposes, like all transitory acts, was not, as a crime, cognizable by the rules of the common law. 1 Bale, P. C. 692 ; 1 East, P. 0. 46o. But now the offence is the same, whether the second marriage shall take place in England or elsewhere, if such marriage be contracted by a British subject. What marriages are raid — marriages by banns.'] By the 22nd section of the Marriage Act, 4 Geo. -1, c. 76, "if any person shall knowingly and wilfully intermarry in any other place than a church or such public chapel wherein banns may be lawfully published, unless by a special licence, or shall knowingly and wilfully intermarry without due publica- tion of banns, or licence from a person or persons having authority to grant the same first had and obtained, or shall knowingly and wilfully consent to, or acquiesce in, the solemnization of such marriage by any person not being in holy orders, the marriage of such person shall be null and void." With regard to the chapels in which banns may be lawfully published, it is enacted, by the 6 Geo. 4, c. 92, s. 2, that it shall be lawful for mar- riages to be in future solemnized in all churches and chapels erected since the 26 Geo. 2, c. 33, and consecrated, in which churches and chapels it has been customary and usual before the passing of that Act (6 Geo. 4) to solemnize marriages, and the registers of such marriages, or copies thereof, are declared to be evidence. By sect. 3 of the Marriage Act, 4 Geo. 4, c. 76, "the bishop of the diocese, with the consent of the patron and in- cumbent of the church of the parish in which any public chapel having a chapelry thereunto annexed may be situated, or of any chapel situated in an ex^tra-parochial place, signified to him under their hands and seals respectively, may authorize by writing under his hand and seal the pub- lication of banns, and the solemnization of marriages in such cha]">els for persons residing in such chapelry or extra-parochial place respectively ; and such consent, together with such written authority, shall be registered in the registry of the diocese." To render a marriage without due publication of banns void, it must appear that it was contracted with a knowledge by both parties that no due publication had taken place. P. v. Wroxton, 4 B. & Ad. 640. And, therefore, where the intended husband procured the banns to be published in a Christian and surname which the woman had never borne, but she did not know that fact until after that solemnization of the marriage, it was held to be a vaHd marriage. Id. As in a charge of bigamy it is incumbent on the prosecution to prove the validity of the first marriage, it would be necessary in a charge depending on the facts in P. v. Wroxton (supra), to produce evidence to show that the want of due publication of the banns was unknown to one of the parties previously to the marriage. The prisoner went through the ceremony of marriage with a woman whose surname was Abel. In order to conceal the marriage he jmblished her banns in the surname of Anderson, but, except that after the ceremony she signed the register in the name of Anderson, there was no evidence to show that she was aware of the misdescription until after the solemnization of the marriage. Subsequently, and during her lifetime, the prisoner went through the ceremony of marriage with another woman. On these facts, it was held by Huddleston, B., that there was no affirmative evi- dence to show that the woman Abel was unaware of the want of due publication at the time of the solemnization of the marriage, and that therefore the prosecution had failed to prove the validity of the first Bigamy. 291 //. v. Kay, 16 Cox, 292; and see Wiltshire v. Prince, 3 //"< ■. /<'. .')32. If the prisoner has been instrumental in procuring the banns of tbe second marriage to be published in a wrong name, he will not be allowed, on an indictment for bigamy, to take advantage of that objection to invalidate such second marriage. The prisoner was indicted for marry- ing Anna T., his former wife being alive. The second marriage was by banns, and it appeared that the prisoner wrote the note for the publication of the banns, in which the wife was called Anna, and that she was married by that name, but that her real name was Susannah. < >n a case reserved, the judges held unanimously that the second marriage was sufficient to constitute the offence, and that after having called the woman Anna in the note, it did not lie in his mouth to say that she was not as well known by the name of Anna as by that of Susannah, or that she was not rightly called by the name of Anna in the indictment. R. v. Edwards, Russ. & ////. 283; 1 Russ. Cri. 690, 6th ed. This principle was carried still further in a case before Gurney, B. The second wife, who gave evidence on the trial, stated that she was married to the prisoner by the name of Eliza Thick, but that her real name was Eliza Brown; that she had never gone by the name of Thick, but had assumed it when the banns were published, in order that her neighbours might not know that she was the person intended. It being objected, on behalf of the prisoner, that this was not a \ alid marriage, < rurney, 1!., said, " that applies only to the first marriage, and I am of opinion that the parties cannot be allowed to evade the punishment for the offence by contracting an invalid marriage." /'. \. Penson, 5 C. & P. 412. In another case, where the prisoner contracted the second marriage in the maiden name of his mother, and the woman he married had also made use of her mother's maiden name, it was unanimously resolved, on a reference to the judges, that the prisoner had been rightly convicted on this evidence. R. \. Palmer, coram Bayley, .)., Durham, 1827, 1 Deacon's Dig. C. L. 147. A person whose name was Abraham Langley was married by banns by the name of Qeorgt Smith : he had been known in the parish where he resided and was married by the latter name only; the Court of Queen's Bench held this was a \alid marriage under the 26 Geo. 2. It. v. Billings- hurst, 3 .1/. (I S. 250. As to the distinction between a name assumed for other purposes, ami a name assumed lor the purpose of practising a fraud upon the marriage laws, see the case of R. v. Burton-on-Trent, infra. Where (ho banns were published in the mime of William, the real name being William Peter, and the party being known by the name of Peter, and the suppression was for the purpose of effect i ne; i clandestine marriage with a minor, the marriage was declared null and void. Pouget \. Tomkins, 1 Phillimore, 449. See* also Fellowes v. Stewart, 2 Phillimore, Ec. <'ii., 257; Middlecroft \. Gregory, id. :;<>.">. So where the wife at the time of her marriage personated another woman in whose name banns had been previously published for an intended marriage with her husband. Staytt v. Farquharson, 3 Addams, 282. See Midgley v. Wood, •'!() /.../.. />. & M. 57. What marriages art void— marriages In/ minors. A marriage by a minor without the consenl of his father, then living, has been held valid. //. v. Birmingham, 8 II. cl C. 2'.); 2 Man. & Ry. 230. By the (i & 7 Will. I. c. 85, s. 10, the like consent shall he required to any marriage in England solemnized by licence, a- would have been required by law to marriages solemnized by licence immediately before the passing of the Act ; and every person whose consent to the marriage by licence i- required by law, is thereby authorized to forbid the issue of t-2 292 Bigamy. the superintendent registrar's certificate, whether the marriage is intended to be by licence, or without licence. The repealed statute 1 Jac. 1, c. 11, contained an exception with regard to persons within what was then considered the age of consent, namely, fourteen years in a male, and twelve years in a female. 1 III. < 'om. 436 ; /,'. v. Gordon, Russ. & By. 48. The subsequent statutes defining the crime of bigamy do not contain this exception. But probably a marriage within that age would be considered as wholly void, the presumption being that the parties are incapable of sexual intercourse. What marriages are void — marriage by licence, in am assumed name.] A man who had deserted from the army, for the purpose of concealment, assumed another name. After a residence of sixteen weeks in the parish he was married by licence in his assumed name, by which only he was known in the place where he then resided. Lord Ellenborough said, " If this name had been assumed for the purpose of fraud, in order to enable the party to contract marriage, and to conceal himself from the party to whom he was about to be married, that would have been a fraud on the Marriage Act and the rights of marriage, and the court would not have given effect to any such corrupt purpose. But where a name has been previously assumed, so as to become the name which the party has acquired by reputation, that is, within the meaning of the Act, the party's real name." B. v. Burton-on- Trent, 3 M. & S. 527. See Bevan v. M'Mahon, 30 L. J., D. . 366; 50 L. J., M. C. 57. IV. Proof after absence of Seven Years. Proof after absence of seen, ytars.] Where the spouse is proved to have been continually absent for seven years, it is tor the prosecution to show not only that the spouse is alive, but that the prisoner knew it at the time he or she contracted the second marriage. B. v. Curgerwen, L. B., 1 C. O. R. 1; 35 L. J., M. <\ 58; R. v. Jones, 11 Cox, 358. But the law laid down in B. v. Curgerwen does not apply in the absence of evidence that the parties were continually absent. R. v. Jones, 11 Q. B. D. 118; 52 /.. J., M. C. 96. Venue.] The 24 & 25 Vict. c. 100, s. 57, supra, p. 284, enacts that the prisoner may be tried in the county in which he is apprehended. It was decided that an indictment for bigamy, found in a different county from that where the offence was committed, need not allege that the prisoner was in custody in the county where the indictment was fou:.d. B. v. Whiley, 1 C. & K. 150; 2 Moo. C. 0. 186. In the marginal Bigamy. 295 note of this case, given in 2 Moo. C. C. the word "not" is omitted, and it is in other respects erroneously reported. Per Parke, 15., in R. v. Smythies, 1 Den. C 0. It. 499. A British subject resident in England married a second wife in the lifetime of the first; both marriages took place in Scotland; it was held that he might he indicted and convicted of bigamy in England. II. v. Topping, 25 /,. •/.. M. C. 72. Proof in defence under the exceptions.^ The prisoner may prove under the first exception in the statute that he or she is not a subject of her Majesty, and that the second marriage was not contracted in England or Ireland. Secondly, the prisoner may prove that the other part}' to the first marriage has been continually absent from home for the space of seven years last past, oml was not known to be living within that time. The question, whether a prisoner, setting up this defence, ought to show that he has used reasonable diligence to inform himself as to the other party being alive, and whether, if he neglects the palpable means of availing himself of such information, he will stand excused, was, until lately, an undecided point. See //. v. Cullen, \> 0. & J'. 681; II. v. Jones, Carr. ,1 M. (ill; R. v. Briggs, Dears. & B. 0. C. 98. But where the wife was absent for seven years, it was decided that the burden of proving that the prisoner did know that his wife was alive within the seven years is on the prosecution, and that in the absence of evidence to that effect, lie must lie acquitted. //. v. Curgerwen, ante, p. 294. The mere fact that there are no circumstances leading to the inference thai the absenl party has died, does not raise a presumption of law that such party is alive. The prosecution must satisfy the jury that as a matter of hut such party is alive, and it is a question entirely for them. Where the only evidence is that the party was alive more than seven years ago, then there is no question for the jury, and it is a presumption of law that In- is dead. 11. v. Lumley, I.. I,'.. 1 <'. C. R. 19(5; 38 /.. ./.. .1/. C. 86. It is a good defence thai the prisoner at the time of the second marriage honestly and bona fidi believed that his first wife was dead, and had reasonable grounds for so believing. See /,'. v. Tolson, 23 Q. B. I>. 170; 58 /.. ./., .1/. C. !>7. The third exception is, where the party, at the time of the second marriage, ha- been divorced from the bond of the first marriage. A divorce d vinculo matrimonii must he proved. It is not always sufficient to prove a divorce oul of England, where the first marriage was in this country. The prisoner was ii, dieted tor bigamy under the statute of 1 Jac. 1, c 11 (repealed). It appeared that he had been married in England, and that he went to Scotland, and procured there a divorce « vinculo matrimonii, on the ground of adultery, before his second marriage. This, it was insisted, for the prisoner, was a good defence under the third exception iii the statute LJac. 1 ; hut, on a case reserved, the judges were unanimously of opinion that no sentence or act of any foreign country could dissolve an English marriage d vinculo matrimonii, for ground i'ii which it was not liable to be dissolved a vinculo matrimonii in England, and that no divorce of an ecclesiastical court was within the exception in sect. :; of 1 Jac. 1. unless it was the divorce of a court within the limit- to which the 1 Jac. 1 extends. I!, v. Lolley, I!"**. & A'//. 2:!7. The fourth exception is, where the former marriage has been declared void by the sentence of any court of competent jurisdiction. The words 296 Bigamy. in the statute of 1 Jac. 1. c. 11 (repealed), were, "by sentence in the ecclesiastical court " ; and under these it was held that a sentence of the spiritual court against marriage, in a suit of jactitation of marriage, was not conclusive evidence, so as to stop the counsel for the crown from proving the marriage, the sentence having decided on the validity of the marriage only collaterally, and not directly. Duchess of Kingston's case, 11 St. Tr. 262, fo. ed. : 20 How. St. Tr. 35o ; 1 Leach, 11G. Bribery. 297 BRIBERY. Nature of the off no . ] Bribery is a misdemeanor punishable at common law, Bribery in strict sense, says Hawkins, is taken for a great misprision of one in a judicial place, taking any valuable thing except meat and drink of small value of any man who lias to do before him in any way, for doing his office, or by colour of his office. In a large sense, it is taken for the receiving or offering of any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of justice, in order to incline him to do a thing against the known roles of honesty and integrity. Also, bribery some- times signifies the taking or giving a reward for officesof a public nature. Hawk. /'. C h. 1, c. 07. ss. 1. 2, '■> ; and see ~>'2 & 53 Yict. c. 69, post, p. 302. An attempl to bribe is a misdemeanor, as much as the act of successful bribery, as where a bribe is offered to a judge, and refused by him. '■> Ins/. 1 IT. So it has been held, that an attempt to bribe a cabinet minister, for the purpose of procuring an office, is a misdemeanor. Vaughati's cast , 1 Burr. 2494. So an attempt to bribe, in the case of an election to a corporate office, is punishable. Phtmpton's case, '2 Ld. Raym. l.'JTT. Bribery at the election of an assistant overseer is an offence at common law. I!. \. TAincaster, 16 Vox, 737. Bribery, &c. at elections I'm- members of parliament.'] By the Corrupt Practices Prevention Act. 1883 (4fi & 17 Vict. c. 51). s. 1 :■' (1.) Any person who corruptly, by himself or by any other person, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in pari the expense of giving or providing any meat, drink, entertainment or provision to or for any person, for the purpose of corruptly influencing thai person or any other person to give or refrain from giving bis vote at the election, or on account of such person or any other person ha\ ing voted or refrained from voting, or being about to vote or refrain from voting at such election, shall be guilty of t renting-. (2.) And every elector who corruptly accepts or takes any such meat. drink, entertainment or provision shall also be guilty of treating. Sect. •_'. Every person who shall directly or indirectly, by himself or by any other person on his behalf, make use of or threaten to make use of any lone, violence. ,>r restraint, or inflict or threaten to inflict, by himself or by any other person, any temporal or spiritual injury, damage, barm, or loss upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of >uch person having voted or refrained from voting at any election, or who shall, by abduction, duress, or any fraudulent device or contrivance impede or prevent the five exercise of the franchise of any elector, or shall thereby compel, induce, or prevail upon any elector either to ;jive or to refrain from "i\ ing hi- vote at any election, shall he guilty of undue influence. Sect. :;. The expression "corrupt practice," a- used in this Ad. means 298 Bribery. any of the following offences, namely, treating and undue influence as defined by this Act, and bribery and personation, as defined by the enact- ments set forth in Part III. of the Third Schedule to this Act, and aiding, abetting, counselling, and procuring the commission of the offence of personation, and every offence which is a corrupt practice within the meaning of this Act shall be a corrupt practice within the meaning of tho Parliamentary Elections Act, 1868. The principal enactment referred to in the above section as being con- tained in Part III. of the Third Schedule is the 17 & 18 Vict. c. 102, which by s. 2 defines the offence of bribery, and enacts that the following persons shall be deemed guilty of bribery. 1. Every person who shall, directly, or indirectly, by himself or by any other person on his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure, any money or valuable consideration, to or for any voter, or to or for any person on behalf of any voter, to or for any other person, in order to induce any voter to vote, or refrain from voting, or shall cor- ruptly do any such act as aforesaid, on account of such voter having voted or refrained from voting at any election ; 2. Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give or procure, or agree to give or procure, or offer, promise, or promise to procure or to endeavour to procure, any office, place, or employment to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce such voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid, on account of any voter having voted or refrained from voting at any election ; 3. Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make any such gift, loan, offer, promise, procurement, or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavour to procure, the return of any person to serve in parliament, or the vote of any voter at any election ; 4. Every person who shall, upon or in consequence of any such gift, loan, offer, promise, procurement, or agreement, procure or engage, promise, or endeavour to procure, the return of any person to serve in parliament, or the vote of any voter at any election ; b. Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person, w r ith the intent that such money or any part thereof shall be expended in bribery at any election, or who shall knowingly pay or cause to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any election. (The con- cluding portion of the above section provided for the punishment of per- sons guilty of any of the above offences. This portion of the section has been repealed, anil the punishment is given by s. (5 of the Corrupt Practices Prevention Act, 1883, infra.) By s. 3 of the 17 & 18 Vict. c. 102, the following persons are also to be deemed guilty of bribery: — 1. Every voter who shall, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receive, agree, or contract for any money, gift, loan, or valu- able consideration, office, place, or employment, for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election ; 2. Every person who shall, after any election, directly or indirectly, by himself or by any other person on his" behalf, receive any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or refrain from voting, at any election. By sect. 10, no indictment for bribery or undue influence shall be triable before any court of quarter sessions. This section is extended to Bribery. 299 prosecutions on indictment for the offences of corrupt practices within the meaning of the 46 & 47 Viet. c. <51, by s. 53. In R. v. Leatham, 3 /,. '/'. 504, many questions were raised upon the 17 & IN Vict. c. 1(12. The defendant was indicted for having on the 26th •of April, 1859, paid to one T. Gr. money with the intent that it should be applied in bribery at an election. There were several other counts in which the defendant was charged with actual bribery of several persons named in those counts. The defendant was found guilty generally. Upon a motion for a new trial, it was objected that the offence was com- mitted, if at all. more than a year before the filing of the information, and issuing the process on it. With respect to this objection, the Court of Queen's Bench said that, as it was upon the record, advantage could be taken of it in arrest of judgment, or by writ of error, and they would not interfere; but a strong opinion was expressed that s. 14 did not apply to criminal proceedings, but only to the recovery of a penalty or forfeiture in a civil suit. The second objection was that as the defendant was tumid guilty upon the first count, he could not also be guilty of the offences charged in the other counts, as it appeared that there was but one act, namely, the payment of tin' money by the prisoner to the agent, but tin 1 court thought that this objection, if available at all, was only avail- able at the trial by application to compel the prosecutor to elect upon which of the charges he would proceed; and the court said that it was .quite possible that one net might produce several distinct offences. The third objection, that as it appeared from the evidence that the defendant had paid the money to T. (i., and T. Gr. had employed subordinate agents to bribe, the defendant could not bo found guilty of having bribed the voters himself. But the court thought that bribing by an agent was the same thing as bribing directly. At a. later stage of the proceedings in the same case, ;i /.. V. 777; 30 A. >/.. Q. /!. 205, it was held that, because the defendant had. at the inquiry, before the commissioner into the pro- ceedings at his election, stated the substance of two letters between himself and one W, which were afterwards produced before the com- missioners on their demand, these letters were not thereby rendered inadmissible againsl him on an indictment for bribery, under the proviso to the 15 & Hi Vict. C. 57, s. S. Bribery at elections lor members of parliament is also an offence at 'Common law. punishable by indictment or information, and it was held that the statute 2 Geo. 2, c. 21. which imposes a penalty upon such ■offence, did not affect that mode of proceeding. I', v. Pitt, '■> Burr. 1339; 1 W. BL 380. The following cases were decided before the recent statutes. Where money is given it is bribery, although the party giving it take a note from the voter, giving a counter note, to deliver up the first note when the elector lias voted. Sulston v. \'<>ii<>n, 3 Burr. 1235; 1 IT. III. •'il7. So also a wager with a. voter, that he will not vote tor a particular person. Lofft, 552; Ibm-L-. I', c. h. 1, ,■. <;:, s . 10 (//). Where a \oter received money alter an election for having voted for a particular candidate, but no agreement for any such payment was made before the election, it was held not to be an offence within the 2 (ieo. 2, c. 21. s. 7 (repealed). Lord Huntingtower v. Gardiner, 1 B. & < '. 297. As to the payment of the travelling expenses of voters, see 1 Russ. Cri. 114, 440, (>/// ed. Cooper \. Slade, 25 /.. ./., Q. II. ;;2 | ; and 46 & 47 Vict, c. 51, ss. 13 — 23, 48. By the 31 & 32 Vict. C. 125, s. 17, on the trial of an election petition, unless the judge otherwise directs, evidence of corrupt practices maybe .given before proof of agency. 300 Bribery. As to the extension of the above statutes to municipal elections, see the 47 & 48 Vict. c. 70. Legal 'proceedings.'] Suet. .30 of the Corrupt Practices Prevention Act, 1883, provides for the removal of proceedings in certain eases to the Central < 'riminal Court or the Royal Courts of Justice. Sect. .51. (1.) A proceeding against a person in respect of the offence of a corrupt or illegal practice or any other offence under the Corrupt Prac- tices Prevention Acts or this Act shall be commenced within one year after the offence was committed, or, if it was committed in reference to an election with respect to which an inquiry is held by election commissioners shall be commenced within one year after the offence was committed, or within three months after the report of such commissioners is made, whichever period last expires, so that it be commenced within two years after the offence was committed, and the time so limited by this section shall, in the case of any proceeding under the Summary Jurisdiction Acts for any such offence, whether before an election court or otherwise, be substituted for any limitation of time contained in the last-mentioned Acts. (2.) For the purposes of this section the issue of a summons, warrant, writ, or other process shall be deemed to be a commencement of a pro- ceeding, where the service or execution of the same on or against the alleged offender is prevented by the absconding or concealment or act of the alleged offender, hut save as aforesaid the service or execution of the same on or against the alleged offender, and not the issue thereof , shall be deemed to be the commencement of the proceeding. Sect. ~>'l. Any person charged with a corrupt practice may, if the circum- stances warrant such finding, be found guilty of an illegal practice (which offence shall for that purpose be an indictable offence), and any person charged with an illegal practice may be found guilty of that offence, not- withstanding that the act constituting the offence amounted to a corrupt practice, and a person charged with illegal payment, employment or- hiring, may be found guilty of that offence, notwithstanding that the act constituting the offence amounted to a corrupt or illegal practice. Sect. ')',). (1.) Sections 10. 12, and 1.'3 of the Corrupt Practices Preven- tion Act, 1N54 (17 & 18 Vict. c. 102). and section of the Corrupt Practices Prevention Act. lSfi:; (20 & 27 Vict. c. 29) (which relate to prose- cutions for bribery and other offences under those Acts), shall extend to any prosecution or indictment for the offence of any corrupt practice within the meaning of this Act, and to any action for any pecuniary for- feiture for an offence under this Act, in like manner as if such offence were bribery within the meaning of those Acts, and such indictment or action were the indictment or action in those sections mentioned, and an order under the said section 10 maybe made on the defendant; but the Dire tor of Public Prosecutions or any person instituting any prosecution in his behalf, or by direction of an election court shall not he deemed to he a private prosecutor, nor required under the said sections to give any security. (2.) On any prosecution under this Act, whether on indictment or sum- marily, and whether before an election court or otherwise, and in any action for a pecuniary forfeiture under this Act, the person prosecuted or sued, and the husband or wife of such person may, if he or she think fit, be examined as an ordinary witness in the case. (.'>.) On any such prosecution or action as aforesaid it shall be sufficient to allege that the person charged was guilty of an illegal practice, payment, employment, or hiring within the meaning of this Act, as the case may Bribery. 301 be, and the certificate of the returning officer at an election, that the election mentioned in the certificate was duly field, and that the person named in the certificate was a candidate at such election, shall be sufficient evidence of the facts therein stated. Sect. oo. (2.) The enactments relating to charges before justices against persons for indictable offences shall, so far as is consistent with the tenor thereof, apply to every case where an election court orders a person to be pro- secuted on indictment in like manner as if the court were a justice of thepeace. By sect. .36 the jurisdiction of the High Court may be exercised by a judge or master in certain cases. By sect. .37 (1.), the duties of the Director of Public Prosecutions are defined. By sub-s. 2, subject to the provisions of this Act, the costs of any prosecution on indictment for any offence punishable under this Act. whether by the I >irector of Public Prosecutions or his representative, or by any other person, shall SO far as they are not paid by the defendant, be paid in like manner as costs in the case of a prosecution for felony are paid. T>\- sect. 58 (1.). provision is made for costs other than costs of a prose- •cution on indictment. (2.) Where any costs or other sums are under the order of an election court or otherwise under this Act, to be paid by any person, those costs shall be a simple contract debt due from such person to the person or persons to whom they are to be paid, and if payable to the Commissioners of her Majesty's Treasury shall be a debt to her Majesty, and in either case may be recovered accordingly. The Corrupt Practices Act, 1883 (46 & 47 Vict. c. 51), contains many provisions respecting corrupt and illegal practices at elections which are punishable upon summary conviction before the election court, and there- fore do not come within the scope of the present work. By a proviso to s. 43 in the case of corrupt practices the defendant has an option of being tried by a jury, and by sub-s. (5) he is then triable upon indictment, and it is presumed is liable to the punishments provided in s. 6. Bribery, &c. at municipal elections.'] By the Municipal Elections (Cor- rupt and Illegal Practices) Act, 1884 (47 & 48 Vict. c. 70), certain disqualifications and penalties are affixed to candidates and Miters guilty of corrupt practices, which, by s. 2 (1), means treating, undue influence, bribery and personation, as defined by the Corrupt Practices Prevention Act, 1854 (17 & 18 Vict. c. 102, ss. 2 and 3, ante, p. 298), the Ballot Act, L872 (35 & 36 Vict. c. 33, s. 21. post, tit. False Personation), the Corrupt and Illegal Practice- Prevention Act, 1883 (46 & 47 Vict. c. 51, ss. 1, 2, ante, p. 297), the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50, s. 77, post, tit. False Personation^ and aiding, abetting, counselling and procuring the commission of the offen< f personation. Bys. 2 (2), any person who commits any corrupt practice in reference to a municipal election shall be guilty of the like offence, and shall, on conviction, be liable to the like punishment and subject to the like incapacities as if the corrupt practice had been committed in reference to a parliamentary election. By s. 28, the powers of the Director of Public Prosecutions are described, and amongst them the power to prosecute before the election court, or any other competent court, any person who appeal's to him to have been guilty of a corrupt practice. The accused has the option of being tried bya jury. By s. 30, the prosecution of a corrupt practice is to be the same as if the offence had been committed in reference to a parliamentary election. And SS. 45, 46, .30 to .37. -39 and 00, of the Corrupt and Illegal Practices Prevention Act, 1883, ante. p. 300. are generally to apply. 302 Briberg. Punishment.'] By the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), s. 6 (1.) A person who commits any corrupt practice other than personation, or aiding, abetting, counselling, or procuring the com- mission of the offence of personation, shall be guilty of a misdemeanor, and on conviction on indictment, shall be liable to be imprisoned, with or without hard labour, for a term not exceeding one year, or to be fined any sum not exceeding two hunched pounds. (Sub-s. 2.) A person who commits the offence of personation, or of aiding, abetting, counselling, or procuring the commission of that offence, shall be guilty of felony, and any person convicted thereof on indictment shall be punished by imprisonment for a term not exceeding two years, together with hard labour. (Sub-ss. 3 and 4.) Persons so convicted are subject to certain incapa- cities. Bribery in <>f///// ed. See also lit. Offices, />n*f. See also tit. Elections, post. As to bribing an officer of inland revenue, see 53 & 54 Vict. c. "_'l , s. 10. Indictment.^ 26 & 27 Vict. c. 29, s. G, enacts: " In any indictment or information tor bribery or undue influence, and in any action or pro- ceeding for any penalty Eor bribery, treating, or undue influence, it shall be sufficienl to allege that the defendant was, at the election at or in connection with which the offence LS intended to he alleged to have been committed, guilty <>f bribery , treating, or undue influence, as the case max require : and in any criminal or civil proceedings in relation to any such offence, the certificate of the returning officer in this behalf shall be 304 Bribery, sufficient evidence of the due holding of the election or of any person therein named having been a candidate thereat." See Reed v. Lamb, 6 11. & N. 75, a case decided before the passing of this Act; R. v. Varle, 6 Cox, 470, a case of an indictment for personating a, voter at an election ; and R. v. Clarke, 1 F. & F. 654. An indictment which charged that at an election for members of par- liament, the prisoner was " guilty of corrupt practices against the form of the statute in that case made and provided," was held to be defective because too general. R. v. Stroulger, 17 Q. B. I>. 3i*7 ; 55 L. J., M. C. 137. Bridges. 305 BRIDGES. Indictment for not repairing.'] Upon an indictment for a nuisance to a public bridge, whether by obstructing or neglecting to repair it, the prosecutor must prove, first, that the bridge in question is a public bridge ; and secondly, that it has been obstructed or permitted to be out of repair ; and, in the latter case, the liability of the defendants to repair. Proof of the bridge being a public bridge.] A distinction between a public and a private bridge is taken in the 2nd Institute, p. 701, and made to consist principally in a public bridge being built for the common good of all the subjects, as opposed to a bridge made for private purposes, and though the words "public bridges" do not occur in the 22 Hen. 8, c. 5 (called the Statute of Bridges), yet as that statute empowers the justices of the peace to inquire of ' ' all manner of annoyances of bridges broken in the highways,'''' and applies to bridges of that description in all its sub- sequent provisions, it may be inferred that a bridge in a highway is a public bridge for all purposes of repair connected with that statute. 1 Russ. Cri. 852, 6th ed. A public bridge may be defined to be such a bridge as all his Majesty's subjects have used freely and without interrup- tion, as of right, for a period of time competent to protect themselves, and all who should thereafter use them, from being considered as wrongdoers, in respect of such use, in any mode of proceeding, civil or criminal, in which the legality of such use may be questioned. Per Lord Ellenborough, Ji. v. Inhab. of Bucks, 12 East, 204. With regard to bridges newly erected, the general rule is, that if a man builds a bridge, and it becomes useful to the county in general, it shall be deemed a public bridge (but see the regulations prescribed by the 43 Geo. 3, c. 59, s. 5, post, p. 309), and the county shall repair it. But where a man builds a bridge for his own private benefit, although the public may occasionally participate with him in the use of it, yet it does not become a public bridge. H. v. Inhab. of B ucks, 12 East, 203, 204. Though it is otherwise if the public have constantly used the bridge, and treated it as a public bridge. II. v. Inhab. of Glamorgan, 2 East, 356 (n). Where a miller, on deejxming a ford through which there was a public highway, built a bridge over it which the public used, it was held that the county was bound to repair. R. v. Inhab. of Kent, 2 .1/. ssessi< m is under the same obligation. B. v. Bucknall, 2 Ld. Baym. 792. Any particular inhabitant of a county, or any of several tenants of lands charged with such repairs, maybe indicted singly for not repairing, and shall have contribution from the others. HawTe. P. C. b. 1, c. 77, s. 3 ; 2 Ld. Ragm. 792. The inhabitants of a district cannot be charged ratione tenurce, because they cannot, as such, hold lands. II. v. Machynlleth, 2 B. & (J. 166. But a parish, as a district, may at common law be liable to repair a bridge, and may therefore be indicted for the not repairing, without stating any other ground of liability than immemorial usage. B. v. Inhab. of Hendon, 4 B. & Ad. 628. An indictment charged that there was in township A. an immemorial public bridge, and that the inhabitants of A. had been used, &c, from time whereof, &c, to repair the said bridge. Plea, not guilty. On the trial it appeared that the inhabitants had repaired an immemorial bridge, but that in one year within memory they had widened the roadway of the bridge from nine to sixteen feet : it was held, that whether the added part were repairable by the township or not, there was no variance between the indictment and the evidence. Semble, per Lord Denman, C. J., and Patteson, J., that the township was liable to repair the added part. R. v. Inhab. of Adderbury, 5 Q. B. 187. Where the inhabitants of a half-hundred had always repaired a bridge out of the hundred rate, it was held that the Bridges. 309 5 & 6 Will. 4, e. 50, ss. 5, 21, did not cast the repair upon the parish, as such a bridge was included in the words " county bridges," which are excepted in that Act. R. v. Inhab. of Chart, L. R., 1 ('. C. II. 237; 39 /.. ,/., M. C 107. The liability of a county to the repairs of a bridge is not affected by an Act of parliament imposing tolls, and directing the trustees to lay them out in repairing the bridge. This point arose, but was not directly decided, in the case of R. v. Inhab. of Oxfordshire, 4 B. & C. 194, the plea in that case not averring that the trustees had funds ; but Bayley, J., observed that even then a valid defence would not have been made out, for the public had a right to call upon the inhabitants of the county to repair, and they might look to the trustees under the Act. With regard to highways, it has been decided that tolls are in such cases only an auxiliary fund, and that the parish is primarily liable. (See post, Highways.) And as the liability of a county resembles that of a parish, these decisions maybe considered as authorities with regard to the former. Proof of the liability of the defendants — by the common law — new bridges.] Although a private individual cannot by erecting a bridge, the use of which is not beneficial to the public, throw upon the county the onus of repairing it, yet if it become useful to the county in general, the county is bound to repair it. Olasburne Bridge Case, 5 Burr. 2594; R. v. Ely, 15 Q. 11. 827; 19 L. J., M. C. 223. Thus, where to an indictment for not repairing a public bridge, the defendants pleaded that II. M. being seised of certain tin works, for his private benefit and utility, and for making a commodious way to his tin works, erected the bridge, and that he and his tenants enjoyed a way over the bridge for their private benefit and advantage, and that, therefore, he ought to repair ; and on the trial the statements in the plea were proved, but it also appeared that the public had constantly used the bridge from the time of its being built ; Lord Kenyon directed the jury to find a verdict for the crown, which was not disturbed. R. v. Tnhab. of Glamorgan, 2 East, 35(3 (n). Where a new bridge is built, the acquiescence of the public will be evi- dence that it is of public utility. As, to charge the county, the bridge must be made on a highway, and as, while the bridge is making, there must be an obstruction of the highway, the forbearing to prosecute the parties for such obstruction is an acquiescence by the county in the building of the bridge. Sec /,'. v. Tnhab. of St. Benedict, 4 B. f New Sarum, ante, p. 30S. Proof in defence by minor districts, or individuals."] Where a parish, or other district, or a corporation, or individual, not chargeable of com- mon right with the repairs of a bridge, is indicted, they may discharge themselves under the general issue. Jl. v. Inhab. <>f Norwich, 1 Sir. 177. For as it lies on tin- prosecutor specially to state the grounds on which such parties are liable, they may negative those parts of the charge under the general issue. 1 Russ. Gri. 875, 876, 6th ed. : sed vide I!, v. Hendon, 4 B. & Ad. 628; ante, p. 308. Proof in defence by corporations.^ A corporation may be bound by prescription to repair a bridge, though one of their charters within time of legal memory use winds of incorporation, and though the bridge may have been repaired out of the funds of a guild: for such repairs will be taken to have been made in ease of the corporation. R. v. Mayor, &c. of Stratford-upon-Avon, 1-iEast, 34.S. 312 Bridges. Venueand trial."] By the 1 Ann. st. 1, c. 18, s. 5, " all matters concern- ing the repairing and amending of the bridges and the highways thereunto adjoining shall be determined in the county where they he, and not else- where." It seems that no inhabitant of a county ought to be a juror on a trial of an issue whether the county is bound to repair. Hawk. P. C. b. 1, r. 77, s. 6. In such cases, upon a suggestion, the venire will be awarded into a neighbouring county. R. v. Inhab. of Wilts, 6 Mod. 307 ; 1 Russ. Cri. 877, 6th ed. Maliciously pulling down bridges, &c] By the 24 & 25 Vict. c. 97, s. 33, "whosoever shall unlawfully and maliciously pull or throw down, or in anywise destroy any bridge (whether over any stream of water or not), or any viaduct or aqueduct, over or under which bridge, viaduct, or aqueduct, any highway, railway, or canal shall pass, or do any injury with intent, and so as thereby to render such bridge, viaduct, or aqueduct, or the high- way, railway or canal passing over or under the same, or any part thereof, dangerous or impassable, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life ; or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." In the former statute public bridges alone were mentioned, and the marginal abstract of the section in the new Act speaks of p>ubiic bridges only. It may be doubtful whether the omission of the word, "public " is not a typographical error. As to Malice, and possession of the property, see ss. 58 and 59 [supra, p. 251). New trial."] As to when a new trial may be obtained in prosecutions for the non-repair of a bridge, see tit. Highways, infra. Burglary. 313 BURGLARY. Offence at common law. - ] Burglary is a felony at common law, and a burglar is defined by Lord Coke as "be tbat in the night-time breaketb and entereth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not." 3 Inst. 63. And this definition is adopted by Lord Hale. 1 Hale, P. C. 549 ; Hawk. P. 0. b. 1, c. 38, s. 1. Bi/ statute.] The provisions against this offence are contained in the 24 & 25 Vict. c. 96. Burglary by breaking out.'] By s. 51, " whosoever shall enter the dwelling-house of another with intent to commit any felony therein, or being in such dwelling-house shall commit any felony therein and shall in either case break out of the said dwelling-house in the night, shall be deemed guilty of burglary." Punishment of burglary^] By s. 52, "whosoever shall be convicted of the crime of burglary shall be liable to be kept in penal servitude for life " (see ante, p. 203). What building within the curtilage shall bedeemed part of the dwelling- house.'] By s. 53, " no building, although within the same curtilage with any dwelling-house, and occupied therewith, shall 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 inclosed passage leading from the one to the other." Entering a dwelling-house in the night with intent to commit felony ,~\ By s. 54, " whosoever shall enter any dwelling-house in the night, with intent to commit any felony therein, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years " (see ante, p. 203). Being found by night armed, &c, with intent to break intoany house, (IV.] By s. 58, "whosoever shall be found by night armed with, any dangerous or offensixr weapon or instrument whatsoever, with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein, ov shall be found by night having in his possession without lawful excuse (the proof of which shall lie on such person) any picklock key, crow-jack, bit, or other implement of house- breaking, or shall be found by night having his face blackened, or other- wise disguised, with intent to commit any felony, or shall be found by night in any dwelling-house, or other building whatsoever, with intent to commit any felony therein, shall be guilty of a misdemeanor, and 314 Burglary. being convicted thereof shall be liable to be kept in penal servitude " (see ante, p. 203). By s. 59, " whosoever shall be convicted of any such misdemeanor, as in the last preceding section mentioned, committed after a previous con- viction either for felony or such misdemeanor, shall, on such subsequent conviction, be liable to be kept in penal servitude for any term not exceeding ten years" (see ante, p. 203). For the definition of night, see 24 & 25 Yict. c. 96, s. 1, post, p. 331. By 59 & 60 Vict. c. 57, the offence of burglary is made triable at quarter sessions. Proof of the breaking.'] What shall constitute a breaking is thus described by Hawkins: — "It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it be opened or be inclosed, and will maintain a common indict- ment, or action of trespass quare clausum /regit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accom- panied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enter into a house by a door which he finds open, or through a hole which was made there before, and steals goods, &c, or draw anything out of a house through a door or window which was open before, or enter into the house through a door open in the daytime, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary." Hawk. P. C. b. 1, c. 38, ss. 4, 5. But breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, the drawing of a latch, when a door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or the fastening of a window, with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has pro- vided ; these are all proofs of a breaking. 2 East, P. C. 487 ; 2 Buss. Cri. 3, 6lh ed. By the 24 & 25 Vict. c. 96, s. 54, supra, entering a dwelling-house in the night with intent to commit a felony is made a substantive felony. In this case no breaking is necessary, and the offence is not, therefore, strictly speaking, burglary ; but from its being in all other respects similar to that offence, it is classed under that head. A count framed on this section will frequently be useful where the breaking is doubtful. Proof of the breaking — doors.] Entering the house through an open door is not, as already stated, such a breaking as to constitute a burglary. Yet if the offender enters a house in the night-time, through an open door or window, and when within the house turns the key of, or unlatches a chamber door with intent to commit felony, it is a burglary. Hale, P. ( '. 553. So where the prisoner entered the house by a back-door which had been left open by the family, and afterwards broke open an inner door and stole goods out of the room, and then unbolted the street door on the inside and went out ; this was held by the judges to be burglary. B. v. Johnson, 2 East, P. C. 488. So where the master lay in one part of the house, and the servants in another, and the stair-foot door of the master's chambers was latched, and the servant in the night unlatched that door and went into his master's chamber with intent to murder him, it was held burglary. B. v. Haijdon, Hutt. 20; Kel. 67; 1 Hale, P. C. 554 ; 2 East, P. V '. 488. Whether the pushing open the flap or flaps of a trap-door, or door in a floor, which closes by its own weight, is a sufficient breaking, was for some Burglary. 315 time a matter of doubt. In the following case it was held to be a breaking. Through a mill (within a curtilage) was an open entrance or gateway, capable of admitting waggons, intended for the purpose of loading thorn with flour through a large aperture communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it, and remained closed with their own weight, but without any interior fastenings, so that persons without, under the gateway, could push them open at pleasure. In this manner the prisoner entered with intent to steal ; and Buller, J., held that this was a sufficient breaking to constitute the offence of burglary. R. v. Brown, 2 East, P. C. 487. In another case, upon nearly similar facts, the judges were equally divided in opinion. The prisoner broke out of a cellar by lifting up a heavy flap, whereby the cellar was closed on the outside next the street. The flap had bolts, but was not bolted. The prisoner being convicted of burglary, upon a case reserved, six of the judges, including Lords Ellenborough, C. J., and Mansfield, C. J., thought that this was a sufficient breaking ; because the weight was intended as a security, this not being a common entrance ; but the other six judges thought the conviction wrong. It. v. (Milan, /fuss. 7. Nor will the circumstance of the pro- secutor having procured ;i person k) sleep in the house (not being one of his own family) for its protection make any difference. Thus where a house was newly built and finished in every respect, except the painting, glazing, and flooring of one garret, and a workman, who was constantly employed by the prosecutor, slept in it for the purpose of protecting it, but no part of the prosecutor's domestic family had taken possession, it was held at the < Md Bailey, on the authority of 11. v. Lyon [supra), that it was not the dwelling-house of the prosecutor. 11. v. Fuller, 1 Leach, 186 (>/). So where the prosecutor took a house, and deposited some of his goods in it, and not having slept there himself, procured two persons (not his own servants) to sleep there for the purpose of protecting the goods, it was held, that as the prosecutor had only in fact taken possession of the house so far as to deposit certain articles of his trade therein, but had neither slept in it himself, nor had any of his servants, it could not in contemplation of law be called his dwelling-house. 11. v. Harris, 2 Leach, 701; 2 East, P. C. 498. See also //.'v. Hallard, coram Buller, J., Y2 324 Burglary. 2 Leach, 701 (n) ; 7?. v. Thompson, 2 Leach, 771. The following case is- also an authority on the suhject of burglary '• The prosecutor, a publican, had shut up his house, which in the daytime was totally uninhabited, but at night a servant of his slept in it to protect the property left there, which was intended to be sold to the incoming tenant, the prosecutor having no intention of again residing in the house himself. On a case reserved, the judges were of opinion, that as it clearly appeared by the evidence of the prosecutor that he had no intention whatever to reside in the house, either by himself or his servants, it could not in contemplation of law be considered as his dwelling-house, and that it was not such a dwelling-house wherein burglary could be committed. R. v. Davies, alias Silk, 2 Leach, 876; 2 East, P. C. 499. "Where some corn had been missed out of a barn, the prosecutor's servant and another person put a bed in the barn and slept there, and upon the fourth night the prisoner broke and entered the barn ; upon a reference it was agreed by all the- judges that this sleeping in the barn made no difference. R. v. Brovm, 2 East, P. C. 497. So a porter lying in a warehouse to watch goods, which is solely for a particular purpose, does not make it a dwelling-house. R. v. Smith, 2 East, P. C. 497. Where no person sleeps in the house, it cannot be considered a dwelling- house. The premises where the offence was committed consisted of a shop and parlour, with a staircase to a room over. The prosecutor took it two years before the offence committed, intending to live in it, but remained with his mother, who lived next door. Every morning he went to his shop, transacted his business, dined, and stayed the whole day there, considering it as his home. On a case reserved, all the judges held, that this was not a dwelling-house. R. v. Martin, Russ. & Ry. 108. It seems to be sufficient if any part of the owner's family, as his domestic servants, sleep in the house. A. died in his house. B., his executor, put servants into it, who lodged in it, and were at board wages, but B. never lodged there himself. Upon an indictment for burglary, the question was, whether this might be called the mansion-house of B. The court inclined to think that it might, because the servants lived there; but upon the- evidence there appeared no breach of the house. R. v. Jones, 2 East, P. C. 499. Proof of the premises bring a dwelling-house — occupation — temporary absence.^ A house is no less a dwelling-house, because at cei'tain periods the occupier quits it, or quits it for a temporary purpose. " If A.," says Lord Hale, " has a dwelling-house, and he and all his family are absent a night or more, and in their absence, in the night, a thief breaks and enters the house to commit felony, this is burglary." 1 Hale, P. C. 556 ; 3 Lnst. 64. So if A. have two mansion-houses, and is sometimes with his family in one, and sometimes in the other, the breach of one of them, in the- absence of his family, is burglary. Id. 4 Rep. 40, a. Again, if A. have a chamber in a college or inn of court, where he usually lodges in term time, and in his absence in vacation his chamber is broken open, this is burglary. R. v. Evans, Cro. Car. 473 ; 1 Hale, P. C. 556. The prosecutor being possessed of a house in which he dwelt, took a journey into Cornwall, with intent to return. After he had been absent a month, no person being in the house, it was broken open, and robbed. He returned a month after and inhabited there. This was adjudged burglary. R. v. Murry, 2 East, P. C. 496; Poster, 77. In these cases the owner must have quitted his house animo revertendi, in order to have it still considered as his mansion, if neither he nor any part of his family were in at the time of the breaking and entering. Burglary. 325 2 East, P. ('. 4 Q (>. The prosecutor had a house at Hackney, which he made use of in the summer, his chief residence heing in London. About the latter end of the summer he removed to his town house, bringing away a considerable part of his goods. The following November his house at Hackney was broken open, upon which he removed the remainder of his furniture, except a few articles of little value. Being asked whether at this time he had any intention of returning to reside, he said he had not come to any settled resolution, whether to return or not, but was rather inclined totally to quit the house and let it. His house was broken open in the January following. The court were of opinion, that the prosecutor having left the house and disfurnished it, without any settled resolution to return, but rather inclining to the contrary, it could not be deemed his dwelling-house. R. v. Nutbrown, Foster, 77 ; 2 East, P. C. 496. See P. v. Flannagan, Russ. it' Ry. 187. Occupation, how to be described.] It is sometimes quite clear that the building is a dwelling-house, but doubtful in whose occupation it is ; this is a ])oint on which prosecutions for burglary frequently used to fail ; but now that by the 14 & 15 Vict. c. 100, s. 1, the indictment might generally be amended (supra, p. 182), it is of much less importance. The following cases have been decided on the subject : — Occupation, how to be described — house divided, without internal communi- cation, and occupied by several.'] Where there is an actual severance in fact of the house, by a partition or the like, all internal communication being cut off, and each part being inhabited by several occupants, the part so separately occupied is the dwelling-house of the person living in it, provided he dwell there. If A. lets a shop, parcel of his dwelling- house, to B. for a year, and B. holds it. and works or trades in it, but lodges in his own house at nkdit, and the shop is broken open, it cannot be Laid to be the dwelling-house of A., for it was severed by the lease during the term; but if B. or his servants sometimes lod^-e in the shop, it is the mansion-house of 1!.. and burglary may be committed in it. 1 Hale, I'. C, ."),") 7 ; vide R. v. Sefton, infra. The prosecutors, Smith and Knowles, were in partnership, and lived next door to each other. The two houses had formerly been one. but had been divided, for the purpose of accommo- dating the families of both partners, and were now perfectly distinct, there being no communication from one to the other, without going into the street. The house-keeping, servants' wages, &c, were paid by each partner respectively, but the rent and taxes of both the houses were paid jointly out of the partnership fund. The offence was committed in the house of the prosecutor Smith. The court were of opinion that the bur- glary ought to have been laid to be in the dwelling-house of Smith only. R. v. Martha Jones, 1 Leach, 537 ; 2 East, J'. C. 504. But it is otherwise where there is an internal communication. Thus where a man let part of his house, including his shop, to his son, and there was a distinct entrance into the part so let, but a passage from the son's part led to the father's cellars, and they were open to the father's part of the house, and the son never slept in the pari so let to him. the prisoner being convicted of a burglary in the shop, laid as the dwelling-house of the father, the con- viction was held by the judges to be right, it being under the same roof, pari of the same house, and communicating internally. /.'. v. Sefton, '2 Russ. Cri. Hi, 6th "I. : Russ. /; 2 East, P. C. 510, S. 0. as Anon. Where goods had been seized as contraband by an excise officer, and his house was entered in the night, and the goods taken away, upon an indictment for entering his house, with intent to steal his goods, the jury found that the prisoners broke and entered the house with intent to take the goods on behalf of the person who had smuggled them ; and, upon a case reserved, all the judges were of opinion that the indictment was not supported, there being no intent to steal, however outrageous the conduct of the prisoners was in thus endeavouring to get back the goods. It. v. Knit/lit and Roffey, 2 East, I'. C 510. If the indictment had been for breaking and entering the house, with intent feloniously to rescue goods seized, that being made a felony by 19 Geo. 2, c. 34 (repealed), it would have been burglary. But even in that case some evidence must be given on the part of the prose- cutor, to show that the goods were uncustomed, in order to throw the proof upon the prisoners that the duty was paid. 2 East, /'. < '. 510. The prisoner was indicted for breaking, &c, with intent to kill and destroy a gelding there being. It appeared that the prisoner, in order to prevent the horse from running a race, cut the sinews of his fore legs, from which lie died. Pratt, C. J., directed an acquittal, the intent being not to commit felony by killing and destroying the horse, but a trespass only to prevent his running, and therefore it was no burglary. But the prisoner was afterwards indicted for killing the horse, and capitally convicted. It. v. Dobb, 2 East, I'. C 513. Two poachers went to the house of a game- keeper, who had taken a dog from them, and believing him to be out of the way, broke the door and entered. Being indicted for this as a burglary, and it appearing that their intention was to rescue the dog, and not to commit a felony, Yaughan, B., directedan acquittal. Anon., Matth. Dig. C. /.. 48. See R. y. Holloway, 5 U. & I'. 524. Proof of the intent — variance in the statement of .] The intent must be proved as laid. If it is laid that the intent was to commit one sort of felony, and it is proved that the intent was to commit another, it is a fatal variance. 2 East, I'. (J. 511. Where the prisoner was indicted for burglary and stealing goods, and it appeared that there were no goods stolen, but only an intent to steal, it was held by Holt. ( '. J., that this ought to have been so laid, and he directed an acquittal. It. v. Vander- comb, 2 East, /'. <'. 514. The property in the goods which it is alleged were intended to be stolen, must be correctly laid. 2 Russ. Cri. 42, <>/// <. 139. Where a lodger, in the prosecutor's house, got up in the night and unbolted the back-door, and went away with a jacket of the prosecutor's which he had stolen, he was convicted of burglary. In this case it was also held to be not the less a burglary because the defendant was lawfully in the house as a lodger or as a guest at an inn. 11. v. Whet /■ton, 8 C. a'I'. 747. Proof upon plea <>/' autrefois acquit.^ In considering the evidence upon the ] >lea of autrefois acquit in burglary, sonic difficulty occurs from the complex nature of that offence, and from some contrariety in the decisions. The correct rule appears to be, that an acquittal upon an indictment for burglary in breaking and entering and stealing goods, cannot bo pleaded in liar to an indictment for burglary in the same dwelling-house, and on the same night, with intent to steal, on the ground that the several offences described in the two indictments cannot be said to lie the same. This rule was established in II. x. Vandercomb, where Buller, J., said. " Unless the first indictment were such as the prisoner might have been convicted upon by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. Xow to apply these principles to the present case. The first indictment was for burglariously breaking and entering the house of ZMiss Neville, and stealing the goods mentioned; but it appeared that the prisoners broke and entered the house with iiilint t<> steal, for in fact no larceny was committed, and there- fore they could not be convicted on that indictment. But they have not been tried for burglariously breaking and entering thehouseof M Lss Neville with intent to steal, which is the charge in the present indictment, and therefore they have never been in jeopardy for this offence. For this reason the judges are all of opinion that the plea is bad, and that the 336 Burglary. prisoners must take their trials upon the present indictment." B. v. Winder comb, 2 Leach, 716; 2 East, P. C. 519; overruling/?, v. Turner, Kel. 30, and B. v. Jones and Bever, Id. 52. See also the dissertation on the subject of autrefois acquitin 1 Buss. Cri. 38, 6th ed. Where a prisoner was indicted for a simple burglary in the house of a person, for whose murder he had been acquitted, Parke, B., told the jury that the charge in the indictment did not affect the Hi'e of the prisoner, as there was not an allegation that the burglary was accompanied by violence ; and that if he had been indicted for burglary with violence, since he might have been convicted of manslaughter, or even assault, on the indictment for murder, on which he had been acquitted altogether, in his opinion, that acquittal would have been an answer to the allegation of violence, if it had been inserted in the present indictment. B. v. Gould, 9 C. & P. 364. Indictment for being found by night armed, tuith intent to break into any house, &c.~\ Where persons are charged under s. 58 of the 24 & 25 Yict. c. 96, with being found by night armed with an offensive weapon with intent to break and enter into a building, the particular building must be specified in the indictment, and proof must be given of the intent to break and enter such building, and it is the safer course to charge and prove an intent to commit a specific felony. B. v. Jarrald, L. . It is not sufficient in th*' indictment to charge the prisoner with maiming, &c, "cattle" generally, without specifying the description. II. v. Chalkley, Russ. & 11//. 258. Proof of Hi injury.] Upon an indictment for maliciously wounding, it need not appear either that the animal svas killed, or thai the wound inflicted a permanent injury. Upon an indictment for this off ence, it was proved that the prisoner had maliciously driven a nail into a, horso'> foot. The horse was thereby rendered useless to the owner, and continued so to the time of the trial ; but the prosecutor stated that it was likely to be per- fectly sound again in a short time. The prisoner being convicted, the judges, on a case reserved, held i he conviction right, being of opinion that the word "wounding" did not imply a permanent injury. II. v. Hay- wood, Russ. & ll>/. 10; 2East, /'. C. 1070. Butby maiming is to be under- R. z 33S Cattle and other Animal*. stood a permanent injury. Id. 2 East, P. 0. 1077 ; R. v. Jeans, 1 0. <£, K, 539. Where the prisoner was indicted under the repealed statute 4 Geo. 4, c. 54, for wounding a sheep, and it appeared that he had set a dog at the animal, and that the dog, by biting it, inflicted several severe wounds, Park, J., is stated to have said, " This is not an offence at common law, and is only made so by a statute ; and I am of opinion that injuring a sheep, by setting a dog to worry it, is not a maiming or wounding within the meaning of that statute." R. v. Hughes, 2 C. & P. 420. The word " wound," in sect. 40, is to be construed according to its ordinary mean- ing; and injuries to a horse's tongue, apparently caused by a pull of the hand, were held to be a " wounding." R. v. Bullock, 37 I. J., M. C. 47; L. R., 1 C 0. R. 115. As to the construction of the word " wound," see infra, Attempt to commit Murder. The prisoner poured a qiiantity of nitrous acid into the ear of a mare, some of which getting into the eye produced immediate blindness ; he was convicted of maliciously maiming the mare, and the conviction was held by the judges to be right. 7?. v. Owen, 1 Moody, C. C. 205. Where a man was indicted for administering sulphuric acid to eight horses, with intent feloniously to kill them, and it appeared that he had mixed sulphuric acid with the corn, and having done so, gave each horse his feed; Park, J., held that this evidence supported the allegation in the indictment, of a joint administering to all the horses. R. v. Mogg, 4 01 & P. 364. Where the prisoner set fire to a cowhouse, and a cow in it was burned to death, Taunton, J., ruled that this was a killing of the cow within the repealed statute 7 & 8 Geo. 4, c. 30, s. 10. R. v. Haughton, 5 C. it' P. 559. Proof of malice and intent.'] The 24 & 25 Vict. c. 97, s. 58, sajnn, p. 251, renders it an offence, whether the act be done from malice conceived against the owner or otherwise. See 2 Russ. Cri. 978, V>fh ed. Although it is thus rendered unnecessary to give evidence of malice against any particular person, yet an evil intent in the prisoner must appear. Thus, in R. v. Mogg, supra, Park, J., left it to the jury to say whether the prisoner had administered the sulphuric acid (there beiiii;- some evidence of a practice of that kind by grooms) with the intent imputed in the indictment, or whether he had done it under the impres- sion that it woxdd improve the appearance of his horses ; and that in the latter case they ought to acquit him. In the same case, the learned judge allowed evidence to be given of other acts of administering, to show the intent. And where the prisoner caused the death of a mare by inserting the handle of a fork into her vagina, and pushing it into her body, it was held there was sufficient malice to support an indictment under s. 40, though there was no evidence that the prisoner was actuated by ill-will towards the owner, or spite towards the mare, or by any motive except the gratification of his own depraved mind. The jury found that the prisoner did not, in fact, intend to maim, wound, or kill the mare, but that knowing what he was doing would or might have that effect, he nevertheless did what he did recklessly and not caring whether the mare was injured or not. R. v. TTWc7*, 1 Q. B. I). 23; 45 L. J., M. C. 17. See ante, p. 20. Offences under the Cruelty to Animals Act (39 & 40 Vict. c. 77, passed in order to regulate vivisection) may, where the penalty which can be imposed exceeds five pounds, be prosecuted on indictment at the request of the party accused. Drugging animals is an offence punishable on summary conviction under 39 Vict. c. 13. Challenging to Fight. 339 CHALLENGING TO FIGHT. What amounts to.'] It is a very high, offence to challenge another, either by word or letter, to fight a duel, or to be the messenger of such a challenge, or even barely to provoke another to send such a challenge, or to fight, e.g., by dispersing letters to that purpose, containing reflections and insinuating a desire to fight. Hawk. /'. C. I>. 1, c. 63, s. 3. Thus, a letter containing these words, "You have behaved to me like a black- guard. I shall expect to hear from you on this subject, and will punc- tually attend to any appointment you may think proper to make," was held 'indictable. R. v. Phillips, 6 East, 4(54; It. v. Rice, 3 Bust. 581. No provocation, however great, is a justification on the part of the defen- dant, although it may weigh with the court in awarding the punishment. Id. On an indictment for challenging, or provoking to challenge, the prosecutor must prove — 1st, the letter or words conveying the challenge ; and 2nd, where it does not appear from the writing or words themselves, he must prove the intent of the party to challenge, or to provoke to a challenge. Proof of I h>- intent.] In general, the intent of the party will appear from the writing or words themselves: but where that is not the case, as where the words are ambiguous, the prosecutor must show the circum- stanees under which they were uttered, for the purpose of proving the unlawful intent of the speaker. Thus, words of provocation, as "liar," or "knave," though a mediate provocation to a breach of the peace, do not tend to it immediately, like a challenge to fight, or a threatening to beat another. It. v. King. 1 last. 181. Yet these, or any other words, would be indictable if proved to have been spoken with an intent to urge the party to send a challenge. 1 Russ. Cri. <594, ()/// ed. Venue.] Where a letter challenging to fight is put into the post-office in one county, and delivered to the party in another, the venue may be laid in the former county. Ii' the letter is never delivered, the defendant's offence is the same. II. v. Williams, 2 Camp. 50G. 340 Cheating. CHEATING. Nature of cheats indictable at common law."] The question, whether or no a fraudulent transaction is indictable as a cheat at common law, has become of less importance than it formerly was, because several cheats are now indictable by various statutes, especially by the 24 & 25 Vict. c. 96, ss. 88 et seq., which include all that class of offences known as obtaining money and goods by false pretences. The subject of cheats at common law is fully considered in 2 Buss. Cri., 454 et seq., 6th ed. The line is there drawn between such cheats and frauds as are of a public nature, and such as do not affect the public ; and it is also strongly insisted on that the definition of a cheat indictable at common law must include the term, that it is one which affects, or may affect, the public. The following are the more important frauds at common law. Cheats affecting public Justice.] All cheats which are levelled against the public justice of the kingdom are indictable at common law. 2 East, P. C. 821. Many such cheats, however, come under the head of the offence of False Personation, which will be separately considered. As to using false county court process, see infra, tit. Forgery. By a contract for the purchase of wheat it was provided that any dispute should be referred to arbitrators. Sealed bags of samples of the wheat having been prepared as evidence for the arbitrators, the prisoner removed their contents and placed in them wheat of a different character, with intent to deceive the arbitrators and to pass them off as true and genuine samples. It was held that this was an indictable misdemeanor. B. v. Vreones, (1891) 1 Q. B. 360; 60 L. J., M. C. 62. But where an overseer was charged with wilfully falsifying lists of voters, with intent to mislead the revising barrister, it was held that as such lists are published, and are not laid by the overseer before the revising barrister, B. v. Vreones did not apply. B. v. Hall, (1891) 1 Q. B. 747; 60 L. J., M. C. 124. Selling unwholesome provisions.] The selling unwholesome provisions, 4 Bl. Com. 162, or the giving any person unwholesome victuals, not fit for man to eat, lucri causa, 2 East, P. C. 822, is an indictable offence. Where the defendant was indicted for deceitfully providing certain French ])risoners with unwholesome bread, to the injury of their health, it was objected in arrest of judgment, that the indictment could not be sustained, for it did not appear that what was done was in breach of any contract with the public, or of any civil or moral duty ; but the judges, on a refer- ence to them, held the conviction right. R. v. Treeves, 2 East, P. C. 821. The defendant was indicted for supplying the royal military asylum at Chelsea with loaves not fit for the food of man, which he well knew, &c. It appears that many of the loaves were strongly impregnated with alum (prohibited to be used by repealed statute 37 Geo. 3, c. 98, s. 21), and pieces as large as horse-beans were found ; the defence was, that it was merely used to assist the operation of the yeast, and had been carefully employed. But Lord Ellenborough said, "Whoever introduces a sub- stance into bread, which may be injurious to the health of those who Cheating. 841 consume it. is indictable if the substance be found in the bread in that injurious form, although, if equally spread over the mass, it would have done no harm;' R. v. Dixon, 4 Camp. 12; 3 M. & S. 11. See Sale of Food and Drugs Act, 38 & 39 Vict. c. 63. False accounting, &c, by public officers.] Fraudulent malversations or cheats by public officers, are also the subject of an indictment at common law: thus, overseers of the poor are indictable for refusing to account; R.v. Comming, o Mod. 179; 1 Bolt. 232; 2 Buss. Cri. 458, 6th ed.j or for rendering false accounts. 11. v. Martin, 2 Campb. 269; 3 Chitty, C. L. 701. Upon an application to the court of King's Bench, against the minister and churchwardens of a parish, for misapplying monies collected by a brief, and returning a smaller sum only as collected, the court, refusing the information, referred the prosecutors to the ordinary remedy by indictment. 11. v. Ministers, cfcc, of St. Botolph, 1 W. Bl. 443. Vide }»id, tit. Officers. Again, where two persons were indicted for enabling persons to pass their accounts with the pay-office, in such way as to defraud the govern- ment, and it was objected that it was only a private matter of account, and not indictable, the court decided otherwise, as it related to the public revenue. R. v. Bembridge, cited6 East, 136. Falsi weights ami measures.'] Another class of frauds affecting the public, is cheating by false weights and measures, which carry with them the semblance of public authenticity. It has never been doubted that selling by false weights and measures is at common law an indictable offence, though selling a less quantity than is pretended is not so. Per Buller, J., R. v. Young, 3 T. li. 304; 2 Iluss. < 'ri. 460, (i/A ed. Tims, if a person has measured corn in a bushel, and put something in the bushel to fill it up, or has measured it in a bushel short of the stated measure, lie is indictable. R. y. Pinkney, 2 East, P. C. 820. See //. v. Wheatley, infra, p. 342. See Weights and Measures Act, 52 & a.) Vict. c. 21. Cheating with cards, 'Her, &c.] This was considered an indictable off ence at common law, but it is now regulated by the 8 & 9 Vict. c. 109, s. 17, which provides thai "every person, who shall by any fraud or unlawful device, or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or exercise, win from any person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a false pretence with intent to cheat or defraud such person of the same. ami. being com icted thereof, shall he punished accord- ingly." Tossing with coins was held by the t '. C, 1!. to be a pastimeor exercise if not a game within the meaning of this section. li. v. 0'( '<>iiin>r. Id Cose, '■'>. When it was stated in the indictment that the defendant won certain monies from one II. F. B., but did not say to whom the money belonged, the indictment was held ^ond. because i1 followed the words of the statute. II. \. Moss, Dears. & li. C. C. 104. A doubt was also raised in that case, whether the offence was no! completed by winning, even if the money was not obtained. Using falst tokens.'] The using of false tokens is a cheat at common law. The question was much considered in li. v. Gloss, Dure*, -i- 1J. C. C. 342 Cheating. 460; 27 L. J., M. C. .341. There the prisoner was indicted for keeping, and exposing for sale, and for selling to one H. A. F. a picture, upon which he had unlawfully painted the signature of J. L., intending thereby to denote that the picture was an original picture by J. L. This was held, on a motion in arrest of judgment, to he a fraud at common law. Coekburn, C. J., said, in delivering the judgment of the Court of Criminal Appeal, "We have carefully examined the authorities, and the result is, that we think if a person, in the course of his trade openly and publicly carried on, puts a false mark or token upon an article so as to pass it off as a genuine one, when in fact it was only a spurious one, and the article is sold, and money obtained by means of that false mark or token, that is a cheat at common law." But the indictment was held bad for not alleging with sufficient clearness that it was by means of such false tokens, that the defendant was able to pass off the picture as genuine, and obtain the money. See the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28), as to the offence of using fraudulent marks on merchandise. As to the intent sec Starey v. Chilworth, 24 Q. B. I). 90; 59 L. J.. M. C. 13; Wood v. Burgess, 24 Q. B. I). 162 ; 59 L. J., M. C. 11. What cheais ore not indictable.'] The following cheats have been held not to be indictable at common law ; though many of them would now be so by statute. Most of these decisions are considered as resting on the ground that the cheats to which they relate are not of a public nature. Where an imposition upon an individual is effected by a false affirma- tion or bare lie, in a matter not affecting the public, an indictment is not sustainable. Thus, where an indictment charged the defendants with selling to a person eight hundredweight of gum, at the price of seven pounds per hundredweight, falsely affirming that the gum was gum seneca, and that it was worth seven pounds per hundredweight, whereas it was not gum seneca, and was not worth more than three pounds, &c, the indictment was quashed. Pi. v. -Lewis, Sayer, 205. See also B. v. Lara, 2 East, P. C. 819 ; 6 T. B. 565 ; 2 Leach, 652. But such an offence is punishable as a false pretence under the statute. Vide post, title False Pretences. So where the defendant, a brewer, was indicted for sending to a publican so many vessels of ale, marked as containing such a measure, aid writing a letter, assuring him that they did contain such a measure, when in fact they did not contain such a measure, but so much less, &c, tin' indictment was quashed on motion, as containing no criminal charge. B. v. Wilder, cited 2 Burr, 1128; 2 East, I'. C. 819. Upon the same principle, where a miller was indicted for detaining corn sent to him to be ground, the indictment was quashed, it being merely a private injury, for wdrich an action would lie. B. v. Chanell, 2 Str. 793 ; 1 Sess. Ca. 366 ; 2 East, P. ('. 118. So selling sixteen gallons of ale as eighteen ; Lord M msfield said, " It amounts only to an unfair dealing, and no imposition upon this particular man, from which he could not have suffered but for his own carelessness in not measuring the liquor when he received it : whereas fraud, to be the object of a criminal prosecution, must be of that kind which in its nature is calculated to defraud numbers, as false weights and measures, false tokens, or where there is a conspiracv." B. v. Wheatley, 2 Burr. 1125; 1 II'. III. 273; 2 East, P. C. 818. Wherea miller was charged with receiving good barley, and delivering meal in return different from the produce of the barley, and musty, &c, this was held not to be an indictable offence. Lord Ellenborough said, that if the case had been that the miller had been owner of a soke mill, to which the inhabitants of the vicinage were bound to resort in order to get their corn Cheating. 343 ground, and that lie, abusing the confidence of his situation, had made it a colour for practising a fraud, this might have presented a different aspect ; hut as it then stood, it seemed to be no more than the case of a common tradesman, who was guilty of a fraud in a matter of trade or dealing, such as was adverted to in R. v. Wheatley {supra), and the other cases, as not being indictable. R. v. Hayne, I M. & S. 214 ; vide II. v. Wood, 1 Seas. <'/.. M. C. 1.58; Dem-.<. C. < '. bib. The prisoner was, however, convicted of attempting to obtain money by false pretences. See that title, jmsf. Sen also J!, v. <;/< reasonable ground for believing that such person will abscond, or if the name and address of such person are unknown to and cannot be ascertained by the constable." By s. (>. — (1.) " Where a person having the custody, charge, or care of a child under the age of sixteen years lias been — (a) convicted of conrmitting in respect of such child an offence of cruelty within the meaning of this Act, or any of the offences mentioned in the Schedule to this Act ; or (c) hound over to keep the peace towards such child, by any court, that court either at the time when the person is so convicted, or hound over, and without requiring any new proceedings to be instituted for the purpose, or at any other time, may, if satisfied on inquiry that it is expedient so to deal with the child, order that the child be taken out of the custody of the person so convicted, or hound over, and be committed to the custody of a relation of the child, or some other tit person named by the court (such relation or other person being willing to undertake such custody), until it attains the age of sixteen year.-, or for any shorter period, and may of its own motion or on the application of any person from time to time by order renew, vary, and revoke any such order; hut no order shall be made under this section unless a parent of the child has been convicted of the offence, or has been proved to have been party or privy to the offence, or has been hound over to keep the peace toward such child. ('_'.) Every order under this section shall he in writing, and any such order may he made by the court in the absence of the child; and the consent of any person to undertake tin- custody of a child in pursuance of :m\ such order shall he proved in such manner as the court may think sufficient to hind him." By s. 7.- -(2.) " Any court having power so to commit a child shall have power to make the like orders on the parent of the child to contribute to its maintenance during such period as aforesaid as if the child were detained under the Industrial Schools Acts, hut the limit on the amount of the weekly sum which the parent of a child may he required, under this section, to contribute to its maintenance shall he one pound a week instead of the limit fixed by the Industrial Schools Acts." By s. 8.— (1.) •' In determining on the person to whose custody the child shall be committed under this Act. the court shall endeavour to ascertain the religious persuasion to which the child belongs, and shall, if possible, select a person of the same religious persuasion, or a person who gives such undertaking a- seems to the courl sufficient that the child shall he brought up in accordance with its own rehgious persuasion, and such rehgious persuasion shall he specified in the order." By s. 11. •• Where it appears to the court by or before which any person is convicted of the offence of cruelty within the meaning of this Act. or oi any of ll (fences mentioned in the Schedule to this Act, that that person is a parenl of the child in respeel of whom the offence was com- mitted, or is living with the parenl of the child, and is an habitual drunkard within the meaning of the [nebriates Acts. 1879 and Inns, the court, in lieu of sentencing such per- >n to imprisonment, may. if it thinks lit. make an order for his detention for any period named in the oriler not ex* ding twelve months in a retreat under the -aid Acts, the licensee of which is willing to feceive him, and. the said order shall have the like effect . and copies thereof shall be senl to the local authority and Secretary of State in like manner as if it were an application duly made by such person ami duly attested by two justices under the said Acts; and the court may order an officer of the court or constable to remove such pei 346 Child — Ill-treatment and Neglect of, to the retreat, and on his reception the said Acts shall have effect as if lie had been admitted in pursuance of an application so made and attested as aforesaid : Provided that — (a) an order for the detention of a person in a retreat shall not be made under this section unless that person, having had such notice as the court deems sufficient of the intention to allege habitual drunken- ness, consents to the order being made ; and. (b) if the wife or husband of such person, being present at the hearing of the charge, objects to the order being made, the court shall, before making the order, take into consideration any representation made to it by the wife or husband ; and. C) before making the order the court shall, to such extent as it may deem reasonably sufficient, be satisfied that provision will be made for defraying the expenses of such person during detention in a retreat." By s. 12. " In any proceeding against any person for an offence under this Act or for any of the offences mentioned in the Schedule to this Act, such person shall lie competent but not compellable to give evidence, and the wife or husband of such person may be required to attend to give evidence as an ordinary witness in the case, and shall be competent but not compellable to give evidence." The wife or husband of a person charged with any offence under this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged. See Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 4, and Schedule in Appendix of Statutes. By s. 13. — (1.) "Where a justice is satisfied by the evidence of a regis- tered medical practitioner that the attendance before a court of any child, in respect of whom an offence of cruelty within the meaning of this Act or any of the offences mentioned in the Schedule to this Act is alleged to have been committed, would involve serious danger to its life or health, the justice may take in writing the deposition of such child on oath, and shall thereupon subscribe the same and add thereto a statement of his reason for taking the same, and of the day when and place where the same was taken, and of the names of the persons (if any) present at the taking thereof. (2.) The justice taking any such deposition shall transmit the same with his statement — (a) if the deposition relates to an offence for which any accused person is already committed for trial, to the proper officer of the court for trial at which the accused person has been committed." By s. 14. "Where on the trial of any person on indictment for any offence of cruelty within the meaning of this Act or any of the oifenees mentioned in the Schedule to this Act, the court is satisfied by the evidence of a registered medical practitioner that the attendance before the court of any child in respect of whom the offence is alleged to have been committed would involve serious danger to its life or health, any deposition of the child taken under the Indictable Offences Act, 18*8, or this Act, shall be admissible in evidence either for or against the licensed person without further proof thereof— (a) if it purports to be signed by the justice by or before whom it pur- ports to be taken ; and (b) if it is proved that reasonable notice of the intention to take the deposition has been served upon the person against whom it is pro- posed to use the same as evidence, and that that person or his counsel or solicitor had, or might have had if he had chosen to be present, an opportunity of cross- examining the child making the deposition." Child — Ill-treatment and Neglect of. 347 By s. 15. — (1.) "Where, in any proceeding against any person for an offence under this Act or for any of the offences mentioned in the Schedule to tin's Act. the child in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, dues not in the opinion of the court understand the nature of an oath, the evidence of such child may be received, though not given upon oath, if, in the opinion of the court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth: and the evidence of such child, though not given on oath but otherwise taken and reduced into writing, in accordance with the provisions of section seventeen of the Indictable Offences Act, 1848, or of section thirteen of this Act, shall be deemed to be a deposition within the meaning of those sections respectively: Provided that — (a) A person shall not 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 ; and (b) Any child whose evidence is received as aforesaid and who shall wilfully give false evidence shall be liable to be indicted and tried for such offence, and on conviction thereof may be adjudged such punishment as is provided for by section eleven of the Summary Jurisdiction Act. 1ST!', in the case of juvenile offenders." This sub-section enables a court to order a hoy under 14 years of age to he whipped for wilfully giving false evidence under this section. By s. 1(>. ""Where in any proceedings with relation to an offence of cruelty within the meaning of this Act, or any of the offences mentioned in the Schedule to this Act. the court is satisfied by the evidence of a registered medical practitioner that the attendance before the court of any child in respect of whom the offence is alleged to have been committed would involve serious danger to it-- life or health, and is further satisfied that the evidence of the child is not essential to the just hearing of the ■case, the case mav he proceeded with and determined in the absence of the child." By s. 17. " Where a person is charged with an offence under this Act, or any of the offences mentioned in the Schedule to this Act, in respect of a child who is alleged in the charge or indictment to he under any specified age, and the child appears to the court to he under that age, such child shall for the purposes of this Act he deemed to he under that age, unless the contrary is proved." Where the child is not produced to the court the fact that it is under sixteen may hi' proved by any lawful evidence, and it is not necessary to produce a birth certificate. Thus the evidence of persons who had seen the children and staled thai in their belief they were under sixteen was admitted in /,'. v. Cox, (1898) 1 <>. /:. 17!). By s. 20. — (1.) " Where a misdemeanor under this Act is tried on indict- ment, the expenses of the prosecution shall be defrayed in like manner as in the case of a felony." By s. 21. "A hoard of guardians may. out of the funds under their •control, pay the reasonable costs and expenses of any proceedings which they have directed to he taken under this Act in regard to the assault, ill- treatment, neglect, abandonment, or exposure of any child, and. in the ■case of a union, shall charge such costs and expenses to the common fund." By s. 23. — (1.) '"The provisions of this Act relating to the parent of a ■child shall apply to the step-parent of the child and to any person •Cohabiting with the parent of the child, and the expression ' parent' 348 Child— Ill-treatment and Neglect of. when used in relation to a child includes guardian and every person who is by law liable to maintain the child. (2.) This Act shall apply in the case of a parent who being without means to maintain a child fails to provide for its maintenance under the Acts relating to the relief of the poor, in like manner as if the parent had otherwise neglected the child. (3.) For the purposes of this Act — ■ Any person who is the parent of a child shall be presumed to have the custody of the child ; and Any person to whose charge a child is committed by its parent shall be presumed to have charge < )f the child ; and Any other person having actual possession or control of a child shall be presumed to have the care of the child." By s. 24. "Nothing in this Act shall be construed to take away or affect the right of any parent, teacher, or other person having the lawful control or charge of a child to administer punishment to such child." The offences mentioned in the Schedule are — ■ "Any offence under ss. 27, oo, or 56 of the Offences against the Person Act, 1861, and any offence against a child under the age of sixteen years under ss. 43 or 52 of that Act," that is to say, unlawfully abandoning or exposing any child under two years of age, abducting a girl under sixteen years of age, kidnapping children under fourteen years of age, and common and indecent assaults on children under the age of sixteen. '•Any offence under the Children's Dangerous Performances Act, 1879." "Any other offence involving bodily injury to a child under the age of sixteen years." In 11. v. Roberts, 18 Cox, 530, Cave, J., held that this last clause only applied to offences of which it was an essential part that the person injured was a child under sixteen. The provisions of the Act as to o\ i donee did not therefore apply in his opinion to a charge of wounding a child under sixteen nor to a charge of murdering such a child. Under the old law it was attempted in some cases to make an abandon- ment itself the ground of a criminal prosecution, but it was then settled that abandonment alone, without proof that the child's health was thereby injured, was not sufficient. 11. v. Friend, Russ. & liij. 20; .//.v. Cooper, 1 Den. ('. C. 454; R. v.' Hogan, 2 Den. C. 0. 277; 20 L. J., M. C. 219; R. v. Phillpoit, Ihara. C. C. 179. By the 24 & 25 Yict. c. 100, s. 27, ' • "Whosoever shall unlawfully abandon or expose any child being under the age of two years, whereby the lif e of such child shall he endangered, or the health of such child shall have been or shall he likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall he liable to be kept in penal servitude." The provisions of 57 & 58 Vict. c. 41, supra, apply to this section. Where the mother left the child at the door of its father's house to his knowledge, and he left it there, this was held an " abandonment " by the father. R. v. While, L. /,'., 1 C. C. 11. 311 ; 40 /.. ./., M. C. 135. Where the child was packed up in a hamper, labelled " with care," and directed to the lodgings of the father, and the parcel was delivered in less than an hour, it was held that the life of the child was " endangered." //. v. Falkingham, I.. //.. 1 C. C. II. 122; 39 L. J., M. C. 47. See also R. v. Ridley, R. v. Marsh, ante, p. 263. The point whether a person is indictable for abandoning a child of tender years, so that such child thereby becomes chargeable to a parish, has been brought before the court of criminal appeal in two cases ; 11. v. Child — Ill-treatment and Neglect of. 349 Cooper, 1 Den. C. C. R. 459 ; 18 L. J., M. C. 168, and 11. v. //<»/,„<, 2 Z>e». C. C. /£. 277 ; 26 /,. J., M. C. 219 ; but in the former case the indictment did not allege that the child was not legally settled in the parish in which it had been left by its mother ; and in the latter, it was held to be a fatal objection to the indictment, that it did not contain an averment that the prisoner had the means of supporting the child. A single woman, the mother of an infant child, was indicted for neglecting to furnish it with food, the indictment alleging that she was able and had the means to do so. There was no evidence of the actual possession of means by the mother ; but it was proved that she could have applied to the relieving officer of the union, and that if she had so applied, she would have been entitled to and would have received relief, adequate to the due support and maintenance of herself and child. The prisoner having been convicted, the Court of Criminal Appeal quashed the conviction. The case was not argued by counsel, but the court in giving judgment said, "The allegation in the indictment is, that the prisoner being able and having the means neglected to maintain her child. We are of opinion that there was no evidence that she had the means of supporting it, and therefore that the allegation is not made out. To show that she might by possibility have obtained the necessary means is not sufficient." II. v. Chandler, Dears. C. C. 453 ; R. v. Rug;/. 12 Vox, 10. So where a girl, eighteen years of age, was taken in labour in the house of her stepfather during his absence, and the mother omitted to procure the assistance of a midwife in consequence of which the girl died, and there was no evidence that the mother had the means to pay for the midwife ; it was held, that she was not Legally bound to procure the aid of the midwife. R. v. Shepherd, I.. & C. 117; 31 /.. ./.. M. ('. 102. The indictment, however, need not all ege the ability to provide ; it is sufficient if it uses the word "neglect." See /,'. \. Ryland, L. 11. 1 C.C. R. 99 ; 37 /.. J., M. C. 10. A doubt is expressed upon this point in II. v. Rugg, supra : but the case of R. v. Ryland was not cited, nor was the point one which affected the decision. For concealment of birth of child, see post, p. 350. Other offences against children.'] The offences of abandonment and neglect of children are offences which relate to children only, but additional provisions have been made for the protection of children in many cases where the act done would be an offence if done against an adult. These will be found treated of under the titles of those offences in their genera] character. For child-stealing and abduction, see "Abduction." For assaults upon children, see " Assaults." For rape of children, see " Rape." For manslaughter of children, see " Manslaughter." For illtreating helpless persons, see " TUtreating Apprentices." For murder of children, see •• Murder." For matters of defence with respect to children, see tit. •• General Mat!, rs of Defenci — Infancy." Concealing Birth of Child. CONCEALING BIRTH OF CHILD. Statute] By the 24 & 25 Vict. c. 100, s. 60, "if any woman shall lie delivered of a ehild, every person who shall, by any secret disposition of the dead body of the said child, whether such child die before, at, or after its birth, endeavour to conceal the birth thereof, shall be guilty of a misde- meanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour : provided, that if any person tried for the murder of any child shall be acquitted thereof, it shall be lawful for the jury by whose verdict such person shall bo acquitted, to find, in case it shall so appear in evidence, that the child had recently been born, and that such person did, by some secret disposition 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 the birth." Upon a prosecution for this offence, the prosecutor, after establishing the birth of the child, must prove the secret burying or other disposal of a dead body, the identity of the body with that of the child so born, and the endeavour to conceal the birth. In general, the evidence to prove the first point will also tend to establish the last. Secret disposition of the body.~\ What was a sufficient disposal of the body was a matter of doubt tinder the former statutes. Where the evidence was, that the prisoner had been delivered of a child, and had placed it in a drawer, where it was found locked up, the drawer being opened by a key taken from the prisoner's pocket, Maule, J., directed an acquittal, being of opinion that the statute contemplated a final disposing of the body. R. v. Ash, 2 Moo. & R. 294. R. v. Bell, MS. 2 Moo. .">!>. Where the prisoner put the deadl body of her child over a wall into a held where there was no path, this was held to In- a secret disposition. //. v. Brown, L. II. , 1 < '. ('. A'. 244; •*>!) A. ■/., d/. C. 94. Where the prisoner was stopped going across a yard, in the direction of a privy, with a bundle, which on examination was found to be a cloth sewed up, containing the body of a child ; it was. held by Gurney, B., that the prisoner could not be convicted, the offence- not having been completed. R. v. Snell, 2 Moo. & II. 44. Evidence was given that the prisoner denied her pregnancy, and also, after the birth of the child, denied that also; bat she afterwards confessed to a surgeon that she had borne a child. The body of the child was, on the same day, found among the soil in the privy. Patteson, J., held it to be essential to the commission of the offence, that the prisoner should have done some act of disposal of the body after the child was dead; therefore if she had -one to the privy for another purpose and the child came from her unawares, and fell into the soil, and was suffocated, she must be acquitted of the charge, notwithstanding her denial of the birth of the child. The prisoner was acquitted. A', v. Turner, 8 C. & /'. 7.3 j. See also A', v. Coxhead, 1 C. & K. 623. Prances Douglas and one Robert Hall were indicted for the murder of a female child, of which they were acquitted; whereupon the jury were desired to inquire whether the female was guilty of endeavouring to. conceal the birth. The prisoners had been living together for some time, and in the night, or rather about four in the morning, she was delivered of the child, in the presence of the male prisoner, who was the father of it, and who, with his two sons, aged fourteen and ten, all slept on the- same pallet with her, up four pairs of stairs. The male prisoner very soon afterwards put the child (which had not been separated from the after-birth) into a pan, carried it down stairs into the cellar, and threw the whole into the privy, the female prisoner remaining in bed up stairs. She was proved to have -aid she knew it was to be done. The fad of her being with child was, some time before her delivery, known by her mother, who lived at some distance, and was apparent to other women. Xo female was present at the delivery ; one had been sent for at the com- mencement of the labour, about twelve at night, but was so ill that she could not attend. There were no clothes prepared, or other provision made, but the parties were in a stale of the most abject poverty ami destitution. The jury found her guilty of endeavouring to conceal the birth, and two points were reserved for the opinion of the judges: 1st, Whether there was evidence to convicl the prisoner as a principal? 2ndly, whether, in point of law, the conviction was good : The case was argued before all the judges (except Park, J.), who were of opinion that the communication made to other persons was only evidence, hut no liar, and that the conviction was g 1 ; hut tlu-v recommended a pardon. It. v. Douglas, 1 Moo. C. C. 480. So in A. v. Sketton, :> C. & K. Hit, Williams, J.,. directed the jury, that if a woman be delivered of a child which is dead, and a man take the body and secretly bury it, she was indictable for the concealment by secret burying under s. 14 of the former statute, and he for aiding and abetting under S. 31, if there was a common purpose in both in thus endeavouring to conceal the birth of the child ; hut that the jury must be satisfied, not only that she wished to conceal the birth, hut was a party to the carrying that wish into effect by the secret burial by 352 Concealing Birth of Child. the hand of the man, in pursuance of a common design between them. Piatt, B., had ruled in a similar way in B. v. Bird, 2 C. cfc K. 817. An indictment for endeavouring to conceal the birth of a child need not state whether the child died before, at, or after the birth. B. v. Coxhead, 1 C. & K. 623. It seems, per Martin, B.. that a foetus not bigger than a man's finger, but having the shape of a child, is " a child " within the statute. B. v. Colmer, 9 Cox, 506; but in B. v. Hewitt, 4 F. <('• F. 1101, Smith, J., left it to the jury to say whether what the prisoner had concealed was a child or was only a foetus. The words of the statute are " any secret disposition of the dead body"; and, where a woman deposited a child while alive in a field, and there left it to die, and the dead body of the child was afterwards found, it was held that the woman could not be convicted under the statute. B. v. Jane Mag, 10 Cox, 448. Upon an indictment for the murder of a child, any person, on failure of the proof as to the murder, may now be convicted by the statute of endeavouring to conceal the birth, ante, p. .350. Formerly, no person but the mother could be so convicted. B. v. Wright, 9 C. & P. 754. Where the bill for murder was not found by the grand jury, and the prisoner was tried for murder on the coroner's inqiiisition, it was held that she might be found guilty of the concealment, the words of the stat. 43 Geo. 3, c. 58 (repealed), being, that " it shall be lawful for the Jury, by whose verdict any person charged with such murder shall be acquitted, to find," and the judges holding that the coroner's inquisition was a charge, so as to justify tin 'finding of the concealment. B. v. 3£ayxarl make it pass "■■ r silver coin.] By s. ;;, ■•whosoever shall gild or silver, or shall, with any wash or materials capable of producing the colour or appearance of gold or of silver, or by any means whatsoever wash, case over, or colour any coin whatsoever, resembling or apparently intended to resemble or pass for any of the queen's currenl gold or silver coin, or shall gild or silver, or shall with any wash or materials capable of producing the colour or appearance of gold or of silver, or by any means whatsoever wash, case K. A A 354 (hining. over, or colour any piece of silver or copper, or of coarse gold or coarse silver, or of any metal or mixture of metals respectively, being of a fit size and figure to be coined, and with intent that the same shall be coined into false and counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin ; or shall gild, or shall, with any wash or materials capable of producing the colour or appearance of gold, or by any means whatsoever, wash, case over, or colour any of the queen's current silver coin, or file, or in any manner alter such coin, with intent to make the same resemble or pass for any of the queen's current gold coin ; or shall gild or silver, or shall with any wash or materials capable of producing the colour or appearance of gold or of silver, or by any means whatsoever wash, case over, or colour any of the queen's current copper coin, or file, or in any manner alter such coin, with intent to make the same resemble or pass for any of the queen's current gold or silver coin, shall be guilty of felony." Punishment the same as in s. 2. Impairing or diminishing gold <>r silver coin.] By s. 4, " whosoever shall impair, diminish, or lighten any of the queen's current gold or silver coin, with intent that the coin so impaired, diminished, or lightened, may pass for the queen's current gold or silver coin, shall be guilty of felony, and, being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). Possession of filings or clippings of gold or silver <-<>in.~\ By s. .3, " who- soever shall unlawfully have in his custody or possession any filings or clippings, or any gold or silver bullion, or any gold or silver in dust, solution, or otherwise, which shall have been produced or obtained by impairing, diminishing or lightening any of the queen's current gold or silver coin, knowing the same to have been so produced or obtained, shall be guilty of felony, and, being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding seven years " (see ante, p. 203 j. Buying or selling counterfeit gold nr silver coin.'] By s. 6, "whosoever without lawful authority or excuse (the proof whereof shall He on the party accused) shall buy. sell, receive, pay, or put off, or offer to buy, sell, receive, pay, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin, at or for a lower rate or value than the same imports, or was apparently intended to import, shall be guilty of felony." Punish- ment the same as in s. 2. " And in any indictment for any such offence as in this section aforesaid, it shall be sufficient to allege that the party accused did buy, sell, receive, pay, or put off, or did offer to buy, sell, receive, pay, or put off the; false or counterfeit coin at or for a lower rate or value than the same imports, or was apparently intended to import, without alleging at or for what rate, price, or value the same was bought, sold, received, paid, or put off, or offered to be bought, sold, received, paid, or put off." Importing counterfeit gold or silver coin.'] By s. 7, " whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused) shall import or receive into the United Kingdom from beyond the seas, any false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin, knowing the same to be false or counterfeit, shall be guilty of felony." Punishment the same as in s. 2. Coining. '.ioo Exporting counterfeit coin.'] By s. 8, "whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused) shall export, or put on board any ship, vessel, or boat, for the purpose of being exported from the United Kingdom, any false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current coin, knowing the same to be false or counterfeit, shall be guilty of a misdemeanor, and. being convicted thereof , shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour." Uttering counterfeit gold or silver rain.'] By s. 9, "whosoever shall tender, utter, or put off any false or counterfeit coin resembling, or apparently intended to resemble or pass for any of the queen's current gold or silver coin, knowing the same to be false or counterfeit, shall be guilty of a misdemeanor, and, beintj convicted thereof, shall be liable to Be imprisoned for any term not exceeding one year, with or without hard labour." Uttering counterfeit gold or silver coin, having possession of other counter- feit coin.] By s. 10, " whosoever shall tender, utter, or put off any false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin, knowing the same to be false or counterfeit, and shall, at the time of such tendering, uttering, or putting off, have in his custody or possession, besides the false or counterfeit coin so tendered, uttered, or put off, any other piece of false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin," is liable to the same punishment as for the next offence. Uttering twia within ten days.] By the same section. " whosoever shall, either on the day of such tendering, uttering, or putting off, or within the space of ten days then next ensuing, tender, utter, or put off any false or counterfeit coin, resembling or apparently intended to resemble or pass for any of the queen's current gold or silver coin, knowing the same to lie false or counterfeit, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to lie imprisoned for any term not exceeding two years, with or without hard labour." Having possession of counterfeit gold or silver coin.] By s. 11. "whoso- ever shall have in his custody or possession three or more pieces of false or counterfeit coin, resembling l for any gold or silver coin of any foreign prince, state, or country, shall lie guilty of felony, and, being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding seven years" (seeante, p. 203). Coming, 357 Importing foreign counterfeit gold and silver coin.'] By s. 19, "whoso- ever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall bring or receive into the United Kingdom any such false or counterfeit coin, resembling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state, or country, knowing the same to be false or counterfeit, shall be guilty of felony, &c." Punishment the same as in the preceding section. The importation of imitation coin is prohibited by 52 & 53 Vict. c. 42, s. 2. Uttering foreign counterfeit gold and silver coin.] By s. 20, " whosoever shall tender. Titter, or put off any such false or counterfeit coin, resem- bling or apparently intended to resemble or pass for any gold or silver coin of any foreign prince, state, or country, knowing the same to be false or counterfeit, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding six months, with or without hard labour." Second offence of uttering foreign counterfeit gold and silver coin.'] By s. 2 1 , • ' \vh< >si ii n er, having been so convicted as in the last preceding section mentioned, shall afterwards commit the like offence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned for any term not exceeding two years, with or without hard Labour." Third offenci of uttering foreign counti rfeit gold and silver coin.] By the same section, "whosoever, having been so convicted of a second offence, shall afterwards commit the like offence of tendering, uttering, or putting off any such false or counterfeit coin as aforesaid, knowing the same to be false or counterfeit, shall be guilty of felony." Punishment the same as in sect. 2. ante, p. 353. Counterfeiting foreign coin other than gold or silver coin.] By s. 22, "whosoever shall falsely make or counterfeit any kind of com not being the queen's current coin, but resembling or apparently intended to re- semble or pass for any copper coin, or any other coin made of any metal or mixed metals of less value than the silver coin, of any foreign prime, state, or country, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable for the first offence to be imprisoned for any term not exceeding one year, and for the second offence, to be kept in penal servitude tor any term not exc ling seven years" (see ante, p. 203). Making, mending, or having possession of coining tools.] Bys. 24, "who- soever, withoul lawful authority or excuse (the proof whereof shall lie on the party accused), shall knowingly make or mend, or begin or proceed to make or mend, or buy or sell, or have in his custody or possession any puncheon, counter-puncheon, matrix, stamp, die, pattern, or mould, in or upon which there shall be made or Impressed, or which will make or impress, or which shall be adapted and intended to make or impress the figure, stain]', or apparenl resemblance of both or either of the side- of any of the queen's current gold or silver coin, or of any coin of any foreign prince, state, or country, or any pari or parts or both or either of such sides; or shall make or mend or begin or proceed to make or mend, or shall buy or sell, or have in his custody or possession, any edger, edging or other tool, collar, instrument, or engine adapted and intended for the marking of coin round the edges, with letter-, grainings, or other 358 Coining. marks or figures apparently resembling those on the edges of any such coin, as in this section aforesaid, knowing the same to be so adapted and intended as aforesaid ; or shall make or mend, or begin or proceed to make or mend, or shall buy or sell, or have in his custody or possession, 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 any such coin as in this section aforesaid, shall be guilty of felony." Punishment the same as in sect. 2, ante, p. 353. Conveying wining tools, ifcc, out of the mint.~\ By s. 25, "whosoever, without lawful authority or excuse (the proof whereof shall lie upon the party accused), shall knowingly convey out of any of her Majesty's mints any puncheon, counter-puncheon, matrix, stamp, die, pattern, mould, edger, edging, or other tool, collar, instrument, press, or engine used or employed in or about the coining of coin, or any useful part of any of the several matters aforesaid, or any coin, bullion, metal, or mixture of metals, shall be guilty of felony." Punishment the same as in sect. 2, ante, p. 353. \~rnHt'.~] By s. 28, "where any person shall tender, utter, or put off any false or counterfeit coin in one county or jurisdiction, and shall also tender, utter, or put off any other false or counterfeit coin in any other county or jurisdiction, cither on the day of such first-mentioned tender- ing, uttering, or putting off, or within the space of ten days next ensuing, or where two or more persons, acting in concert in different counties or jurisdictions, shall commit any offence against this Act, every such offender may be dealt with, indicted, tried and punished, and the offence laid and charged to have been committed in any one of the said counties or jurisdictions, in the same manner in all respects as if the offence hnd been actually and wholly committed within such one county or jurisdiction." As to offences committed within the jurisdiction of the Admiralty, see s. 36, supra, tit. Venue, p. 223. Proof of coin being counterfeit.] By s. 20, "where, upon the trial of any person charged with any offence against this Act, it shall be necessary to prove that any coin produced in evidence against such person is false or counterfeit, it shall not be necessary to prove the same to be false and counterfeit by the evidence of any moneyer or other officer of her Majesty's mint, but it shall be sufficient to prove the same to be false or counterfeit by the evidence of any other credible witness." When tin offence of counterfeiting is complete.] By s. 30, "every offence of falsely making or counterfeiting any coin, or of buying, selling, receiving, paying, tendering, Tittering, or putting off, or of offering to buy, sell, receive, pay, utter, or put off any false or counterfeit coin against the provisions of this Act, shall be deemed to be complete, although the coin so made or counterfeited, or bought, sold, received, paid, tendered, uttered, or put off, or offered to be bought, sold, received, paid, uttered, or put off, shall not be in a fit state to be uttered, or the counterfeiting thereof shall not be finished or perfected." Punishment of principals in the second degree, and accessories. By s. 35, *' in the case of every felony punishable under the Act, every principal in Coin in;/. 359 the second degree, and every accessory before the fact, shall be punishable in the same manner as the principal in the first degree is by this Act punishable; and every accessory after the fact to any felony punishable under this Act shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour." ( 'ountt rf< H medals.'] By -16 & 47 Vict. c. 45 (the Counterfeit Medal Act), '■ If any person, without due authority or excuse (the proof whereof shall lie on the person accused), makes or has in his possession for sale, or offers for sale, or sells, any medal, cast, coin, or other like thing, made wholly or partially of metal or any metallic combination, and resembling in size, figure and colour any of the queen's current gold or silver coin, or having thereon a device resembling any device on any of the queen's current gold or silver coin, or being so formed that it can by gilding, silvering, colouring, washing, or other like process be so dealt with as to resemble any of the queen's current gold and silver coin, he shall be guilty . of a misdemeanor, and on being convicted shall be liable to be imprisoned for any term not exceeding one year, with or without hard labour." Proof oj counterfeiting.'] It is apprehended that, notwithstanding the provision in s. 30, supra, there must still be a substantial making or counterfeiting proved, and thai it will not be sufficient merely to show that steps have been taken towards a counterfeiting. The clause appears to have been intended to provide againsl such cases as that of Ji. v. Harris, 1 Lea. 135, where, the metal requiring a process of beating, filing, and immersing in aqua fortis, to render the coin passable, the judges held, that the prisoner could not be convicted of counterfeiting. See also R. v. Farley, 1 Leach, 76; Wm. Wad: 682; 1 East, P. C. 164. The question whether the coin alleged to be counterfeit does, in fact, resemble or is apparently intended to resemble or pass for the king's current gold or silver coin, is one of fact for the jury; in deciding which they must be governed by the state of the coinage at the time. Thus, where the genuine coin is worn smooth, a counterfeit bearing no impres- sion is within the law : for it may deceive the more readily for bearing no impression, and in the deception the offence consists. //. v. Welsh, 1 East, I'. C. 164; 1 Leach, 293; R. v. Wilson, 1 Leach, 'is,;. Nor will a variation, not sufficienl to prevent the deception, lender the coin less a counterfeit. Thus, it is said by Lord Hale, that counterfeiting the lawful coin of the kingdom, yet with some small variation in the inscription, effigies, or arms, is a counterfeiting of the king's money. 1 Hale, I'. C. 215. In /.*. v. Hermann, I Q. /!. />. 2s | ; 48 L. J., M. C. 106, the Court for Crown Cases Reserved were divided in opinion as to whether a genuine sovereign which had been fraudulently tiled at the edges to such an extent as to reduce its weighl by one twenty-fourth part, and a new milling added to restore the appearance of the coin, was false and counter- foil within 24 & 25 Vict. c. 99, s. 9. Lord Coleridge, C. J., Pollock and Huddleston, BB., being of opinion that it was false and counterfeit. Lush, and Stephen, J. I., being of the contrary opinion. Where the prisoner was indicted for uttering a medal resembling a half-sovereign in size, figure, and colour, it was shown thai the medal was of the same diameter, and similar in colour: that the guerling was round and not square; that the stamp of the head of the queen was Bimilar to that on a half-sovereign ; but that the legend was different. No evidence was given of the impression upon the reverse side of the medal, the medal being losl during the examination of the witnesses ; and .360 Coining. it was held that there was sufficient evidence that the medal resembled a half -sovereign in "size, figure, and colour." R. v. Robinson, 1 L. & C. 604; 34 L. J., M. C. 176. It was to meet this and other similar cases that the above statute, 46 & 47 Vict. c. 45, was passed. What is current coin may be proved by evidence of common usage or reputation. 1 Hale, P. C. 213. Proof of uttering.^ Upon an indictment for the simple offence of uttering the prosecutor must prove the act of uttering, &c, as charged, that the money was counterfeit, and that the prisoner knew it to be such. The practice of " ringing the changes" was held to be an offence under the repealed statute, 15 Geo. 2, c. 28; R. v. Frank, 2 Leach, 664 ; and it is so likewise under the present Act. The coin must be 2">roved to be counter- feit in the usual way. The mode of proving guilty knowledge has been already considered at length ante, p. 81. Where several persons are charged with an uttering, it must appear either that they were all present, or so near to the party actually uttering as to be able to afford him aid and assistance. Three persons were indicted for uttering a forged note, and it appeared that one of them uttered the note in Gosport while the other two were waiting at Ports- mouth till his return, it having been previously concerted that the jirisoner who uttered the note should go over the water for the purpose of passing the note, and should rejoin the other two. All the prisoners having been convicted, it was held that the two prisoners who had remained in Portsmouth, not being present at the time of uttering, or so near as to be able to afford any aid or assistance to the accomplice who actually uttered the note, were not principals in the felony. R. v. Soares, Rtiss. // Husband. As to uttering in forgery, see 'post, tit. Forgery. Proof of possession of counterfeit coin.~\ It is a very frequent question, what amounts to the possession of counterfeit coin, both as aggravating the uttering and as itself a substantive offence. The following eases have been decided on this point. Having a large quantity of counterfeit coin in possession, many of each sort being of the same date, and made in the same mould, and each piece being wrapped in a separate piece of paper, and the whole distributed in different pockets of the dress, is some evidence that the possessor knew that the coin was counterfeit and intended to utter it. A', v. Jarvis, 25 /.. •/., M. C. 30. In the following case, two persons were convicted of a joint uttering, having another counterfeit shilling in their possession, although the latter coin was found upon the person of one of them only. It appeared that one of the prisoners went into a shop and there purchased a loaf, for which she tendered a, counterfi il shilling in payment. She was secured, but no more counter- foil money was found upon her. The other prisoner who had come with her. and was waiting at the shop-door, then ran away, but was imme- diately secured, and fourteen bad shillings were found upon her. wrapped in gauze paper. It was objected, that the complete offence stated in the indictment was not proved against either of the prisoners; Grarrow, l'>.. was of opinion, that the prisoners coming together to the shop, and the one staying outside, they must both betaken to be jointly guilty of the uttering, and that it was for the jury to say whether the possession of the remaining pieces of bad money was not joint. The jury found both the prisoners guilty. /•'. v. Skerrit, 2 Q. a /'. 427. See also /,'. v. Rogers, 2 .1/. C. C. 85; 2 Lewin, C. <". L19, 297. So where one of two persons in company utters counterfeit coin, and other counterfeit coin is found on the other person, they are jointly guilty of the aggravated offence, of acting in concert, and both knowing of the possession. //. v. Gerrish and Brown, 2 Moo. & /'. 219. A', v. Williams, Carr. & M . 259; see now the interpre- tation clause of the Act, ante, p. .').">:>. The guilty knowledge will be proved in the same manner as under an indictment for uttering false coin, ante, p. 81. Proceedings for tivia uttering.l If it is intended to punish the prisoner as tor twice uttering, under s. lOj he must be specially indicted ; forupou the corresponding clause of the former statute, where a prisoner was con- victed of two single utterings contained in two counts of the same indict- ment, the judges held that one judgmenl for two years' imprisonment was bad, ami that there should have been two consecutive judgments of one year's imprisonmenl each. A*, v. Robinson, 1 Moo. C. C. 413. Proceedings after a previous conviction.'] By sect. .'J7 of 24 & '2~> Vict. c. 99, where any person shall have 1 n nun icted of any offence against this Act. or any former Act relating to the coin, and shall afterwards lie indicted for any offence againsl this Act, committed subsequenl to such conviction, it shall be sumcienl in any such indictment, after charging such subsequent offence, to state the substance ami effed only 'omitting the formal part) of the indictment and conviction lor 1 lie pre\ LOUS offence ; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence. 362 Coining. purporting to be signed by the clerk of the court or other officer having or purporting to have the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the previous conviction, without proof of the signature or official character or authority of the person appearing to have signed the same, or of his custody or right to the custody of the records of the court, and for every such certificate a fee of six shillings and eightpence, and no more, shall be demanded or taken ; and the proceedings upon any indict- ment 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, bo arraigned upon so much only of the indictment as charges the subse- quent offence, and if he plead not guilty, or if the court order a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concerning such subsequent offence only ; and if they find him guilty, or if on arraignment he plead guilty, he shall then, and not before, be asked whether he had been previously convicted as alleged in the indictment, and if he answer that lie had been so previously convicted, the court rn ay proceed to sentence him accordingly; but if he deny that he had been so previously convicted, or stand 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 shall give evidence of his good character, it shall be lawful for the prosecutor in answer thereto, to give evidence of the conviction of such person for the previous offence or offences, before such verdict of guilty shall be returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence. The above section applies to indictments under s. 12. It is sufficient for such an indictment if the certificate shows that the prisoner had pleaded guilty, or was found guilty of the offence, although no judgment was given. B. v. Blah/, (1894) 2 'J. B. 170; 63 L. .!.. M. C. 133. The mode of proceeding provided by the above section must in all cases be followed. B. v. Martin, L. R., 1 C. C. 11. 214; 39 l.. ,/., M. 0. 31 ; ante, p. 167. But in an indictment under s. 12, for the felony of uttering counterfeit coin after a previous conviction for a like offence, if the jury find the prisoner guilty of the uttering, but negative the previous con- viction, he cannot be convicted of the misdemeanor of uttering. R. v. Thomas, /.. /,'., 2 C. C. R. 141 ; 44 L. J., M. C. 42 (ante, p. 73). ({fences relating to coining tools.'] The prisoner employed a die-sinker to make, for a pretended innocent purpose, a die, calculated to make shillings; the die-sinker suspecting fraud, informed the commissioners of the Mint, and under their directions made the die for the purpose of detecting the prisoner. On a case reserved, it was held that the die- sinker was an innocent agent, and that the prisoner was rightly convicted as a principal, under the 2 Will. 4, c. 34, s. 10. R. v. Batmen, 2 Moody, (J. C. R. 309; 1 O. & K. 29,3 ; R. v. Harvey, /,. //.. 1 O. C. R. 284; 40 I j. J., M. C. 63, infra. The particular tool specified must be proved. With regard to all the tools mentioned in the statute, it shordd be observed that they are described to be such as will impress " any part or farts of both or either of the sides" of current gold or silver coin ; a descrip- tion of tool not included m the former Acts. The statute divides the coining Coining. 363 instruments into those upon which there shall be "made or impressed," and those "which will make and impress" the figure, &c, of both or either of the sides of the lawful coin. The following ease therefore is still applicable: The prisoner was indicted for having in his custody a mould upon which there was made and impressed, &c the figure of a shilling. The mould bore the resemblance of a shilling inverted, viz., the convex parts being concavi in the mould; and it was objected that it should have been described as an instrument which would make or impress, &c, and not as one on which was madeand impressed, &c. ; but a great majority of the judges were of opinion that the evidence maintained the indictment, because the stamp of the current coin was impressed upon the mould. They agreed, however, that it would have been more accurate had the instrument been described as one " which would make or impress." //. v. Lennard, 1 Leach, ill'; 1 East, I'. C. 170. To convict a prisoner upon an indictment under the former statute, charging him with having in his possession "'one mould upon which was impressed the figure and apparent resemblance" of the obverse side of a shilling, Patteson, J., held that the jury must be satisfied that, at the time the prisoner had it in his possession, the whole of the obverse side of a shilling was impressed on the mould. R. v. Foster, 7 C & I'. 494. But on a second indictment auainst the same prisoner, for making a mould '• intended to make and impress the figure and apparent resemblance" of the obverse side of a shilling, the same learned judge ruled that it was sufficient to prove that the prisoner made the mould, and a part of the impression, though lie had not completed the entire impression. Ibid. -lit"). An indictment alleging that the prisoner 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 had, on demurrer; as not sufficiently showing that the impression was on the mould at the time it was in the prisoner's possession. A fresh indictment, with the words " then and there " before the words " made and impressed was held good. R. v. Richmond, 1 ('. & K. 240. It was held that a collar marking the edge, by having the coin forced through it by machinery, is an instrument within the Act, though this mode of marking the edges is of modern invention. R. v. Moore, 1 Moody, ('. 0. 122. The words " figure, stamp, or apparent resemblance," do not mean an exact resemblance ; hut if the instrument will impress a resemblance in point of tact such as will impose upon the world, it is sufficient. R. v. Ridyely, 1 East, I'. <". 171 ; 1 Leach, 189. See /,'. v. Richmond, as to how the indictment should he framed, where a coining mould is made and impressed to resemble the obverse of a coin which is partly defaced by wear. 1 C. & K. 240. The section (s. 24) says, "whosoever without lawful authority or excuse (the proof whereof shall lie on the party accused), &c." An indictment charged that the prisoner "without lawful excuse, &c." ; it was held that the indictment must negative the excuse although the burden of proof is casl upon the accused, but thai it need only negative the " lawful excuse " (which included lawful authority). R. \. //<" L. //., 1 C C R. 284 ; 40 A. •/.. .1/. C. 03. The prisoner's intention as in the use he intends to make of dies of current coin i d not he inquired into; if he is knowingly in possession of them without lawful authority or excuse, that is a felony. hi. .<»/>,-it. 364 Compounding Offences, &c. COMPOUNDING OFFENCES, &c. Compounding felonies.'] Though, the bare taking again of a man's own goods which have been stolen (without favour shown to the thief) is no offence. Htm-]:. P. C. b. 1, c. 59, s. 7, yet where a man either takes back the goods, or receives other amends, on condition of not prosecuting, this is a misdemeanor punishable by fine and imprisonment. Id. s. 5. And so in any < tther felony an agreement not to prosecute an indictment for reward is punishable as a misdemeanor ; though nearly all the precedents of indictments for this species of offence seem to be confined to theft-bote, or that kind of composition of felony which has reference to the recovery of property of which the owner has been deprived. Coke, 3 lust. 135. But, on the other hand, it has been pointed out that none of the old writers expressly sav that the offence cannot be committed by a person who is not the 'owner. See B. v. Burgess, 16 Q. B. D. 141 ; 55 L. ■/.. .1/. C. 97, where it was held by the Court for Crown Cases Beserved that the offence of compounding a larceny may be committed by a person other than the owner of the goods stolen, or a material witness for the prosecution. Where, in an indictment for compounding a felony, it was averred that the defendant did desist, and from that time hitherto had desisted from all further prosecution, and it appeared that after the alleged compound- ing he prosecuted the offender to conviction, Bosanquet, J., directed an acquittal. R. v. Stone, 4 C. &~ P. 379. It is not necessary, however, to allege in the indictment that the defendant desisted from prosecuting the felon ; the offence consists in the corrupt agreement not to prosecute. B. v. Burgess, supra. Compounding misdemeanors.'] Whether, at common law, the compound- ing of misdemeanor is in any case a misdemeanor, is perhaps doubtful. Such agreements, when not made under the permission of a court of justice, are clearly, in many cases, illegal. < 'nil I us v. Blantern, 2 Wils. 341; 4 /;/. Comm.' 363; Beeley v. Wingfield, 11 East, 46; U. v. Hardey, 14 Q. B. 529. And even when made with the permission of the court. Keir v. Leeman, 9 Q. /!, 371. Compounding informations on penal statutes.] By is Eliz. c. 5. s. 4, if any informer, by colour or pretence of process, or without process upon colour or pretence of any manner of offence against any penal law, make any composition, or take any money, reward, or promise of reward, without the order or consent of the court, he shall stand two hours in the pillory, be for ever disabled to sue on any popular or penal statute, and shall forfeit ten pounds. This statute does not extend to penalties only recoverable by information before justices. B. v. < 1 risp, 1 B. & Aid. 282. But it is not necessary, to bring the case within the statute, that there shoidd be an action or other proceeding pending. R. v. (loth//. Buss. i& By. 84. A mere threat to prosecute for the recovery of penalties, not amounting to an indictable offence at common law, is yet, it seems, within the above statute. II. v. Southerton, <> East, 120. A person may be con- Compounding Offences, dec. 365 vieted. under this statute, of taking- money, though no offence liable to a penalty has been committed by the person from whom the money is taken. R. v. Best, 2 Moo. C. 0. 124 ; 9 C. & P. 868. Misprision of felony. ,] Somewhat analogous to the offence of com- pounding felony is that of misprision of felony. Misprision of felony is the concealment or procuring the concealment of felony, whether such felonies be at common law or by statute. Hawk. I'. C. I>. 1, c. 59, s. 2. Silently to observe the commission of a felony, without using any endeavour to apprehend the offender, is a misprision. Ibid, (n); 1 Hale, /'. ( '. 431, 448, 533. If to the knowledge there be added assent, the party will become an accessory. 4 /»'/. Comm. 121. Taking rewards for helping to recover stolen goods — advertising rewards, (fee] Similar to the offence of compounding a felony is that of taking a reward for the return of stolen property, and advertising a reward for the same purpose. By 24 & 25 Vict. c. 96, s. 101, " whosever shall corruptly take any money or reward, directly or indirectly, under pretence, or upon account of helping any person to any chattel, money, valuable security, or other property whatsoever, which shall by any felony or misdemeanor have been stolen, taken, obtained, extorted, embezzled, converted, or disposed of as in this Ad before mentioned, shall, unless he shall have used all due diligence to cause the offender to be brought to trial for the same be guilty of felony, and, being convicted thereof, shall be liable to- be kept in penal servitude for any term not exceeding seven years (see ante, p. 203), or to be imprisoned, and, if a male under the age of eighteen years, with or without whipping." Upon an indictment under this statute, it is not necessary to show that the prisoner had any connection with the commission of the previous felony ; it is sufficient if the evidence satisfies the jury that the prisoner had some corrupt and improper design when he received the money, and did not bona fidt intend to use such means as he could for the detection and punishment of the offender. II. v. King, 1 Cox, 36. Where A. was charged, under s. 58, with corruptly and feloniously receiving from B. money under pretence of helping B. to recover goods before then stolen from !>., and with not causing the thieves to be apprehended, three questions were left for the jury : 1. 1 >id A. mean to screen the guilty parties, or to share the money with them: 2. Did A. know the thieves, and intend to assist them in getting rid of the property bj promising 1>. to buy it? -'!. Did A. know the thieves, and assist 1!., as her agent, and a1 her request, in endeavouring to purchase the stolon property from them, not meaning to bring the thieves to justice? The jury answered the two firsl questions in the negative, and the third in the affirmative. 11 was held that the receipt of the money under the above circumstances was a corrupt receiving of the money by A. within the statute. //. v . Pascoe, 1 Den. C. C. I!. 456; 18 L.J.,M.C. 186. By s. 102, any person advertising a reward for the return of property stolen or lost, and using any word- purporting thai no questions will be asked, or that a reward will be given for property stolen or lost without seizing or making any inquiry after the person producing such property, or promising to return to any pawnbroker or other person who ma\ nave bought or advanced money upon any property stolen or lost, the money so paid or advanced, or any other sum of money or reward for the return of such property, or any person printing or publishing such advertisement, shall forfeit fifty pounds, to be recovered by action of debt. 3(30 Concealment of Deeds and Incumbrances. CONCEALMENT OF DEEDS AND INCUMBRANCES. By the 22 & 23 A'ict. c. 35, s. 24, " any seller or mortgagor of land or of any chattels, real or personal, or choses in action conveyed or assigned to a purchaser, or the solicitor or agent of any such seller or mortgagor who shall, after the passing of this Act, conceal any settlement, deed, will, or other instrument material to the title, or any incumbrance, from the purchaser, or falsify any pedigree upon which the title does or may depend, in order to induce him to accept the title offered or produced to him, with intent in any of such cases, to defraud, shall be guilty of a misdemeanor, and, being found guilty, shall be liable, at the discretion of the court, to suffer such punishment by fine or imprisonment for any term not exceeding two years, with or without hard labour, or both, as the court shall award." And by the 23 & 24 Vict. c. 38, s. S, the above section is to be read as if the words "or mortgagee" had followed the word "purchaser" in every place where that word is introduced in the section. By the Land Titles and Transfer of Land in England Act, 38 & 39 Vict. c. 87, s. 99, if in the course of any proceedings before the registrar or the court in pursuance of this Act, any person concerned in such proceedings as principal or agent, with intent to conceal the title or claim of any person, or to substantiate a false claim, suppresses, attempts to suppress, or is privy to the suppression of any document or of any fact, the person so suppressing, attempting to suppress, or privy to suppression, shall be guilty of a misdemeanor, and upon conviction on indictment shall be liable to be imprisoned for a term not exceeding two years, with or with- out hard labour, or to be fined such sum, not exceeding five hundred pounds, as the court before which he is tried may award. Conspiracy. 361 CONSPIRACY. Preferring indictments for conspiracy.] By the 22 & 23 Vict. c. 17, s. 1, no l)ill of indictment for conspiracy is to be presented to or found by any grand jury, excepl under the circumstances there mentioned. See ante, p. 16(5. See this statute in the Appendix. And see also 30 & 31 Vict, c 35, s. 1 , in Appendix. Nature of the crime of conspiracy.'] The earliest mention of the crime of conspiracy is to be found in the statute 33 Edw. 1. In modern books numerous definitions of conspiracy occur : sec //. v. Vincent, 9 C. & P. 91; /.'. v. Seward, 1 A. A- /•.'. 706; R. v. Peck, 9 A. & E. 686; R. v. Jones, 4 ]!. &Ad. 34-3; 1 Russ. Cri. 491, 6th ed. : II. v. Parnell, 14 Cox, 508; they all. in effect, amount to this, that a conspiracy is an agreement between two or more persons to do that which is unlawful. "It consists not merely in the intention of two or more, hut in the agreement of two or more to do an unlawful act. or to do a lawful act by unlawful moans." Mulcahy v. 11.. I.. /'.. :; //. /,. 317. It must he by two at least, for if two be tried together the jury cannot he satisfied of the guilt of either if they are not satisfied of the guilt of both: /,'. v. Manning, 12 Q. II. />. 241; and husband and wife cannot lie guilty of the offence of conspiracy, because they are one person at law. Hawk. c. 72, s. S. Of course it makes no difference whether the final object he unlawful, or the means lie unlawful: in either case the conspiracy is equally indictable. Notwithstanding the high authority on which this definition is founded it is unsatisfactory, inasmuch as the word "unlawful," upon which it turns, is ambiguous, and appears to be used in the definition in a sense in which it is used nowhere else. It does not mean "criminal," for there are many cases in which a combination to do a thing is a crime, although tin' act itself, if done by an individual, would not he a crime : for instance, it is a crime to conspire to seduce a woman, though seduction itself is not a crime. On the other hand. " unlawful " does not mean " tortious."' for there are torts which it is not a crime toconspire to commit. Nor, again, does any case go so far as to decide that a combination to commit a breach of contract is a conspiracy. Hence, the word "unlawful." in the definition of conspiracy, has no precise meaning, and the definition i^ in reality no definition at all. 'hi comparing the rases referred to below, the following propositions may he deduced from them, which perhaps approach as nearly to a definition as the vaguenessof the law will permit. 1. A combination to commii any crime is an indictable conspiracy. A Btrong case of this is afforded by the case of R. \, Bunn ami others, 12 Cox, .'!!(). in which several persons were convicted of a conspiracy for agreeing together to commit an offence by breaking a contract of service without notice, and were sentenced upon conviction to a heavier penalty than would have been inflicted upon any of them individually. As to this see now the statute, 38 & ■'!!' Vict. c. 86, ss. 3, 4, ■">. post, pp. 383, 384. 2. A combination to commil a civil injury is an indictable conspiracy in many, though it is impossible to say precisely in what, cases. 36* Conspiracy. 3. Combinations to do acts which the courts regarded as outrages on morality and decency, or as dangerous to the public peace, or injurious to the public interest, have in many cases been held to be conspiracies. The vagueness of the second and third of these propositions leaves so broad a discretion in the hands of the judges that it is hardly too much to say that plausible reasons may be found for declaring it to be a crime to combine to do almost anything which the judges regard as morally wrong or politically or socially dangerous. The power which the vagueness of the law of conspiracy puts into the hands of the judges is something like the power which the vagueness of the law of libel puts into the hands of juries. The case of the law of conspiracy as it affects workmen, who combine to raise their wages (see p. 380), is a remarkable illustration of this. With regard to civil injuries, it may be observed that wherever a com- bination to commit such an injury has been held to be criminal, the injury has been malicious, that is to say, the parties have not been under a bond fi'l> y mistake as to a matter of fact, which, if true, would have justified their conduct. Thus, a combination to walk over a field, or to pull down fences, would not be a conspiracy, if the object was to try a cruestion as to a right of way, though it certainly would be a combination to commit an act unlawful in the sense of being a tort. On the other hand, a conspiracy to commit a fraud may be indictable though the fraud is not in itself indictable. In the case of R. v. Warburton, the defendant and another person conspired to defraud the defendant's partner of partner- ship property under such.circumstances that the fraud was perhaps not criminal in itself. Cockburn, C. J., in delivering the judgment of (L. 7?., 1 0. (J. R. 273 — 7) the Court for Crown Cases Reserved, said, " It issufii- cient to constitute a conspiracy if two or more persons combine by fraud and false pretences to injure another. It is not necessary in order to constitute a conspiracy that the acts agreed to be done should be acts which if done would be criminal. It is enough if the acts agreed to be done, although not criminal, are wrongful, i.e., amount to a civil wrong." The generality of these expressions must probably be confined by reference to the particular class of civil wrongs under consideration, namely, "civil wrongs by fraud and false pretences." And where a woman was in- dieted with others for conspiring to pi'ocure her miscarriage by unlawful means, and there was no evidence of her pregnancy, it was held that, although the acts if done by herself alone might not have been criminal, yet she could lie rightly convicted of conspiring to commit a felon v. R. v. 'Whitchurch, 24 Q.R. A 420. Another remarkable circumstance connected with the law of conspiracy is, that it renders it possible by a sort of fiction to convert an act innocent in itself into a crime by charging it in the indictment as an overt act of a conspiracy of which there is no other evidence than the act itself. In other words, if the jury choose to impute bad motives to an act prima furl, innocent, they can convict those who combine to do it of conspiracy. Upon an indictment of this sort, Eolfe, B., made the following observations: " What the prosecutors of this indictment have done is this, they have not proceeded under the statute (6 Geo. 4, c. 129, repealed) to indict the parties for the alleged illegal act, but they undertake to show that there was a general combination amongst them all to effect these illegal acts, and for that it is they have indicted them. That is a legal course to pursue, and being legal, I shall not now step out of the path of my duty by specu- lating upon the policy that has been adopted in this case. It would be, however, much more satisfactory to my mind, if the parties were indicted for that which they have directly done, and not for having previously Conspiracy. 369 (•(inspired to do something, the having done which is the proof of the con- spiracy. It never is satisfactory, although undoubtedly it is legal." R. v. Selsby, 5 Cox, 495. So where persons were indicted for a conspiracy to commit an unnatural offence, upon evidence which, though weak, tended, as far as it went, to show the actual commission of the offence, Cockburn, C. J., referring to the language of Eolfe, B., said: "I am clearly of opinion that where the proof intended to be submitted to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it, for that course operates, it is manifest, unfairly and unjustly against the parties accused; the prosecutors are thus enabled to combine in one indictment a variety of offences, which if treated individually, as they ought to be, would exclude the possibility of giving evidence against one defendant to the prejudice of others, and deprive defendants of the advantage of calling their co-defendants as witnesses." R. v. Boulton, 12 Cox, at p. 93. There is another point connected with the law of conspiracy, which is involved in great obscurity : namely, whether any one of the parties must have proceeded to the commission of some act in furtherance of the conspiracy, or, as it is usually called, some overt act. The authorities seem to stand thus. In the Poulterer's Case, 9 Co. oo />., Lord Coke says that, "a man shall have a writ of conspiracy, although they do nothing but conspire together, and he shall recover damages, and they may also be indicted thereof." (P. 56 l>.) In the next page he mentions, as the first incident of the crime of conspiracy (or, as he calls it, confederacy) i that, "it ought to be declared by some manner of prose- cution, as in this case it was, either by making of bonds, or of promises one to the other." In //. v. Best, '1 Ld. Raym. 1167, it is said in the marginal note that " an illegal conspiracy is indictable, though nothing is done in pursuance of it." This was so contended by counsel in that case, but from the indictment it does not appear that any such contention was necessary, and the judgment is silent on the point. In //. v. Kinnersley, sir. ]'.)'■'>, which is frequently referred to as an authority that no overt act need be proved, no such point arose. All that was there decided was that no overt act need be laid in the indictment, as is now well settled. So also in the case of R. v. S/migg, 2 Burr. 993, Lord Mansfield expressly reserves his opinion on the subject now under consideration, pointing out that it was not necessary for the decision of that case. And in Mulcahy v. II.. L. 11.. ;> //. /.. 306, it was laid down that the agreement of two or more persons is an act in advancement of the intention which each has conceived in his mind. The practical importance of thi ■ difficulty is lessened by the fact that the existence of the conspiracy until revealed by some overt act is rarely known, and it therefore seldom becomes, under such circumstances, the subject of the indictment. I >f course an overt act committed by any one of the conspirators would be sufficient, for on the general principles of agency, as applied to criminal law, such an act would Be the act of all. It was said by Lord Ellenborough that a mere agreement to commit a civil trespass would noi be the subject of indictment. R. v. Turner, 13 /■.'us!, 228. Bui this decision is not at all borne out by the definitions above referred to; and in R. v. Rowlands, 17 Q, />'. 686, Lord Campbell said, "1 have looked most elaborately into all the authorities which were cited, and as to Turm r's casf I have no doubt whatever thai it was wrongly decided." In Turner's case the agreement was to go and take hares by night in a preserve, armed with offensive weapons; which was rather more than a mere civil trespass. The same learned judge held that a R. B B ,370 ( 'onspiracy. conspiracy to hiss an actor or damn a play would be indictable. Clifford v. Brandon, 2 (Jump. 358; 6 T. R. 628. So a conspiracy to impoverish A. B., a tailor, and to prevent him carrying on bis trade, bas been held to be indictable. R. v. Eccles, 1 Lea. 274 ; 3 Dougl. 337. In R. v. Carlisle, Dears. 0. C. 337 ; 23 L. J., M. C. 109, S. sold a mare to B. for 39?., and before the price was paid, B. and C. conspired together falsely and fraudulently to represent to S. that the mare was unsound, in order to induce S. to accept 27Z. instead of the agreed price of 39/. ; and it was held that this was indictable as a conspiracy. So it has been held to be indictable to conspire to raise the price of funds by spreading false reports ; 22. v. Be Berenger, 3 M. & S. 67 ; or of any vendible commodity; R. v. Aspinall and others, infra. Blackburn, J., and Brett, J. A.; to conspire to raise a false claim to property by contracting a marriage ; R. v. Robinson, 1 Lea. 44 ; and to conspire to induce persons to take shares in a new com- pany, to which was to be transferred the business of an old company known to the conspirators to be hopelessly insolvent and worthless, with a view of defrauding and cheating the persons so taking and paying for their shares of the price which thev would have to pay. R. v. Gurney oral others, 11 Cox, 439—40. An indictment charged the defendants in a second count with having conspired in order to obtain a quotation of shares in the Stock Exchange List, to induce persons who should thereafter buy and sell shares to believe that the conrpany was duly formed and constituted, and had complied with the rules of the Stock Exchange, so as to entitle the company to have their shares quoted in the official list. The Court of Queen's Bench held the count was good, although there was no averment that the object sought was to injure persons by inducing them to deal in the shares of tbe company. Cockburn, 0. J., and Blackburn, J., intimated it would have been more prudent to have added some such averment, so as to make the offence more distinct, but held that the object of the conspiracy could be sufficiently inferred by the prior averments of the indictment. The judgment of the Queen's Bench was affirmed in the Court of Appeal, the Court further holding the insufficiency of the indictment to be cured by the verdict. R. v. Aspinall, 1 Q. B. I). 730; 45 L. J., M. C. 129; on appeal, L. R., 2 Ap. Ca. 48; 46 L. J., M. C. 145. A conspiracy to charge an innocent person with an offence is indict- able ; R. v. Best, 2 Ld. Ray in. 1167; 1 Salk. 174 ; 1 Russ. Cri.49o, 6th ed., and it is immaterial whether the charge be true or false, successful or unsuccessful, if any of the means resorted to be unlawful. Hawk. P. C. b. 1, c. 72, ss. 3, 4; Li. v. Hollingberry, 4 B. & C. 329. But several persons may combine together to cany on a prosecution in a legal manner. Hawk. P. C b. 1, c. 72, a. 7; 1 Russ. Cri., 496, 6th ed. ; R. v. Murray, Matth. Big. Cr. L. 90. Any conspiracy to pervert the course of justice is, of course, indictable ; Hawk. P. C. b. 1, c. 21, s. 15; Bushell v. Barrett, By. & .1/. 434; 1 Saunfi. 300 ; R. v. Jolliffe, 4 T. 11. 285; R. v. Thompson. 16 Q. B. 832; 20 L. J., M. C. 183; R. v. Macdaniel, 1 Lea. 45; Fost. 130; R. v. Mabey, 6 T. R. 619; Claridge v. Hoare, 14 Ves. 65; or by abuse of legal process to enforce payment of money which was known to be not due. R. v. Taylor, 15 ( 'ox, 265, 268. There are numerous instances in the books of conspiracies against morality and public decency held indictable; such as a conspiracy to seduce a young woman; R. v. Lord Grey, 3 St. Tr. 519; 1 East, P. C. 460; or to procure an infant female to have illicit carnal connexion with a man; R. v. Mears, 2 LJen. C. C. 79; 20 L. J., M. C. 59; or to procure a girl, whether chaste or imchaste, to become a common prostitute; Conspiracy. 371 JR. v. HoiveJI and Bentley, 4 /*'. <('■ F. 160. The procuration' of girls or women under twenty- one for immoral purposes is now made a mis- demeanor by 48 & 49 Vict. c. 69, s. 2, see "post, tit. Rape. A conspiracy to take away a young woman, an heiress, from the custody of her friends, for the purpose of marrying her to one of the conspirators, has been held to be an indictable offence. Ii. v. Wakefield, 2 Lewin, C. C. 1, 279; 1 Deac. Bi[l. C. C. 4. Also a conspiracy to prevent the burial of a corpse, though for the purposes of dissection. Ii. v. Young, cited 2 T. 11. 734 ; 2 Chit. C. L. 36. Vide post, tit. Demi Bodies. There has been some discussion about conspiracies to marry paupers. Of course these are indictable if any unlawful means be used. But it has been attempted to carry the matter further, and to hold that the con- spiracy to persuade paupers to marry by their own consent was itself indictable, as being an injury to the inhabitants of the parish on whom the burden of supporting the woman was thereby thrown. But this notion is now completely exploded. In a case of this kind, Buller, J., directed an acquittal, holding it necessary in support of such an indict- ment, to show that the defendant had made use of some violence, threat, or contrivance, or used some sinister means to procure the marriage, without the voluntary consent or inclination of the parties themselves; that the act of marriage being in itself lawful, a conspiracy to procure it could only amount to a crime by the practice of some undue means; and this, he said, had been several times ruled by different judges; Ii. v. Fowler, 1 East, I'. C. 461 ; li. v. Seward, 1 Ad. & FAl. 706; 3 Nev. & M. -557. Where it is stated to have been by threats and menaces, it is not necessary to aver that the marriage was had against the consent of the parties, though that fact must be proved. 11. v. Parkhouse, 1 East, I'. C. 462. As to combinations among workmen to regulate the price of wages, see infra, tit. Conspiracies in Restraint of Trade. Proof of tin existence of conspiracy in general.^ It is a question of some difficulty, how far it is competent for the prosecutor to show in the first instance the existence of a, conspiracy amongst other persons than the defendants, without showing, at the same time, the knowledge or con- currence of the defendants, but leaving that part of the case to be subse- quently proved. The rule laid down by Mr. East is as follows: "The conspiracy or agreement among several to act in concert for a particular end must lie established l>v proof, before any evidence can be given of the acts of any person not in the presence of the prisoner; and this must, generally speaking, be done by evidence of the party's own act, and cannoi be collected from the acts of others, independent of his own. as by express evidence of the fad of a previous conspiracy together, or of a com air rent knowledge and approbation of each other's acts." 1 East, /'. C. 96. But it is observed by Mi'. Starkie thai in some peculiar instances in which it would be difficult to establish the defendant's privity without first proving the existence of a conspiracy, a deviation has been made from the general ml", and evidence of tic acts and conduct of others has been admitted to prove the existence of a conspiracy previous to the proof of the defen- dant's privity. 2 Stark. Ev. 234, -ml <<*iii<>ih/, 11 ' 'ox, 146. Proof of the nun us used.} Where the act itself, which is the object of the conspiracy, is illegal, it is not necessary to state or prove the means agreed upon or pursued to affect it. I!, v. Eccfes, 1 Leach, 274. But where the indictment charged the defendants with conspiring "to cheat and defraud the lawful creditors of W. I 1 .," Lord Tenterden thought it too general, in not stating what was intended to be done or the persons to be defrauded. /.'. v. Fowle, -4 < '. & /'. 592; but see /,'. v. I>e Berenger, 3 M. & S. (>7, and A*, v. Gurney, supra, p. .">70. where an intent to defraud the general public and not any particular person was ruled by Cockburn, ( '. J. (citing, with approval, II. v. De Berenger), to be sufficient; and see ft. v. Aspinall "ml others, , \>. 370, bul see White v. ft., 13 Cox, 318. So where the indictment charged the defendants with a conspiracy "to cheat and defraud the said II. B. of the fruits and advantages " of a verdict, Lord Denman, ('.J., held it had, as being too general, 11. v. Richardson, 1 Moo. & P. 402. Where the indictment charged the defendants with conspiring, by divers false pretences ami subtle means and devices, to obtain from A. divers large sums of money, and to cheat and defraud him thereof, it was held, that the gist of the offence being the conspiracy, it 376 Conspiracy. was quite sufficient only to state that fact and its object, and that it was not necessary to set out the specific pretences ; Bayley, J., said that when parties had once agreed to cheat a particular person of his money, although they might not then have fixed on any means for the purpose, the offence of the conspiracy was complete. R. v. Gill, 2 Barn. & Aid. 204. In R. v. Parker, 3 Q. B. 292. Williams, J., said, "It has been always thought that in R. v. Gill the extreme of laxity was allowed." But in Sydserffv. R., 11 Q. B. 245, an indictment charging that the defendants "unlawfully, fraudulently, and deceitfully, did conspire, combine, confederate, and agree together to cheat and defraud " the prosecutor "of his goods and chattels," was held good on writ of error ; and the court in giving judg- ment expressly upheld the decision in B. v. Gill. See upon this point King v. B. (in error), 7 Q. B. 7f I h and others, the word <>t/trr.* means partners of D., and evidence of attempts to defraud persons not the partners of D. is inadmissible. A', v. Steel, 2 Moo. C. C. 246; Carr. <& M . 337; R. v. Thompson, 16 Q. /:. 832; 20 /.. •/.. .1/. C. 183. Where a count in an indictment charged several defendants with con- spiring together to do several illegal acts, and the jury found one of them guilty of conspiring with some of the defendants to do one of the acts. and guilty of conspiring with others of the defendants to do another of tin' acts, such finding was held bad, as amounting to a finding that one defendant was guilty of tun conspiracies, though the count charged only on,.. CConnetl v. R., 11 CI. & /'.loo; R. v. Manning, 12 Q. B. D. 241. Upon a count in an indictment against eight defendants, charging one conspiracy to effed certain objects, a finding that three of the defen- dants an- guilty generally, that live of them are guilty of conspiring to effect some, and not guilty as to the residue of these objects, is had in law and repugnant: inasmuchas the finding that the three were guilty was a. finding that they were guilty of conspiring with the nther five to effect all the objects of the conspiracy, whereas by the same finding it appears that the other five were guilty of (-(inspiring to effect only some of the objects. Ih. 378 Conspiracy. A count charging the defendant with conspiring to cause and procure divers subjects to meet together in large numbers for the unlawful and seditious purpose of obtaining, by means of the intimidation, to be thereby caused, and by means of the exhibition and demonstration of great physical force at such meetings, changes in the government, laws, and constitutions of the realm, is bad; first, because "intimidation" is not a technical word, having a necessary meaning in a bad sense ; and secondly, because it is not distinctly shown what species of intimidation is intended to be produced, or on whom it is intended to operate. 77). A conspiracy to enable G. to obtain goods on credit, the object being that G. might re-sell them below their value to the conspirators, is indict- able. P. v. Orman, 14 Cox, 381. The prisoner was indicted for soliciting and inciting a servant to conspire with him to cheat and defraud his master, and it was proved that the prisoner had offered a bribe to the- servant to sell the master's goods at less than their proper value. It was held that he might properly be convicted. 77. v. De Kromme, 17 Cox, 492. Particulars of the eonsi>iracy.~\ "Where the counts of an indictment for conspiracy were framed in a general form, Littledale, J. (after consulting several other judges), ordered the prosecutor to furnish the defendants- with a particular of the charges, and that the particular should give the same information to the defendants that would be given by a special count. But the learned judge refused to compel the prosecutor to state in his particular the specific acts with which the defendants were charged, and the times and places at which those acts were alleged to have occurred. 77. v. Hamilton, 7 C. & P. 448. See further as to particulars, ante, p. 168. If particulars have not been deHvered as directed, the evidence will not thereby be excluded. See p. 169 ; 7?. v. Esdaile, 1 7'. & F. 213, 228. Form of indictment."] It is not uncommon to set out in the indictment the overt acts by which the object of the conspiracy was sought to be attained. But an indictment is good which charges a conspiracy to do an unlawful act without alleging any overt acts whatever. 77. v. Kinnersley , Sir. 193 ; II. y. QUI, 2 B. & Ald.^204: ; P. v. Kenrick, o Q. 77. 49. Where the indictment alleged a conspiracy to fraudulently remove goods of one Moritz Heymann contrary to the Debtors Act, he being a trader and liable to become a bankrupt ; but did not allege that the parties con- spired in contemplation of or with a view to a bankruptcy ; the court said that, although no overt act was necessary, yet they were not prepared to say that the indictment ought not to have alleged the agreement or con- spiracy to be in contemplation of or with a view to bankruptcy. But they held that the objection, if good on demurrer, was cured by the verdict. Heymann v. A'.. L. 11. 8 Q. B. 102. See also P. v. Aspinall, supra, p. 403, as to the last point. Veil ik-.'] The gist of the offence in conspiracy being the act of conspiring together, and not the act done in pursuance of such combination, the venue in principle ought to be laid in the county in which the conspiracy took place, and not where, in the result, the conspiracy was put into execution. 77. v. Best, 1 Sail'. 174 ; 1 Russ. Cri. 527, 6th ed. ; and see P. v- Kohn, ante, p. 224. But it has been said, by the Court of King's Bench, that there seems to be no reason why the crime of conspiracy, amounting only to a misdemeanor, ought not to be tried wherever one distinct overt act of conspiracy was in fact committed, as well as the crime of high treason, in compassing and imagining the death of the king, or in con- spiring to levy war. 11. v. Brisac, 4 East. 164. So where the conspiracy,. Conspiracy. 379 as against all the defendants, having been proved, by showing a com- munity of criminal purpose, and by the joint co-operation of the defen- dants in forwarding the objects of it in different counties and places, the locality required for the purpose of trial was held to be satisfied by overt acts done by some of the defendants in the county where the trial was had in prosecution of the conspiracy. R. v. Bmves, cited in It. v. Brisac, supra. Conspiring to murder persons whether her Mo jest//' s subjects or not.~\ By the 24 & 25 Vict. c. 100, s. 4, " all persons who shall conspire, confederate, and agree to murder any person, whether he be a subject of her Majesty or not, and whether he be within the queen's dominions or not, and who- soever shall solicit, encourage, persuade, or endeavour to persuade, or shall propose to any person to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the queen's dominions or not, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude for any term not more than ten years." See ante, p. 203. The prisoner, who was editor of a newspaper with a circulation of twelve hundred copies, was convicted of publishing an article intending to encourage and encouraging persons to commit murder, and it was held that the conviction was right although the encouragement was not addressed to any person in particular. 7)'. v. Most, 7 Q. B. T>. 244 ; 50 /.. J., M. C. 113. " 380 ( 'onspiracies in restraint of Truth-. CONSPIRACIES IX RESTRAINT OF TRADE. The law relating to conspiracies in restraint of trade is regulated partly "by the common law and partly by statutes. Stated broadly, tbe result of the authorities appears to be that at common law all combinations to effect alterations in the rate of wages are illegal conspiracies, those only being excepted which are protected by the express words of certain statutes. Of these statutes there have been four, namely, 5 Geo. 4, c. 96; 6 Geo. 4, c. 129; 34 & 35 Vict. c. 32; and 38 & 39* Vict. c. 86; which last is now in force. The exceptions made to the common law doctrine by the 6 Geo. 4, c. 129, were narrower than those subsequently made, but certain decisions as to the extent of the common law have practically narrowed considerably the importance of the exceptions. The subject will, accordingly, be treated in the following order : — 1. The common law as to combinations with relation to wages as it was before the statute 6 Geo. 4, c. 129. 2. The decisions as to the extent to which the common law has been modified by the statute 34 & 35 Vict. c. 32. 3. The statute 38 & 39 Vict. c. 86. 1. At common laiv.'] The common law appears to be that a purpose to raise or indeed to affect in any way the rate of wages, is one of those purposes which it is unlawful for people to try to effect by combination, though they may lawfully be effected by individual efforts, and that there- fore a combination on the part of workmen to raise their wages is an indictable conspiracy. This doctrine is no doubt harsh, and its prevalence can be explained only by reference to the considerations already stated upon the law of conspiracy. It affords a case in which the judges have availed themselves of the power which that branch of the law confers upon them, of holding that the intent to raise or affect the rate of wages artificially is so mischievous to the public, that a combination for that purpose is a crime. They were no doubt countenanced in this opinion by views of political economy now obsolete, and by the character of a great mass of legisla- tion now repealed. The doctrine in question rests upon the following authorities : In 1721, Wise and several other journeymen tailors of Cambridge were indicted for a conspiracy to raise their wages, and were convicted. In arrest of judgment it was urged that no crime appeared upon the face of the indictment, as it only charged a conspiracy and refusal to work at so much -per diem, whereas the defendants were not obliged to work at all by the day, but by the year, by 5 Eliz. c. 4 (repealed). The court said, " The indictment, it is true, sets forth that the defendants refused to work under the wages which they demanded ; but although these might be more than is directed by the statute, yet it is not for the refusing to work but for conspiring that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful Conspiracies in restraint of Trade. 381 for them or any of them to do if they had not conspired to do it. //. v. Tailors of Cambridge, 8 Mod. 11. In 1799, two journeymen shoemakers were indicted for a conspiracy to raise their wages. Evidence was given that a plan for a combination of the journeymen shoemakers had been formed and printed in 1792, regu- lating their meetings, the subscriptions for their mutual support, and other matters for their mutual government in forwarding their designs. Evidence of this was allowed to be given before the defendants were connected with it, and it seems that upon proof of their being members of the society they were convicted. In the course of the evidence it was stated that the demands of the journeymen had been occasioned by one of the masters giving wages beyond what was usual in the trade, and Lord Kenyon said that the masters should be cautious of conducting themselves- in that way, as they were as liable to an indictment for conspiracy as the journeymen. R. v. Hammond and Welch, 2 Ksp. 719. In 1783, seven persons were indicted for conspiring to impoverish one Booth, and to deprive and hinder him from using and exercising the trade of a tailor. The means are not set out in the indictment. Lord Mansfield said on delivering judgment, on a motion in arrest of judgment, "The illegal combination is the gist of the offence. Persons in possession of any articles of trade may sell them at such prices as they individually may please, but if they confederate and agree not to sell them under certain prices it is an indictable offence." R. v. Eccles, 1 Lea. 274. In delivering judgment in another case, Grose, J., said, " In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual, without any ageement among themselves, would not have been illegal. As in the case of journeymen conspiring to- raise their wages; each may insist on raising his wages if he can, but if several meet for the same purpose it is illegal, and the parties may be indicted for a conspiracy." 11. v. Maxubey, 6 T. 11. 63(5. It must be borne in mind that when these cases were decided, a great number of statutes, collectively known as the combination laws, were in force. Many of them forbad, in express term, combinations of workmen in particular trades to raise their wages. Others forbad all combinations in general terms and under severe penalties. Thus the decisions above referred to were in strict uniformity, at the time when they were pro- nounced, both with the spirit ami with the practice of the statute law. Againsl this is to be set the language of Lord Campbell in Hilton v. Eckersley, <> I'.. - 62. In that case, the defendant was sued on a bond which he and seven other obligors had executed, by which the obligors agreed to carry on their business, on certain terms which were said to lie illegal and void, as being in restraint of trade. In giving judgment thai the bond was void (which was afterwards affirmed in the Exchequer' Chamber), Crompton, J., referred to the language of Grose, -I-, in /,'. v. Maivbey, supra, as a proof that at common law such conditions were illegal. Lord < 'ampbell agreed that the bond was void, bui said : " 1 am not prepared to say that the combination which has been entered into between the parties to this bond would be illegal at common law, so as to render them liable to an indictment for a conspiracy. Such a doctrine may he deduced from the dictum of Grose, J., in R. v. Mawbey. Other louse expressions may be found in the hook- to the same effect, and if the matter were doubtful, an argument might he drawn from some of the Language of the statutes respecting combinations. Bui 1 cannot bring myself to believe, without authority much more cogent, that if two- workmen who sincerely believe their wages to he inadequate should meet. 382 Conspiracies in restraint of Trade. and agree that they would not work unless their wages were raised, without designing or contemplating violence or any illegal means for gaining their object, they would be guilty of a misdemeanor, and liable t<> be punished by fine and imprisonment. The object is not illegal, and, therefore, if no illegal means are to be used, there is no indictable con- spiracy. Wages may be unreasonably low or unreasonably high ; and I cannot understand why, in the one case, workmen can be considered as guilty of a crime in trying by lawful means to raise thern, or masters, in the other, can be considered guilty of a crime in trying by lawful means to lower them." It is difficult to answer this reasoning upon general grounds, but the authorities quoted above appear to prove that the opinion of Lord Camp- bell's predecessors as to what sort of conduct was highly injurious to the public interests differed from those of Lord Campbell himself. Surely the judgments referred to above are not adequately described by the phrase "loose expressions." ( )f the four cases cited, two are decisions of the Court of Queen's Bench, directly upon the very point itself. The ■dicta of Lord Mansfield and Grose, J., are closely pertinent to the matters then under discussion, and are the more weighty because each of the judges assumes that the illegality of the combinations in question is so clear that it maybe used as a proof of matter in itself more obscure. They are certainly as much in the nature of judgments as Lord Camp- bell's own language in Hilton v. Echersley ; and the language of the now repealed statute of 6 Geo. 4, c. 129, is unintelligible if the legislature did not believe that the. combinations which it expressly permitted would have been crimes in the absence of such express permission. The general result appears to be that all combinations to effect any alteration in the rate of wages, except those which were expressly excepted by 6 Geo. 4. c. 129, ss. 4, 5, were indictable conspiracies at common law. The result, however, cannot be regarded as free from doubt, and it would be difficult to find a stronger illustration of the uncertainty pro- duced by the absence of precise and universally binding definitions of crimes than is supplied by this branch of the law. The whole matter is discussed in full detail by Mr. "Wright (now Wright. J.). La n- of C 'rim inal Conspiracies, pp. 43 — 62. See also Mogul Steamship Co. v. McGregor, 21 Q. B. D. 544; 57 L. J., (J. B. 541 ; 23 Q. B. D. 598 ; (1892) A. C. 25; 01 L. J.. Q, B. 295. It has recently been decided by the House of Lords that for a workman to refuse to go on working unless other workmen were discharged was (where no breach of contract was involved) not actionable, -even although the refusal of the workman was maliciously intended to bring about the discharge of the others. Allen v. Flood, (1898) A. C. 1. And on this ground Darling, J., held in Huttley v. Simmons, (1898) 1 Q. B. 181, that where persons conspired to induce a cab proprietor not to employ a certain man no action would lie against them since such inducement did not create any actionable wrong, and a conspiracy was not actionable unless it was a conspiracy to commit (at the least) a civil wrong. Decisions as to the effect of 34 & 35 Vict. c. 32 (repealed statute) on e, mi mon law.'] It must be borne in mind that neither this statute nor the statute 6 Geo. 4, c. 122, which it repealed, did away with the common law as to conspiring to coerce, which has been treated in two cases as a distinct head of the offence of conspiracy. The law upon this subject is thus stated by Bramwell, !>.. in R. v. Druitt and others, 10 Cox, 600: "There is no right in this country under our laws so sacred as the right of personal liberty. No right of property or capital, about which there has been so much declamation, is so sacred or so Conspiracies in restraint of Trade 383 carefully guarded by the law of this land as that of personal liberty. But that liberty is not liberty of the body only. It is also a liberty of the mind and will ; and the liberty of a man's mind and will, to say how he shall bestow himself and his means, his talents and his industry, is as much a subject of the law's protection as is that of his body. If any set of men agree among themselves to coerce that liberty of mind and thought by compulsion and restraint, they will be guilty of a criminal offence, namely, that of conspiring against the liberty of mind and freedom of will of those towards whom they so conduct themselves." In It. v. Dunn and others, 12 Cox, 316, 339-40, Brett, J., in the course of summing up, said as follows: "The mere fact of these men being members of a trade union is not illegal, and ought not to be pressed against them in the least. The mere fact of then leaving their work and breaking their contract is not a sufficient ground for you to find them guilty upon this indictment. But if there was an agreement among the defendants by improper molestation to control the will of the employers, then 1 tell you that that would be an illegal conspiracy at common law." See these cases commented on in (ribson v. Lawson, infra, and see also li. v. Hibhert, 13 Cox, 82. The above statute repealed the 24 & 2,") Vict. c. 100, s, 41, relating to assaults in pursuance of any conspiracy to raise wages, &c, and the law now relating to such offences is contained in 38 & 3!) Yict. c. 86. 3. The 38 & 39 Vict. c. 86.] By s. 3 of that Act, an agreement or com- bination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime. Nothing in this section shall exempt from punishment any persons guilty of a conspiracy for which a punishment is awarded by any Act of parliament. Nothing in this section shall affect the law relating to riot, unlawful assembly, breach of the peace, or sedition, or any offence against the State or the sovereign. A crime tor the purposes of this section means an offence punishable on indictment, or an offence which is punishable on summary conviction, and for the commission of which the offender is liable, under the statute making the offence punishable, to be imprisoned either absolutely or at the discretion of the court as an alternative for some other punishment. Where a person is convicted of any such agreement or combination as aforesaid to do or procure to be done an act which is punishable only on summary conviction, and is sentenced to imprisonment, the imprisonment shall not exceed three months, or such longer time, if any, as may have been prescribed by the statute for the punishment of the said aci when committed by one person. By s. I, where a person employed by a municipal authority or by any company or contractor upon whom is imposed by Act of parliament the duty, or who have otherwise assumed the duty of supplying any city, borough, town, or place, or any part thereof, with gas or water, wilfully and maliciously breaks a contract of Ben ice with thai authority orcompany or contractor, knowing or having reasonable cause to believe that the probable consequences of his so doing, either alone or in com hi mil ion with others, will be to deprive the inhabitants of thai city, borough, town, place, or part, wholly or to a great extent of their supply of gas or water, lie shall on conviction thereof by a court of summary jurisdiction, or on 3N4 Conspiracies in restraint of Trade. indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds or to be imprisoned for a term not exceeding- three months, with or without hard labour. Every such municipal authority, company, or contractor, as is mentioned in this section shall cause to be posted up, at the gasworks or waterworks, as the case may be, belonging to such authority or company or contractor, a printed copy of this section in some conspicuous place where the same may be conveniently read by the persons employed, and as often as such copy becomes defaced, obliterated, or destroyed, shall cause it to be renewed with all reasonable dispatch. If any municipal authority or company or contractor make default in complying with the provisions of this section in relation to such notice as- aforesaid, they or he shall incur on summary conviction a penalty not exceeding five pounds for every day during which such default continues, and every person who unlawfully injures, defaces, or covers up any notice so posted up as aforesaid in pursuance of this Act, shall be liable on summary conviction to a penalty not exceeding forty shillings. By s. 5, where any person wilfully and maliciously breaks a contract of service or of hiring, 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 cause serious bodily injury, or to expose valuable property whether real or jiersonal to destruction or serious injury, he shall on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour. Sect. 6 relates to neglect of ajmrentices, and will be found post, tit. Ill- treat in (j Apprentices. By s. 7, every person who, with a view to conrpel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing, wrongfully or without legal authority : — (1.) Uses violence to or intimidates such other person or his wife or children, or injures his property ; or, (2.) Persistently follows such other person about from place to place; or, (3.) 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, (4.) Watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach t< i such house or place ; or, (5.) Follows such other person with two or more other persons in dis- orderly manner in or through any street or road, shall, on conviction thereof by a court of summary jurisdiction, or on indictment as hereinafter mentioned, be liable either to pay a penalty not exceeding twenty pounds, or to be imprisoned for a term not exceeding three months, with or without hard labour. The question of what amounts to intimidation has been discussed by the Court for Crown Cases Reserved, and it was held that it must be such intimidation as would imply a threat of personal violence. The mere fear of losing work, and the calling out of men from a particular employment, is therefore no evidence of intimidation within the meaning of the Act. (///sin/ v. Lawson, (1891) 2 (J. B. 545; Curran v. Treleaven. lb. In an indictment under the section it will be advisable to specify the Conspiracies in restraint of Trade. 3S5 acts which the defendant intended to compel the prosecutor to do or abstain from doing. R. v. McKenzie, (1892) 2 Q. B. 519 ; 61 L. J., M. C. 181. A picket who silently follows a person whom he desires to abstain from doing certain work is, if he is accompanied by other persons who are acting in a disorderly manner, guilty of an offence under sub-sec. 5. Smith v. Thomasson, 10 Cox, 740. Attending at or near the house or place where a person resides or works, or carries on business, or happens to be, or the approach to such house or place in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section. As to this proviso, see R. v. Bauld, 13 Cox, 2N2, per Huddleston, B. By s. 9, where imprisonment, or a penalty of more than 20/. is imposed, the accused may object to the jurisdiction of the justices, and thereupon the court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence and not an offence punishable on summary conviction, and the offence may be prosecuted on indictment accordingly. Sect. 10 applies the Summary Jurisdiction Act to this Act. By s. 11, it is provided, that upon the hearing and determining of any indictment or information under sections four, five, and six of this Act, the respective parties to the contract of service, their husbands or wives, shall be deemed and considered as competent witnesses. By s. 14, the expression "municipal authority" in this Act means any of the following authorities, that is to say, the Metropolitan Board of Works, the Common Council of the City of London, the Commissioners of Sewers of the City of London, the town and council of any borough for the time being subject to the 5 & Will. 4, c. 70, and any Act amending the same, any commissioners, trusters, or other persons invested by the local Act of parliament with powers of improving, cleansing, lighting, or paving any town, and any local board. Any municipal authority, or company, or contractor, who has obtained authority by or in pursuance of any general or local Act of parliament to sujiply the streets of any city, borough, town, or place, or of any part thereof, with gas, or which is required by or in pursuance of any general or local Act of parliament to supply water on demand to the inhabitants of any city, borough, town, or place, or any part thereof, shall for the purposes of this Act be deemed to be a municipal authority, or company, or contractor, upon whom is imposed by Act of parliament the duty of supplying such city, borough, town, or place, or part thereof, with gas or water. By s. 15, the word "maliciously" used in reference to any offence under this Act shall be construed in the same manner as it is required by sect. 58 of the Malicious Injuries to Property Act, 24 & 25 Vict. c. 97 [ante, p. 251), to be construed in reference to any offence committed under that Act. By s. 16, nothing in this Act shall apply to seamen or to apprentices to the sea service. That is to say, the punishments prescribed by the Act do not apply to seamen as defined by the Merchant Shipping Acts, i.e., persons actually employed or engaged on board ship. Persons whose calling or occupation is that of seamen, but who are not so employed or engaged in fact are not exempted by this section. R. v. Lynch, (1898) 1 Q. B. 61. The Act applies where the complainant is a seaman. Kennedy v. Cowie, (1891) 1 Q. B. 771 ; 60 L. J., M. C. 170. E. C C 386 Bead Bodies — Offences relating to. DEAD BODIES. OFFENCES RELATING TO. Although larceny cannot be committed of a dead body, no one having any right of property therein, yet it is an offence to remove a body without lawful authority ; and such offence is punishable with fine and imprisonment as a misdemeanor. An indictment charged [inter alia) that the prisoner, a certain dead body of a person unknown, lately before deceased, wilfully, unlawfully, and indecently did take and carry away, with intent to sell and dispose of the same for gain and profit. It being evident that the prisoner had taken the body from some burial ground, though from what particular place was uncertain, he was found guilty upon this count ; and it was considered that this was so clearly an indict- able offence that no case was reserved. R. v. Giles, 1 Buss. Cri. 935, 6th ed. ; Buss. & By. 366 (;/). So to take up a dead body, even for the purpose of dissection, is an indictable offence. B. v. Lynn, 2 T. B. 733 ; 1 Leach, 497 ; see also B. v. Cundrick, Bowl. & By. N. P. C. 13. And it makes no difference what are the motives of the person who removes the body ; the offence being the removal of the body without lawful authority. See B. v. Sharpe, Dear. & B. 160; 26 L. J., M. C. 43; where the defen- dant, from motives of filial affection, had removed the corpse of his mother from its burying place. The defendant had in this case com- mitted a trespass against the owner of the soil of the burying place ; but qucere whether, if no such trespass was committed, the offence might not be still complete. The burial of the dead is the duty of every parochial priest and minister, and if he neglect or refuse to perform the office, he may, by the express words of canon 86, be suspended by the ordinary for three months ; and if any temporary inconvenience arise, as a nuisance, from the neglect of the interment of the corpse, he is punishable also by the temporal courts by indictment or information. Per Abney, J., Andrews v. Cawthorne, Willes, 536. But see now the Burials Act, 43 & 44 Vict. c. 41, s. 1. To bury the dead body of a person who has died a violent death, before the coroner has sat upon it, is punishable as a misdemeanor, and the coroner ought to be sent for, since he is not bound ex officio to take the inquest without being sent for. B. v. Clerk, 1 Salk. 377; Anon., 7 Mod. 10. And if a dead body in a prison or other place, upon which an inquest ought to have been taken, is interred, or is suffered to lie so long that it putrefies before the coroner has viewed it, the gaoler or township shall be amerced. Hawk. P. C. b. 2, c. 9, s. 23 ; see also SeiveU's Law of Coroner, p. 29. The preventing a dead body from being interred has likewise been con- sidered an indictable offence. Thus, the master of a workhouse, a servant, and another person, were indicted for a conspiracy to prevent the burial of a person who died in a workhouse. B. v. Young, cited 2 T. B. 734. Digging up a disused burial-ground for building purposes is a misde- meanor at common law. B. v. Jacolson, 14 Cox, 522. To leave a dead Bead Bodies — Offences relating to. 387 "body exposed in a highway is an indictable nuisance. R. v. Chirk, 15 Cox, 171, see post, tit. Nuisance. Provision is made for the interment of dead bodies which may happen to be cast on shore, by the 48 Geo. 3, c. 75. By the 2 & 3 "Will. *4, c. 75, s. 7, it is provided that " It shall be lawful for any executor, or other party, having lawful possession of the body of any deceased person, and not being an undertaker or other party intrusted with the body for the purpose only of interment, to permit the body of such deceased person to undergo anatomical examination, unless to the knowledge of such executor or other party such person shall have expressed his desire, either in writing at any time during his life, or verbally in the presence of two or more witnesses during the illness whereof he died, that his body after death might not undergo such examination, or unless the surviving husband or wife, or any known relative of the deceased person, shall require the body to be interred without such examination. 1 ' Section 8 provides for the party lawfully in the possession of a dead body directing and permitting anatomical examination, where the deceased shall, during his life, have directed it, " unless the deceased person's surviving husband or wife, or nearest known relative, or any one or more of such person's nearest known relatives, being of kin in the same degree, shall require the body to be interred without such examination." By s. 10, professors of anatomy, and the other persons therein described, being duly licensed, are not liable to punish- ment for having in their possession human bodies according to the provision of the Act. The 1 8th section of this statute makes offences against the Act misdemeanors, and subjects offenders to be punished by imprisonment not exceeding three months, or by tine not exceeding fifty pounds. In R. v. Feist, Dears. & B. C. C. 590; 27 L. J., M. C. 164, the defen- dant was master of a workhouse, and had lawful possession of the bodies of deceased paupers, lie was in the habit of having the appearance of a funeral gone through with a view of preventing the relatives requiring that the bodies should be buried without being subject to anatomical examination, and the jury found that but for that deception the relatives would have required the bodies to be so buried. The bodies, instead of being buried, as was supposed by the relatives, were delivered to an hospital for the purpose of undergoing anatomical examination, and for this service the master r< ived from the hospital a sum of money. The prisoner was found guilty of an offence at common law in disposing of a body for the purpose of dissection ; but the question was reserved whether the defendant was protected by s. 7 of the above Act. The Court of Criminal Appeal held that he was, as the requirement mentioned in that section had not been actually made. Willes, J., pointed out that this was an offence specially provided for by the 7 & 8 Vict. c. 101, s. 31. It would seem that cremation is not illegal unless it amounts to a public nuisance. R. v. Price, 12 ',>. /!. 1>. 247; 53 L. J., M. C. 51. In cases where a coroner has jurisdiction to hold an inquest, it is a misdemeanor to burn or otherwise dispose of the dead body in order to prevent the holding of an intended inquest upon it, and to do so amounts to the obstruction of an officer in the discharge of his duty. R. v. Stephenson, 13 Q. II. I>. 331 ; 53 /.. ■'.. M. C. 176. By 53 Vict. c. 5, s. 319, " If the manager of an institution for lunatics, or the person having charge of a single patient, omits to send to the coroner notice of the death of a lunatic within the prescribed time, he shall be guilty of a misdemeanor." As to retaining in a dwelling-room ^he body of a person who has died <>f an infectious disease, see ,3,'J & ,"j4 Vict. c. 54. C C 2 388 Deer — Offences relating to. DEEE— OFFENCES RELATING- TO. Stealing deer.'] The law upon the subject is now comprised in the 24 & '25 Vict. c. 96. By s. 12, " whosoever shall unlawfully and wilfully course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept or being in the uninciosed part of any forest, chase, or purlieu, shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such sum, not exceeding fifty pounds, as to the justice shall seem meet ; and whosoever having been previously convicted of any offence relating to deer, for which a pecuniary penalty shall have been imposed, by this or by any former Act of parliament, shall afterwards commit any of the offences hereinbefore enumerated, whether such second offence be of the same description as the first or not, shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour ; and, if a male under the age of sixteen years, with or without whipping." By s. 13, "whosoever shall unlawfully and wilfully course, hunt, snare, or carry away, or kill or wound, or attempt to kill or wound, any deer kept or being in the inclosed part of any forest, chase, or purlieu, or in any inclosed land where deer shall be usually kept, shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour ; and, if a male under the age of sixteen years, with or without whipping." The word " deer " in this statute includes all ages and both sexes ; "a fawn," therefore. 7?. v. Strange, 1 Cox, 58. By s. 14 of the above statute, suspected persons found in possession of venison, &c, and not satisfactorily accounting for the same, are rendered liable to a penalty not exceeding 20/. By s. lo, persons setting snares or engines for the purpose of taking or killing deer, or destroying the fences of land where deer shall be kept, on conviction before a justice, shall forfeit a sum not exceeding 20/. Power of deer-keepers, &c, to seize guns,~] By s. 16 of the above statute, "if any person shall enter into any forest, chase, or purlieu, whether inclosed or not, or into any inclosed land where deer shall be usually kept, with intent unlawfully to hunt, course, woimd, kill, snare, or carry away any deer, it shall be lawful for every person intrusted with the care of such deer, and for any of his assistants, whether in his presence or not, to demand from every such offender any gun, fire-arms, snare, or engine, in his possession, and any dog there brought for hunting, coursing, or killing deer ; and in case such offender shall not immediately deliver up the same, may seize and take the same from him in any of those respective places, or, upon pursuit made, in any other place to which he may have escaped therefrom, for the use of the owner of the deer." Assaulting deer-keepers or their assistants.] By the same section, "if any such offender (vide supra) shall unlawfully beat or wound any person Deer — Offences relating to. 389 intrusted with the care of the deer, or any of his assistants, in the execu- tion of any of the powers given by this Act, every such offender shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour ; and, if a male under the age of sixteen years, with or without whipping." Pulling a deer-keeper to the ground, and holding him there while another person escapes, is not a beating. There must be a beating in the popular sense of the word ; proof of a bare legal battery only is insufficient. Per Maule, J., in R. v. Hale, 2 0. & K. 326. 390 Disturbing Public Worship. DISTURBING PUBLIC WOESHIP. By the 52 Geo. 3, c. 155, s. 12, " if any person or persons at any time after the passing of this Act, do and shall wilfully and maliciously or contemptuously disquiet or disturb any meeting, assembly, or congregation of persons assembled for religious worship, permitted or authorized by this Act, or any former Act or Acts of parliament, or shall in any way disturb, molest, or misuse any preacher, teacher, or person officiating at such meeting, assembly, or congregation, or any person or persons there assembled, such person or persons so offending, upon proof thei'eof , before any justice of the peace by two or more credible witnesses, shall find two sureties, to be bound by recognizances in the penal sum of fifty pounds, to answer such offence, and in default of such sureties shall be committed to prison, there to remain till the next general or quarter sessions ; and upon conviction of the said offence at the said quarter sessions, shall suffer the pain and penalty of forty pounds." Upon an indictment found at the sessions under the Toleration Act, 1 Will. & M. c. 18, for disturbing a dissenting congregation, it was held that, upon conviction, each defendant was liable to the penalty of twenty pounds imposed by that statute. R. v. Rube, 5 T. R. 542 ; Peake, N. P. 180. This offence may be tried at the sessions, or in the King's Bench, or at the assizes, if removed by certiorari from the sessions. R. v. Hube, supra; I!, v. Wadley, 4 M. & S. 508. Now, however, the 23 & 24 Vict. c. 32, which abolishes the jurisdiction ( if the ecclesiastical courts in cases of brawling provides for the recovery in a summary manner of a penalty of not more than five pounds for any disturbance in any recognized place of worship whatsoever, whether during the celebration of divine service or not. The Act applies to clergymen as well as to laymen. Vallancey v. Fletcher, (1897) 1 Q. B. 265 ; 66 L. J., Q. B. 297. And it seems that any disturbance of a congregation assembled according to law would be indictable at common law (1 Hawk. c. 28, s. 23 ; 1 Keb. 491), more particularly if arising out of any previous conspiracy for the purpose. As to assaults on clergymen, see 24 & 25 Vict. c. 100, s. 36, supra, p. 261. Dogs. 391 DOGS. Stealing dogs.'] By the 24 & 25 Vict. c. 96, s. 18, "Whosoever shall steal any dog shall, on conviction thereof before two justices of the peace, either be committed to the common gaol or house of correction, thereto be imprisoned, or to be imprisoned and kept to hard labour, for any term not exceeding six months, or .shall forfeit and pay, over and above the value of the said dog, such sum of money, not exceeding twenty pounds, as to the said justices shall seem meet; and whosoever, having been con- victed of any such offence, either against this or any former Act of parlia- ment, shall afterwards steal any dog, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding eighteen months, with or without hard labour." Having possession of stolen dogs."] By s. 19, " Whosoever shall unlaw- fully have in his possession or on his premises any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen, or such skin to be the skin of a stolen dog, shall, on conviction thereof before two justices of the peace, be liable to pay such sum of money, not exceeding twenty pounds, as to such justices shall seem meet ; and whosoever, having been convicted of any such offence, either against this or any former Act of parliament, shail afterwards be guilty of any such offence as in this section before mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding eighteen months, with or without hard labour." Taking money to restore dogs.] By s. 20, "Whosoever shall corruptly take any money or reward, directly >>v indirectly, under pretence or upon account of aiding any person to recover any dog which shall have been stolen or which shall be in the possession of any person not being the owner thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding eighteen months, with or without hard labour." A dog is not a chattel within the meaning of the statute relating to obtaining property by false pretences. R. v. Robinson, 1 Bell, G. C. 34; 28 L.J., M. C. 58. 392 Dwelling- House— Offences relating to. DWELLING-HOUSE— OFFENCES EELATING TO. Burglary, or the offence of breaking a dwelling-house by night, has already been treated of ; so also has the setting fire to a dwelling-house, under the title Arson ; the offence we are now to consider is breaking and entering a dwelling-house by day. The Act now in force is the 24 & 25 Vict. c. 96. Wind building within the curtilage to be deemed part of a dwelling-house.'] By s. 53, "no building although within the same curtilage with any dwelling-house, and occupied therewith, shall 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-hoiise, either immediate, or by means of a covered and inclosed passage leading from the one to the other." Breaking and entering building within the curtilage and committing a felony.'] By s. 55, " whosoever shall break and enter any building, and commit any felony therein, such building being within the curtilage of a dwelling-house, and occupied therewith, but not being part thereof, according to the provision hereinbefore mentioned, or being in any such building shall commit any felony therein, and break out of the same, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years" (see ante, p. 203). Breaking and entering a house, warehouse, &c, and committing any felony.] By s. 56, " whosoever shall break and enter any dwelling-house, school- house, shop, warehouse, or counting-house, and commit any felony therein, or, being in any dwelling-house, school-house, shop, warehouse, or counting-house, shall commit any felony therein, and break out of the same, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). Breaking and entering a house, place of divine worship, shop, warehouse, &c„ with intent to commit felony.] By s. 57, " whosoever shall break and enter any dwelling-house, church, chapel, meeting-house, or other place of divine worship, or any building within the curtilage, school-house, shop, warehouse, or counting-house, with intent to commit any felony therein, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years" (see ante, p. 203). Stealing in a dwelling-house to the value of 51.] By s. 60, " whosoever shall iteal in any dwelling-house any chattel, money, or valuable security, to the value in 'the whole of 5/. or more, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). Dwelling-House — Offences relating to. 393 Stealing in a dwelling-house ivith menaces.] By s. 61, " whosoever shall steal any chattel, money, or valuable security in any dwelling-house, and shail by any menace or threat put any one being therein in bodily fear, shall be guilty of felony, and being convicted thereof shall be liable " to the same punishment as in the last section. Riotously pulling down dwelling-houses.] See tit. Riot. Proof of the breaking and entering.] See tit. Burglary, supra, pp. 314, 319 et seq. Proof of the premises being a dwelling-house.] See tit. Burglary, p. 320, and tit. Arson, p. 252. Proof of stealing in a dwelling-house.] The offence of stealing in a dwelling-house was held not to have been committed in R. v. Campbell, 2 Lea. 564 ; 2 East, P. C. 644 ; where the occupier of the house gave the prisoner a bank-note to get changed, and which the prisoner stole. So where the prisoner obtained a sum of money from the prosecutor, in the dwelling-house of the latter, by ring-dropping, this also was held not to be within the statute. The judges were of opinion, that to bring a case within the statute, the property must be under the protection of the house, deposited there for safe custody, as the furniture, money, plate, &C., kept in the house, and not tilings immediately under the eye or personal care of some one who happens to be in the house. R. v. Owen, 2 East, P. C. 645 ; 2 Leach , 572. The same point was ruled in subsequent cases. On the other hand it was held, on a case reserved, that stealing in a dwelling-house to the value of of. by the owner of the house was within the repealed statute 7 & 8 Geo. 4, c. 29, s. 12. R. v. Bowden, 2 Moo. C. C. 285. AYhere a lodger invited the prosecutor to take part of his bed, without the knowledge of his landlord, and stole his watch from the bed-head, it was held by the judges that he was properly convicted of stealing in a dwelling-house. R. v. Taylor, R. & JR. 418. So where goods were left by mistake at a house in which the prisoner lodged, and were placed in his room, and carried away by him, they were held to be within the pro- tection of the house. II. v. Carroll, 1 Moo. C. C. 89. So if a man on going to bed put his clothes and money by his bedside, these are under the protection of the dwelling-house, and not of the person. R. v. Thomas, Car. Sup. 295. So where a man went to bed with a prostitute, having put his watch in his hat on the table, and the woman stole the watch while the man was asleep, Parke, 13., and Patteson, J., after referring to R. v. Taylor, supra, were of opinion that the prosecutor having been asleep when the watch was taken by the prisoner, it was sufficiently under the protection of the house to bring it within the statute. R. v. Hamilton, 8 C. & P. 49. It would appear that had the prosecutor been awake instead of asleep in Taylor's case, the property was sufficiently within his personal control to render the stealing of it a stealing from the person, and that an indictment under the above enactment would not have been sustainable. See the note to R. v. Hamilton, supra, 2 Russ. Cri. 64 (/*), 6th ed. But where a person put money under his pillow, and it was stolen whilst he was asleep, this was held not a stealing of money in the dwelling-house within the meaning of the repealed statute, 12 Anne, c. 7. 2 Star/,-. C. /'. 467; R. v. Challenor, Dirk. Quar. Scss. 245, oth ed. ; 2 Buss. Cri. 65, 6th ed. .394 Dwelling-Howe — Offences relating to. It is a question for the court, and not for the jury, whether goods are under the protection of the dwelling-house, or in the personal care of the owner. R. v. Thomas, supra. Proof of the value of the goods stolen.~\ It must appear not only that the goods stolen were of the value of 51., but likewise that goods to that value were stolen upon one occasion, for a number of distinct larcenies cannot be added together. R. v. Petrie, 1 Leach, 295 ; R. v. Farley, 2 East, P. C. 740. But if the property of several persons lying together in one bundle or chest, or even in one house, be stolen together at one time, the value of all may be put together, for it is one entire felony. 2 East, P. C. 740. And where, under the statute of Anne, the property was stolen at one time to the value of 40s., and a part of it only, not amounting to 40s., was found upon the prisoner, the court left it to the jury to say whether the prisoner had not stolen the remainder of the property, which the jury accordingly found. R. v. Hamilton, 1 Leach, 348 ; 2 Rms. Gri. 66, 6th ed. Where the prisoner, who was in prosecutor's service, stole a quantity of lace in several pieces, which were not separately worth 51. , and brought them all out of his master's house at one time, Bolland, B., held that the offence was made out, although it was suggested that the prisoner might have stolen the lace a piece at a time. R. v. Jones, 4 C. & P. 217. The learned baron mentioned a case tried before Garrow, B., where it appeared that the articles which were separately under the value of ol., were in fact stolen at different times, but were carried out of the house all at once, and the latter learned judge held, after much consideration, that as the articles were brought out of the house altogether, the offence (which was then capital) was committed. See a similar case as to injuries to trees, post, tit. Trees and other vegetable productions. Elections — Offences at. 395 ELECTIONS— OFFENCES AT. Offences at Parliamentary flections.'] By the Ballot Act, 1872 (35 & 36 Vict. c. 33), it is enacted (s. 3) with respect to Parliamentary elections, that " Every person who (1) " Forges, or fraudulently defaces, or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper knowing the same to he forged ; or (2) "Forges or counterfeits, or fraudulently defaces or fraudulently destroys any ballot paper, or the official mark on any ballot paper; or (3) " Without due authority supplies any ballot paper to any person ; or (4) " Fraudulently puts into any ballot-box any paper other than the ballot paper which he is authorized by law to put in ; or (5) " Fraudulently takes out of the polling station any ballot paper; or (0) "Without due authority destroys, takes, opens, or otherwise inter- feres with any ballot-box or packet of ballot papers then in use for the purposes of the election, shall be guilty of a misdemeanor, and be liable, if he is a returning officer or an officer or clerk in attendance at a polling station, to imprisonment for any term not exceeding two years with or without hard labour, and if lie is any other person, to imprisonment for any term not exceeding six months with or without hard labour. Any attempt to commit any offence specified in this section shall be punishable in the manner in which the offence itself is punishable. In any indict- ment or other prosecution for an offence in relation to the nomination papers, ballot-boxes, ballot papers and marking instruments at an election, the property in such papers, boxes, and instruments may be stated to be in the returning officer at such election, as well as the property in the counterfoils." There does not appear to be any provision whatever in this Act which provides for the payment of the expenses of the prosecution with respect to the above offences. At the trial of an indictment charging the prisoner with having fraudulently placed papers purporting to be, but to his knowledge not being, ballot papers in the ballot box, the counterfoils, voting papers, and marked register, produced under an order duly made by authority of the statute, may be given in evidence, and the face of the voting papers may be inspected so as to show how the votes appeared to have been given. 11. v. Beardaall, 1 Q. U. D. 452; 45 /.. J.,M. C. 157. By the Corrupt Practices Prevention Act, 1883 (46 & 47 Vict. c. 51), offences at elections have been more clearly defined and extended, and stringent regulations affecting the conduct of elections have been passed. Many of these offences are punishable upon summary conviction, and are not within the scope of this work. Most of the offences punishable upon indictment, such as corrupt practices, &c, &c, will be found treated of, ante, tit. Bribery, and the sections relating to legal proceedings under the Act are there set out. The offence of personation at elections will be found treated of, past, tit. False Personation. 396 Elections — Offences at. By s. 41, sub-s. 4, If any person makes any agreement or terms, or enters into any undertaking in relation to the withdrawal of an election petition, and such agreement, terms, or undertaking is or are for the withdrawal of the election petition in consideration of any payment, or in consideration that the seat shall at any time be vacated, or in considera- tion of the withdrawal of any other election petition, or is or are, whether lawful or unlawful, not mentioned in the aforesaid affidavits (see the former part of the section), he shall be guilty of a misdemeanor, and shall be liable, on conviction on indictment, to imprisonment for a term not exceeding twelve months, and to a fine not exceeding 200/. Offences at Municipal elections.'] By 45 & 46 Vict. c. 50, s. 74 (1), If any person forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the town clerk any forged nomination paper, knowing it to be forged, he shall be guilty of a misdemeanor, and shall be liable to imprisonment for any term not exceeding six months, with or without hard labour. (2) An attempt to commit any such offence shall be punishable as the offence is punishable. Offences at other elections.'] The provisions of the Municipal Elections (Corrupt and Illegal Practices) Act (47 & 48 Yict. c. 70) are by Sched. I. extended to the elections of members of local boards and improvement commissioners, poor law guardians and members of school boards. And by s. 75 of the Local Government Act, 1888 (51 & 52 Vict. c. 41), the provisions of the Municipal Corporations Act, 1882, as amended by the above-named Act, are applied to the election of county councillors. As to offences when voting for a public library, see 55 & 56 Vict. c. 53, Sched I. Bribery awl corruption at elections.] See ante, tit. Bribery. Personation at elections.] See post, tit. False Personation. False declarations at elections.] Seepos?, tit. False Declarations. Embezzlement. 397 EMBEZZLEMENT. Embezzlement by clerks or servants."] By the 24 & 25 Vict. c. 96, s. 68, " whosoever heing a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant, shall fraudulently embezzle any chattel, money, or valuable security, which shall be delivered to or received or taken into possession by him for or in the name or on the account of his master or employer, or any part thereof, shall be deemed to have feloniously stolen the same from his master or employer, although such chattel, money, and security, was not received into the possession of such master or employer otherwise than by the actual possession of his clerk, servant, or other person so employed, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years (see ante, p. 203), or to be imprisoned, and, if a male under the age of sixteen years, with or without whipping." Embezzlement by persons in the queen's service or by the police.] By s. 70, " whosoever being employed in the public service of her Majesty, or being a constable or other person employed in the police of any county, city, borough, district, or place whatsoever, and intrusted by virtue of such employment with the receipt, custody, management, or control of any chattel, money or valuable security, shall embezzle any chattel, money or valuable security, which shall be intrusted to, or received, or taken into possession by him by virtue of his employment, or any part thereof, or in any manner fraudulently apply or dispose of the same, or any part thereof , to his own tise or benefit, or for any purpose whatsoever, except for the public service, shall be deemed to have feloniously stolen the same from her Majesty, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years" (see ante, p. 203). Venue in embezzlement by persons in the queen's service, or by the police.] By the same section, every offender against this provision " may be dealt with, indicted, tried, and punished, either in the county or place in which lie shall be apprehended, or be in custody, or in which he shall have committed the offence." Form of warrant of commitment ami indictment in the same cases. ] By the same section, in every case of embezzlement under this section "it shall be lawful in the warrant of commitment by the justice of the peace before whom the offender shall be charged, and in the indictment to lie preferred against such offender, to lay the property of any such chattel, money, or valuable security in her Majesty." Distinct acts of embezzlement may h, charged in tin' same indictment.] By s. 71, "for preventing difficulties in the prosecution of offenders in any ease of embezzlement , or fraudulent application or disposition herein- before mentioned, it shall be lawful to charge in the indictment and proceed 398 Embezzlement. against the offender for any number of distinct acts of embezzlement, or of fraudulent application or disposition, not exceeding three, which may have been committed by him against her Majesty, or against the same master or employer, within the space of six months from the first to the last of such acts." Description of property in the indictment."] By the same section, in every indictment for embezzlement " where the offence shall relate to any money or any valuable security it shall be sufficient to allege the embezzlement, or fraudulent application or disposition to be of money, without S23ecifying any particular coin or valuable security ; and such allegation, so far as regards the description of the property, shall be sus- tained if the offender shall be proved to have embezzled, or fraudulently applied or disposed of, any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved." When part of the property is to be returned.] By the same section an indictment for embezzlement of "money" is declared to be sustained against the prisoner " if he shall be proved to have embezzled or fraudu- lently applied or disposed of, any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some 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." Persons indicted for embezzlement not to be acquitted, if the offence turn out to be larceny, and vice versa.] By s. 72, " if upon the trial of any person indicted for embezzlement, or fraudulent application, or disposition, as aforesaid, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, or fraudulent application or disposition, but is guilty of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, or as a person employed in the public service, or in the police, as the case may be ; and thereupon such person shall be liable to be punished in the same manner as if he had been con- victed upon an indictment for such larceny ; and if upon the trial of any person indicted for larceny it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, or fraudulent application, or disposition, as aforesaid, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny, but is guilty of embezzlement, or fraudulent application, or disposition, as the case may be, and thereupon such person shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such embezzlement, fraudulent application, or disposition ; and no person so tried for embezzlement, fraudulent application, or disposition, or larceny as aforesaid, shall be liable to be afterwards prosecuted for larceny, fraudulent application, or disposition, or embezzlement, upon the same facts." Summary jurisdiction.] By the 42 & 43 Vict. c. 49, embezzlement by a clerk or servant, where such clerk or servant is a young person who Embezzlement. 399 consents to be tried summarily, or is an adult pleading guilty, may be dealt with summarily, and in the case of an adult consenting where the value of the property does not exceed 40s., may be dealt with in like manner. Embezzlement by officers of the Bonks of England or Ireland.'] By 24 & 25 Vict. c. 96, s. 73, " whosoever being an officer or servant of the governor and company of the Bank of England, or of the Bank of Ireland, and being intrusted with any bond, deed, note, bill, dividend warrant, or warrant for payment of any annuity or interest, or money, or with any security, money, or other effects of or belonging to the said governor and company, or having any bond, deed, note, bill, dividend warrant, or warrant for payment of any annuity or interest or money, or any security, money, or other effects of any other person, body poUtic or corporate, lodged or deposited with the said governor and company, or with him as an officer or servant of the said governor and company, shall secrete, embezzle, or run away with, any such bond, deed, note, bill, dividend or other warrant, security, money, or other effects, as aforesaid, or any part thereof, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life " (see ante, p. 203). Embezzlement by officers of local marine boards.] By 57 & 58 Vict. c. 60, s. 248, " A person appointed to any office or service by or under a local marine board shall be deemed to be a clerk or servant within the meaning of s. 68 of the Larceny Act, 1861, and if any person so appointed to an office or service fraudulently applies or disposes of any chattel, money, or valu- able security (received by him whilst employed in such office or service for or on account of any local marine board, or for or on account of any other public board or department), for his own use, or for any use or purpose other than that for which the same was paid, entrusted to, or received by him ; or fraudulently withholds, retains, or keeps back the same or any part thereof contrary to any lawful directions or instructions which he is required to obey in relation to his office or service aforesaid, that person shall be guilty of embezzlement within the meaning of s. 68 of the Larceny Act, 1S61. In any indictment under this section it shall be sufficient to charge any such chattel, money, or valuable security as the property either of the Local marine board by whom the person was appointed, or of the board or department for or on account of whom the same was received. Section 71 of the Larceny Act, 1861 [supra, p. 397), shall apply." Embezzlement of property of a trade union.'] See tit. Larceny. Embezzlement of property by 'partners.] See tit. Larceny. Embezzlement by officers of savings banks.] See 26 & 27 Vict. c. 87, s. 9. Embezzling wareJwused goods.] By the 39 & 10 Vict. c. 36, s. 85, it is enacted that, " if any goods shall be taken out of any warehouse without due entry, the occupier of such warehouse shall forthwith pay the duties due upon such goods; and every person taking out any goods from any warehouse without payment of duty, or who shall aid, assist, or be con- cerned therein, and every person who shall destroy or embezzle any goods duly warehoused, shall be deemed guilty of a misdemeanor, and shall, ii] i< in conviction, suffer the punishment by law inflicted in cast's of misde- meanor; but if such person shall be an officer of customs or excise not acting in the due execution of his duty, and shall be prosecuted to 400 Embezzlement. conviction by the importer, consignee, or proprietor of such goods, no duty shall be payable for or in respect of such goods, and the damage occasioned by such destruction or embezzlement shall, with the sanction of the Com- missioners of the Treasury, be repaid or made good to such importer, consignee, or proprietor by the Commissioners of Customs." Embezzlement of naval and military stores."] See post, tit. Naval and Military Stores. Embezzlement of post letters.] See post, tit. Post Office. Embezzling ivooll en, flax, mohair, silk, and other manufactures.'] By the 6 & 7 Yict. c. 40, various offences, partaking of the nature of embezzle- ment, are provided for with respect to manufactures. R.v. Edmundson, 2S L. J., M. C. 213. Falsification of accounts."] By the 38 Vict. c. 24, s. 1, "if any clerk, officer, or servant, or any person employed or acting in the capacity of a clerk, officer, or servant, shall wilfully and with intent to defraud, destrov, alter, mutilate, or falsify any book, paper, writing, valuable security, or account which belongs to or is in the possession of his employer, or shall wilfully and with intent to defraud, make or concur in making any false entry in, or omit or alter, or concur in omitting or altering, any material particular from or in any such book, or any document, or account, that in every such case the person so offending shall be guilty of a mis- demeanor, and be liable to be kept in penal servitude for a term not exceeding seven years, or to be imprisoned with or without hard labour for any term not exceeding two years." By s. 2, "it shall be sufficient in any indictment under this Act to allege a general intent to defraud without naming any particular person intended to be defrauded." By s. 3, this Act is to be read as one with the 24 & 25 Vict. c. 96. Interpretation.] As to the meaning of the term "valuable security," see 24 & 25 Vict. c. 96, s. 1, infra, tit. Larceny. What persons are within tin 'statute.] The question whether or not the prisoner comes within the meaning of the statute must be submitted to the jury, the judge directing them what facts are sufficient to determine this question in the negative or affirmative. See R. v. Necjus, L. R., 2 C. C. 34 ; 42 L. J., M. C. 62. The 24 & 25 Vict. c. 96, s. 68, comprises any person " being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant." The words of the 7 & 8 Geo. 4, c. 29, s. 47, were the same; and under that statute it was always considered that there must be some- thing more than a mere casual temporary employment for the particular occasion when the offence is committed. Indeed, under that statute something more than this was required, as will be seen presently, p. 407. General cases.] As to when the relation which is required by the statute is created, it has been held that a female servant is within the statute : R. v. Smith, Russ. & Ry. 267 ; so likewise is an apprentice. R. y.Mellish, Russ. & Ry. 80. Officer not servant.] A director of a limited company who is also em- ployed to collect money for them, is within the statute. R. v. Stuart, (1894) 1 Q. B. 310; 63 L. J., M. C. 63. The clerk or servant of a corporation, Embezzlement. 401 although not appointed under the common seal, is a servant within the statute. it. v. Beacall, 1 C. & /'. 457 ; Williams v. Stfoft, 1 <'r<>uii>. its members an unlawful oath, was an unlawful combination and confederacy, it was held that a person charged with embezzlemenl as clerk and servant to such society could not be convicted. A', v. //"///, 8 C. a- /'. 642. Ami see Milligan \. Wedge, infra. Bui where a society is Legal, though some of its rules are void as being in restraint of trade, the servant of the society may he convicted of embezzlement. A'. \. Stainer, R. 1) 1) 402 Embezzlement. L. R. , 1 G. < '. E. 230; 39 /,. J., M. ( '. 54 ; E. v. TanJcard, (1894) 1 '. 548 ; 63 /y. «•/., Jkf. C. 61. And as to trade unions, it is now enacted by the 34 & 35 Viet. c. 31, s. 2, that the purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecu- tion for conspiracy or otherwise, or, (s. 3) so as to render void or voidable any agreement or trust; and see post, tit. Larceny. Employed for single act.~] The prisoner was a carrier whose only employ- ment was to carry unsewed gloves from a glove manufacturer at A. to glove sewers who resided at B., to carry them back when sewed, and to receive the money for the work and pay it to the glove sewers, deducting his charge. On several occasions he appropriated the money which he received on behalf of the sewers. It was held that he was not the servant of the sewers so as to be guilty of embezzlement ; that his offence was a breach of trust, being a mere bailee of the money. It. v. Gibbs, Dears. C. C. 445 ; 24 L. J., M. G. 63. Where the relation of master and servant arises, it is immaterial that the sum embezzled was obtained in the conduct of a single transaction out of the ordinary course of service. It. v. Smith, B.& 11. 516 ; E. v. Tongue, 30 L. J., M. G. 49, and 7^. v. Spencer, li. & R. 299. And it is to be observed that the words ' ' by virtue of his employment ' ' are omitted in the statute now in force. See infra, p. 407. But where the prisoner's real employment was to get orders on commission, and his employer himself got an order and asked the prisoner to get the money for that particular order, which he did and appropriated it, Russell Gurnev, Recorder, ruled that the prisoner was a mere volunteer. R. v. Mayle, 11 Cox, 150. When a drover, keeping cattle for a farmer at Smithfield, was ordered to drive the cattle to a purchaser and receive the money, which he did, and appropriated it, the judges were unanimously of opinion that he was a servant within the meaning of the Act. R. v. Hughes, 1 Moo. C. C. 370. But in Milligan v. Wedge, 12 A. & E. 737, where the buyer of a bidlock employed a licensed drover to drive it from Smithtield to his slaughter- house, and it appeared by the laws of the City of London that it was unlawful to employ any other than a licensed drover, Coleridge, J., on a question raised as to the liability of the owner of the bullock for negligence in driving it, held that no relation of master and servant was created between him and the drover. In the same case, it appeared that the drover had entrusted the bullock to the care of a boy, not a licensed drover, and it was held that he also was not the servant of the owner. Agent not servant.'] The prosecutors, who were manure manirfacturers, engaged the prisoner, who kept a refreshment house at B., to get orders which they supplied from their stores. The prisoner was to collect the money, and pay it at once to them, and send a weekly account, and was called agent for the B. district. Subsequently, the prosecutors sent large quantities of manure to stores at B., which were under the control of the prisoner, who took them in his own name and paid the rent. The prisoner supplied orders from these stores, but the first-mentioned mode of sup- plying orders was not abandoned. The prisoner received a salary of 1/. per annum besides commission. It was held that the relation was one of principal and agent, and that the prisoner was not guilty of embezzlement. E. v. Walker, Bears. & B. G. G. 606. In R. v. May, 1 L. oint was reserved for the judges, who held that the prisoner was a servant within the Act. They said that the mode of paying him for his labour did not vary the nature of his employ- ment, nor make him less a servant than if he had been paid a certain price per chaldron or per diem ; and as to the price at which the coals were charged at the colliery in this instance, that sum he received solely •on his master's account as his servant, and b}- embezzling it he became guilty of larceny within the statute. R. v. Hartley, Russ. & Ry. 139. See also R. v. Worthy, infra. The prisoner was employed by the prosecutors and was paid according to what he did. It was part of his duty to receive orders for jobs, and to take the necessary materials from his master's stock to work them up, to deliver out the articles, and to receive the money for them; and then his business was to deliver the whole of the money to his masters, and to receive back, at the week's end, a proportion of it for working up the articles. Having executed an order, the prisoner received three shillings, for which he did not account. Being convicted of embezzling the three sh illin gs, a doubt arose whether this was not a fraudulent concealment of the order, and an embezzlement of the materials; but the judges held the conviction right. R. v. Higgins, Russ. & Ry. 145. A partner in a firm, with the consent of the other partners, contracted to give his clerk one-third of his own share of the profits; it was held that the clerk might be convicted of embezzlement. R.Y.Holmes, 2 Leiv. CO. 256; 2 Russ. (hi. 836, 6th ed. The prisoner was a cashier and collector to commission agents. He was paid partly by salary and partly by a percentage on the profits, but was not to contribute to the losses, and had no control over the manage- ment of the business. It was held that he was a servant and not a partner as between himself and his employers, whatever might be the case as between himself and third parties. R. v. McDonald, 1 L. & C. 85. The prisoner entered into the following agreement with the prosecutor : " S. W. agrees to take charge of the glebe land of J. B. C., his wife undertaking the dairy, poultry, &c, at 15s. a week till Michaelmas, 1850; and afterwards at a salary of 25/. a year, and a third of the clear annual 2)rofit after all the expenses of rent, rates, labour, and interest on capital, &c, are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given ; at the expiration of which time the cottage to be vacated by S. W., who occupies it as bailiff in addition to his salary." It was held that this agreement created the relation of master and servant, and that the prisoner (S. W.) might be convicted of embezzlement. R. v. Wortley, 2 Den. 0. (J. 333; 21 L. -/.. M. r. 44. Embezzlement. 405 A member of a properly certified friendly society, who was duly appointed secretary, receiving a salary and acting as treasurer for the society, but without being elected to that office, received, as treasurer, moneys due from the members, and gave correct receipts, but made false entries in the contribution or cash-book kept by him as secretary, and appropriated the difference. He was convicted of embezzlement, and the Court for Crown Cases Reserved held that the conviction was right. B. v. Proud, 1 /.. & 0. 97. But see R. v. Marsh, 3 F. & F. 523 ; andsee also /,'. v. Bren, where Martin, B., said that in the case of R. v. Proud the property of the society was vested in trustees (1 L. & C. 346, supra, p. 403). Many of the difficulties as to part owners and shares in profits would now be avoided by the 31 & 32 Vict. c. 116, s. 1, post, tit. Larceny. A co-partnership, however, at law denotes a society formed for the purpose of gain ; and where the prisoner was indicted for embezzling the funds of a co-partnership having for its object the spiritual benefit of its members, ami not the participation of prof its, it was held that he coxdd not be con- victed under the Act. 11. v. Robson, 16. Q. It. I). 137 ; 5.3 L. J., M. C. 55. What persons are within the statute — persons employed by several.'] In B. v. Leach, 3 Stark. 76, the prisoner was in the employment of B. and B. as their book-keeper ; while in this situation he received into his possession certain bank-notes, which were the private property of B. Being indicted for embezzling the notes as the servant of B., it was objected that he was the servant of the partners and not of individuals; but Bayley, J., held that he was the servant of each, and the learned judge referred tothecase of /;. v. Carr, Russ.&Ry. 198, where it was held that a traveller employed by several houses might be indicted for embezzlement as the servant of any one house. In /,'. v. Batty, 2 Moo. C. C. 2,37, it was held that a person employed by A. 11. to sell goods for him at certain wages might be convicted of embezzlement as the servant of A. B., though at the same time lie was employed by other persons for other purposes. A., being one of the proprietors of a coach, employed the prisoner to drive it when he did not drive it himself, the prisoner taking all the gratuities. It was the prisoner's duty on each day when he drove to tell the book-keeper at Malvern how much money he' had taken, which the latter entered in a hook ; and then handed over to the prisoner the amount he had himself received. Thee two sums it was the duty of the prisoner to deliver to A., who was accountable to his co-proprietors. It was held by Patteson, J., that the prisoner by appropriating the money was guilty of embezzlement, that he was rightly described as a servant of A., and that the money was properly laid as the property of A. R. v. White, 8 C. resent he assisted him. The prisoner was not appointed or paid by the board, and there was no evi- dence that he received any salary from his father. The board having occasion to raise a loan on mortgage, the prisoner managed the business for his father, and at his father's office received the money from the mort- gagees, and appropriated a part of it to his own use. It was held, that there was evidence that the prisoner was a clerk or servant to his father, or employed as a clerk or servant by him., and was guilty of embezzlement. There is also a civil case which is frequently referred to on this subject. In Quarman v. Burnett, M. & W. 499, the owners of a carriage were in the habit of lining horses from the same person to draw it for a day or for a drive; the owner of the horses provided a driver, who was always the same person, he being a regular coachman in the employment of the owner of the horses ; the coachman was paid by the owners of the carriage a fixed sum for each drive, and provided by them with a livery, which he left at the house at the end of each drive. It was held that this coachman was not the servant of the owners of the carriage so as to make them liable for an injury caused by his negligence. Upon this part of the law compare also the cases in the last heading. Embezzlement. 407 Persons in the Queen' 'sservice.~\ The prisoner was, with the sanction of the treasury, employed by the inspector of prisons, who was authorized to receive the contributions of parents towards the maintenance of their children committed to reformatory and industrial schools, as his agent, to collect and take proceedings for the recovery of such contributions under 29 & 30 Vict. cc. 117, 118, which authorizes the appointment of an agent. While the prisoner was so employed he received and misappro- priated moneys, the contributions of parents, ordered by magistrates, under the above statutes, to be paid for the maintenance id' their children in the schools; these moneys being by virtue of the same statutes the property of the treasury. It was held that the prisoner was, while so employed, in the public service of the Queen, and could be convicted of embezzlement under 24 iV 25 Vict. c. 96, s. 70. /.'. v. < Jraham, 13 Cox, "u. But where the high bailiff of a county court appointed the prisoner, under the powers contained in County Court Rules, 1875, a bailiff to assist him in his duties, it was held that the prisoner was not a person "employed in the public service of her Majesty" within the meaning of 24&25 Vict. c. 96, s. 70, but that he was the servant of the high bailiff. R. \. Parsons, 16 Cox, 489. Compare R. v. Clover, ante, p. 401. For or in the name or mi thi account of I/in ni(t*ter.~\ In the present statute (24 & 2.") Vict. e. 96, s. 68) the words "by virtue of his employ- ment" are omitted, although they occur in sect. 70 with respect to persons in tin; public service and the police. Mr. Greaves says that these words were advisedly omitted in order to enlarge the enactment, and to get rid of some of the following decisions: Greaves' Crim. Stat., p. 117. Ji. v. Thorhy, 1 .l/<<«. C. C. 353; R. v. Mellish, Russ. & Ry. 80; R. v. Snowley, 4 C. & I'. 390; R. v. Harris, 1 Dears. C. C. 334; 23 L. ■/., M. C. 110; II. v. Coodbody, 8 C. <& P. <>().">. and others . It has, however, been held not to be necessary, even under the repealed statute, that the servant should have been acting in the ordinary course of his employment when he received the money, provided that lie was employed by his master to recers e the money on that particular occasion. Tin' prisoner was employed to collect the lolls at a particular gate, which was all that he was hired to do : but on one occasion his master ordered him to receive the tolls of another gate, which the prisoner did, and embezzled them. Being indicted for his embezzlement, a doubt arose whether it was by virtue of his employmenl . and the case was reser\ ed for the opinion of the judges. Abbott, < '. J., Holroyd, J., and Garrow, 1!., thoughl that the prisoner did not receive the money by virtue of his employment, because it was out of the course of his employment to receive it. But Park, Burrough, l!est. and Bayley, JJ., andHullock, B., thoughl otherwise; because, although oul of the ordinary course of the prisoner's employment, yet as, in the character of servant, he had submitted to be employed to receive the money, the case was within the statute. /'. v. Smith, /[us,:. & Ry. 516. See ante, p. 402. So although it may not have been part of the servant's duty to receive money, in the capacity in which he was originally hired, yet if he has lieen in the hahit of receiving money for his master, he is within the statute. Thus, where a man was hired as a journeyman miller, and not as a clerk or accountant, or to collect money , but was in the habit of selling small quantities of meal on his master's account, and of receiving money for them, Richards, C. B., held that the statute was intended to compre- hend masters and servants of all kinds, whether originally connected in any particular character and capacity or not. A', v. Barker, Low. & Ry. N'. P. C. 19. 408 Embezzlement. Where the prisoner was intrusted to receive from porters such moneys- as they had collected from customers in the course of the day, the receiving immediately from the customers, instead of receiving through the medium of the porters, was held a receipt of money "by virtue of his employment." R. v. Beechey, Russ. &Ry. 319 ; R. v. Spencer, Buss. . 141 ; 40 /.. J.. M. C. 134, the prisoner's duty was to get cheques cashed at the bank ; but instead of doing so, he got a friend to give him cash for two cheques and then appropriated the money. He was charged with embezzlement, not of the cheques, but of the money, and it was held that he had received the money for and on account of his master. In 7i'. v. Read, 3 0. B. I). 131 ; 47 L. J., M. 0. 50, a gamekeeper killed rabbits on his master's land without authority, and sold them; it was held that he did not receive them " for or on account of his master." See this case, infra. Nature of the offence of embezzlement. ~\ Embezzlement is only a species of larceny. It is in every respect a precisely similar crime to that which is committed by a servant who receives property from his master, and appropriates it. This is larceny, because the possession of the master continues in law until the wrongful appropriation by the servant takes place. The case which was held not to be larceny was that of a banker's- clerk who received money from a customer and appropriated it, and the reason given was that, as the employer had never had possession of the money he had never been wrongfully deprived of the possession of it, which was a necessary ingredient in the crime of larceny. It. v. Bazeley, 2 East, J'. C. oil. The effect of the statute is to make the master's possession commence from the moment that his property comes into the servant's hands, see s. 68, 'supra, p. 397. In //. v. Read, 3 Q. B. J). 131 ; 47 L. J.. M. ('. 50, where a gamekeeper wrongfully captured and killed wild rabbits in his master's woods, and sold them, it was attempted to bring the offence within the embezzlement statute, but the Court for Crown Cases Keserved held that the rabbits could not be said to have been taken into possession by him " on account of his master," within 24 & 25 Yict. c. 26, s. OS. Distinction hit ween larceny and embezzlement .~\ It seems hardly necessary after the passing of the 24 & 25 Yict. c. 90, s. 68, supra, p. 397, to keep Embezzlement. 409 ii]) the distinction between larceny and embezzlement, especially as, if the principle of the possession of the servant being the possession of the master had been interpreted with the same latitude in criminal and civil eases, for which there seems to be no reason to the contrary, that statute would have been altogether unnecessary. By the 24 & 25 Vict. c. 96, s. 72 (awpra, p. 398), where a person is indicted for embezzlement, he is not to be acquitted altogether, if the offence turns out to be larceny, but he may be found not guilty of embezzlement and guilty of larceny. And vice, versa on an indictment for larceny. But this does not enable a jury to find a prisoner guilty of larceny on facts which amount to embezzle- ment ; R. v. Garbutt, Dears. & B.C. C. 166; 26 /.. J., M. C. 47; so that even now the distinction must still be observed. What the distinction is, is obvious enough from the account of the origin of embezzlement as a separate offence in the last section. In 11. v. Masters, 1 Den. C. C. 332, it was held that where money was received on account of his master by one servant, and by him handed to another in due course of business, and the Latter appropriated it, that this was embezzlement, as the master had clearly never had possession by the first servant any more than by the second. So where the servant was sent by his master to get change for a 51. note, which he did, and then appropriated the change to his own use, it was held that as the master hail never had possession of the change, this was embezzlement, and not larceny. R. v. Sullen. 1 Moo. C. C. 12!). The prosecutors, suspecting the prisoner, desired a neighbour to go to then- shop and purchase some articles, and pay for them with some marked money which they supplied for the purpose. This was done, ami the prisoner appropriated the money. It was contended that this was larceny and not embezzlement, as the money was in law always in the master's possession. But the prisoner was convicted of embezzlement, and the conviction held right. I!, v. Hedge, Russ. & Ry. 162 ; 2 /,< tch, Hi:;:); and this case was followed in //. \. Gill, 1 Dears. < '. < '. 2ND; 23 I.. •/.. .1/. C. 50. See also infra, tit. Larceny. Proof of embezzlement. .] The first possession being lawful, the act of embezzlement consists in a mere act of the mind without any outward and visible trespass as in many cases of larceny, and in all crimes of violence. That this mental act of fraudulent appropriation has taken place has to be inferred from tli" conducl of the prisoner, or from his own admissions. The case of R. v. Smith. Russ. \(\, in which the master had given his servant money to pay taxes which the collector had never received, was, if anything, larceny, though the remarks of the judges were applic- able to embezzlement. It is clear that, as there stated, the bare non- application of money in the nurnjier directed is not sufficient whereon to convict a person of embezzlement. For all that appeared in that case, the servant had never appropriated the money at all. The same remarks apply to the case of R. v. Hodgson, 3 C. tfc P. 423, where it was admitted that the prisoner had mad" no false entry, and thai he had charged himself in the books with all tic moneys which he had received, but it was imputed to him that he had nol >"iit the amount of three items to his employers as he ought to have done. But, on the other hand, it is clearly settled that a prisoner, by making an admission in his account that he has received the money, does not thereby necessarily free him self from the charge of embezzlement, if there be other circumstances from which the jury may infer that the money was fraudulently appropriated. R. v. List /'. Dears, (fc l>. C. C 1 1< S . Any doubt on this point arises from not keeping clearly in view the distinction between the offence and the evidence of it. See R. v. Guelder, 30 /.. /., .1/. C. o4. Evidence may 410 Embezzlement. be given of other acts of embezzlement in order to show that a wilful embezzlement and not a mere mistake has been committed. See ante, p. NT. Venut — At what linn- the offence is committed.'] There is sometimes difficulty in ascertaining the precise time when the embezzlement takes place, which is important upon the question of venue. In general there •can be no evidence of the act of embezzlement until the party who has received the money refuses to account, or falsely accounts for it. "Where the prisoner received the money in Shropshire, and told his master in Staffordshire that he had not received it, the question was, whether he was properly convicted for the embezzlement in the former county. On a case reserved, the conviction was held right. Lawrence, J., thought that embezzlement being the offence, there was no evidence of any offence in Shropshire, and that the prisoner was improperly indicted in that county. But the other judges were of opinion, that the indictment might be in Shropshire where the prisoner received the money, as well as in Staffordshire, where he embezzled it, by u<,t accounting for it to his master ; that the statute having made receiving money and embezzling it a larceny, made the offence a felony where the property was first taken. and that the offender might, therefore, he indicted in that or in any other county into which he carried the property. R. v. Hobson, 1 East, I'. C. Add.-xxiv.; Russ. Has. & Pul. 596; 2 Leach, 974; Russ & Rij. 03. The prisoner was a travelling salesman, whose duty it was to go into Derbyshire every Monday to sell goods and receive money for them there, and return with it to his master in Nottinghamshire every Saturday. He received two sums of money for his master in Derbyshire, hut never returned to render any account of them. Two months afterwards he was Embezzlement. 411 met by bis master in Nottingbamsbire, who asked him what he had done with tli" money, and the prisoner said he was sorry for what he had done; he had spent it. It was held, under these circumstances, that the prisoner was rightly indicted in Nottinghamshire, there being some evidence to go to the jury of an embezzlement in that county. II. v. Murdoch, 2 Den, C. 0. II. 298; S. C, 21 /.. J., M. C. 22. Where there was evidence of a •conversion in Yorkshire, and a Letter sent by the prisoner to Middlesex. in substance denying the receipt of the money, the prisoner was held to have been rightly tried in Middlesex, though he might have been tried in Yorkshire. ' /,'. v. Rogers, 3 Q. I!. I>. 28; 47 /.. J., M. 0. 11. See post, False Pretences. It is impossible to avoid seeing that these decisions are coloured with the error, that a denial of the receipt or omission to account is necessary to constitute the crime of embezzlement, and that the distinction already adverted to between the offence and the evidence of it is not always kepi in view. II. v. Davison, 7 Cox, 158, and see the judgment of Iluddleslon. B., dissenting from the majority of the court in II. v. Rogers, supra. It is. however, only reasonable, where there is no other indication of the time at which the money was appropriated, to conclude that this act took place at the same time as the first indication of it, viz.. the refusal to account, or the omission to do so at the proper time. As to falsification of accounts, see the statute, ante, p. -loo. Wliere n claim is set up, though unfounded."] Upon an indictment for embezzlement, it appeared that the prosecutors were owners of a vessel, and the prisoner was in their service as the master. The vessel carried culm from Swansea to Plymouth, which, when weighed at Plymouth, weighed 215 tons, and the prisoner received payment for the freight accordingly. When ho Mas asked for his account by the owner, he delivered a statemenl acknowledging the delivery of 210 tons, and the receipt of freight for so much. Being asked whether this was all that lie had received, he answered that there was a difference of five tons between the weighing a1 Swanseaand Plymouth, and that he had retained the balance for his own use, according to a recognized custom between owners and captains in the course of business. But there was no evidence of the alleged difference of weight, or of the custom. Cresswell, -I.. held that this did not amount to embezzlement. Embezzlemenl necessarily involved secrecy; the concealment, for instance, by the defendant of his having appropriated the money. If. instead of his denying his appropria- tion, a defendant immediately owned it. alleging a right or an excuse for retaining the sum, no matter how frivolous the allegation, and although the fact itself on which the allegation rested were a mere falsification ; as if. in the presenl case, it should turn out that there was no such difference a- thai asserted by the defendant between the tonnage at Swansea and at Plymouth, or that there was no such custom as that set up, it would no1 amount to embezzlement, II. \. Norman, <' his balance 10/. too little, and paid it over accordingly. Williams, J., held that the clerk could not, on these tacts, be convicted of embezzle- ment, without its being shown that he had received some particular sum on account of his employer, and had converted either the whole or part of it to his own use. R. v. Chapman, C. & K. 11!); and sec /,'. v. Wolst n- holme, 11 Cox, 313. There is still likely to be much difficulty on this point. Where a person is employed in the receipt and payment of money it is almost impossible to prove anything more than a deficiency in account, and if the words of Alderson, B., in R. \ . Jon s, supra, were to be taken in their strict sense, it would be impossible ever to procure a conviction for embezzlement where there were running accounts between the parties. It is suggested that there is some misapprehension of the principles of law applicable to this question. As has already been said, the first statute of embezzle- ment was passed to meet a particular ease which was held not to be larceny, namely, the appropriation of money by a clerk received by him from a customer on account of his master, supra, p. 407. Very strong arguments could be used to show that this was larceny at common law. the only difficulty that the judges hud in the case referred to being about the trespass, and they seemed timid about extending the doctrine of con- structive possession. I!ut now that that difficulty has been removed by the legislature, embezzlemenl stands on precisely the same footing as larceny by a servant ; if money he continually passing from the master to the servant, and the servant, instead of applying it to the purposes indicated, appropriates any part of it to his own use, he is guilty of larceny ; and in the numberless cases which must have occurred of this kind no one has ever thought of objecting that the servant could not be convicted of larceny, because he could not be shown to have received a particular sum, and to have appropriated a part or the whole of that particular sum. And what difference can it make now that the possession of the servant is made the possession of the master in all cases, that the money was received not from the master, but from third persons on account of the master ; In //. \. Moah, Dears. C. C. 626; li"> /..•/. M. <'AWk which was decided on the repealed statute which corresponds to the 24 & 25 Vict. c. 96, s. 70 {supra, pp. .'5!»7, 398), the prisoner was an officer of inland revenue, and he was allowed to retain in his hands a balance of 300/. According to his accounts sent in to the Board, there stood a balance against him of more than 5,000/. Upon inquiry being made, he said he was not prepared to hand over the balance or any part of it. He was then reminded that there was a sum of 300/. which he hail received at a particular place on the previous Monday, and which was not, included in his accounts. lie then banded over 281/., and a fraction, and said that was all the money he had in the world. It was held thai a conviction might be sustained lor embezzling the 300/. : hut as to the 5,000/., the court thought it was a matter of doubt. Where the prisoner had to account weekly in gross sums, and he was alleged in the indictment to have embezzled three such sums, it was held that such aggregate sums might he shown to he made up of smaller sums which he had embezzled, and with the embezzlemenl of which he mighl have been charged. />'. v. Balls, /.. //.. 1 C. C. II. 328; 40 /.. •/.. M. C. 1 is. Particulars of tin embezzlement. ~\ Though it is not necessary to state in the indictment from whom the money. &c, was received, the judge he tore whom the indictment is found will order the prosecutor to furnish the 414 Embezzlement. prisoner with a particular of the charges, upon the prisoner making an affidavit that he is unacquainted with the charges, and that he has applied to the prosecutor for a particular, which has been refused. R. v. Booty- man, 5 C. & P. 300. Where three acts of embezzlement were stated in the indictment, the prisoner moved, upon affidavit, for an order directing the prosecutor to furnish a particular of the charges ; notice of the motion had been given. Vaughan, B., said, "I think the prosecutor ought to give the names of the persons from whom the sums of money are alleged to have been received, and, if the necessary information be refused, I will, on an affidavit of that fact, grant an order, and put off the trial." R. v. Hodgson, 3 C. & P. 422. Sec also 1 Chit. Rep. 698; and supra, p. 168. I 'roof of the thing embezzled.] The 24 & 25 Vict. c. 96, s. 71, supra, p. 397, allows great latitude in the description of money or valuable secu- rities in indictments for embezzlement; and by the same section it is. sufficient if any part of the money or valuable securities described in the indictment be proved to have been embezzled. The same rules of descrip- tion will apply to chattels as in larceny; see that tit. infra. 8ee also the general rules applicable to descriptive averments, supra, p. 75. Proof of embezzlement by officers, dbc., af the Banks of England and Ireland.'] It was held under the repealed statute that it was not sufficient, in order to bring a party within the statute, that he should be an officer of the bank, and as such have access to the document in question. It must appear also that he was intrusted witli it. A bank clerk, employed to post into the ledger, and read from the cash-book, bank-notes in value from 100/. to 1,000/.. and who, in the course of that occupation, had, with other clerks, access to a file uj>on which paid notes of every description were filed, took from the file a paid bank-note for 501. Being indicted for this, it was contended that he was not intrusted with this note within the statute, the only notes with which he could lie said to be intrusted bein<<- those between 100/. and 1,000/. Having been found guilty, the judges held the conviction wrong, on the ground that it did not appear that he was intrusted with the cancelled note, though he had access to it. R. v. Bahewell, Russ. & Ry. 35. Where the prisoner was charged with embezzling " certain bills, commonly called exchequer bills," and it appeared that the bills had been signed by a person not legally authorized to sign them, it was held that the prisoner could not be convicted. R. v. Aslett, 2 Leach, 954. The prisoner was again indicted, under the same statute, for embezzling " certain effects" of the bank, and being convicted, the jiidges, on a case reserved, were of opinion that these bills or papers were effects within the statute ; for they were issued under the authority of government as valid bills, and the holder had a claim on the justice of government for payment. R. v. Aslett, Russ. & Ry. 67; 2 Leach, 958; 1 N. R. 1. See now 24 & L>."> Vict. C. 96, S. 1, infra, tit. Larceny. , Escape. 4 1 -> ESCAPE, Ax escape by a person in custody on a criminal charge may be either with or without force, or with or without the consent of the officer or other person who has him in custody. Proof of escape by tin- 'party himself] All persons are bound to submit themselves to the judgment of law, and therefore, if any one, being in custody, frees himself from it by any artifice, he is guilty of a high contempt, punishable by fine and imprisonment. 2 Hawk. I'. ('. <-. 17, s. b. And if by the consent or negligence of the gaoler the prison doors are opened, and the prisoner escapes, without making use of any force or violence, he is guilty of a misdemeanor. />/ an officer.'] In order to render a person suffering an escape liable, as an officer, it must appear that he was a known officer of the law. Thus, where the constable of the Tower com- mitted a prisoner to the house of a warder of the Tower, the latter was held not to be such an officer as the law took notice of, and that he could not therefore be guilty of a negligent escape. 1 <'h. 2, c. 19, g. 28. Tt is said by Hawkins to be the better opinion that the sheriff is as much liable to answer lor an esdape suffered by his bailiff as if he had actually suffered it himself ; and that either the sheriff or the bailiff may be charged lor that escape. Hawk. I'. C. h. 2, <•. 19, s. 28; 1 Hale, l\ C. 597; 1 Russ. Cri. 893, <>/A ed. But this is opposed to the authority of Lord Holt, who savs that the sheriff is not answerable criminally for the acts of his bailiff. ' //. v. Fell, 1 Salk. 272; 1 Lord Raym. 121. Proof of escape suffered by any bodily injury.] By the 24 & 25 Vict. c. 100, s. 30, " whosoever shall unlawfully and malicicusly place or throw in, into, upon, against, or near any building, ship, or vessel any guirpowder or other explosive substance with intent to do any bodily injury to any person, shall, whether or not any explosion take place, and whether or not any bodily injury be effected, be guilty of felony." Punishment same as in 24 & 25 Vict. c. 97, s. 10, supra. Injuries to person by gunpoivder, cfcc] By the 24 & 25 Vict. c. 100, s. 28, "whosoever shall unlawfully and maliciously, by the explosion of gun- Explosives. 419 powder or other explosive substance, burn, maim, disfigure, disable, or do any grievous bodily harm to any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life (see ante, p. 203), or to be imprisoned, and if a male under the age of sixteen years with or without whipping." Sending or throwing explosive or dangerous substances.'] By s. 29, "who- soever shall unlawfully and maliciously cause any gunpowder or other explosive substance to explode, or send or deliver to, or cause to be taken or received by any person, any explosive substance, or any other dangerous or noxious thing, or put or lay at any place, or cast or throw at or upon, or otherwise apply to any person any corrosive fluid, or any destructive or explosive substance, with intent in any of the cases aforesaid to burn, maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, shall, whether any bodily injury be effected or not, be guilty of felony." Punishment same as in s. 28. Making or ha ring possession of gunpowder, rfcc] By the 24 & 25 Vict, c. 97, s. 04, "whosoever shall make 1 or manufacture, or knowingly have in his possession, any gunpowder or other explosive substance, or any dangerous or noxious thing, or any machine, engine, instrument or thing, with intent thereby or by means thereof to commit, or for the purpose of enabling any other person to commit, any of the felonies in this Act mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour, and if a male under the age of sixteen years with or without whipping." A similar provision is contained in the 24 & 25 Vict. c. 100, s. 64. See as to keeping Large quantities of gunpowder or other explosive substances, post, tit. Nuisances. Proof of media .] As to malice against the owner of the property being unnecessary, see 24 eV 25 Vict. c. 97, s. 58, supra, p. 2j1. Persons endangered within sect. 9 of 21 & 2"> Vict. c. 97.] It would seem that the endangering of life, to be within 24 iV- 25 Vict. c. 97, s. 9, must result from the damage done to the building particularised in the indict- ment, and the statute includes the case of persons outside the building whose lives are imperilled by anything proceeding from the damaged building. /.■'. v. McOrath, \\ Cox, 598. Endangering of Life by damage done to other buildings ool mentioned in the indictment which are injured by the explosion, is not evidentje of the endangering of life alleged in the indictment, but e\ idence of the damage done to them is admissible for the purpose of showing the character of the explosion damaging the building mentioned in the indictment. Id. Explosive substance.] It musl be shown under s. 10 that the substance thrown was in a condition to explode at the time it was thrown. The throwing of a bottle of gunpowder alone, which by itself would not explode, would not be within the section. J!.\. Sheppard, 11 Cox, 302. Per Kelly, C. B. Explosive Substances Act, \^~o.~\ The Explosive Substances Act, 1875, being an Act to amend the law with respect to manufacturing, keeping, selling, carrying, and importing gunpowder, nitro-glycerine, and othei explosive substances, e> s & 39 Vict, c. 17, post, tit. Nuisances, made various E E 2 420 Explosives. offences punishable by fine or imprisonment; by s. 91, such offences may be prosecuted by indictment ; by s. 92, a person accused of any offence the penalty for which exceeds 100/., may object to be tried by a court of summary jurisdiction, and the offence may be tried on indictment accordingly. Explosive Substances Act, 1883.] By s. 2 of the Explosive Substances Act, 1883 (46 Vict. c. 3), " Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, shall, whether any injury to person or property has been actually caused or not, be guilty of felony, and on conviction shall be liable to penal servitude for life, or for any less term (not less than the minimum term allowed by law), or to imprisonment, with or without hard labour, for a term not exceeding two years." Sect. 3. " Any person who within or (being a subject of her Majesty) without her Majesty's dominions unlawfully and maliciously — (<() Does any act with intent to cause by an explosive substance or conspires to cause by an explosive substance an explosion in the United Kingdom, of a nature likely to endanger life or to cause serious injury to property, or (b) Makes, or has in his possession or under his control, any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in the United Kingdom, or to enable any other person by means thereof to endanger life or cause serious injury to property in the United Kingdom, shall, whether any explosion does or not take place, and whether any injury to person or property has been actually caused or not, be guilty of felony, and on conviction shall be liable to penal servitude for a term not exceeding twenty years, or to imprisonment with or without hard labour for a term not exceeding two years, and the explosive substance shall be forfeited." Sect. 4. (1) " Any person who makes, or knowingly has in his 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 does not have it in his possession or under his control, for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be guilty of felony, and, on con- viction, shall be liable to penal servitude for a term not exceeding fourteen years, or to imprisonment for a term not exceeding two years with or without hard labour, and the explosive substance shall be forfeited." If several persons unite in a common design for the manufacture of explosive substances each is responsible for the explosive substance in the possession of the others. E. v. Charles, 17 Cox, 499. (2) ' ' In any proceeding against any person for a crime under this section, such person and his wife, or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case." Sect. 5 is set out ante, p. 16-1. By sect. 6 provision is made for inquiry by order of the Attorney- General, into offences under this Act before justices, and for the appre- hension of absconding witnesses. By sect. 7 (1), "If any person is charged before a justice with any crime under this Act, no further proceeding shall be taken against such person without the consent of the Attorney- General, except such as the justice may think necessary by remand, or otherwise, to secure the safe custody of such person. Explosives. 421 (2) In framing an indictment, the same criminal act may be charged in different counts as constituting different crimes under this Act, and upon the trial of any such indictment the prosecutor shall not be put to his election as to the count on which he must proceed. (3) For all purposes of and incidental to arrest, trial and punishment, a crime for which a person is liable to be punished under this Act, when committed out of the United Kingdom, shall be deemed to have been committed in the place in which such person is apprehended or is in custody . (4) This Act shall not exempt any person from any indictment or pro- ceeding for a crime or offence which is punishable at common law, or by any Act of parliament other than this Act, but no person shall be punished twice for the same criminal act." Sect. S provides for search and seizure of explosives. By sect. 9. " In this Act, unless the context otherwise requires, the expression "explosive substance" shall be deemed to include any materials for making any explosive substance ; also any apparatus, machine, implement, or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance ; also any part of any such apparatus, machine or implement." Any part of a vessel which when filled with an explosive substance is adapted for causing an explosion is within this section. 11. v. Charles, 17 Cox, 499. Injuries by persons in possession »»/' property injured.'] As to this, see 24 & 25 Vict. c. 97, s. 59. supra, p. 251. Form of indictment."] See 24 & 25 Vict. c. 97, s. 60, supra, p. 251, and sect. 7 (2) of the Explosive Substances Act, 1883, supra. 422 False Copies of Rules of Trades Unions. FALSE COPIES OF RULES OF TRADES UNIONS. By the Trade Union Act, 1871 (34 & 35 Vict. c. 31), s. 18, it is enacted that ' ' if any person with intent to mislead or defraud gives to any member of a trade union registered under this Act, or to any person intending or applying to become a member of such trade union a copy of any rules or of any alterations or amendments of the same other than those resj)ectively which exist for the time being, on the pretence that the same are the existing rules of such trade union ; or if any person with the intent aforesaid gives a copy of any rules to any person on the pretence that such rules are the rules of a trade union registered under this Act which is not so registered, every person so offending shall be guilty of a misdemeanor." By sect. 19, sub-sect. 2, the description of any offence under this Act in the words of the Act shall be sufficient in law. A definition of Trade Union is given in the 39 & 40 Vict. c. 22, s. 16. False Declarations. 423 FALSE DECLARATIONS. At flections — -parliamentary.'] By the Reform Act, 2 & 3 Will. 4, c. 45, 8. 58, three questions were allowed to be put to the voter at the poll, to be answered by him on oath ; but by the it 7 Vict. c. 18, ss. 81, 82, and see the Ballot Act (35 & 30 Vict. c. 33), s. 10, these were reduced to two. See Rogers <>» Elections, chap. Proceedings at tin' Election. Sect. 81 of the & 7 Vict. c. IS, enacts, that " if any person shall wilfully make a false answer to either of the questions, he shall be deemed guilty of a misde- meanor, and shall and may be indicted and punished accordingly." Upon an indictment under this statute the word " wilfully" should be construed in the same way as in an indictment for perjury, and bo sup- ported by the same sort of evidence. Per Patteson, J., in R. v. Ellis, Car. 22. An indictment under this section charged that a clergyman had solemnized a marriage, and was about to register in duplicate the particulars relating to the marriage, and that the prisoner did wilfully make to the clergyman, for the purpose of being inserted in the register of marriage, certain false statements. The proof was that the particulars were entered by the clerk of the church before the marriage ; that after the marriage the clergyman asked the prisoner if they were correct, and that he answered in the affirmative, and the clergyman signed the register. It was held, that the prisoner had been rightly convicted. R. v. Brown, 1 Den. C. C. R. 291 ; False Declarations. 425 IT L. J., M. C. 14.3. Upon such an indictment it is not necessary to prove that the marriage register book is the identical book directed to be furnished by the registrar-general under (! & 7 Will. 4, c. 86, s. 30. It was a felony, under sect. 43 of the 6 & 7 Will. 4, c. NO, now repealed, to cause the registrar to make an entirely false entry of a birth, marriage, or death. Per Cresswell, J., in 11. v. Mason, supra. Therefore, where a woman went to a registrar of births, and asked him to register the birth of a child, giving him the particulars necessary for the entry, which were false, and ho made the entry accordingly, and she signed it as the person giving the information: it was held by the same learned judge that this amounted to the felony of causing a false entry to be made within sect. 13, and was not merely the misdemeanor of making a false statement under sect. 41. /,'. v. Dewitt, 2 >'. cfc A'. 1)0.3. Customs.'] As to making false declarations in matters relating to the Customs, see the Customs Laws Consolidation Act, 39 & 40 Vict. c. 36, s. 16S. BanJcruptcy .] As to false declarations in bankruptcy, see 32 & 33 Vict, c. 62, s. 14, ante, p. 276. In other cases.] Persons making false declarations with respect to registration under the Pharmacy Act, 1868 (31 & 32 Vict. c. 121), s. 14, are guilty of a misdemeanor. So persons making false statements with respect to lunatics, .33 Vict. c. .3, ss. 317, 318, false declarations under the Capital Punishment Amendment Act, 31 Vict. c. 24, s. 9; false certificates under the Vaccination Act. 30 & 31 Viet. c. 84, s. 30; false declarations under the Pensions Commutation Act, 34 & 35 Vict. c. 36, s. 0; false declarations under Lodgers' Goods Protection Act, 34 & 3.3 Vict. c. 79; under Land Titles and transfer \,t, 1875, 38 & 39 Vict. c. 87, ss. 99, 100, 101 ; under the Dentists' Act, 1878, 41 & 42 Vict. c. 33, s. 35 ; under the Burials Act, 43 & 44 Vict. <■. 41, s. 10; under the Coal Mines Regula- tion Act, 1887, 50 & 51 Vict. c. 58, s. 32 ; under the Merchant Shipping Act, 57 & 58 Vict. c. 00, s. 07 ; and in many other cases, are guilty of misdemeanors. 420 False Personation. FALSE PERSONATION. offence at common law.] The offence of falsely personating another for the purpose of fraud is a misdemeanor at common law, and punish- able as such. 2 East, 1\ C. 1010 ; 2 Russ. Cri. 770, 6th ed. In most cases of this kind, however, it is usual, where more than one are concerned in the offence, to proceed as for a conspiracy ; and very few cases are to be found of prosecutions at common law for false personation. In one case, where the indictment merely charged that the prisoner personated one A. B., clerk to II. II., justice of the peace, with intent to extort money from several persons, in order to procure their discharge from certain misdemeanors, for which they stood committed, the court refused to quash the indictment on motion, but put the defendant to demur. E. v. Dupee, 2 East, P. C 1010. It is observed by Mr. East, that it might probably have occurred to the court, that this was something more than a bare endeavour to commit a fraud by means of a falsely personating another, for that it was an attempt to pollute public justice. Ibid. offence by statute.'] In a variety of statutes against forgery, provisions are likewise contained against false personation, which in general is made felony. Vide post, tit. Forgery. Personating hail — acknowledging recovery, (fee] By the 24 & 25 Vict, c. 98, s. 34, " whosoever without lawful authority or excuse, the proof whereof shall lie on the party accused, shall in the name of any other person acknowledge any recognizance or bail, or any cognovit actionem, or judgment, or any deed, or other instrument, before any court, judge, or other person lawfully authorized in that behalf, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding seven years" (see ante, p. 203). False personation of soldiers and seamen.'] The false personation of soldiers and seamen was made felony by several statutes, some of which have been repealed. The statutes still in force are, with respect to soldiers : 7 Geo. 4, c. 16, ss. 35. 3.8 ; 2 & 3 Will. 4, c. 53, s. 49; 44 & 45 Vict. c. 57, s. 36, and c. 58, s. 142 ; and with respect to sailors : 28 & 29 Vict, c. 124. ss. s. fl. The statutes made use of the words, " some officer," &c, " entitled, or supposed to be entitled," &c. Upon a prosecution, therefore, for such false personation there must be some evidence to show that there was some person of the name and character assumed. who was either entitled, or might, prima facie at least, be supposed to be entitled, to the wages attempted to be acquired. 11. v. Brown, 2 East, I'. C. 1007. Where the prisoner was indicted for personating and falsely assuming the character of Peter M'Cann, a seaman on board the Tremendous, and it appeared in evidence that there had been a seaman of the name of M'Carn on board the vessel, but no one of the name of M'Cann ; the prisoner being con- victed, the judges held the conviction wrong. They were of opinion that False Personation. 427 " personating " must apply to some person who had belonged to the ship, and that the indictment must charge the personating of some such person. R. v. Tannet, Rues. & By. 351. It has been held that the offence is the same, though the seaman per- sonated was dead at the time the offence was committed. R. v. Martin, Ruse, db Ry. 324; R. v. Cramp, LI. .'527. It was held that all persons present aiding and abetting a person in personating a seaman were principals in the offence. R. v. Pott, Russ. & By. 353. On an indictment against B. for personating a soldier, it appeared that A. instigated B. to represent himself to he ('., the soldier entitled to the prize money. Lush, J., directed the jury that if they believed that A. instigated 1!. to represent himself as C, and that B. knowingly and wilfully represented himself asC, then, whatever B.'s motive may have been, both were equally guilty. Even if B. believed A. was really ('., or had O.'s authority to get the money, yet if he falsely represented himself to be ('., though authorized by A. to do so, he would be guilty. R. v. Lake, 11 Car, 333. As toobtaininga police pension by false personation or other fraudulent conduct see ,").■; & ,34 Vict. c. 45, s. 9. Falsi' personation of voters.^ Bythe Ballot Act. 1N72. 35 & 36 Vict. e. 33, s. 21. a person shall, for all purposes of the laws relating' to parlia- mentary and municipal elections, he deemed to be guilty of the offence of personation, who at an election for a county or borough, or at a municipal election, applies for a ballot paper in the name of some other person, whether that name he that of a person living or dead, or of a fictitious person, or who, having voted once at any such election, applies at the sai 'lection for a ballot paper in his own name. By 4(> iv. 47 Vict. c. 51, s. 3. the offence of personation, ami of aiding, abetting, counselling, and procuring the commission of the offence of personation is a corrupt practice within the meaning of the Corrupt Practices Prevention Act. 1854 (17 & is Met. c. 102. ss. 2, 3, ante, p. 298). By 46 & 47 Vict. c. 51, s. <> (2), a person who commits the offence of personation, or of aiding, abetting, counselling, or procuring the com- mission of that offence, shall In 1 guilty of felony, and any person con- victed thereof on indictment defined by s. (>4. to include " information"), shall be punished by imprisonment for a term not exceeding two years, together with hard labour; and by the second paragraph of sect. 24 of the Ballot Act. 1872, which is still unrepealed (see 46 & 47 Vict. c. 51, sched. 5), it shall be the duty of the returning officer to institute a prose- cution against any person whom In may believe to have been guilty of personation, or of aiding, abetting, counselling, or procuring the com- mission of the offence of personation by any person at the election for which he is returning officer, and the costs and expenses of tlie prosecutor and the w Ltnesses in such case, together with compensation for their trouble and loss of time, shall lie allowed by the court in the same manner in which courts are empowered to allow the same iii cases of felony. The provision of the Registration Acts specified in the Third Schedule to the Ballot Act. 1872, shall in England and Ireland respectively apply to personation under this Act in the same manner as they apply to a person who knowingly personates and falsely assumes to vote in the name of another person as mentioned in the said Acts. The 47 & 48 Vict. c. 7(t. s. 1. now makes personation at municipal elections a corrupt practice as if committed at a parliamentary election, and renders the guilty party liable to the like punishment and subject to 42S False Personation. the like incapacities as if the corrupt practice had been committed in reference to a parliamentary election. The Act is likewise extended to elections of local boards, improvement commissioners, poor law guardians, and members of the School Board. For other offences at elections, see ante, tits. Elections and Bribery. Personating owners of real estate, <£c] Personation in order to deprive any person of real estate or other property is now governed by 37 & 38 Vict. c. 36. By s. 1, "if any person shall falsely and deceitfully personate any person, or the heir, executor or administrator, wife, widow, next of kin, or relation of any person, with intent fraudulently to obtain any land, estate, chattel, money, valuable security, or property, he shall be guilty of felony, and, upon conviction, shall be liable to be kept in penal servitude for life " (see ante, p. 203). Sect. 2, " nothing in this Act shall prevent any person from being pro- ceeded against and punished under any other Act, or at common law, in respect of an offence (if any) punishable as well under this Act as under any other Act, or at common law." By s. 3, the offence is not triable at quarter sessions. Personating oivners of stocks, &c.~] See the 24 & 25 Vict. c. 98, s. 4.,]jost, tit. Forgery, 26 & 27 Vict. c. 73, s. 14 (India stock), 30 & 31 Vict. c. 131, s. 35 (ordinary shares, &c), 33 & 34 Vict. c. 58, s. 4 (National Debt). Falsely personating an officer of inland revenue for the purpose of obtaining admission to any house, or of doing or procuring to be done any act, or for any other unlawful purpose, is made a misdemeanor by 53 & 54 Vict. c. 21, s. 12. False Pretences. 429 FALSE PEETENCES. Obtaining money, etc., by false pretences. ~] By 24 & 25 Vict. c. 96, s. 88, whosoever shall, by any false pretence, obtain from any other person any chattel, money, or valuable security, with intent to defraud, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude (see ante, p. 203). No acquittal because the offence amounts to larceny. ~] By the same section it is provided "that if, upon the trial of any person indicted for such misdemeanor, it shall be proved that he obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor ; and no person tried for such misdemeanor shall be liable to be afterwards prose- cuted for larceny upon the same facts." Form of indictment and evidence.] By the same section, "provided also, that it shall be sufficient in any indictment for obtaining, or attempting to obtain, any such property by false pretences to allege that the party accused did the act with intent to defraud, without alleging any intent to defraud any particular person, and without alleging any ownership of the chattel, money, or valuable security; and, on the trial of any such indictment, it shall not be necessary to prove an intent to defraud any particular person, but it shall be sufficient to prove that the party accused did the act charged with an intent to defraud." The indictment must state to whom the false pretence was made and from whom the money, &c, was obtained. 11. v. Sowerby, (1894) 2 Q. B. 17.3; 63 L. J., M. C. 136. Causing money, &c, to h delivered to another n return it. The prisoner had accepted a bill drawn upon him by the pro- secutor for 2,638/., which he owed the latter. When the bill became due, False Pretences. 43! the prosecutor asked the prisoner if he was prepared to pay it, and the prisoner said he had enough all hut 300?., and that he expected to get the loan of that from a friend. The prosecutor, who was not any longer the holder of the bill, expressed his willingness to advance the 300?. himself, and ultimately did so ; but the prisoner, instead of taking up the bill, applied the 300/. to his own purposes, and suffered the bill to be dis- honoured, and the prosecutor eventually had to pay it. Evidence was- also given that, at the time the prisoner obtained the money, he was in insolvent circumstances. For the prisoner it was contended that the representation was not a false pretence within the statute, being a mere misstatement, or at the worst a naked lie, and A*, v. Codrington, infra, was cited ; and secondly, that the Act did not extend to cases where the prosecutor had only lent, not parted with the property of the goods or money. Patteson, J., said: "The words of this Act are very general, and I do not think I can withdraw the case from the jury. If they are satisfied that the prisoner fraudulently obtained the 300/. from the prose- cutor by a deliberate falsehood, averring that he had all the funds required to take up the bill, except 300/., when in fact he knew that he had not, and meaning all the time to apply the 300?. to his own purposes, and not to take up the bill, it appears to me that the jury ought to convict the- prisoner. In R. v. Codrington, it does not appear that the prisoner did distinctly allege that he had a good title to the estate which he was selling. As to the money being advanced by the prosecutor only as a loan, the terms of the Act of parliament embrace every mode of obtaining money by false pretences, by loan as well as by transfer." The prisoner was acquitted. R. v. Crossley, 2 Moo. & A. 17; 2 Leiv. C. C. 104. The prisoner represented to the prosecutor that he had built a house worth 300?. on certain land, and deposited with the prosecutor a lease of the land a- a security, and entered into a written agreement to execute a mortgage of the land: whereas, in fact, the house was built on land adjoining, winch had already been mortgaged by the defendant. By these false statements, the prosecutor was induced to advance the sum of 80/. by way of loan, which he paid to the prisoner. It was held by all the judges thai the prisoner was properly convicted of obtaining the money by false pretences. I!, v. Burgon, 25 L. •/., M. <'. 10,3. In/?, v. < 'odrington, 1 ' '. & I'. 661, the indictment stated that the defendant, by falsely pretend- ing to the prosecutor that he was entitled to a reversionary interest in one-seventh share oi a sum of money left by his grandfather, obtained the sum of 29?. 3s. from the prosecutor. 11 was proved that the defendant asked the prosecutor to purchase Ihe seventh part of an interest in some money to which lie would 1 untied on the death of a relation; and that the prosecutor agreed to do so; and an assignment was accordingly pre- pared containing a covenant for title, ami the money paid by the prosecutor to the defendant. A previous assignment of the same interest l>y the defendant to another person was then put in. After argument. Little- dale, J., held that this was not an indictable offence, but was only a breach of covenanl for 1 Ltle, for which a civil action would lie. A railway pass ticket was obtained by a person in order to enable him to travel free. At the end of the journey he would have to return i: to the possession of the owner. The courl having held thai if was a "chat- tel" held also thai the fact that it was to be returned at the end of the journey did not affect the question. R. v. /Ion/ton, 1 Den. C. C. /•'. 508; lit A. -/., .1/. C. 07. It is said by the courl in R. v. Kilham, infra, that the reasons for the above decision do not very clearly appear, but that it might be said that the prisoner, by using the ticket, entirely converted it to his own use fur the only purpose Eor which it was capable of being 432 False, Pretences. applied. But where a man by false pretences obtained a horse on hire, and rode him for the day, and returned him in the evening, but never paid the hire, it was held that, as he had no intention to deprive the owner of his property in the horse, or to appropriate it to himself, but only intended to obtain the use of it for a limited time, he could not be convicted of obtaining the horse by false pretences. R. v. Kilham, L. R., 1 C. C. R. 261; 39 L. J., M. C. 109. Had the prisoner, in the above case, meant to ride away with the horse altogether which he fraudulently pre- tended to hire, that would have been an obtaining by false pretences, but it would also have amounted to a larceny. See Larceny, post, and post, p. 434. Result of the false pretence.'] The obtaining must be the result of tbe false pretences, and must not be too remotely connected with them. In R. v. Ady, 7 C. & P. 140, an endeavour was made to show that the prose- cutor and his friend parted with their money with a full knowledge that -the pretence was false. Patteson, J., said, if the defendant did obtain the money by false pretences, and knew them to be false at the time, it does •not signify whether they intended to entrap him or not. But according to the subsequent cases the defence set up would, if proved, have been good. Thus in R. v. Mills, Dears. & R. C. C. 205 ; 26 L. J. M. < '. 79, the prisoner was convicted on an indictment, which alleged that the money was obtained by the prisoner by a false pretence that he had cut sixty- three fans of chaff, when in fact he had only cut forty-five fans, for which he demanded 10s. 6d., being at the rate of 2d. a fan. The prosecutor had seen the prisoner remove eighteen fans of chaff, from a heap for which he was not entitled to be paid, and place them with that for which he was entitled to be paid; and notwithstanding that the prisoner's fraud was thus exposed, paid him the amount which he demanded. It was held that the conviction was wrong, as the money was not obtained by means of the false pretence. The prisoner might however be convicted of the attempt. R. v. Hensler, 11 Cox, 570. In R. v. Gardner, 25 L. J., M. C. 100, the prisoner represented himself to be a naval officer, and by that false pretence obtained lodging, but not board. He subsequently and without any fresh pretence obtained articles of food, and was indicted for obtain- ing articles of food by falsely pretending he was a naval officer ; it was held that the obtaining of the articles of food was too remotely the result of the false pretence. This case "may be usefully compared with R. v. Burton, 16 Cox, 62, where the prisoner was received as a lodger without making any false pretence. After having lodged for a day or two, he falsely stated to his landlady that he had come from another lodging where he had left some of his clothes, and requested to be furnished with board as well as lodging, for which he promised to pay. The landlady, beKeving his statement as to his clothes, agreed to supply him with meat and drink as a boarder. The jury having found the prisoner guilty on an indict- ment charging him with obtaining food by false pretences, the court upheld the conviction. R. v. Burton, 16 Cox, (12. In the case of R. v. Bryan, 2 F. & F. 567, where the first contract was for board and lodgings, and the prisoner subsequently obtained a sixpence as a loan, it was held too remote. The prisoner was charged with obtaining the prize in a swimming race by false pretences. He obtained his entry-ticket for the race by representing himself to be a member of a certain club ; on the faith of this, which turned out to be false, he was allowed twenty seconds' start in the race and won the prize. It was held by the Common Sergeant, after consulting Stephen, J., that the obtaining the prize was too remotely con- nected with the false pretence. R. v. Lamer, 14 Cox, 497. In a case False Pretences. 433 tried at the summer assizes at Nottingham in 1879 before Lindley, J., a professional runner, by representing himself to be an amateur and assum- ing a false name, competed in a race exclusively for amateurs and was allowed a start, and won the race. He was convicted of attempting to obtain the prize by false pretences. B. v. Dickenson (not reported). It would seem, however, that in all such cases the question of remoteness is for the jury. See B. v. Martin, L. B., 1 C. C.R. 56; 36 L. J., M. C. 20. In that case it was held that it is not necessary that the goods obtained should be in existence at the time the pretence is made, provided the subsequent delivery of the chattel is directly connected with the false pretence. Where a false pretence had been made, and after the lapse of some time allusion is made to the same matters by the prisoner, and there- upon the prosecutor parts with his property to the prisoner, it is for the jury to say whether the conversations are so connected as to form one continuing representation. B. v. Welman, Dears. 0. C. 188, ante, p. 80. Constructive obtaining.] Where a prisoner was indicted for obtaining from A., to whom he made the false pretence, and the proof was that he obtained from A.'s wife, A. not being present at the time of obtaining, this was held to be an obtaining from A. B. v. Moseley ; see post, p. 450. So where the prisoner sent a little boy to obtain money from the prosecutor, and the little boy innocently brought the money to the prisoner, it was held to be an obtaining by the prisoner. B. v. Butcher ; see post, p. 450. So where several persons are present and are acting together in pursuance of the fraudulent purpose, there is an obtain- ing by all; see I!, v. Young, post, p. 434; and even where they are not present, if they have assisted and concurred in the fraud. B. v. Molaml, 2 Moo. C C. 276. Causing money, &c, to bt delivered to another person.'] We have seen, ante, p. 420, that the causing (by false pretences) money, &c, to be delivered to another person for the defendant's benefit, or any other person's with intent to defraud, is an obtaining by false pretences. The defendant was indicted in England for a misdemeanor, in attempting to obtain moneys from L. & Co. by false pretences. The defendant had a circular letter of credit for 210/. from I). S. iV- Co., of New York, with authority to draw on L. «S Co. in London in favour of any of the corre- spondents of the bank for such portions of the 210/. as he might require. The defendant came to Kngland and drew drafts for different sums, amounting in all to less than 210/., and then carried the letter to St. Petersburg. He there exhibited it to W. & Co., one of the aforesaid correspondents, having previously altered the sum from 210/. to 5,210/., and then drew on L. & < !o. for, and obtained, large amounts far exceeding 210/. These drafts were forwarded by W. & Co. to L. & Co., who refused to honour them. Parke, B., asked the jury whether, although the prisoner's immediate object was to cheal W. & Co., he did not also mean that they or their correspondents, or the indorsers from them, should present these unauthorized drafts, and obtain payment of them from L. & Co., and the jury found that he did so intend. The case was reserved, and the court held that, even if L. & Co. had paid the cheques, no offence would have been committed by the prisoner within the statute; that his act was complete a1 St. Petersburg, and for what took place afterwards he was qo1 criminally responsible. R. v. Garrett,1 Dears. C. C. 232. See Greaves' Criminal Statutes, p. 136; 2 Buss. Cri. 468 (»/), Qth al., where it is said that this case would be met by the section of the Act above alluded to. R. FF 434 False Pretences. Obtaining amounting to larceny. ] Sometimes the obtaining amounts to a taking sufficient to constitute the offence of larceny. See post, tit. Larceny. By the 24 & 25 Vict. c. 96, s. 88 (ante, p. 429), if it appears on the trial that the defendant obtained the property in question in any such manner as to amount in law to larceny, he shall not, by reason thereof, be entitled to be acquitted of such misdemeanor. In all cases, therefore, where it is doubtful whether, in point of law, the offence is larceny or a misdemeanor, the safest course is to indict the party as for a misdemeanor ; for should it appear upon an indictment for larceny, that the offence is in fact that of obtaining money, &c, under false pretences, the prisoner must be acquitted. If the facts proved amount to larceny, still the false pretences must be proved as laid, for it is the misdemeanor which is charged, and which he must be proved to have committed. R. v. Bulmer, L. & C. 482. See also R. v. Shott, 3 0. & K. 206, post, tit. Rape. As to the distinction between false pretences and larceny, see tit. Larceny. Obtaining by means of a forged document. ] Formerly where goods were obtained by a false representation in writing, so as to constitute a forgery, the offender nmst be indicted for the forgery, and could not be convicted of obtaining the property bv false pretences. R. v. Evans, 5 C. & P. 553 ; R. v. Anderson, 2 Moo. & R. 469; R. v. Tuder, 1 Den. O. C. 325. But now by the 14 & 15 Vict. c. 100, s. 12, any person tried for misdemeanor is not to be acquitted of the misdemeanor when duly proved if the offence turn out to be felony. See supra. 2. The Nature of the Pretence. Existing facts.'] The false pretence laid in the indictment must be of some byegone or existing fact and not of some future event, or a mere promise. See R. v. Welman, Dears. C. C. 188, per Jervis, C. J. Where the four prisoners came to the prosecutor representing that they had betted that a person named Lewis should walk a certain distance within a certain time, and that they should probably win, the court were of opinion that the false pretences were within the statute. R. v. Young, ,3 T. R. 98. It is to be observed that the pretence of having made a bet was a pretence of an existing fact. Where the prisoner falsely pretended that he had got to pay his rent, it was held that this was not a false pretence of an existing fact. R. v. Lee, L. & C. 309. Where the indictment alleged that the defendant falsely pretended that she had the power to bring back A.'s husband over hedges and ditches, it was held that this was not a mere promise, but was a false pretence within the statute. R. v. Giles, L. & C. 502; 34 L. J., M. O. 50. The prisoner obtained money by representing that a new directory which W. & Co. were getting up was about to be published, whereas in fact W. & Co. were not doing so ; and it was held that this was a misrepresentation of an existing fact. R. v. Speed, 15 Cox, 24 ; R. v. Taylor, >b. 265, 268. Where the indictment alleged that the prisoner pretended to Henrietta Pond, who then lived at Madame Temple's and acted as her representa- tive, that she was to give 10s. to one Clerk, and that Madame Temple was going to allow Clerk 10s. a week, it was held that it did not suffi- ciently appear from these averments that there was any false pretence as to an existing fact. R. v. Henshaw, L. & C. 444 ; 33 L. J., M. C. 132. So also a promise to pay for goods on delivery is not a false pretence of an existing fact. R. v. GoodhaU, Russ. & R. 461 ; R. v. Dale, 7 O. & P. 252. Where the prisoner was charged with pretending that he would tell the False Pretences. 435 prosecutor where his horses were, and so obtaining a sovereign, it was held that this was not a false pretence of an existing fact, and the prisoner ought to have been indicted for pretending that he knew as a fact where the horses were. R. v. Douglas, R. & M., G. C. R. 462. It is a question for the jury, whether the words used by the defendant fairly conveyed to the prosecutor a representation of an existing fact. It is for the judge to decide whether they are capable of such an interpreta- tion, and if thev are, it is for the jury to decide whether in fact they were so intended. R. v. Cooper, 2 Q. B. D. 510 ; 46 /,. J., M. C. 219 ; R. v. Randell, 16 Cox, 535. The prisoner was indicted for obtaining two milk churns by false pretences. A letter written by the prisoner to the prosecutor, in which he stated that the two churns did not require a name on them as they were only wanted for home use, was put to the prosecutor in his examination in chief, and he was asked what opinion he formed on it of the prisoner's position. He replied that he took him to be a dairy- man or farmer. It was held that though the inference to be drawn from the letter was for the jury, yet the question was admissible to show what the prosecutor understood by it. R. v. King, (1897) 1 Q. B. 214; 66 L. J., Q. B. 87. A curious instance of whether a statement amounted to a false repre- sentation of an existing fact came before the Court for Crown Cases Reserved in R. v. Powell, ~>A I.. J., M. C. 26. The defendant, who was agent to an insurance company and whose business it was to collect the annual premiums from persons insured in the company, collected from one Vellum in 1883 the annual premium then due for renewal of Vellum's policy of life assurance. The defendant did not account to the company for this premium, but appropriated it and notified to the company that Vellum had failed to renew his policy. The company thereupon treated the policy as lapsed. On the 7th April, 1884, the defendant called on Vellum for his animal premium as usual. Vellum was unable to pay the amount on thai Way, and requested the defendant to call later. The defendant came again on the 21st of April, and received from Vellum a sum of money on account of the annual premium. It was for obtaining this amount that the defendant was indicted, the indictment charging that by falsely pretending to Vellum that his policy wasthen in full force and that the currenl year's premium thereon wasthen due and payable, and that he, the defendant, was then authorized to receive the same, he induced Vellum to pay the amount. < hi the 21st April the days of grace within which the premium had to be paid had expired. Vellum was aware of this, but the defendant fcold him thai the payment would be effectual. Lord Coleridge. < '. J., Iiuddleston, 15. , and Alathew, J., held that there was evidence to go to the jury ; but Grove and Manisty, JJ., were of a contrary opinion : they held that the company was hound by the receipt of their ;i--ent b L883, and consequently that the policy did not then lapse, and the defendanl made no false pretence in representing it to be in full force. Falsely pretending that he (the prisoner) was prepared to pay the prosecutors 100/.. and had the money ready Eor them on their signing a promissory note, by which means the prosecutors were induced to make a promissory note, is a false pretence of an existing fact. R. v. Gordon, 23 (>. B. D. 354 ; 58 L. J., M. C. 47. Combination of several false statements.'] Very often the prisoner has made a series of false statements, some of which are false pretences of existing facts, and some were promises or exaggerated statements. R. v. Jennison, infra, p. 437. ff2 436 False Pretences. The third count of the indictment charged the defendant with having falsely pretended to A. C. that he was an unmarried man and having thereby obtained a promise of marriage from the said A. C. ; that she refused to marry the defendant, and that he falsely pretended, at the time of such refusal, that he was an unmarried man, and entitled to bring an action against her for the breach of promise of marriage, by which means he obtained from her 100/. Whereas in truth, &c, he was not an unmarried man, and not entitled to maintain an action for the breach of promise of marriage against her. The fact that the prisoner was a married man was proved ; and the prosecutrix stated that she being a single woman, the prisoner had paid his addresses to her, and that she had consented to marry him ; she being ignorant that he was already married. She further stated that, after promising to marry the prisoner, she changed her mind ; that she intimated as much to the prisoner, and that he, thereupon, threatened her with an action at law for breach of promise of marriage ; and that she, believing that he could and would carry his threat into effect, and in order to induce him to refrain from doing so, paid him the sum of money. The money was paid and received on a written stipulation (produced at the trial) that, in consideration of such payment, he (the prisoner) would forego proceedings at law against the prosecutrix for the promise of marriage broken by her. She stated, on cross-examination, that, but for the prisoner's threat of bringing an action, she would not have paid the money ; and that she was induced by such threat to pay it; and she added that, had she known that the prisoner was a married man, she would not have paid the money. Lord Denman, C. J., allowed the case to proceed, notwithstanding an objection raised to the sufficiency of the evidence. At the close of the case, his lordship left it to the jury to say, whether the money was, in fact, obtained by the false pretence that the prisoner was single, and a verdict of " Guilty " was returned. On the following day his lordship intimated that he had conferred with Maule, J., and that they were both clearly of opinion that there was evidence to go to the jury that the money was obtained by the false pretence that the prisoner was a single man, and in a condition to intermarry with the prosecutrix; and that Maule, J., was further of opinion that there was also evidence of the money having been obtained by the false pretence of the prisoner, that he was entitled to maintain an action for breach of promise of marriage ; and that such latter false pretence was a sufficient false pretence within the statute. R. v. Copeland, C. & M. 516. In R. v. Johnston, 2 Moo. (J. C. 255, the indictment was that the prisoner pretended to H. that he intended to marry her on the 8th day of- February, and that he had purchased a suit of clothes for the wedding, and that he wanted the sum of 4/. to pay for the same, by which said false pretences he obtained from the said H. 41. with intent to cheat and defraud her of the same. It was proved that the prisoner paid his addresses to H., and that the banns were regularly published in church with his sanction. That after the publication of the banns, the prisoner met her at a draper's shop by appointment, in order that he might there buy a suit of clothes for 41., and asked her for 41. to enable him to pay for them. That she accordingly gave him 41. for that purpose. Eolfe, B., doubted whether the pretence stated was one on which a conviction could take place, and reserved the point. The judges held the conviction wrong. Where the defendant had falsely represented that he was a single man, and that he would go to Liverpool to furnish a house with the money which he demanded, and that he would return and marry the prosecutrix, False Pretences. 437 it was held that the statement of his being an unmarried man was a false pretence of an existing fact, and was essential, for without it he would not have obtained the money, and that although it was united with two promises, neither of which alone would have supported the conviction, yet the conviction was right. R. v. Jennison, L. & G. 157 ; 31 L. J., 31. G. 147. The prisoner falsely told the prosecutrix that she kept a shop at N., and promised the prosecutrix that if she lent her half a sovereign she should go home with her until she got a situation, and that the money should be paid as soon as they arrived home. The prosecutrix lent her the half-sovereign, and the prisoner immediately decamped. The jury found that the prosecutrix parted with the money under the belief that the prisoner kept a shop at N., and that she (the prosecutrix) should have the money when they arrived home. It was held that the prisoner was rightly convicted. R. v. Fry, Dears. & B. 0. C. 449 ; 27 L. J., 31. 0. 68. So when the prisoner pretended that he had bought some skins and had paid ten shillings on them, and wanted 4/. 10s. to enable him to fetch them away; all which was false, but the prosecutrix, believing it to be true, lent him the ten shillings, with which he decamped ; this was held to be obtaining money by false .pretences. R. v. West, 27 L. J., 31. C. 227 ; Dears. & B. C. C. R. oil. If the prisoner makes several statements which are true, and which influence the mind of the prosecutor, or if the prosecutor's mind is influenced by other circumstances, yet if the prisoner makes one false statement which materially affects the rnind of the prosecutor, that is sufficient to support a conviction. R. v. English, 12 Cox, 171; R. v. Lince, 12 Cox, 451. See also R. v. Hewgill, Dears. C. C. 315. It seems that if the indictment alleges two circumstances conducing to the fraud, and the jury find only a general verdict of guilty, and as to one of the circumstances the allegation in the indictment does not disclose a " false pretence," the indictment will be bad on a writ of error; R. v. Wickham, 10 A. & E. 34; but if the jury had found specially that the false pretence, which was properly laid, had been proved, the conviction would have been good. Sec this case cited infra, and see post, p. 445. Pretence made by acts, not words.'] Where a prison at Oxford, who was not a member of the university, went to a shop for the purpose of fraud, wearing a commoner's gown and cap, and obtained goods ; this was held a sufficient false pretence to satisfy the statute, though nothing passed in words. //. v. Barnard, 7 C. & I'. 784. The indictment stated thai the prisoner falsely pretended to A. B. that he was a captain in the East India Company's service, and that a certain promissory note which he then delivered to A. B., was a valuable security for 21/. ; by means of which false pretences he obtained from A. B. 81. 15s. It was held that as it did not appear but that the note was the prisoner's own note, or that he knew it to be worthless, there was no sufficient false pretence in that respect ; and that, as the two pretences were to be taken together, thi' indictment was had : and the judgment given upon it was reversed in error. Wickham v. //., 10 A. & I-'.. 34. And it is said in //. v. West, Bears. & B. 575, 583, that if the jury had found that the money had been obtained hy means of the false pretence of being a captain, the conviction would have been good. See also R. v. Gardner, nni<, p. 432. The case of 11. v. Abbott, cited infra, p. 441. is also a case where the goods were obtained by an acted false pretence in the course of a contract. With respect to the presenting of false cheques or notes, &c, the following cases have been decided : — 438 False Pretences. The prisoner was indicted for unlawfully producing to A. B., &c, of the Nottingham post-office, a money order for the payment of one pound to one John Storer, and for unlawfully pretending to the said A. B. that he was the person named in such order. It appeared in evidence that the prisoner had gone to the post-office, and inquired for letters for John Story, whereupon, by mistake, a letter for John Storer, containing the money order was delivered to him. He remained a sufficient time to read the letter, and then presented the order to A. B., who desired him to write his name upon it, which he did in his real name, John Story, and received the money. The terms of the letter clearly explained, that the order could not have been intended for the prisoner, who, on being apprehended, denied that he had ever received the money, but afterwards assigned the want of cash as the reason of his conduct. Chambre, J., left it to the jury to find against the prisoner, if they were satisfied that he had, by his conduct, fraudulently assumed a character which did not belong to him, although he made no false assertions. The jury found him guilty. The judges held the conviction right, being of opinion, 1st, that the prisoner writing his own name on the order, did not amount to a forgery ; and 2ndly, that by presenting the order for payment, and signing it at the post-office, he was guilty of obtaining money by a false pretence within the statute. B. v. Story, Buss. & By. 81. See B. v. Freeth, Id. 127. If a person with intent to defraud gives a cheque upon a banker with whom he keeps no account, this is a false pretence within the statute. B. v. Jackson, 3 Camp. 370. So where the prisoner was charged with falsely pretending that a post-dated cheque, drawn by himself, was a good and genuine order for 25/., and of the value of 25/., whereby he obtained . a watch and chain, the judges held that the conviction was right. B. v. j Parker. 7 C. & P. 825; 2 Moo. C. C. 1. So where the prisoner, who formerly had an account at a bank, drew cheques upon the bank and thereby obtained goods, but he knew that the account was virtually closed, and that his cheques would not be paid, it was held that there was evidence of the false pretence that the cheques were good and valid orders for the payment of their amount, and that the prisoner was rightlv con- victed. B. v. Hazelton, L. B., 2 C. C. B. 134 ; 44 L. J., M. C. 11 ; and see also B. v. Dowey, 37 L. J., M. C. 52. "Where the prisoner was indicted in Ireland for obtaining goods by false pretences from several persons by sending half bank notes, and requesting goods to the value of the entire notes to be sent to her, and by pretending that she had in her custody the corresponding halves, and it was proved that she had not the corre- sponding half notes in her custody, having, in fact, sent them to other persons with similar requests, it was held by the whole court, consisting of seven judges, that she was rightly convicted. B. v. Murphy, 13 Cox, 298. See 2 Buss. Cri. 484, 6th eel. Fraudulently offering a "flash note" in payment, under a false pre- tence that it is a Bank of England note, is within the statute ; B. v. Coulson, 1 Den. C. C. 592; 19 L. J., M. C. 182; or the note of a bank which has stopped payment. B. v. Jarman, 14 Cox, 111. But where a person who had no means to pay, ordered a meal at an eat- ing house, making no verbal representation of his ability to pay, it was held that this did not amount to an obtaining of the food by false pretences. B. v. William Jones, (1898) 1 Q. B. 119. It was however held to be an obtaining of credit within the meaning of s. 13, sub-s. 1, of the Debtors Act, 1869. See ante, p. 279. The prisoner had dealt largely, and in an assumed name, in foreign bonds which had been stolen seven years before. It was held that there was evidence of false representation by conduct. B. v. Pinter, 17 Cox, 497. False Pretences. 439 False account of wages paid, work done, weight delivered, (fee] The prisoner was indicted for obtaining money by false pretences. The prose- cutors were clothiers, and the prisoner was employed as superintendent to keep an account of the persons employed, and the amount of their wages. At the end of each week he was supplied with money to pay the different shearmen by the clerk of the prosecutors, who advanced to him such sums as, according to a written account or note delivered to him by the prisoner, were necessary to pay them. The prisoner was not authorized to draw money generally on account, but merely for the sums actually earned by the shearmen ; and the clerk was not authorized to pay any sums, except such as he carried in, in his note or account. The prisoner delivered to the prosecutor's clerk a note in writing, in this form, "9 Sept. 1796, 44/. lis. ()'/.." which was the common form in which he made out the note. In a book in his handwriting, which it was his business to keep, were the names of several men who had not been employed, who were entered as having earned different sums of money, and also false accounts of the work done by those who were employed, so as to make out the sum of 44?. lis. Od. The prisoner being found guilty, the judges all agreed, that if the false pretence created the credit, the case was within the statute. They considered that the defendant would not have obtained the credit but for the false account he had delivered in ; and, therefore, that he was properly convicted, tt. v. Witchell, 2 East, P. 0. 830. Falsely pretending that a certain quantity of work has been done would be within the statute, but a mere overcharge for work would not. In an indictment for obtaining money by false pretences the pretence stated in some of the counts was, thai the prisoner unlawfully, knowingly, and designedly, did falsely pretend that he having executed certain work, there was a certain sum of money due and owing to him for and on acconnt of the work, by means of which said false pretence the prisoner did then unlawfully obtain, &c, with intent thereby then to defraud; in other counts, the false pretences were stated to be that the prisoner did falsely pretend that the money was due and owing. It was proved that the defendant worked for the prosecutors as a journeyman, and that the quantities of the work done by him for them during each week were entered iii a book kepi exclusively for that purpose. The prices for the work so entered were placed in a column opposite to each quantity of work, and were added up on behalf of the prosecutors at the end of each week. The weekly totals of these prices were entered by them in this account book, and the amount of those totals was paid by them to the defendant as the ascertained sum of money due to mm for work done on the production by him of th ■ book. It was further proved that, after these weekly totals had been entered as above, the defendant had altered them into Larger amounts, and then had procured payments of those larger amounts, and restored the figures of the original totals. The defendant was found guilty. After verdicl had been recorded, it was objected that the indictment did not disclose any false pretence within the meaning of the statute. Parke, 1!.: "An indictment for false pretences must disclose a false pretence of an existing fact. In this case there is merely a fraudulent claim in respeel of & quantum meruit of the prisoner's work and labour; and the indictment would be supported by evidence thai the prisoner made a false estimate of the \alue of his work. I do not think that is an indictable offence. The false pretence consists of nothing more than w hat mighl be mere matter of opinion. R. v. Gates, Dears. C. C. 459. By means of a false wage-sheel the prisoner obtained from his master a, cheque for the amount stated in the sheet to pay the The cheque was informally drawn, ami payment was 440 False Pretences. refused by the bank. The prisoner returned it to bis master, telling him of the cause for non-payment ; and the master tore it up, and gave another, which the prisoner cashed, and appropriated the difference between what was really due for wages, and what was falsely stated to be due in the wage sheet. It was held that the false pretence was a con- tinuing one, and that the second cheque was obtained thereby equally with the first. R. v. Greathead, 14 Cox, 108. A baker contracted with the guardians of the poor of a parish to deliver to the out-door poor, as the guardians should direct, loaves, each weighing 3^ lbs., at Id. a loaf. The course of business was for the relieving officers to give tickets to the out-door poor, upon which was specified the number of loaves they were to receive. Upon receiving their loaves, the poor persons gave up their tickets to the baker, and he, in the ensuing week, returned them to the relieving officer with a note stating the whole number sent. He was then credited in an account between him and the guardians accordingly, and the account was paid at certain specified times. The baker knowingly delivered three loaves of less weight than 3^ lbs., but charged them to the guardians as of full weight ; and it was held that he was properly convicted of attempting to obtain one shilling, the value of the difference in weight, from the guardians by false pretences. R. v. Eagleton, 1 Dears. C. C. 515; 25 L. J., M. C. 39. See this case, ante, p. 343. Parke, B., in delivering the judgment of the court, said, "This is not the case of the sale of goods by a false pretence of their weight, it is an attempt to obtain money by the false and fraudulent representation of an antecedent fact, viz., that a greater number of pounds of bread had been delivered than had been actually delivered, and that representation was made with a view of obtaining as many sums of twopence as the number of pounds falsely pretended to have been furnished amount to. In this respect the case exactly resembles that of R. v. Witchelt (supra), where the prisoner obtained money by the false pretence that certain workmen had earned more than they really had, and there since are cases of similar convictions where the prisoner falsely stated the quantity of work which he had done according to which he was to be paid; we therefore think that the indict- ment would be maintainable if the money had been paid." False statement as to quality, quantity, or weight in course of a contract — puff.'] 1. As to quality. — The fourth count of an indictment stated, that the defendants unlawfully, knowingly, and designedly, did falsely pretend to G. W. I 1 ., that a phaeton, mare, and gelding, which the defendants offered him for sale, had been tbe property of a lady then deceased, and were then the property of her sister, and were not the property of any horsedealer. and that the mare and gelding were then respectively quiet to ride and drive. Evidence was given that the bargain had been made by G. W. F. in consequence of his belief in these representations ; that they were false ; and that the horses were vicious. The prisoner was convicted, and a rule was obtained for arresting the judgment on the ground that the indictment was insufficient, and on other grounds; as to this point Lord Denman said, in delivering the judgment of the court, "A general question seems here to be raised, whether, if money be obtained through the medium of a contract between the defendant and the party defrauded, tbe charge of false pretences can be maintained. Questions approaching this have been raised in the criminal courts. With some plausibility the thing obtained through the false pretence may be said to be the contract, and not the money which is paid in fulfilment of it, and which the party is probably by its terms liable to repay." His lordship then referred to a False Pretences. 441 case of R. v. Adamson, 2 Moo. C. C. 286, and concluded thus, " We think that in this case the two ingredients of the offence of obtaining money under false pretences were proved by the evidence. The pretences were false ; and the money was obtained by their means. The count therefore is good." R. v. Kenrick, 5 Q. B. 49. The indictment charged that the prisoner having in his possession divers lbs. weight of cheese of little value and of inferior quality, and contriving and intending to cause it to be believed that the said cheese was of good flavour and of excellent quality, and also having in his possession divers pieces of cheese called " tasters " of good flavour, taste, and quality, and contriving and intend- ing to cheat one W. B., unlawfully and knowingly did falsely pretend to the said W. B., that the said pieces of cheese called " tasters," which he the said prisoner then and there delivered to the said W. B., were part of the said cheese then offered for sale. It was proved at the trial that the prisoner kept a cheese stall at F., and sold to W. B. a quantity of cheese at 6k/. per lb. At the time the prisoner offered the cheese for sale, he bored two of them with an iron scoop, and produced a piece of cheese which is called " a taster " for the prosecutor to taste, and the prosecutor did so. The cheese, however, which he so tasted, had not in fact been extracted from the cheese from which it was pretended, but was a taster of another and superior kind of cheese, which the prisoner had privily inserted into the top of the scoop. The prosecutor would not have bought the cheese unless he had believed that the taster had been extracted from it. The cheese which had been so bought was delivered to the prosecutor, and he retained it. It was of a very inferior kind. The judges held the conviction right, on the authority of R. v. Kenrick, supra ; R. v. Abbott, \ Den. 0. C. 273. See also R. v. Goss, 29 L. J., M. C. 86, where the facts were almost identical. The prisoner called at a pawnbroker's shop with a chain, on which he asked for an advance of ten shillings. The pawnbroker asked if the chain was silver ; the prisoner replied that it was. The pawnbroker then examined the chain, and tested it with an acid, which the chain withstood. The pawnbroker then lenl the prisoner ten shillings on the chain, which he took as a pledge. He paid the money, relying on his own examination and test, and without placing any reliance on the statement of the prisoner. Evidence was admitted to prove that the prisoner a few days afterwards offered a chain similar in appearance to another pawnbroker, requesting him to advance ten shillings upon it. Twenty-six similar chains were found on the person of the prisoner when he was apprehended. The chains were worth a farthing an ounce, being much less than ten shillings each. The recorder told the jury that, though they could not convict of the offence charged in the indictment, they mighl convict the prisoner of an attempt, which they did. The judges, upon the authority of R. v. Abbott, supra, upheld the conviction; Jervis, 0. J., apparently, being the only one who approved of the decision; Parke, 1!.. who was present at the argument, bul gave qo judgment, was very strong against the conviction. R. v. Roebuck, 25 /.. J., M. 0. 101. The prisoner induced a pawnbroker to advance him money on some spoons which he represented as silver-plated spoons, which had as much silver on them as " Klkington's A" (known class of plated spoon), and that the foundations were of the host material. The spoons were plated with silver, but were to the prisoner's knowledge of very inferior quality, and not worth the money advanced on them. It was held by the court {dissentiente Willes, J., and dubitante Bramwell, J.), that this was not an indictable offence. R. v. Bryan, Dears. & B. 0. C. 265; 26 /,. J., M. 0. 84, The judgment of Willes, J., proceeded not so much on a different view 442 False Pretences. of the law, but on a different way of viewing the facts. He says, " If the matter was a simple commendation of the goods without any specific false- hood of what they were ; if it was entirely a case of one person dealing with another in the way of business, who might expect to pay the price of the articles whicb were offered for the purpose of pledge or sale, and knew what they were, I apprehend it would easily have been disposed of by the jury, who were to pass an opinion upon the subject, acting as persons of common sense and knowledge of the world, and abstaining from coming to any conclusion as that praise of that kind should have the effect of making the party resorting to it, guilty of obtaining money by a false pretence. I say nothing on the effect of a simple exaggeration except that it appears to me that it would be a question for the jury, in each case, whether the matter was such ordinary praise of the goods (dolus bonus) as that a person ought not to be taken in by it, or whether it was a represen- tation of a specific fact material to the contract, and intended to defraud, and did defraud, and by which the money in question was obtained. . . . It is said that the effect of establishing a rule, such as that for which I contend, would be to interfere with trade ; no doubt it would, and I think it ought to prevent trade being carried on in the way in which it is said to be carried on. ... I am far from wishing to interfere with the rule as to simple commendation or praise of the articles which are sold, on the one hand, or to fair cheapening on the other ; those are things persons may expect to meet with in the ordinary and usual course of trade ; but I cannot help thinking that people ought to be protected from any such acts, as those I have referred to, being resorted to for the purpose and with intent to cheat and defraud purchasers of their money, and trades- men of their goods. If the result of it would be to multiply prosecutions, that must be because we live in an age in which fraud is multiplied to a very great extent, and amongst others in this form. If there be such a commerce as requires to be protected by the statute being limited in the mode proposed, it ought to be made honest and conform to the law, and not the law bent to the purpose of allowing fraudulent commerce to go on." R. v. Bryan, supra. In R. v. Ardley, L. R., 1 C. C. R. 301 ; 40 L. J., M. 0. 85, the case of R. v. Bryan, supra, is commented upon, and it was pointed out that if the prisoner in that case bad represented the spoons as being in fact Elking- ton's manufacture when he knew they were not, he would have been rightly convicted, and in the present case, where the jury had found that the prisoner represented a chain as in fact 15-carat gold when he knew in fact that it was nothing of the sort, he was held rightly convicted. "Where the prisoner was indicted for falsely pretending that he was in the tea trade in Leicester, and that he had "good tea for sale, and that he did sell 16 packages which he falsely pretended were composed of good tea, and it was proved that he was not in the tea trade in Leicester, and that the mixture he sold was not tea at all, he was held to be rightly convicted. Kelly, C. B., in delivering the judgment of the court, said, "To call tea good when it was not good might be mere commendation, and not the subject of a criminal prosecution." R. v. Foster, 2 Q. B. D. 301; 46 L. J., M. C. 128. See also R. v. Garratt, 10 Times L. R. 167. A false representation of the value of a business upon the sale of the goodwill will not, it seems, support an indictment for obtaining money by false pretences, nor will such a representation when made for the pur- pose of obtaining a deposit from a proposed assistant in the business. R. v. Williamson, 11 Cox, 328. But where it is not a question of degree, and the fact is there is no business whatever, there is no doubt that the prisoner may be convicted. R. v. Crab, 11 Cox, 85. False Pretences. 443 2. As to quantity or weight. — The prisoner having agreed with the prosecutrix to sell and deliver a load of coal at a certain price per cwt., delivered a load which he knew to be only 14 cwt., but which he falsely and fraudulently pre tended to be 18 cwt., stating that it had been weighed at the colliery ; and he produced a ticket which showed the weight to be 18 cwt., and which ticket he said he had made out himself when the coal was weighed, and he thereupon received the money for 18 cwt. It was held that upon this evidence the prisoner was properly convicted of obtaining the money of the prosecutrix bv false pretences. 11. v. Sher- wood, Dears. & /!. C. C. 2.31 ; 26 L. J., M. C. 8. The difference between a mere lie and an indictable false pretence upon the subject of false weights is thus stated by Bramwell, B. : " If a man is selling an article, such as a load of coal, for a lump sum, and makes a false statement as to its weight or quantity, for the purpose of inducing the intended purchaser to complete the bargain, that is not a false pretence within the statute. But if he is selling it by quantity, and says there is a greater quantity than there really is, and thereby gets paid for a quantity of coal over ami a bove the quantity deli von id, I am quite satisfied he is indictable." R. v. Ridgway, 3 /•'. & F. 838 ; and see also R. v. L , L. & 0. 418; 35 /.. ./., M. 0. 171. J'ri it nces obviously false.'] Although the false pretences are so obviously false that no reasonable person ought to have been taken in by them, yet if in fact the property was obtained by moans of the false pretences, it is no defence to say that the prosecutor ought not to have been deceived. It appeared that the prisoner was the secretary of an Odd Fellows' Lodge, whose duty it was to receive money from the members at lodge hours, but not at other times. The prisoner made a written demand on J. B., a member, in the following form : — "I hereby give you notice, that you owe to your lodge for contributions, &c, the sum of 13s. 9d., due on the 20th instant." The 20th of November was the ensuing lodge-night. Prisoner brought this demand himself to J. B., who said, ''Do I owe that amount, 13s. 9d.?" Prisoner said, " You do." J. B. said, ''It is not very Long since I paid a sum at the lodge to you." Prisoner said. "That is what you owe" J. B. paid him. The real sum which would have boon duo on the 20th of November from J. B. was 2s. 2d. The prisoner did not pay over to the treasurer the 13s. 9d. received from J. B. It further appeared thai W. B. was a member of the lodge, and that on the L 8th of -I i he presented himself atthelodge.it being a Lodge-night, and thai the prisoner told him he could not be admitted till he was clear. W. li. asked what was duo. The prisoner said, 13s. 5c?. W. B. gave him a sovereign, and was thon admitted. The prisoner paid over to the treasurer os. only, which was the sum really due from W. B. Theprisoner was found guilty on both indictments, and a case was reserved as to whether there was in either a false pretence within the meaning of the ate. Erie, J., said: — "It was once thoughl thai the Law was only for the protection of the strong and prudent; that notion has ceased to prevail." Lord Campbell : -"If a tradesman, knowing thai a customer owes him nothing whatever, says that he owes him •">/. and gets the money, I think be comes within the statute I entirely agree with the observations of Lord Denman in /-'. v. Wickham, and think this case clearly within the statute." The rest of the court concurred. R. v. Woolley, 1 Ben. C. C. 559. The prisoner fraudulently pretended thai a genuine 1/. Irish bank-note was a 51. note, and thereby obtained the full change for a 51. note. It was held that he was properly convicted of obtaining money by false 444 False Pretences. pretences, although the person to whom the note was passed could read, and the note upon the face of it afforded ample means of detecting the fraud. R. v. Jessop, Dears. & B. C. C. 442 ; 27 L. J., M. C. 70. 3. The Property Obtained. " Chattel, money, or valuable security. ''^ The words used by the statute are any " chattel, money, or valuable security," and therefore the thing obtained must come within the meaning of these words. The meaning of " valuable security" is given by the interpretation clause of the Act, see post, tit. Larceny ; and as to what are " goods and chattels " and what are "valuable securities" generally, see the cases as to larceny of written instruments, post, Written Instruments. An unstamped order for the payment of money which ought to be stamped, was held not to be a valuable security within the statute. R. v. Yates, 1 Tl/oo. C. C. 170. But see R. v. Watts, 2 Den. C. 0. 14, infra, tits. Larceny, Possession obtained by Servants, and Written Instruments, and 24 & 25 Vict. c. 96, s. 1. G., a secretary to a burial society, was indicted for falsely pretending that a death had occurred, and so obtaining from the president an order on the treasurer in the following form : — "Bolton United Burial Society, No. 23, Bolton, Sept. 1st, 1853. Mr. A. Entwistle, Treasurer. Please to pay the bearer 2/. 10s. Greenhalgh, and charge the same to the above society, Bobert Ford. (Signed) B. B., President." It was held that this was a valuable security within the meaning of the repealed statute. See the 24 & 25 Tict. c. 96, s. 1, infra, tit. Larceny. R. v. Greenhalgh, Dears. C. C. 267. On the former statute it was held that no offence had been committed where a person by false pretences induced another to accept a bill of exchange, but now the Court for Crown Cases Beserved has held that where the prisoners by false pretences induced the prosecutor to make a promissory note he could be convicted under s. 90, supra, p. 429, although the promissory note might not be of any value until it had been delivered into the prisoner's hands. R. v. Gordon, 23 Q. B. I). 354 ; 58 L. J., M. C. 117, explaining R. v. Danger, Dears. & B. C. C. 307. A railway pass-ticket, enabling a person to travel free on the journey, is a " chattel " within the statute. "The ticket," said Pollock, C. B., in delivering the judgment of the court, " while in the hands of the party using it, was an article of value, entitling him to travel without further payment ; and the fact that it was to be returned at the end of the journey does not affect the question." R. v. Boulton, 1 Den. C. C. R. 508; 19 L. J., M. C. 67. As to the fact of its having to be returned at the end of the journey, see R. v. Kilham, ante, p. 432. The property need not be in existence at the time when the false pretence is made. R. v. Martin, supra, p. 433. Obtaining a dog by false pretences is not an obtaining a chattel within the repealed statute, as dogs are not the subject of larceny. R. v. Robinson, 1 Bell, C. C. 34 ; 28 L. J., M. C. 58. The defendant was indicted for obtaining money under false pretences. The first count stated the false pretences by which the defendant pro- cured the prosecutors to cash a cheque in favour of one Jacob, and concluded thus, " and obtained from them the amount of the cheque to be paid to the said Jacob, and further advances to him to answer other cheques drawn by him on the prosecutors, viz., &c, with intent, &c." In the second count it was alleged that the defendant, by means, &c, obtained a large sum of money, to wit, &c, from the prosecutors, and False Pretences. 445 also the cheque mentioned to be paid to the said Jacob, with intent, &c. It appeared in evidence that in order to induce the prosecutors, who were the defendant's bankers, to give him credit and honour his cheques, he delivered to them a bill drawn by him upon a person with whom he had no account, and which had no chance of being paid. The prosecutors paid the amount of the cheque to Jacob. The defendant was convicted, and on a case reserved for the opinion of the judges, they were of opinion that the prisoner could not be said to have obtained any specific sum on the bill ; all that was obtained was credit on account, and they there- fore held the conviction wrong. R. v. Wavell, 1 Moody, C. C. 224. See also R. v. Garrett, supra, p. 433. In R. v. Eagleton, supra, p. 440, all that the prisoner obtained was credit in account between him and the prosecutor. The money was not actually due till after the trial of the prisoner took place, but he was nevertheless held to be rightly convicted of attempting to obtain the money. See also R. v. Witchell, supra, p. 439. It is sufficient for the prosecutor to prove that some part of the goods, &c, stated in the indictment (for the rule in this respect is the same as in larceny, see that title) were obtained from him by the false pretences used. Proof of the fahe pretences being made.'] That the false pretences were made must be proved as laid. Where in the averment of the pretence it was stated ' 4 that the defendant pretended that he had paid a certain sum into the Bank of England," and the witness stated that the words used were "the money has been paid at the bank," Lord Ellenborough said, "In an indictment for obtaining money by false pretences, the pretences must be distinctly set out, and at the trial they must be proved as laid. An assertion that money has been paid into the bank is very different from an assertion that it had been paid into the bank by a particular individual. The defendant must be acquitted. R. v. Plestow, 1 Camp. 494. There the assertion that an individual had paid the money was not proved. See per Maule, J., in A', v. Hewgill, 1 Dears. & P. C. C. R. 322. But where the indictment charged, that the defendant having in his custody a certain parcel to be delivered, &c, for which he was to charge 6s., delivered a ticket for the sum of 9s. \0d. by means, &c, and it appeared in evidence that the parcel mentioned in the indictment was a basket of fish, it was objected that this was a variance ; but Lord Ellen- borough overruled the object ion, saying that a basket answered the general description of a parrel well enough. R. v. Douglas, 1 Camp. 212. It is sufficient if the actual substantial pretence, which was the main inducement to the prosecutor to part with his money, be alleged and proved; although it may bo shown by evidence that other matters, not laid in the indictment, operated in some measure upon the mind of the prosecutor as an inducement to him to part with his money. R. \ . Hewgill, 1 />>,/,■,■<. C. C. I!. 315; I!, v. English, 12 Cox, 171; R. v. Lince, 12 Cox, 451, ante, p. loT. But the rule that it is sufficient to prove any part of the pretences laid, if the property were obtained thereby, must be confined to those cases where such part is a separate and independent pretence ; for if false pretences are so connected together upon the record that one cannot be separated from the other, and the statement of one of those pretences is insufficienl in point of law, no judgment can be given on the other pretence. R. v. Wichham, 10 J. & E. 34, ante, p. 437. Parol evidence is admissible of the false pretences laid in the indict- ment, though a deed between the parties, stating different considerations for parting with the money, be also put in evidence for the prosecution, such deed having been made for the purpose of fraud. I,', v. Adamson, 446 False Pretences. 2 Moo. C. C. 286. The prisoner was indicted for falsely pretending that his wife was dead, with intent to defraud a benefit society. The stewards required a certificate of her death, and the prisoner produced to them a false one. It was held, that the real false pretence was that of the wife's death, and not the feigned certificate of it, which latter was the only evidence of the actual false pretence. R. v. Dent, 1 C. if; K. 249. "Where the false pretences are contained in a letter, and such letter has been lost, the prisoner, after proof of the loss, may be convicted on parol evidence of its contents. R. v. Chadwick, 6 0. & P. 181. The prisoner was indicted for obtaining a filly by the false pretence that he was a gentleman's servant, and had lived at Brecon, and had bought twenty horses in Brecon fair. It appeared that the prisoner bought the filly of the prosecutor, and made him this statement, which was false, and also told him that he would come down to the Cross Keys and pay him. The prosecutor stated that he parted with his filly, because he believed that the prisoner would come to the Cross Keys and pay him, and not because he believed that the prisoner was a gentleman's servant, &c. It was held by Coleridge, J., that the prisoner must be acquitted. R. v. Dale, 7 C. & P. 352 ; 2 Russ. Cri. 517, 6th ed. A. was indicted for a misdemeanor in unlawfully attempting, by false pretences made to " B. and others," to obtain goods, the property of the said B. and others, with intent thereby to cheat the said B. aud others of the same. It was proved that B. was one of a firm, and that the pretences were made to B. alone, though with intent to defraud the firm. On a case reserved, Jervis, C. J., said, in delivering his judgment, "I am of opinion that the conviction was right. The averment of the pretences may be viewed in three ways. The words ' B. and others ' may either mean ' B. and the rest of the firm,' in which case we should have to consider whether a pretence made to one partner alone may be laid as made to the whole firm; or they may mean 'B., and other persons,' not belonging to the firm, in which case, I think, proof of a pretence to B. alone would be sufficient ; or, which is, I think, the correct view, the words ' and others ' may be rejected as surplusage, and the objection of variance thereby removed." Erie, J. : "I think that the allegation of a pretence to B. and others only admitted proof of a pretence to B. alone ; it would perhaps have been different if the pretence had been laid as made to two persons, A. and B. by name ; proof of a distinct several pretence to each must then have been regarded." Martin, B. : "I think that the pretence as laid means a pretence to the firm, and was correctly proved." R. v. Kealey, 2 Den. C. C. 68 ; 20 L. J., M. C. 57. Proof of the falsity of the pretence. ~] This must be clearly proved. The prisoner bought from the prosecutor a horse for 12/. and tendered him in payment notes to that amount in the Oundle bank. ' On the prosecutor objecting to receive these notes, the prisoner assured him they were good notes, and upon this assurance the prosecutor parted with the horse. The prisoner was indicted for obtaining the horse on false pretences, viz., by delivering to the prosecutor certain papers purporting to be promissory notes, well knowing them to be of no value, &c. It appeared in evidence that these notes had never been presented by the prosecutor at Oundle, or at Sir J. Esdaile's in London, where they were made payable. A witness stated, that he recollected Bickett's bank at Oundle stopping payment seven years before, but added that he knew nothing but what he saw in the papers, or heard from the people who had bills there. The notes appeared to have been exhibited under a commission of bankruptcy against the Oundle Bank. The words importing the memorandum of False Pretences. 447 exhibit had been attempted to be obliterated, but the names of the com- missioners remained on each of them. The jury found the prisoner guilty, and said they were of opinion, that when the prisoner obtained the horse he well knew that the notes were of no value, and that it was his intention to cheat the prosecutor. On a case reserved, the judges held the conviction wrong, and that the evidence was defective in not sufficiently proving that the notes were bad. No opinion was given, whether this would have been an indictable fraud, if the evidence had been sufficient. B. v. Flint, liuss. & By. 460. The defendant was indicted for obtaining money by falsely pretending that a note purporting to be the promissory note of Coleman, Smith, and Morris, was a good and available note of C, S. and M., whereas it was not a good and available note. The defendant gave the note to the prosecutor in payment for meat. A witness proved that he had told the defendant that the Leominster bank (from which the note issued) had stopped payment. It was also proved that the bank was shut up, and that Coleman and Morris had become bankrupts ; but il appeared that Smith, the third partner, had not become bankrupt. Gaselee, J., said, that upon this evidence the prisoner must be acquitted, because, as it appeared that the note might ultimately be paid, it could not be said that the defendant was guilty of a fraud in passing it away. B. v. Spencer, 3 C. & P. 420; B. v. Clark, 2 hick. Q. S., by Talfowd, 31o; B. v. Evans, 29 L. J., M. C. 20, ace; B. v. Walne, 11 ( 'ox, 647. But where the note was the note of a bank which had been made bankrupt forty years before, and it was proved that the prisoner was aware of the fact, it was held that the evidence was sufficient to support a conviction, though the bankruptcy proceedings were not proved, and there was no evidence as to what dividend (if any) had been paid. R. v. Dowey, 37 L. J., M. C. 52 ; B. v. Hazelton, L. B., 2 C. C. B. 134 ; 44 A. J., M. C. 11, ante, p. 438. The question of proof was a good deal discussed in B. v. Copeland, supra, p. 436, whore; it was held, that the fact of the prisoner paying his addresses was siiilieient evidence for the jury on which they might find the first pretence that the prisoner was a single man, and in a condition to marry ; and thai this, coupled with the fact that he was at the time married to another woman, was sufficient evidence on which to find the falseness of the other pretence, that he was entitled to maintain his action for breach of promise of marriage. An indictment for false pretences alleged that the prisoner obtained goods by falsely pretending that a person who lived in a large house down the street, and bad a daughter married, had asked bini to procttte the goods. No person was named in the indictment, or appears to bare been named by the prisoner as being the lady in question. A lady was called who answered the description given by the prisoner, and denied thai she had ever asked the prisoner to procure any goods. The prisoner was convicted, and on a case reserved as to whether the false pretence; was sufficiently uegal ived by the evidence, the court affirmed the conviction. II. v. Burnsides, 30 /.. J., M. C. 42. The court probably thought that the jury must have been satisfied thai the lady called was from local circumstances sufficiently identified with the person alluded to by the prisoner. See also, on this point, the case of B. v. Powell, 54 I.. -/.> .1/. 0. 26, ante, p. 435, where demanding moneyin payment of premium on a life policy was held to be a representation that the policy was alive. Evidence confined to the issue.'] The general rule is applicable that the evidence must be confined to the issue, see p. 78. But sometimes a fraud is constructed out of a long series of transactions. If that is the 448 False Pretences. case, then all may be given in evidence upon their connection being shown. Thus in R. v. Welman, Dears. 0. 0. 188; 22 L. J., M. O. 118, the evidence showed that the prisoner, in July, 1850, called upon the prosecutrix and made false representations relative to a benefit club, but failed on this occasion to obtain any money. In August of the same year the prisoner again called relative to the club, and referred to the previous conversation. It was held on a case reserved that it was for the jury to say whether these conversations were so connected as to form one continuing representation, and that, if so, they might connect them. In R. v. Roebuck, supra, p. 441, the prisoner was indicted for obtaining money from a pawnbroker by falsely pretending that a chain was silver. Evidence was admitted that the defendant, a few days after the occasion in question, offered a similar chain to another pawnbroker, under similar circumstances. This was objected to, and the point, with other points, reserved. There is no trace of any discussion on this point, or any allusion to it in the judgment of the court, in any of the reports; but the conviction was affirmed. The defendant did not appear by counsel. In R. v. Holt, 30 L. J., M. C. Ill, the defendant obtained money by falsely representing to a creditor of his employer that he was authorized to receive payment of the debt. Evidence that the prisoner had subsequently obtained money from another creditor of his employer by a similar representation was admitted. But the Court of Criminal Appeal quashed the conviction, saying that the evidence was inadmissible. In this case no counsel appeared on either side, and no reasons are given in the judgment. The latter case, however, seems to overrule the inference which might be drawn from R. v. Roebuck. Evidence of a previous obtaining of money by similar false pretences is clearly admissible in order to show giulty knowledge. In R. v. Francis, L. R., 2,0. C.R. 12S; 43 Z.J"., M. C. 97, ante, pp. 1 , 87, where the prisoner was indicted for endeavouring to obtain an advance from a pawnbroker upon a ring by the false pretence that it was a diamond ring, evidence was held to be rightly admitted to the effect that two days before the transaction in question, the prisoner had obtained an advance from a pawnbroker upon a chain which he represented to be a gold chain, but which was not so, and endeavoured to obtain from other pawnbrokers advances upon a ring which he represented to be a diamond ring, but which, in the opinion of the witnesses, was not so. See ante, p. 86. Proof of intent to cheat or defraud.^ It must appear that the defendant obtained the money, &c. , with intent to cheat or defraud some person of the same. Thus, where in an indictment for obtaining money under false pretences, the allegation of the obtaining the money did not state that it was with intent, &c, the judges, on the point being reserved for their consideration, were of opinion that the indictment was bad. R. v. Rush- tvorth, Russ. & Ry. 317 ; 1 Stark. 396. So where a jury found a prisoner guilty but recommended him to mercy on the ground that he did not intend to defraud, it was held that this amounted to a verdict of not guilty. R. v. Gray, 17 Cox, 299. The primary intent must be to cheat and defraud. Thus, where the prisoner was indicted for having procured from the overseer of a parish from which he received parochial relief, a pair of shoes, by falsely pretending that he could not go to work because he had no shoes, when he had really a sufficient pair of shoes ; and it appeared in evidence, that on the overseer bidding him to go to work, he said he could not, because he had no shoes, upon which the overseer supplied him with a pair of shoes, whereas the prisoner had a pair before ; the prisoner being convicted, the False Pretences. 449 case was considered by the judges, who held that it was not within the Act, the statement made by the prisoner being rather a false excuse for not working than a false pretence to obtain goods. R. v. Waheling, Bass. 6 Ry. 504. A. owed B. a debt, of which B. could not obtain payment. C, a servant of B., went to A.'s wife, and got two sacks of malt from her, saying that B. had bought them of A., which he knew to be false, and took the malt to his master, in order to enable him to pay himself ; it was held by Coleridge, J., that if C. did not intend to defraud A., but only to put it in his master's power to compel A. to pay him a just debt, he could not be convicted of obtaining the malt by false pretences. R. v. Williams, 7 C. & P. 354. The prisoner, on entering the service of a railway company, signed a book of rules — a copy of which was given to him — one of the rules was ' ' no servant of the company shall be entitled to claim payment of any wages due to him on leaving the company's service until he shall have delivered up his uniform clothing." On leaving the service, the prisoner knowingly and fraudulently delivered up to an officer of the company, as part of his uniform, a great coat belonging to a fellow servant, and so obtained the wages which would have been due to him. It was held that he was properly convicted of obtaining the money by false pretences. R. v. Hull, 14 Cox, 60S. It is no defence to a charge of obtaining goods by false pretences that at the time of falsely pretending or of obtaining, the defendant intended to pay the price of the goods when it should be in his power to do so. B. v. Naylor, L. B., 1 C. C. B. 4 ; 35 Jj. J., M. C. 61. A defendant was charged in the first count of an indictment with having falsely pretended that he was Mr. II., who had cured Mrs. C. at the < >xford Infirmary, and thereby obtained one sovereign with intent to defraud Gr. P. " of the same." The second count laid the intent to be to defraud (i. P. " of the sum of 5s., parcel of the value of the said Last-mentioned piece of current gold coin." It was proved that the defendant made the pretence, and thereby induced the prosecutor to buy, at the price of 5s., a bottle containing something which he said would euro the eye of the prosecutor's child. The prosecutor gave him a sovereign, and received 15s. in change. It was further proved that the defendant was not Mr. II. It was held that this was a false pretence within the Act, and that the intent was properly laid in the second count. B. v. Bloomfield, Car. & M. 537. But see the note to ft. v. Leonard, 1 Den. C. C. R.' 306, where it is suggested that the second count in B. v. Bloomfield was bad, as averring an obtaining of one thing with intent to cheat of another. In ft. v. Leonard, the first count of the indictment charged the prisoner with obtaining from the prosecutor an Order for the payment of 14/. Is. 2'/. by false pretences, with intent to defraud him of the same: the evidence as to this count was that the prisoner only intended to defraud the prosecutor of 7«., as the rest of the money was really due ; it was held that the first count was proved. The second count was similar to the second count in I!, v. Bloomfield, and the court recommended the recorder, who had reserved the case, to pass a separate sentence upon it. Now. by the 24 & 25 Vict. c. 96, s. 88, supra, p. -12!), it is sufficient to allege in the indictment . ••that the defendant did the act with intent to defraud, without alleging the intent of the defendant to be to defraud any particular person." And by the same section it is not necessary " to prove an intent on the pari of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the acl charged with intent to defraud." Proof of the oiunership of the property."] The property obtained bymeans of the false pretences must be proved to be the property of the party R. G G 450 False Pretences. mentioned in the indictment. The prisoner was indicted for obtaining the sum of 3s. 4d. of the moneys of the Countess of Ilchester. It appeared in evidence that the prisoner brought a basket of fish, which he delivered to the servant of the Countess, with a false ticket, charging 3s. -id. too much for carriage. The servant paid him the full amount and was repaid by Lady Ilchester. On it being objected, that at the time of payment this was not her money, Lord Ellenborough said, that her subsequent allow- ance did not make the money paid to the defendant her money at the time. She was not chargeable for more than was actually due for the carriage, and it depended upon her whether she should pay the overplus. The servant, however, afterwards swore that, at the time of this transaction, he had in his hands upwards of 9s. 10cZ. (the whole sum charged), the property of his mistress, which Lord Ellenborough considered sufficient to sustain the averment. R. v. Douglas, 1 Campb. 212. A., B., and C. entered into partnership for the sale of lamps. It was afterwards agreed that A. should act as agent for the sale of the lamps on commission, and that his expenses and the commission to which he might be entitled should be deducted from the amount of the sales before the profits were divided between the partners. A. falsely pretended that he had received orders for 100 lamps, whereby he obtained from B. and C. 12/. 10s., which would be the amount of his commission. It was held that, inasmuch as his charges were to be payable out of the capital funds of the partnership, and would thus be a matter of account between him and his partners, he could not be convicted. R. v. Evans, 32 L. J.. M. (J. 38. Pretence to one person — money obtained from another.] A prisoner was indicted for obtaining money from A. by false pretences. The false pre- tence was made to A., who told the prisoner to go to his wife for the money. A.'s wife gave the money to the prisoner, A. not being present. The prisoner was convicted, and the court confirmed the conviction. R. v. Moseley, L. i animals in which there is no property, as of beasts that are/ene naturai and unreclaimed, such as deer, hares, or conies in a forest, chase, or warren, fish in an open river or pond, or wild fowl at their natural liberty, although any person may have the exclusive right ratione loci aid privilegii, to take them if he can in those places. 1 Huh, /'. C. 511 ; 4 HI. Com. 235, 6; 2 East, P. C. 607. So of swans, though marked, if they range out of the royalty, because it cannot be known that they belong to miv person. 1 Hale, I'. C. 511. So of rooks in a rookery. See Hannam v. Mockett, 2 B. & C. 934 ; 4 />. & R. 518. Where animals j'tru inituro are dead, reclaimed (and known to be so), or confined, and may serve for food, it is larceny at common law to take them. Thus, deer enclosed in a park, fish in a trench or net, or, as it slmnld seem, in any other place which is private property, and where they may be taken at the pleasure of the owner at any time, pheasants or partridges in a mew, young hawks in a nest, or even old ones, or falcons reclaimed, and known by the party to be so. 1 Hale, I'. < '. 511 ; 2 East, P. C. (i()7 ; II. v. Cory, 10 Cox, '!'■'>. So of young pigeons in a dovecot. 1 Hah. P. ('. 511. And the Court of Criminal Appeal has decided, that tame pigeons, although unconfined with free access at their pleasure to the open air, are the subjects of larceny; Campbell, C. J., in pronouncing judgment, saying, " We all think that tame pigeons may be the subject of larceny, although they have the opportunity of getting out and enjoy- ing themselves in the open air." II. \. Cheafor, 2 Den. C. C. 361. So of tame pheasants. II. v. Head, 1 /'. &. F. 350. So of partridges three weeks old, and able to fly, reared in a coop since removed, they still H returning to sleep under a hen's wings, II. v. Shickle, L. II., 1 C. C. II. 158; 38 L. J., M. C. 21. Of the eggs of hawks or swans, though reclaimed, larceny cannot be committed, the reason of which is said to be, that a less punishment, namely, fine and imprisonment, is appointed by statute for that offence. 2 East, P. ( '. <>u7 : 2 Rnss. < 'ri. 217. 6th »i a misdemeanor, and being convicted thereof shall be liable, at the dis- cretion of the court, to be imprisoned for any term not exceeding three months, with or without hard labour, and with or without solitary con- finement ; and it shall be sufficient in any indictment to describe either by name or otherwise, the bed, laying, or fishery in which any of the said offences shall have 1 been committed, without stating the same to be in any particular parish, township, or vill ; provided that nothing in this section contained shall prevent any person from catching or fishing for any floating fish within tin* limits of any oyster fishery, with any net, instrument or engine adapted for taking floating fish only." By the 31 & 32 Vict. «•. 45, 8. 51, all oysters and mussels being in or on an oyster or mussed bed within the limits of a several oyster and mussel fishery granted by an order under this part of this Act, and all oysters being in or on any private oyster bed which is owned by any person in- dependently of tliis Act, and is sufficiently marked out or sufficiently known as such, shall be the absolute property of the grantees, or of such owner, as the case may be, and in all courts of law and equity, and else- where, and for all purposes, civil or criminal, or other, shall be deemed to be in the actual possession of the grantees and such owner respectively. By s. 52, all oysters and mussels removed by any person from an oyster or mussel bed within the limits of any such several fishery, and all oysters removed by any person from any such private oyster bed, and not either sold in market overt or disposed of by or under the authority of the grantees or owner (as the case may be), shall be the absolute property of the grantees and owners respectively, and in all courts of law and equity, and elsewhere, and for all purposes, civil, criminal, or other, the absolute right to the possession thereof shall be deemed to be in the grantees and owners respectively. 458 Fish. By s. 55, when two or more oyster or mussel beds or fisheries belonging to different proprietors are contiguous to each other, and any proceeding by indictment or otherwise is taken against any person for stealing oysters or mussels from any bed formed under an order made in pursu- ance of this part of this Act, or for stealing oysters from any bed formed independently of this Act, it shall be sufficient in alleging and proving the property and lawful possession of the oysters or mussels stolen, and the place from which they were stolen, to allege and prove that they were the property of, and in the lawful possession of one or other of such proprietors, and were stolen from one or other of such contiguous beds or fisheries. As to destroying the dams of fish ponds, &c, see tit. Sea and Hirer Banks, <&c. As to poisoning fish, see tit. Poison. Fixtures. 459 FIXTURES. At common law larceny could not be committed of tilings which were attached to land, or which belonged to it, as trees, grass, bushes, bridges, stones, the lead of a house and the like; 1 Hale, P. 0. 510 ; '2 East, P. C. 587 ; and this is said to extend not only to things actually attached to the realty, but to things savouring of and belonging to the realty, as title deeds. U. v. Westleer, 1 Lea. 12; R. V. Walker, 1 Moo. C. C. "loo. But this would probably nut now be extended, as it has frequently been held that if these things be severed from the freehold, as wood cut, grass in cocks, stones dug out of a quarry, &c, then felony may be committed by stealing them, for then they are personal goods. So if a man came to steal trees, or the lead of a church, and severed it, and after about an hour's tunc came and fetched it away, this was held felony, because the act was not continued, but interpolated, and in that interval the property lodged in the right owner as a chattel; and so with regard to corn standing on the ground, for that is a chattel personal. 1 Hale, P. 0. 510. "If," says Gibbs, C. J., "a thief severs a copper, and instantly carries it away, it is no felony at common law. yet if he lets it remain after it is severed any time, then the removal constitutes a felony, if he comes back and takes it ; and so of a tree; which hasbeen some time severed." Lee v. Ridson, 7 Taunt. 191. The rule on this subject is thus stated by the criminal law commissioners : " Although a thing be part of the realty, cu- be any annexation to, or unsevered produce of the realty, yet if any person sever it from the realty with intent to steal it, after an interval, which so separates The acts of severance and removal that they cannot be considered as one continued act, the thing taken is a chattel, the subject of theft, notwithstanding such previous connection with the realty. If any parcel of the realty, or any annexation to or unsevered produce of the realty be severed, otherwise than by one who afterwards removes the same, it is the subject of theft, notwithstanding it be stolen instantly after that severance." 1st ReJ) p. 11. It seems, this must be taken to mean, thai it islarcenyif a thing is severed and the party severing has gone away and abandoned all kind of possession, and afterwards, when his wrongful possession has ceased, he comes again and resumes it; but a mere interval of lime, during which there was no full possession by the wrong-doer, would not render a subsequent carrvini;' away larceny. Per Blackburn, J., /.'. v. Townley, I.. //., 1 0. C. I!. 315; 40 L. J., M. C. 144. In the above case some poachers killed rabbits, and deposited them on the land where they had killed them. One of the poachers afterwards returned and carried the rabbits away. It was found as a fact that the poachers had no intention of abandoning the rabbits, but only deposited them for convenience. It was held that the prisoner who subsequently removed them could not be convicted of larceny. Now by the 24 & 25 Vict. c. !><), s. 31, "whosoever shall steal, or shall rip, cut, sever, or break with intent to steal, any glass or wood work 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. 6 460 Fixtures. respectively fixed in or to any building whatsoever, or any thing made of metal fixed in any land being private property, 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, shall be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of simple larceny; and in the case of any such thin^ fixed in any such square, street, or place as aforesaid, it shall not be necessary to allege the same to be the property of any person." See, as to the punishment, 24 & 25 Vict. c. 96, ss. 4, 7, 8, 9, infra, tit. Larceny. As to the proof of previous summary convictions for larceny, see 24 & 25 Vict. c. 96, s. 112, ib. As to venue, see 24 & 25 Vict. c. 96, s. 114, ib. It has been held in Ireland that where a trespasser cut growing grass on another's close, and returned three days afterwards and carried it away, he was rightly convicted of larceny. It. v. Foley, 17 Cox, 142. Upon the repealed statute, it was held, that a person who procured possession of a house under a written agreement between him and the landlord, with a fraudulent intention to steal the fixtures belonging to the house, was, in stealing the lead affixed to the house, guilty of a felony within the statute. R. v. Munday, 2 Leach, 850; 2 East, P. C. 594. The statute, by omitting to specify any particular building, and using ■only the words, "any building whatsoever," has removed the doubts which previously existed. It. v. Norris, Rass. & By. 69 ; It. v. Parker, 2 East, P. C. 592. An unfinished building intended as a cart-shed which was boarded up on all its sides, and had a door with a lock to it, and the frame of a roof ready for thatching with loose gorse thrown on, was held by Littledale, J., to be a building. R. v. Worrall, 7 C. & P. 516. Upon the words, " any square, street, or other place dedicated to public use or ornament," it has been held that a churchyard comes within the meaning of the Act ; per Bosanquet, J., R. v. Blick, 4 C. & P. 377 ; see also R. v. Reece, 2 Muss. Cri. 226, 6th eil. ; and a similar decision with respect to a tombstone in a churchyard, in R. v. Jones, 2 Russ. Cri. 224, 6th ed. The prisoner was indicted (in the usual form) for stealing lead affixed to a building. The jury found him guilty of steaUng the lead when lying severed, but not of stearin? it when fixed. Tindal, C. J., after conferring with Vaughan, B., held that the prisoner could not be found guilty of a simple larceny on such an indictment, and directed a verdict of not guilty to be entered. It. v. Oooch, 8 C. & P. 293. An indictment for stealing a copper pipe fixed to the dwelling-house of A. and B., is not supported by proof of stealing a pipe fixed to two rooms, of which A. andB. are separate tenants, in the same house. R. v. Finch, 1 Moo. C. C. 418. A copper sun-dial fixed on the top of a wooden post standing in a churchyard is "metal fixed to land" within the above section. R. v. Jones, Dears. & B. 555 ; 27 L. J, M. C, 171. The prisoner was indicted for stealing lead fixed to a wharf, and it was proved that the wharf was made of bricks and timber; it was held that it was sufficiently alleged and proved that the lead was affixed "to a building." It. v. Rice, Bell, C. C. 87 : 28 L. J., M. C. 64. Forcible Entry and Detainer. 46t FOECIBLE ENTBY AND DETAINEE. Offence at common lait\~\ It seems that entering with such force and violence into lands or tenements, as to exceed a bare trespass, was am offence indictable at common law. Wilson's case, 8 T. R. 'Sol ; 1 Russ. Ori. 717, 6th ed. But against this offence provision has been made by various statutes. Offence by statute.'] The first enactment against forcible entries is that of 5 Eic. 2, st. 1, c. 7, which merely forbids them. By the 15 Eic. 2, c. 2, it is accorded and assented that the ordinances- and statutes, made and not repealed, of them that make entries with strong hand into lands and tenements or other possessions whatsoever, and them hold with force, and also of those that make insurrections, or great ridings, riots, routs or assemblies in disturbance of the peace or of the common law, or in affray of the people, shall be holden and kept, and fully executed, joined to the same that at all times that such forcible- entry shall be made, and complaint thereof cometh to the justices of the peace, or to any of them, that the same justices or justice take sufficient power of the county, and go to the place where such force is made ; and if they find any that hold such place forcibly after such entry made, they shall be taken and put in the next gaol, there to abide convict by the record of the same justices or justice, until they have made fine and ransom to the king. This statute was followed by that of 8 lien. 6, c. 9, which, after reciting the 15 Eic. 2, c. 2, enacts for that the said statutedoth not extend to entries in tenements in peaceable manner, and after holden with force, nor if the persons which enter with force into lands and tenements be removed and voided before the coining of the said justices or justice as before, nor any pain ordained if the sheriff do not obey the commandments and precepts of the said justices, for to execute the said ordinances, many wrongful and forcible entries be daily made in lands and tenements, by such as have no right, and also divers gifts, feoffments and discontinuances, some- times made to lords and other puissant persons, and extortioners, within the said cmxnties where they be conversant, to have maintenance, and sometimes to such persons as be unknown to them so put out, to the intent to delay and defraud such rightful possessors of their right and recovery for ever, to the final disherison of divers of the king's faithful Liege people, and likely daily to increase, if due remedy be not provided in this behalf, enacts, that from henceforth, where any doth make any forcible entry on land- and tenements, or other possessions, or them hold forcibly after complaint thereof made within the same county where such entry is made, to the justices of the peace, or to one of them, by the party grieved, that the justice.- or justice so warned within a convenient time shall cause, or one of them shall cause, the said statutes duly to be executed, and that at the cost of the party so grieved. See J,', v. Wilson, yes/, p. 4f>;>. By s. 9 of this statute, the justices are directed to re-seize the lands or tenements entered upon, and to put the party put out into full possession 462 Forcible Entry and Detainer. of the same. But it is provided by s. 7, that they who keep their posses- sion with force, in any lands and tenements whereof they or their ancestors, or they whose estate they have in such lands and tenements have continued their possession in the same, for three years or more, be not endamaged by the statute. This proviso is enforced by the 31 Eliz. c. 11, s. 3, which declares that no restitution shall be made, if the person indicted has had the occupation or been in quiet possession for the space of three whole years together, next before the day of the indictment found, .and his estate therein not ended or determined. In order to extend the remedy for forcible entries upon other estates than those of freehold, it was, by 21 Jac. 1, c. 15, enacted, "that such judges, justices, or justices of the peace as, by reason of any Act or Acts of parliament now in force, are authorized and enabled, upon inquiry, to give restitution of possession unto tenants of any estate of freehold, of their land or tenements which shall be entered upon with force, or from them withholden by force, shall by reason of this present Act have the like and the same authority and ability from henceforth (upon indictment of such forcible entries, or forcible withholding before them duly found), to give like restitution of possession unto tenants for term of years, tenants by copy of court-roll, guardians by knight's service, tenants by elegit, statute-merchant and staple, of lands or tenements by them so holden, which shall be entered upon by force, or holden from them by force." Upon a prosecution under these statutes the prosecutor must prove, 1, the entry or detainer; 2, that it was forcible; 3, the possession upon which the entry was made ; and 4, that it was made by the defendant. Proof of the entry or detainer.'] A forcible entry or detainer is com- mitted by violently taking or keeping possession of lands or tenements by menaces, force and arms, and without the authority of law. 4 Bla. Coin. 248. It must be accompanied with some circumstances of actual violence or terror, and therefore an entry which has no other force than such as is implied by law in every trespass, is not within the statutes. Hawk. P. C. b. I.e. 64, s. 25. The entry may be violent, not only in respect to violence actually done to the person of a man, as by beating him if he refuses to relinquish possession ; but also in respect to any other kind of violence in the entry, as by breaking open the doors of a house, whether any person be within or out, especially if it be a dwelling-house ; and perhaps by acts of outrage after the entry, as by carrying away the party's goods. Pbid. s. 26 ; see 3 Burr. 1702 (n). But if a person who pretends a title to lands, barely goes over them, either with or without a great number of attendants armed or unarmed, in his way to the church or market, or for such like purposes, without doing any act which expressly or impliedly amounts to a claim to such lands, this is not an entry within the meaning of the statutes. Hawk. P. (J. b. 1, c. 64, s. 20. Drawing a latch and entering a house is said not to be a forcible entry, according to the better opinion. /'/. s. 26; Bac. Abr. Forcible Entry (B) ; 1 Bvss. Cri. 724, 6th ed. Proof of the force am/ violence."] Where the party, either by his behaviour or speech, at the time of his entry, gives those who are in pos- session just cause to fear that he will do them some bodily hurt if they do not give way to him, his entry is esteemed forcible, whether he cause the terror by carrying with him such an unusual number of servants, or by arming himself in such a manner as plainly to intimate a design to back his pretensions by force, or by actually threatening to kill, maim, or beat Forcible Entry and Detainer. 463 those who continue in possession, or by making use of expressions which plainly imply a purpose of using force against those who make resistance. Hawk. P. C. b. 1, c. (34, s. 27. But it seems that no entry is to be judged forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any similar damage, which is not personal. Id. s. 28 ; sed ride supra. It is not necessary that there should be any one assaulted to constitute a forcible entry ; for, if persons take or keep possession of either house or land, with such numbers of persons and show of force as are calculated to deter the rightful owner from sending them away, and resuming his own possession, that is sufficient in point of law to constitute a forcible entry, or a forcible detainer. Per Abbott, C. J., Milner v. Maclean, 2 C. & P. 18. An indictment for a forcible entry cannot be supported by evidence of a mere trespass, but there must be proof of such force, or at least such kind of force as is calculated to prevent any resistance. Per Lord Tenterden, C. J., R. v. Smyth, 5 C. & P. 201. Proof that the detainer mas forcible."] The same circumstances of violence or terror which make an entry forcible will make a detainer for- cible also ; therefore, whoever keeps in his house an unusual number of people, or unusual weapons, or threatens to do some bodily hurt to the former possessor if he return, shall be adjudged guilty of a forcible detainer, though no attempt is made to re-enter; so, also, it is said, if he place men at a distance from the house, to assault any one who shall attempt to make an entry ; but barely refusing to go out of a house, and continuing therein in despite of another, is not a forcible detainer. Hawk. P. 0. b. 1, c. 64, s. 30. So where a lessee, at the end of his term, keeps arms in his house to prevent the entry of the lessor, or a lessee at will retains possession with force, after the determination of the will : these are forcible detainers. <'mn. Dig. Fore. Bet. (B. 1). The statute lo Eic. 2. only gave a remedy in cases of forcible detainer where there had been a previous forcible entry ; but the statute 8 Hen. 6, c. 9, gives a remedy for forcible detainer after a previous unlawful entry, for the entry may be unlawful though not forcible. II. v. Oakley, 4 /!. .0 Ad. 307. But it does not hence follow that the statute 8 Hen. 6 does not apply to the case of a tenant at will, or for years, holding over after the will is determined, or the term expired ; because the continuance in possession afterwards may amount, in judgment of law, to a new entry. Per Parke, J., id. p. 312, citing Hawk. P. ('. l>. 1, c. 64, s. 34. A conviction for a forcible detainer is bad, if it only states that the pro- secutor complained to the justices of an entry and unlawful expulsion and forcible detainer, and that they personally came and found the defen- dant forcibly detaining the premises, whereupon they convict him, &c. For the justices cannot know by their view without evidence that the detainer was unlawful, or that there had been an unlawful entry. Semble, that the conviction ought to show that the defendant was summoned, or had otherwise an opportunity to defend himself. Held, also, that the court was bound to award are-restitution, as a consequence of quashing the conviction without enquiring into the legal or equitable claims of the respective parties. 11. v. Wilsun, 3 A. &E. 817 ; Attwoodv. Joliffe, 3 \'< w Sess. Cas. 116. Proof of the possession upon which the entry was made.] With regard to the kind of entry in respect of which a person may be guilty of a forcible entry, it is said by Hawkins to be a general rule, that a person may be indicted for a forcible entry into such incorporeal hereditaments, for which 464 Forcible Entry and Detainer. a writ of entry will lie either at common law, as for rent, or by statute, as for tithes ; but that there is no good authority that such an indictment will lie for a common or an office. So no violence offered in respect of a way or other easement will make a forcible entry. Hawk. P. C. b. 1, c. 64, s. 31. Nor can a person be convicted under the 15 Eic. 2, of a detainer of any tenements into which he could not have made a forcible entry. Ibid. There seems now to be no doubt that a party may be guilty of a forcible entry, by violently and with force entering into that to which he has a legal title. Newton v. Harland, 1 M. & G. 644 ; 1 Buss. Cri. 718 (n), 6th ed. See also R. v. Studd, 14 W. R. 806; 14 L. T., N. S. 633. In Newton v. Harland, supra, the judges thought that a landlord might be guilty of a forcible entry after the expiration of his tenant's term both at common law and under the statutes ; but that possession so obtained might, nevertheless, be legal. See Davison v. Wilson, 11 Q. B. N90 ; Barling v. Read, lb. 904. The possession of a joint tenant, or tenant in common, is such a posses- sion as may be the subject of a forcible entry or detainer by his co-tenant ; for though the entry of the latter be lawful per mie et per tout, so that he cannot in any case be punished for it in an action of trespass, yet the law- fulness of the entry is no excuse for the violence. Hawk. P. C.b.l, c. 64, s. 33. Upon an indictment founded on the 8 Hen. 6, it must be shown that the entry was on a freehold ; and if founded on the 21 Jac. 1, that it was upon a leasehold, &c, according to that statute. R. v. Wannop, Sayer, 142. On a prosecution for a forcible entry on the possession of a lessee for years, it is sufficient to prove that such lessee was possessed, although the indictment allege that the premises were his freehold. R. v. Lloyd, Gold. 415. Proof that the party holds colourably, as a freeholder or lease- holder, will suffice ; for the court will not, on the trial, enter into the validity of an adverse claim, which the party ought to assert by action, and not by force. Per Vaughan, B., B. v. William*, Talf. Dick. Sess. 239. Proof that the offence was committed by the defendant.'] This offence may be committed by one person as well as by several. Hawk. P. C. b. 1, '■. (>4, s. 29. All who accompany a man when he makes a forcible entry will be adjudged to enter with him, whether they actually come upon the land or not. Id. s. 22. So also with those who, having an estate in land by a defeasible title, continue by force in possession, after a claim made by one who has a right of entry. Id. s. 23. But where several come in company with one who has a right to enter, and one of the company makes a forcible entry, that is not a forcible entry in the others. 3 Bac. Abr. Forcible Entry (B). And a person who barely agrees to a forcible entry made to his use, without his knowledge or privity, is not within the statutes, because he no way concurred in or promoted the force. Hawk. P. C.b.l, c. 64, s. 24. An infant or feme covert may be guilty of a forcible entry, for actual violence done by such party in person ; but not for violence done by others at their command, for such command is void. A feme covert, it is said, may be imprisoned for such offence, though not an infant, because he shall not be subject to corporal punishment by force of the general words of any statute in which he is not expressly named. Hawk. P. C. b. 1, c. 64, s. 35. A feme covert may be guilty of a forcible entry, by entering with violence into her husband's house. R. v. Smyth, 5 C. & P. 201. Forcible Entry and Detainer. 465 Award of restitution.'] The court in which the indictment is found, or the Court of King's Bench upon the removal thither of the indictment by certiorari, has power on the conviction of the defendant to award restitu- tion to the party upon whose possession the entry has been made. Hawk. P. C. b. 1, c. 64, ss. 49, .30, .31. Though by the provisoes in the statutes of Hen. 6 and Jac. 1 , the defendants may set up a possession of three years to stay the award of restitution. Id. s. 53. A supersedeas of the award of restitution may be granted by the same court that made the award. Id. s. (51. And a re-restitution may be awarded by the King's Bench. / OFFEXCES CONNECTED THEREWITH. Forgery at common law.'] At common law the offence of forgery was punishable as a misdemeanor. It is defined by Sir W. Blackstone as "the fraudulent making or altering of a writing to the prejudice of another man's right " ; 4 Com . 247 ; and by Mr. East, as " a false making, a making malo animo, of any written instrument for the purpose of fraud and deceit." 2 East, P. C. 852. Forgery consists not in making a deed which has a false statement in it, but in making an instrument appear to be what it is not. Per Blackburn. J., in B. v. Bitson, L. B,., 1 0. C. B. 200; 39 L. J., M. C. 10. Ex parte Windsor, 34 L. J., M. C. 163. The forgery of any document, whether public or private, with intent to defraud, is punishable as a misdemeanor at common law. And in B. v. Hodgson, Dears. & B. C. C. 3; 25 L. J., M. C. 78, the court said it was unnecessary to consider whether or not the document which the prisoner was charged with forging (a diploma of the College of Surgeons) was of a public nature or not, because, whether it was or was not, in order to make out the offence there must have been, at the time of the instrument being forged, an intention to defraud some person. The distinction, therefore, as to the intent to defraud, between the forgery of public and private documents at common laiv, which has sometimes been drawn, seems to be of little importance. If any other inference is to be drawn from the passage in Haivh. P. ('. b. 1, c. 21, s. 11, it must be considered as overruled by this case. There are indeed many public documents the forgery of which is made punishable by statute as a criminal offence without any intent. But these provisions in no way affect the general prin- ciple of law just stated ; on the other hand, they impliedly recognize it, as, had it been otherwise, they would, many of them, have been unnecessary. It is now clear that forging any document, with a fraudulent intent, and whereby another person may be prejudiced, is within the rule. Thus, it was held that forging an order for the delivery of goods was a misde- meanor at common law. B. v. Ward, Str. 747 ; 2 Ld. Baym. 1461. And the same was held with regard to a document purporting to be a discharge from a creditor to a gaoler, directing him to discharge a prisoner in his custody. B. v. Fawcett, 2 East, P. C. 862. II. v. Ward is considered by Mr. East to have settled the rule, that the counterfeiting of any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery at common law. 2 East, P. C. 861. Forgery at common law must be of some document or writing. Therefore where the prisoner was indicted for forging the name of an artist, and the evidence was that he painted it in the corner of a picture, with intent to pass off the picture as a work of that artist, this was held not to be a forgery. But that, if money had been obtained by the fraud, the defendant was indictable for a cheat at common law. B. v. Gloss, Dears. & B. C. C. 460; 27 L. J., M. C. 54. So where the prisoner caused wrappers to be printed similar to those of another tradesman, and sold in Forgery'. 467 them a composition called "Borwick's Baking Powder," but caused the signature and the notification that without such signature no powder was genuine, which appeared on the genuine wrappers, to he omitted ; it was held that this was no forgery, though the jury found that the wrappeis were procured by the prisoner with intent to defraud. R. v. Sm ith. Dears. !> or puts oft', knowing the same to be forged or altered, any certificate or duplicate certificate required by Part 6 of the National Debt Act, 1870, or by any former like enactment, with intent in any of the cases aforesaid to defraud, he shall be guilty of felony." Punishment the same as in s. 1 of 24 & 2.j Vict. c. 98, supra. Personating the owner of stock, and transferring or receiving dividends."] By the 24 & 25 Vict. c. 98, s. 3, " whosoever shall falsely and deceitfully personate any owner of any share or interest of or in any stock, annuity, or other pubiic fund which now is or hereafter may be transferable at the bank of England, or at the bank of Ireland, or any owner of any share or interest of or in the capital stock of any body corporate, company, or society which now is or hereafter may be established by charter, or by, under, or by virtue of any Act of parliament, or any owner of any dividend or money payable in respect of any such share or interest as aforesaid, and shall thereby transfer or endeavour to transfer any share or interest belonging to any such owner, or thereby receive or endeavour to receive any money due to any such owner, as if such offender were the true and lawful owner, shall be guilty of felony." Punishment same as in s. 1 of the Act, supra. Forging attestation to power of attorney for transfer of stock."] By s. 4, "whosoever shall forge any name, handwriting, or signature, •purporting to be the name, handwriting, or signature of a witness attesting the execution of any power of attorney or other authority to transfer any share or interest of or in any such stock, annuity, public fund, or capital stock as is in either of the last two preceding sections mentioned, or to receive any dividend or money payable in respect of any such share or interest, or shall offer, utter, dispose of, or put off any such power of attorney or other authority, with any such forged name, handwriting, or signature thereon, knowing the same to be forged, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years " (see ante, p. 203). Making false entries in the haul,* of the public funds.] By s. i>, "whoso- ever shall wilfully make any false entry in, or wilfully alter any word or figure in, and of the books of account kept by the bank of England or the bank of Ireland, in which books the accounts of the owners of any stock, annuities, or oilier public funds which now are or hereafter may be trans- ferable at the bank of England or at the bank of Ireland shall be entered and kept, or shall in any manner wilfully falsify any of the accounts of any such owners in any of the said books, with intent in any of the cases aforesaid to defraud, or shall wilfully make any transfer of any share or interest of or in any slock, annuity, or other public fund which now is or hereafter may he transferable at the bank of England or at the bank of Ireland, in the name of any person not being the true and lawful owner of such share or interest, with intent to defraud, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. Clerks of th bank making out falsi dividend warrants.] By s. (J, "who- soever, being a clerk, officer, oi servant of, or other person employed or entrusted by the bank of England, or the hank of Ireland, shall knowingly make out or deliver any dividend warrant or warrant for payment of any annuity, interest, or money payable at the bank of England or Ireland for a greater or less amount than the person on whose behalf such warrant shall be made out is entitled to, with intent to defraud, shall be guilty of 470 Forgery. felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years" (see ante, p. L'03). Forging East India securities.] By s. 7, " whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any bond commonly called an East India bond, or any bond, debenture, or security issued or made under the authority of an Act passed or to be passed relating to the East Indies, or any indorsement on or assignment of any such bond, debenture, or security, with intent to defraud, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. Forging East India loan securities.'] By the East India Loan Acts, 1873, 1874 (36 & 37 Vict. c. 32, s. 13 ; 37 & 38 Vict. c. 3, s. 13), the provisions of the above (s. 7) are extended to the debentures and bonds issued under those Acts. Forging exchequer bills, bonds, debentures, &c] By s. 8, " whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any exchequer bill, or exchequer bond, or exchequer debenture, or any indorsement on or assignment of any exchequer bill, or exchequer bond, or exchequer debenture, or any receipt or certificate for interest accruing thereon, with intent to defraud, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. Making plates, &c. in imitation of those used for exchequer bills, cfec] By s. 9, " whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall make, or cause or procure to be made, or shall aid or assist in making, or shall knowingly have in his custody or possession, any frame, mould, or instrument having therein any words, letters, figures, marks, lines, or devices peculiar to and appearing in the substance of any paper provided or to be provided or used for exchequer bills, or exchequer bonds, or exchequer debentures, or any machinery for working any threads into the substance of any paper, or any such thread, and intended to imitate such words, letters, figures, marks, lines, threads, or devices, or any plate peculiarly employed for printing such exchequer bills, bonds, or debentures, or any die or seal peculiarly used for preparing any such plate, or for sealing such exchequer bills, bonds, or debentures, or any plate, die, or seal intended to imitate any such plate, die, or seal as aforesaid, shall be guilty of felony." Punishment the same as in s. 6 of the Act, supra. Making paper in imitation of that used' for exchequer bills.] By s. 10, " whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall make, or cause or procure to be made, or aid or assist in making, any paper in the substance of which shall appear any words, letters, figures, marks, lines, threads, or other devices peculiar to and appearing in the substance of any paper provided or to be provided or used for such exchequer bills, bonds, or debentures, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the same, or shall knowingly have in his custody or possession any paper whatsoever, in the substance whereof shall appear any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any parts of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the same, or shall cause or assist in Forgery. 471 causing any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the same, to appear in the substance of any paper whatever, or shall take or assist in taking any impression of any such plate, die, or seal, as in the last preceding section mentioned, shall be guilty of felony." Punishment the same as in s. »» of the Act, supra. Having in 'possession paper, plates, or dies to he used for exchequer bills, .1 *.] By s. 11, " whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall purchase or receive or know- ingly have in his custody or possession any paper manufactured and provided by or under the directions of the commissioners of inland revenu i or commissioners of her Majesty's treasury, for the purpose of being used as exchequer bills, or exchequer bonds, or exchequer debentures, before such paper shall have been duly stamped, signed, and issued for public use, or any such plate, die, or seal, as in the last two preceding sections mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding three years, with or without hard labour." Forging haul,- notes nm! bills."] Bys. 12. " whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any note or bill of exchange of the Bank of England, or of the Hank of Ireland, or of any other body corporate, company, or persons carrying on flic business of bankers, commonly called a bank note, abank bill of exchange, or a bank post bill, or any indorsement on or assignment of any bank note, bank bill of exchange, or bank post bill, with intent to defraud, shall be guilty of felony." Punishment the same as in s. 1 of flic Act, supra. Purchasing or receiving or having forged haul,- notes and hills.~\ By s. 13, "whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall purchase or receive from any other person, or have in his custody or possession, any forged bank note, bank bill of ex- change, or bank post bill, or blank bank note, blank bank bill of exchange, or blank bank post bill, knowing the same to be forged, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years" (see ante, p. 203), Making or having mould or paper j'<>r forging notes of Banks <;/' England ■:///<■ note or hill, or using or having any such plate, uttering or having any impression thereof. ] By s. 17, "who- soever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall engrave or in anywise make upoft' any plate whatsoever, or upon any wood, stone, or other material, any word, number, figure, device, character, or ornament the impression taken from which shall resemble or apparently be intended to resemble any part of a bank note, bank bill of exchange, or bank post bill of the Bank of England, or of the Bank of Ireland, or of any other body corporate, company, or person carrying on the business of bankers, or shall use or knowingly have in his custody or possession any such plate, wood, stone, or other material, or any other instrument or device for the impressing or making upon any paper or other material any word, number, figure, character, or ornament which shall resemble or apparently lie intended to resemble any part of a banknote, bank bill of exchange, or bank post bill of the Bank of England, or of the Bank of Ireland, or of any such other body corporate, company, or person as aforesaid, or shall knowingly offer, utter, dispose of, or put oil', or have in his custody or possession, any paper or other material upon which there shall be an impression of any such matter as aforesaid, shall be guilty of felony." Punishment the same as in s. 13 of the Act, supra. Making or having mould for making paper with Ho- name of any bankei thereon, or making or having such /»'/»/■.] By s. 18, "whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall make or use any frame, mould, or instrument for the manufacture of paper, with the name or firm of any body corporate, com- pany, or person carrying on the business of bankers (other than and except the Hunks of England and Ireland respectively), appearing visible in the substance of the paper, or knowingly have in his custody or pos- session any such frame, mould, or instrument, or make, use, sell, expose to sale, utter, or dispose of, or knowingly have in his custody or possession any paper in the substance of which the name or firm of any such body corporate, company or person shall appeal- visible, or by any art or con- trivance cause the name or firm of any such body corporate, company, or person to appear visible in the substance of the paper upon which the same shall be written or printed, shall be guilty of felony." Punishment the same as in s. 13 of the Act, supra. Engraving plates for foreign bills or notes, or using or having such plates, or uttering or having any impression thereof.] liys. 1!». "whosoever, with- out lawful authority or excuse the proof whereof shall li i the party accused), shall engrave or in anywise make upon any plate whatsoever, or upon any wood, stone, or other material, any bill of exchange, pro- missory note, undertaking, or order for payment of money, or any part 474 Forgery. of any bill of exchange, promissory note, undertaking, or order for pay- ment of money, in whatever language the same may be expressed, and whether the same shall or shall not be or be intended to be under seal, purporting to be the bill, note, und< srtaking, or order, or part of the bill, note, undertaking, or order, of any foreign prince or state, or of any minister or officer in the service of any foreign prince or state, or of any body corporate, or body of the like nature, constituted or recognized by any foreign prince or state, or of any person or company of persons resident in any country not under the donunion of her Majesty, or shall use, or knowingly have in his custody or possession any plate, stone, wood, or other material upon which any such foreign bill, note, undertaking, or order, or any part thereof, shall be engraved or made, or shall knowingly offer, utter, dispose of, or put off, or have in his custody or possession any paper upon which any part of such foreign bill, note, undertaking, or order shall be made or printed, shall be guilty of felony.' 1 Punishment the same as in s. 13 of the Act, supra. Forging deeds, bonds, cfcc] By s. 'JO, ''whosoever, with intent to defraud, shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any deed or any bond or writing obliga- tory, or any assignment at law or in equity of any such bond or writing obligatory, or shall foige any name, handwriting, or signature purporting to be the name, handwriting, or signature of a witness attesting the execu- tion of any deed, bond or writing obligatory, or shall offer, utter, dispose of, or put off any deed, bond, or writing obligator}', having thereon any such forged name, handwriting, or signature, knowing the same to be forged, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. Forging wills.'] By s. 21, "whosoever, with intent to defraud, shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any will, testament, codicil, or testamentary instrument, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. Forging bills of exchange or promissory notes.] By s. 22, "whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any bill of exchange, or any acceptance, endorsement, or assignment of any bill of exchange, or any promissory note for the payment of money, or any endorsement, or assignment of any snch promissory note, with intent to defraud, shall be guilty of felony." Punishment the same as in s. 1 of the Act, supra. /''urging orders, r<-r'. & /'. 629. If the name be an assumed one, then it will be forgery to draw up a document in that name, if the Forgeryt 4So name were assumed for the express purpose of giving au appearance of genuineness to the document and carrying the fraud into effect. The prisoner was indicted for forging a bill of exchange, dated 3rd of April, 1N12, in the name of Thomas White, as drawer. It appeared that the prisoner came to Xewnham on the 21st March, 1813, where he introduced himself under the name of White, and where he resided under that name until the 22nd of May, officiating as curate under that name. On the 17th of April he passed away the bill in question. Dallas, J., told the jury that if they thought the prisoner went to Newnham in the fictitious character of a clergyman, with a false name, for the sole purpose of getting possession of the curacy, and of the profits belonging to it, they should acquit him; but if they were satisfied that he went there intending fraudulently to raise money by bills in a false name, and that the bill in question was made in prosecution of such intent, they should convict him. The jury convicted him accordingly, and found that the prisoner had formed the scheme of raising money by false bills before he went to Newnham, and that he went there meaning to commit such fraud. The judges, on a case reserved, were of opinion that where proof is given of a prisoner's real name, and no proof of any change of name until the time of the fraud committed, it throws it upon the prisoner to show that he had before assumed the name on other occasions, and for different purposes. They were also of opinion that where the prisoner is proved to have assumed a false name, for the purpose of pecuniary fraud, drawing, accepting, or indorsing in such assumed name is forgery. R. v. Peacock, Rubs, rfc Ry. 278. The prisoner, Samuel Whiley, was indicted for forging a bill of exchange drawn in the name of Samuel Milward. On the 27th of December, 1S04, the prisoner came to the shop of the prosecutor, at Bath, and ordered some goods, and, a few days afterwards, he called and said he wovdd give a draft upon his banker in London, and accordingly he gave the bill in question. No such person as Samuel Milward kept an account with the London banker. The prisoner had been baptized and married by the name of Whiley, and had gone by that name in Bath and Bristol, lie had taken a house in Worcestershire, under the same name ; but on the day after his first application to the prosecutor, he ordered a brass plate to be engraved with the name of " Milward," which was fixed upon the door of his house on the following day. The prosecutor stated that he took the draft on the credit of the prisoner, whom he did not know ; that he pre- sumed the prisoner's name was that which he had written, and had no reason to suspect the contrary ; and if the prisoner had come to him under the name of Samuel Whiley he should have given him equal credit for the goods. In his defence the prisoner stated that he had been christened by the name of Samwl Milward, and that he had omitted the name of Whiley for fear of arrest. The judge left it to the jury to say whether the prisoner had assumed the name of " Milward " in the purchase of the goods, and given the drafts, with intent to defraud the prosecutor. The jury found the prisoner guilty, ami the judges, upon a reference to them, were of opinion that the question of fraud being so left to the jury, and found by them, the conviction was right. //. v. Whiley, 2 Russ. <'ri. 593, 6th ed. ; Ruse. & Ry. 90. The prisoner, John Francis, was indicted for forging an order for pay- ment of money upon the hankers, Messrs. I'raeil iV Co., in favour of Mrs. Ward. On the loth of August the prisoner had taken lodgings at Mrs. AV.'s house, under the name of Cooke, and continued there till the 9th of September, when he gave her the order in question, for money lent him by her. The order, which was signed "James Cooke," being 486 Forgery. refused by the bankers, be said he had omitted the word " junior," which he added ; but the draft was again refused, and the prisoner in the mean- time left the house. The case was left by the judge to the jury, with a direction that they should consider whether the prisoner had assumed the name of Cooke with a fraudulent purpose, and they found him guilty. On a case reserved, all the judges who were present held the conviction right, and were of opinion that, if the name were assumed for the purpose of fraud and avoiding detection, it was as much a forgery as if the name were that of any other person, though the case would be different if the party had habitually used, and become known by another name than his own. B. v. Francis, Buss. & By. 209 ; 2 Buss. Cri. 593, 6th ed. So, in B. v. Parkes, 2 Leach, 775 ; 2 Fast, P. C. 963, where a person of the name of T. B., dated a note at Eoughton, Salop, and made it payable at Messrs. Thornton & Co., bankers, London, and signed it in the name of T. 13. , and passed off the note as a note of his brother; and it was proved that the prisoner had no brother of the name of T. B., and that there was no person of that name who resided at Eoughton, or kept an account with Thornton & Co. ; this was held by Grove, J., to be forgery. The case of B. v. Waller, tried before Chambers, J., 6 Fr. titut. 580, is sometimes quoted as an authority against this ; but there the prisoner had been in the habit of drawing bills in the same fictitious name for some time, and they had been regularly paid, so that the learned judge thought very properly that there was not sufficient evidence to go to the jury that the name had been assumed for the express purpose of carrying out tbe forgery, which is a necessary ingredient in this class of cases. This appears from the following case : — -The prisoner, Thomas Bontien, was charged with forging the acceptance of a bill of exchange. It appeared from the evidence of the prosecutrix, that having a house at Tottenham to let, in October, 1811, the prisoner took it, and, to pay for the furniture and fixtures, wrote the bill in question, which the prosecutrix signed as drawer, and the prisoner accepted in the name of Thomas Scott. The bill was dated 12th of November, 1810 ; the prisoner went at the time by the name of Thomas Scott; at various times he had gone by the name Bontien ; but he called a witness, who stated that he first knew the prisoner at the latter end of August, 1810, and knew him continually by the name of Scott ; that he had a nickname of Bont or Bontien at times. He proved that he had transacted business with the prisoner in the name of Scott, in the year 1810 ; that he never knew him by any other name ; and that his only knowledge of his having gone by other names was from the newspapers. The prisoner being convicted, the judges, upon a case reserved, thought that it did not sufficiently appear upon the evidence that the prisoner had not gone by the name of Scott before the time of accepting the bill, or that he had assumed the name for that purpose, and they thought the conviction wrong. B. v. Bontien, Buss. & By. 260'. The result of the above cases is that where the fictitious name is assumed for the purposes of the fraud, the offence of forgery may be proved, but it is otherwise where the credit is given solely to the person withoxit any regard to the name, as in the case of B. v. Martin, 5 Q. B. D. 34; 49 L. J., M. C. 11, where the prisoner, Bobert Martin, in payment for a pony and cart purchased by him from the prosecutor, drew a cheque in the name of William Martin, in the presence of the prosecutor, upon a bank at which he, the prisoner, had no account, and gave it to the prose- cutor as his own cheque drawn in his own name. The prisoner was an old acquaintance of the prosecutor, and the prosecutor received the cheque on the credit of the prisoner himself, not observing the name in which it Forgery. 487 was signed. It was held, following B. v. Dunn, 1 Lea, C. C, 59, that the prisoner was not guilty of the offence of forgery. What amounts to forgery — not necessary that document should be perfect.^ It is not necessary that the document which is forged should be perfectly valid for the purpose for which it was intended. Thus, where a man was indicted at common law for forging a surrender of the lands of J. S., and it did not appear in the indictment that J. S. had any lands ; upon motion in arrest of judgment it was held good, it not being necessary to show any actual prejudice. B. v. (route, 1 Ld. Raym. 737. So the making of a false instrument is forgery, though by statute such instruments shall be in a certain form, which may not have been complied with, the statute not making the informal instrument absolutely void, but it being available for some purposes. This question arose U| on a prosecution for forging a power of attorney for the receipt of prize-money, which, by a repealed statute, was required to have certain forms. The power had not, in one particular, followed the directions of the Act. The prisoner being con- victed, the judges were of opinion that the letter of attorney was not a void instrument, but that it might be the subject of a criminal prose- cution ; that a payment made under it, to the use of the petty officer, would be good as against him, and that tbe attorney under it might bring an action for the prize-money, or execute a release. B. v. Lyon, Buss. & ////. '2o~). Upon the same principle, a man may be convicted of forging an unstamped instrument, though such instrument can have no operation in law. But although at common law forgery of an imperfect document may be committed, yet it would be otherwise where the offence charged is for forgery of any particular instrument, the forgerv of which is made felony by statute. See 11. v. Harper, 7 Q. Ii. D. 78 ; 50 L. J., M. C. 90; and cases post, p. 491. See, as to county court process, post, p. 499. Proof of forging transfer of stock."] In the following case, which was an indictment founded on the former statute, several points were raled with regard to indictments for forging a transfer of stock. Three objec- tions were taken on behalf of the prisoner : 1st, that there did not appear in evidence to be any acceptance of the transfer by the party who was alleged to be possessed of the stock, till which time it was said the transfer was incomplete ; 2ndly, that till the stock was accepted, no transfer at all could be made ; 3rdly, that the instrument was not witnessed, which, according to the printed tonus used by the bank, should have been done. The prisoner having been convicted, the opinion of the judges on the case was delivered by liuller, J. He observed, that, as to the two first objec- tions, two answers had been given : 1st, that the stock vested by the mere act of transferring it into the name of the party, and that if he had died before he accepted it, it would have gone to bis executors as part of his personal estate; 2ndly, thai the nature of the offence would not have been altered, if the party bad not had any stock standing in his name ; for the transfer forged by the prisoner was complete on the lace of it, and imported that there was such a description of stock capable of being transferred. Neither the forgery nor the fraud would have been less com- plete, if tlie party had really had no stock. As to the third objection, the judges all thought that the entry and signatures, as stated in the indictment, were a complete transfer, without the attestation of witnesses, which was no part of the instrument, but only required by the bank tor their own protection. 1!. v. Gade, 2 East, /'. 0. 874; 2 Leach, 732. 4S8 Forgery. Proof of 'personating owner of stock.'] Under the former statute the prisoner was indicted for personating one Isaac Hart, the proprietor of certain stock, and thereby endeavouring to receive from the bank of England the sum of, &c. It appeared that the prisoner, representing himself to be Isaac Hart, received from the dividend-payer, at the bank, a dividend warrant for the sum due, on receiving which, instead of carry- ing it to the pay-office, he walked another way, and made no attempt to receive the money. It was objected for the prisoner, that there was no proof of Iris having endeavoured to receive the money, but being convicted, the judges held the conviction right. They said, that the manner in which he applied for and received the warrant was a personating of the true proprietor, and that he thereby endeavoured to receive the money, within the intent and meaning of the Act of parliament. R. v. Parr, 1 Leach, 434 ; 2 East, P. ( '. 1005. Proof of forging a bank-note.'] It has been already said, supra, p. 487, that it is not essential that the forged instrument should, in all respects, be perfect. Where the forgery, says Mr. East, consists in counterfeiting any other known instrument, it is not necessary that the resemblance shoidd be an exact one : if it be so like as to be calculated to deceive, when ordinary and usual observation is given, it seems sufficient. The same rule holds, in cases of counterfeiting the seals, and coining. 2 East, P. C. 858. Thus where the prisoner was indicted for forging a bank-note, and a person from the bank stated that he should not have been imposed upon by the counterfeit, the difference between it and the true note being to him so apparent ; yet, it appearing that others had been deceived, though the counterfeiting was ill-executed, Le Blanc, J., held, that this was a forgery. P. v. Hoost, 2 East, P. 0. 950. The prisoner was indicted for forging a bank of England note. The instrument, though it much resembled a. real bank-note, was not made upon paper bearing the water- mark of the bank ; the number also was not filled up, and the word " pounds " was omitted after the word "fifty " ; but in the margin were the figiues 50?. It was contended, that on account of these defects, this could not be held a forgery of a bank-note ; but the judges held the prisoner rightly convicted ; for, first, in forgery, there need not be an exact resemblance — it is sufficient that the instrument is prima facie fitted to pass for a true one ; secondly, the majority inclined to think that the omission of "pounds" in the body of the note had nothing else appeared, would not have exculpated the prisoner ; but it was matter to be left to the jury, whether the note purported to be for 50/., or any other sum ; but all agreed that the o()I. in the margin removed all doubt. B. v. Elliott, 2 East, P. C. 951 ; 1 Leach, 175 ; 2 New Pep. 93 (n). See also R. v. WConnell, 1 C. & 4(1 Vict. c. 01, s. 3. Upon the same principle, a man may be convicted of forging an un- stamped instrument, though such instrument can have no ojjeration in law. The prisoner was convicted of forging a bill of exchange. It was objected for him that the bill was unstamped. The judges held the con- viction right. II. v. Haivkeswood, 1 Leach. 257. See also I', v. Lee, LI. 258(«), and //. v. Morton, 2 East, I'. C. 955; 1 Lea. 258 (n). In JL \. Teayue, 2 East, /'. C. 979, the judges said that it had been decided that the Stamp Acts had no relation to the crime of forgery; but that, sup- posing the instrument forged to be such, on the face of it. as would be valid if it had had a proper stamp, the offence was complete. If the prisoner write another person's name across a blank stamp, on which, after he is gone, a third person who is in league with him writes a bill of exchange, it was said that this is not a forgery of the acceptance of a hill of exchange by the prisoner. II. v. Cooke, 8 C A- 1'. 582. So where the prisoner, who was partner in a firm, was indicted for forgingan acceptance of a bill of exchange, and it appeared that another party, by the direction of the prisoner, had written the name of a customer across a blank stamp, on which the prisoner some time subsequently drew a bill of exchange in the name of the firm; Parke, B., held that this was not a forgery of an acceptance of a bill of exchange within the statute, which does not make it forgery merely to counterfeit an acceptance, but an acceptance of a hill of exchange. 11. v. Butterwick, 2 Man. & I!. 196. Hut both these would probably be considered forgeries at common law. 492 Forger;/. In order to bring the case within the statute, the instrument in question, which is laid to be a bill of exchange, or promissory note, must purport on the face of it to be legally such. Where the instrument was in the following form : — " I promise to pay the bearer one guinea on demand, here in cash, or a Bank of England note " : the judges were of opinion, that this was not a note for the payment of money within the repealed stat. 2 Geo. 2, c. 25, the guinea being to be paid in cash or a Bank of England note, at the option of the payer. R. v. Wilcock, 2 Buss. Cri. 905, 6th ed. But it is not necessary, in order to constitute a promissory note for the payment of money within the statute, that it should be negotiable. The prisoner was convicted under the 2 Geo. 2, c. 25, of forging a promissory note, in the following form : — "On demand, we promise to pay to Mesdames S. W. and S. D., stewardesses, for the time being, of the Provident Daughters' Society, held at Mr. Pope's, or their successors in office, (34/., value received. "ForC. F. &Co., "J. F." It was moved in arrest of judgment, that this was no promissory note ; but the judges were of a different opinion, saying, that it was not neces- sary that it should be negotiable, and that it was immaterial whether the payees were legally stewardesses, and that their successors could not take the note. R. v. Box, 2 Itass. Cri. 907, 6th ed. ; Buss. & By. 300 ; 6 Taunt. 325. It has been already stated, that where the instrument alleged to be a promissory note, or bill of exchange, is not signed, it cannot be treated as such. B. v. Pateman, Buss. & By. 455 ; B. v. Mopsey, ante. p. 491. So where the name of the payee is in blank. B. v. Randall, Buss. r orders for the payment of money.'] An undertaking to pay a sum which is uncertain and dependent upon a contingency, is within the statute. Thus where the undertaking was to pay W. B. 100/., " or such other sum of money, not exceeding the same, as he may incur, or be put unto for or by reason or means of his becoming one of the sureties to M. M., Esq., sheriff elect for the county of Y. " ; the judges held it to be within the Act. B. v. Reed, 8 C. & P. 023; and see R. v. Joyce. I.. & <'. 570. Forgery. 493 Forging an indorsement upon a warrant or order for the payment of money, is not within the Act. R. v. Aracott, (i C. & I'. 408. But if the undertaking, warrant or order is incomplete without the indorsement, so that until the indorsement be added, the instrument is of no validity in the hands of any person, then a forgery of the indorsement may be charged as a forgery of a warrant or order for the payment of money. Jl. v. Autey, supra, p. 484. If a cheque payable t( > order is indorsed by a person other than the payee, and is not indorsed by the payee, the person so indorsing is liable on the cheque, and if such an indorsement is forged in order to get the cheque cashed by the credit of the name, it is an offence within s. 24. R. v. Wardett, 3 /•'. & /■'. 82. Formerly it must have appeared, either upon the face of the instrument itself, or by proper averments, that the instrument bore the character of an order. The prisoner was charged with forging " a certain order for payment of money" as follows : — "Gentlemen, "London, April 24, 1S09. "Please to pay the bearer, on demand, fifteen pounds, and accompt it to " Your humble servant, " Charles II. Eavenscroft. "Payable at Messrs. Masterman & Co., "White Hart Court, "Win. Mclnerheney." The prisoner being convicted, a majority of the judges, on a case reserved, held that this was not an order for the payment of money. II. v. Eavens- croft, Russ. & Ry. 161. A paper in the following form, " Mr. Johnson, Sir, please to pay to James Jackson the sum of 13/. by order of Christopher Sadler, Thornton- le-nioor. Brewer. 1 shall see you on Monday. Yours obliged, Chr. Sadler, the District Bank," was held to be an order for the payment of money ; Sadler being proved to be a customer of the District Bank, whose draft, if genuine, would have been paid, although, at the time of the forgerv, he had no effects in the bank. //. v. Carter, 1 C. & K. 741; 1 lint'. C C II. 65. See also /,'. v. Vivian, 1 C. & K. 719; 1 Den. 0. C. R. 35, where it was held by the judges that "any instrument for payment under which, if genuine, the paver may recover the amount against the party signing it, may properly be considered a warrant for the payment of money, and it is equally this, whatever be the state of the account between the parties, and whether the party signing it has, at the time, funds in the hands of the party to whom it is addressed or not." A A. 0." document in the following form, "I U '3o/. given bv A. C. to his G. W. creditor, the G. W. being forged, was held to be an undertaking for the payment of money. R. \. Chambers, I.. A'., I C. C. R. 341; 11 /..>/., .1/.' C. 15. To constitute an order for the payment of money, it is not necessary that the instrument should specify in terms the amount ordered to be paid. Where the order was. "Pay to Mr. 11. Y, or eider, all my pro- portions of prize-money due to me for my services on board Ins Majesty's ship Leander," it was objected, thai this was nol an order for the pay- ment of money, as no sum of money was mentioned, but the prisoner was convicted, and the indues held the conviction right. R. v. M'Intosh, 2 East, J'. C. 942. 494 Forgery. In the construction of the words " warrant" and " order" for the pay- ment of money, it has been held that instruments, which in the commercial world have peculiar denominations, are within the meaning of those words, if they be, in law, orders or warrants. 2 East, P. < '. 943. Thus a bill of exchange may be described as an order for the payment of money, for every bill of exchange is, in law, an order for the payment of inonev. B. v. Lockett, 2 East, P. C. 940, 943; 1 Leach, 94; Pi. v. Shepherd, 2 East, P. C. 944; 1 Leach. 226. So a bill of exchange is a "warrant for the payment of money," and may be described in the indictment as such ; for, if genuine, it would be a voucher to the bankers or drawers for the pay- ment. R. v. Willoughby, 2 East, P. C. 944. A forged paper purporting to be an authority signed by three officers of a benefit club, to receive the money of the club lodged in a bank, was held, on a case reserved, to be well described in some counts as a warrant, and in others as an order, for the pavment of money. B. v. Harris. 2 Moo. C. C. 267. A post-dated cheque is an order for the payment of money. B. v. Taylor, 1 C. <('• K. 213. And a post-office order form abstracted and filled up is an order to pay, though no letter of advice has been sent. B. v. Vanderstein, 10 Cox, 177. See B. v. (lilchrist, 2 M. C. C. 233, post, tit. Post-office ; see also B. v. Hmoie, ante, p. 492, and post, p. 495. If the instrument purport to be an order which the party has a light to make, although in truth he had no such right, and although no such person be in existence as the order purports to be made by, it is still an order within the statute. 2 East, P. C. 940. The prisoner, Charles Lockett, was convicted of uttering a forged order for the payment of money, as follows: "Messrs. Neale & Co., Pay to Wm. Hopwood, or bearer, 16/. 10s. 6'/. E. Vennist." The prisoner had given this order in payment for goods. No such person as Vennist kept cash with Neale & Co., nor did it appear that there was any such person in existence. The judges, on considering the case, held it to be a forgery. They thought it immaterial whether such a man as Vennist existed or not ; or, if he did, whether he kept cash with Neale & Co. It was sufficient that the order assumed those facts, and imported a light on the part of the drawer to direct such a transfer of his property. B. v. Lockett, 2 East, P. 0. 940; 1 Leach, 94. This appears to have been always the law, though there was some confusion at one time upon the point, which appears to have arisen out of the subtle distinctions formerly taken, and the necessity of showing the nature of the document fully upon the face of the indictment. In B.v. Dan-sou, 2 Den. C. O. B. 75 ; 20 L. J., M. C. 102, the document was in the following form : " Mr. Lowe, London. Bought of C. Dawson, English and foreign fruit merchant, two bushels of apples, 9s. Nov. 9. Sir, I hope you will excuse me sending for such a trifle ; but I have received a lawyer's letter this morning, and unless I can make up a certain amount by one o'clock, there will be an action commenced against me, and I am obliged to hunt after every shilling. Yours, &c, F. Dawson." It was proved at the trial that Lowe was indebted to F. Dawson, who carried on business in the name of C. Dawson, in the sum of nine shillings for two bushels of apples ; that the document was forged and uttered to Lowe, as a genuine instrument coming from F. Dawson, with the inten- tion of fraudulently obtaining from Lowe the above sum. The document was held to be a warrant. There was no doubt that this would have been a request for the delivery of money, but it was said not to be a warrant or order. See 24 & 25 Vict. c. 98, s. 23, supra, p. 474. A letter of credit, on which the correspondents of the writer of it, having funds of his in their possession, apply them to the use of the party in whose favour it is given, was held by the judges to be a warrant Forgery. 495 for the payment of money. R. v. Baake, 8 C. & P. (52(3 ; 2 Moo. C. C. 66. A forged paper was in the following form: — "To M. & Co. Pay to my order, two months after date, to Mr. I. S., the sum of (SO/., and deduct the same out of my account." It was not signed, but across it was written, " Accepted, Luke Lade " ; and at the back the name and address of I. S. M. & Co. were bankers, and Luke Lade kept cash with them. It was held, on a case reserved, that this paper was a warrant for the payment of money ; as, if genuine, it would have been a warrant from Luke Lade to the bankers to pay the money to I. S. R. v. Smith, 1 C. & K. TOO; 1 Den. C. C. 11. 79. ' An instrument containing an order to pay the prisoner or order a sum of money, being a month's advance on an intended voyage, as per agree- ment with the master, in the margin of which the prisoner had written an undertaking to sail in a certain number of hours, is an order for the payment of money. R. v. Bamfield, 1 Moo. 0. C. 416; R. v. Anderson, 2 M. A- Rob. 469. In R. v. Howie, 11 Cox, 320, ante, p. 492, it seems to have been held that a sailor's advance note payable upon a con- tingency \\as not a bill of exchange or promissory note ; it does not dearly appear whether there was another count in the indictment alleging it to be an order for the payment of money or not, but it would seem there was not. The prisoner was charged with forging " a certain warrant and order tor the payment of money." The instrument in question was a forged cheque upon a banker. It was objected that this charged an offence with regard to two instruments; but Bosanquet, J., was of opinion that the indictment was sufficient. He thought the instrument was both a warrant and an order; a warrant authorizing the banker to pay, and an order upon him to do so. /'. v. Crowther, 5 U. & P. 316; and R. v. Taylor, 1 C. & A". 213. An indictment describing the forged order as being for the payment of 85/. is good, although it appears that by the course of business the bank where it is payable would pay that sum with interest. R. v. Atkinson, Oarr. a .1/. 325. Nor will the order be less the subject of forgery on account of its not being available, by reason of some collateral objection not appearing on the face of it. 2 East, I'. C. C. 19, ,s. 45, p. 956.' The prisoner was con- victed of forging an order for the payment of money, and it appeared that the party whose name was forged was a discharged seaman, who was at the time the order was dated within seven miles of the place where his wages were payable; under which circumstance his genuine order would not have been valid, byvirtueof a repealed statute. The judges, however, held the conviction proper, the order itself on the face of it purporting to he made at another place beyond the limited distance. //. v . WIntosh, 2 East, /'. C. 942; 2 Leach, 883. In 11. v. Snellmg, 1 Dears. C. 0. li. 219; 23 A. -/., M. C. 8, the forged document was in the following form: — " Holton, Mar. 31, 1S53, — Sirs, please to pay the bearer, Mrs. J., the sum of s.vt/. 10s. for me, J. K." It was held, that, although not addressed to any one, it might he shown, by parol evidence, for whom the document was intended, and this appearing to be the hanker with whom J. 11. kept an account, the document was an order for the payment of money. So it is mi defence to an indictment for forging and uttering an order of a board of guardians for the payment of money, to show that the person who signed the order as presiding chairman was not in fact chairman on the day lie signed, the forgery charged being of another name in the order. II. v. Pike, 2 Moo. 0. 0. To. •496 Forgery. But an indictment for forging an order for relief to a discharged prisoner, under a repealed statute, which, was in many respects ungram- matical and at variance with the Act, was held bad. R. v. Donnelly, 1 Moo. C. C. 4,38. An undertaking by a supposed party to the instrument for the payment of money by a third person is within the section. Therefore, where the supposed maker of a forged instrument undertook, in consideration of goods to be sold to E. P., to guarantee to the vendor the due payment of such goods ; this was held to be the forgery of an undertaking for the payment of money. R. v. Stone, 1 Ben. C. C. R. 181 ; and see R. v. Joyce, L. & C. 57(5. A receipt for repayment of a deposit in a building society was held to be a warrant, authority, or request for payment of money. R. v. Kay, L. R., 1 C. C. R. 257 ; 39*/.. J., M. C. 118. Proof of forging receipts.} In R. v. West, 1 Den. C. C. R. 258, the majority of the judges held that an instrument professing to be a scrip certificate of a railway company was not a receipt nor an undertaking for the payment of money within the statute : ' ' That it was not a receipt in ordinary parlance, nor made with the intent of being such, though it might be used as evidence of a payment of the deposit ; but that any written paper capable of being so used was not a receipt ; as, for instance, a letter written by a landlord to a third person, saying that his tenant had duly paid his rent; that it was only an undertaking to deliver shares bearing interest, not that the interest should be paid ; as an undertaking to deliver a bond for the payment of money with interest, would be no undertaking for the payment of money." See also Clarke v. Newsam, 1 Exch. R. 131 ; 16 /.. J., Ex. 296. It was the practice of the treasurer of a county, when an order had been made on him for the payment of expenses of a prosecution, to pay the wffiole amount to the attorney for the prosecution, or his clerk, and to require the signature of every person named in the order to be written on the back of it, and opposite to each name the sum ordered to be paid to each person respectively. Erie, J., held, that such a signature was not a receipt within this section, but merely an authority to the treasurer to pay the amount. R. v. Cooper, 2 ( '. 'iven, this was doubtless the ground of the decision in R. v. Martin, 7 ( '. & P. 549, in which it was held by the judges that an indict- ment for uttering the acquittance, which set out the bills of parcels with the word " settled," and the supposed signature at the foot of it, without any averment that the word " settled" imported a receipt or acquittance, was sufficient. A servant employed to pay bills received from her mistress a bill of a tradesman, called Sadler, together with money to pay that and other bills. She brought the bill again to her mistress, with the words, "Paid, sadler," upon it; Sadler being written with a small s, and there being no initial of the christian name of the tradesman. Lord Denman, C. J., left it to the jury to say whether, under the circumstances, the document was intended by the servant as a receipt or acquittance for the money under the circumstances, and not merely as a memorandum of her having paid the bill. R. v. Houseman, 8 ( '. & /'. 180. So where the prisoner was charged with forging and utterin»' a receipt, and the proof was that he had altered a figure in the following voucher, "11?. os. lOd. for the high constable, T. II. " ; and it was objected, on the authority of R. v. Barton, 1 Moo. < '. C. 141, that the indictment was bad for not con- Forger//. 497 taining an averment what T. H. meant; Alderson, B., held it sufficient, Ji. v. Boardman, 2 Lew. C. 0. 181 ; 2 Moo. & R. 147. A scrip receipt, with the blank for the name of the subscriber not filled up, and therefore not purporting to be a receipt of the sum therein men- tioned from any person, is not a "receipt for money." B. v. Lyon, 2 East, P. C. 933; 2 Leach, 597. Making a false entry in what purports to be a banker's pass-book, with intent to defraud, is a forgery of an accountable receipt. B. v. Smith, L. & C. 168 ; 31 L. J., M. C. 1*54 ; and B. v. Moody, L.&C.YIZ; 31 L. J., M. O. 156. A turnpike toll-gate ticket, " denoting the payment of toll," is a receipt for money. B. v. Fitch, L. & C. 159. The document must be such that, if genuine, it would amount to a receipt. Thus, the prisoner was indicted for forging a receipt and acquittance as follows : — "William Chinnerv, Esq. paid to X tomson the som of 8 pounds feb. 13, 1812." It was not subscribed, but was uttered by the prisoner as a genuine receipt, and taken as such by Mr. Chinnery's housekeeper. The prisoner being convicted, the judges held the conviction wrong, being of opinion that this could not be considered as a receipt. It was an assertion that Ghinnery had paid the money, but did not import an acknowledgment theieof. B. v. Harvey, Buss. & By. 227. On an indictment for uttering a forged receipt for the sum of 10/., it appeared that the prisoner obtained from Pritchard the sum of 10?., for which he produced the following receipt : — " Eeceived of Mr. Wm. Pritchard by the hands of Mr. Wm. Griffiths the sum of 10/., being in full for debt and costs due to the said Jas. Eeese, having no further claim against the said Wm. Pritchard. As witness my hand, this 15th day of October, 1842. " The mark of x James Eeese." And it was clearly proved that Eeese had not signed the receipt or autho- rized it to be signed, or empowered the prisoner to settle the debt and lusts. The prisoner was convicted. B. v. Griffith, 2 Buss. Cri. 926, tithed. But the document need not be signed. In B. v. Judo, 2 C. i' the name of William Holland living there on his menus, who, for distinction, was called Gentleman Holland. The latter William Holland not heine; called, it was contended for the prisoner that there was not sufficient evidence of the note having been forged. The prisoner being convicted, on a case reserved, the judge's held, that as the prisoner had stated that William Holland, of the Bull's Head, was the maker (and from being payee of the note he must have known the particulars), it was sufficient for the prosecutor to show that it was not 504 Forgery. the note of that "William Holland, and that it lay upon the prisoner to prove, if the case were so, that it was the genuine note of another William Holland. R. v. Hampton, 1 Moo. C. C. 225. But that the party who is called is the same person as the party whose name is forged may also be established by the admission of the prisoner himself, as in the following case. The prisoner was charged with forging and uttering a bill of exchange in the name of Andrew Helme, with intent to defraud one Anthony, and also with forging an indorsement in the name of John Sowerby, on a bill purporting to be drawn by the said A. Helme, with the like intent. Some letters written by the prisoner, after his apprehension, to A. Helme, who was the prisoner's uncle, were produced, from which it clearly appeared that the name of A. Helme was forged. In the same manner the forgery of Sowerby's name appeared, and that he was the son of a person of the same name at Liverpool. A witness proved that the prisoner offered him the bill in question with the indorsement upon it, informing him that A. Helme was a gentleman of credit at Liverpool, and the indorser a cheesemonger there who had received the bill in payment for cheeses. Sowerby, the father, was then called, who swore that the indorsement was not his handwriting^ that he knew of no other person of the same name at Liverpool ; that his son had been a cheesemonger there, but had left that town four months before, and was gone to Jamaica, and that the indorsement was not in his hand- writing. It was objected that Helme, the drawer, was not called to prove what Sowerby, the payee, was; but the prisoner was convicted.^ The judges, on a case reserved, held the conviction right. They said, the objection supposed that there was a genuine drawer, who ought to have been called, but to this there were two answers, 1st, that the drawer's name was forged, which the prisoner himself had acknowledged ; and 2ndly, that the prisoner himself had ascertained who was intended by the John Sowerby, whose indorsement was forged, for he represented him as a cheesemonger at Liverpool, and that he meant young Sowerby appeared from his mentioning his mother; and it appearing not to be young Sowerby's handwriting, the proof of the forgery was complete. R. v. Doivnes, 2 East, P. C. 997. If the false assertion on which the charge of forgery is founded be the use of a fictitious name, the evidence that will be necessary will depend much on the particularity with which the fictitious person is described. In order to prove that the name "Samuel Knight, Market-place, Birming- ham," was fictitious, the prosecutor was called, and stated that he went twice to Birmingham to make inquiries, and inquired at a bank there, and at a place where the overseers usually met ; and that he also had made inquiries at Nottingham, without success. The prosecutor was a stranger in both of these towns. It was objected for the prisoner, that this evidence was not sufficient. The judges were of opinion, that there was evidence to go to the jury, but that it was for the jury to say whether it was sufficient. The jury found the prisoner not guilty. R. v. King, 5 C. & P. 123. Upon an indictment for uttering a forged cheque upon bankers, purporting to be drawn by G. Andrews, it was held sufficient prima, fade evidence of the drawer's name being fictitious to call a clerk of the bankers, who stated that no person of that name kept an account with, or had any right to draw cheques on, their house. R. v. Buckler, 5 C. & P. 118 ; R. v. Bran nan, 6 G. & P. 326. Form of indictment.'] A material alteration in the form of indictments for forgery was made by the 14 & 15 Vict. c. 100, s. 8, and is continued by the 24 & 25 Vict. c. 98, s. 44, supra, p. 480. Forgery. 505 The nature of the forged instrument must be stated in the indictment ; R. v. Wilcox, Russ. d' By. 50 ; and the proof must correspond with such statement. But any immaterial variance would be amended. See 14 & 15 Vict. c. 100, s. 1. By the 24 & 25 Vict. c. 98, s. 42 (supra, p. 479), it is sufficient to describe any instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or facsimile thereof. And in the 24 & 25 Vict. c. 98, s. 4.'} (supra, p. 479), there is a similar provision with respect to indictments for engraving, &c. Where in one count the instrument was described as pur- porting to be a bank-note, the court, being of opinion that it did not on the face of it purport to be such, held that the count could not be supported, and that the representation of the prisoner at the time he passed it off as such, could not vary the purport of the instrument itself. R. v. Jones, 2 East, P. C. 883, 981. Where a receipt was signed "0. Oilier," and the indictment stated it as purporting to be signed by Christopher Oilier, the court were inclined to think there was no absolute repugnance in the statement, and they reserved the case for the judges, but no opinion was ever given. R. v. Beeves, 2 Leach, 808, 814 ; 2 East, P. C. 984(«). Where a fictitious signature is stated, it should be described as purporting to be the signature of the real party. Thus, where the instrument was described as "a certain bill of exchange, requiring certain persons by the name and description of Messrs. Down, &c, to pay to the order of E. Thompson the sum, &c, and signed by Henry Hutchinson, for T. G. T. and H. Hutchinson, &c, which bill is as follows," &c, and it appeared in evidence that the signature to the bill, "Henry Hutchinson," was a forgery, it was objected that the indictment averring it to have been signed by him and not merely that it purported to be signed by him, which was a substantial allegation, was disproved, and so the judges held, on a reference to them after conviction. B. v. Carter, 2 East, P. C. 985. A bank post bill must not be described as a bill of exchange, but it is sufficiently described by the designation of a bank bill of exchange. B. v. Birkeit, Russ. & II y. 251. Where an indictment for forgery charged that the prisoner " did forge a certain promissory note for the payment of 50/.," without stating it to be of any value ; 1 'atteson, J., said that the court must take judicial notice of what a promissory note is, and held the description to be sufficient. B. v. James, 7 C. & P. ~>~hl. Tt was held that an instrument payable to the order of A., and directed "Messrs. P. & Co., bankers," may be described as a bill of exchange ; B. v. Smith, 2 Moo. C. C. 295; that " a deed pur- porting to be a lease of certain premises," is a sufficient description ; R. v. Da rits, 2 Moo. C. C. 177 ; so " a request for the delivery of goods " ; R. v. Bobson, 2 Moo. C. <". 182; that the instrument may be described as a deed, without assuming that it is one which may be the subject of larceny; B. v. Collins, 2 M. & Rob. 461 ; that an indictment charging that the prisoner "did forge a writing as a certificate of W. N. with intent to deceive and defraud W. P. and others," was good. B. v. Toshack, 1 Den. C C. 492. H an instrument is set out in full in the indictment, the description of its legal character would appear to be surplusage. B. v. Williams, 2 Den. C. C. B. 01; 20 /.. ,/., M. C. 100. B. v. Hunter, Russ. '. R. 498 ; 19 /.. ./., M. C. 31, the prisoner was not shown to have been in custody till he surrendered just before the trial. On an indictment for forging and uttering a cheque, it appeared that the cheque had been dated abroad and drawn by the prisoner abroad, and that he had caused it to be presented to a banker abroad, through whom it was presented in tin's country without a stamp; held, that the prisoner might be convicted of uttering in this country if he set other persons in motion in another country as his agents, by whom the cheque was presented in this country. /.'. v. Taylor, 1 /■'. .1 /•'. 511. 60S Furious Driving. FUEIOUS DKIVING. This, considering the probable danger to the lives of the public, would seem to be an indictable offence at common law ; Williams v. E. I. Co., 3 East, 192 ; and now by the 24 & 25 Vict. c. 100, s. 35, replacing the 1 Geo. 4, c. 4, "Whosoever having the charge of any carriage or vehicle, shall by wanton or furious driving or racing, or other wilful misconduct, or by wilful neglect, do or cause to be done any bodily harm to any person whatsoever, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any temi not exceeding two years, with or without hard labour." Under 5 & 6 Will. 4, c. 50, s. 78, it was held that a person riding a bicycle on a highway, may be summarily convicted of furiously driving a " carriage." Taylor v. Goodwin, 4 Q. B. D. 228 ; 48 L. J., M. C. 104. And by 51 & 52 Vict. c. 41, s. 85, "bicycles, tricycles, velocipedes, and other similar machines are hereby declared to be carriages within the meaning of the Highway Acts." As to death caused by negligent driving, seeposf, tits. Manslaughter and Murder. Game. ,309 GAME. All offences with regard to game, which are the subject of indictment, are statutable offences, not known to the common law. Such animals being ferce naturce, are not, in their live state, the subjects of larceny. Vide supra, p. 453. The principal provisions with regard to offences relating to game are contained in the 9 Geo. 4, c. 69, the 7 & 8 Vict, c. 29, and the 24 & 25 Vict.. c. 96, s. 17. Taking or killing hares or rabbits in the night.'] By the 21 & 2o Vict. c 96, s. 17, "whosoever shall unlawfully and wilfully, between the expira- tion of the first hour after sunset and the beginning of the last hour before sunrise, take or kill any hare or rabbit, in any warren or ground lawfully used for the breeding or keeping of hares or rabbits, whether the same be inclosed or not, eveiy such offender shall be guilty of a misde- meanor." Taking or destroying game or rabbits by night.] By the 9 Geo. 4, c. 69,. 8. 1, it is enacted, that " if any person shall, by night, unlawfully take or destroy any game or rabbits, in any land, whether open or inclosed, or shall by night unlawfully enter, or be in any land, whether open or inclosed, with any gun, net, engine, or other instrument for the purpose of taking or destroying game (which word, by s. 13, shall be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards), such offender shall, upon conviction thereof before two justices of the peace, be committed for the first offence to the common gaol or house of correction, for any period not exceeding three calendar months, there to be kept to hard labour, and, at the expiration of such period, shall find sureties by recognizance, himself in 10/., and two sureties in 51. each, or one surety in 10/., for his not so offending again for the space of one year next following ; and in case of not finding such sureties, shall be further imprisoned and kept to hard labour for the space of six calendar months, unless such sureties are sooner found; and incase such person shall so offend a second time, and shall thereof be convicted before two justices of the peace, he shall be committed to the common gaol or house (if correction, for any period not exceeding six calendar months, there to be kept to hard labour, and at the expiration of such period shall find sureties by recognizance or bond as aforesaid, himself in 20/. and two sureties in 10/. each, or one surety in 20/., for his not so off ending again for the space of two years next following, and in case of not finding such sureties shall be further imprisoned and kept to hard labour for the space of one year, unless such sureties are sooner found ; and in case such person shall so offend a third time he shall he guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not -DIG Game. exceeding two years." By the 20 & 21 Vict. c. 3, s. 2, three years' penal servitude is substituted for seven years' transportation. Power to apprehend offenders.'] By s. 2, "where any person shall be found upon any land, committing any such offence as is hereinbefore mentioned, it shall be lawful for the owner or occupier of such land, or for any person having a right of free warren or free chase thereon, or for the lord of the manor or reputed manor, wherein such land may be situate, and also for any gamekeeper or servant of any of the persons hereinbefore mentioned, or any person assisting such gamekeeper or servant, to seize and apprehend such offender upon such land, or in case of pursuit being made in any other place to which he may have escaped therefrom, and to deliver him, as soon as may be, into the custody of a peace officer, in order to his being conveyed before two justices of the peace. And in case such offender shall assaxdt or offer any violence with any gun, crossbow, firearms, bludgeon, stick, club, or any other offensive weapon whatsoever, towards any person hereby authorized to seize and apprehend him, he shall, whether it be his first, second, or any other offence, be guilty of a misdemeanor ; and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding two years." See also 7 & 8 Vict. c. 29, s. 1. infra, p. 511. By the 20 & 21 Vict. c. 3, s. 2, three years' penal servitude is substituted for seven years' transportation. Limitation of time for prosecutions.'] By s. 4, "the prosecution for every offence punishable upon indictment, or otherwise than upon sum- mary conviction, by virtue of this Act, shall be commenced within twelve calendar months after the commission of such offence." Proof of previous convictions.] By s. 8, "every conviction under this Act for a second offence, the convicting justices shall return the same to the next quarter sessions for the county, riding, division, city, or place wherein such offence shall have been committed ; and the record of such conviction, or any copy thereof, shall be evidence in any prosecution to be instituted against the party thereby convicted for a second or third offence." Three persons entering laud by night armed in pursuit of game.] By s. 9, " if any persons, to the number of three or more together, shall by night unlawfully enter or be in any land, whether open or inclosed, for the purpose of taking or destroying game or rabbits, any such person being armed with any gun, crossbow, firearms, bludgeon, or any other offensive weapon, each and every of such persons shall be guilty of a misdemeanor, and being convicted thereof before the justices of gaol delivery, or of the court of great sessions of the county or place in which the offence shall be committed, shall be liable, at the discretion of the court, to be trans- ported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned and kept to hard labour for any term not exceeding three years." By the 20 & 21 Vict. c. 3, s. 2, penal servitude is substituted for transportation. Definition of night.] By s. 12, " for the purposes of this Act, the night shall be considered, and is hereby declared to commence at the expiration of the first hour after sunset, and to conclude at the beginning of the last hour before sunrise." Game. 514 Definition of game.'] By s. 13, "for the purposes of this Act, the word ' game ' shall be deemed to include hares, pheasants, partridges, grouse, heath or moor game, black game, and bustards." Destroying (/tunc or rabbits on a public i<«t. & G. 89; see also R. v. Kendrick, 7 C. & /'. 184 ; R. v. Wilks, Id. 811; Fletcher v. Calthrop, 6 Q. B. 880. On an indictment for perjury an information alleging that the defendant did enter and was on certain land there, called A. close, &c, for the purpose of taking and destroying game con- trary to the statute, &c, but not saying "for the purpose of destroying game there" was held to be sufficient to give jurisdiction to the justices before whom the information was laid. II. v. W'rstir//, L. R., 1 ('. <'. //. 122 ; 37 A. ;/., M. C. 81. It is not necessary to give direct evidence that the men were on the land without the permission of the occupier or land- 512 Game. lord; the jury may infer that they were there unlawfully, from their conduct and other circumstances. B. v. Wood, Dears. & B. C. C. 1 ; 25 L. J., M. C. 96. See ante, p. 5. If persons go out with the intention of taking game, and pass through a close where they might expect to find game, they are guilty of entering that close for the purpose of destroying game therein, even although they pass through it without attempting to destroy game. Per Willes, J., in B. v. Higgs and others, 10 Cox, 527. Where only one defendant was seen in the place charged in the indict- ment, the others being in a wood separated therefrom by a high road, Patteson, J., held the indictment not proved. B. v. Dowsell, 6 C. & P. 398 ; 1 Buss. Cri. 956, 6th ed._ In B. v. Whittaher, 1 Den. C. 0. B. 310, however, the majority of the judges held, that all who were aiding and assisting those who entered the field, were guilty of the same misdemeanor, though they themselves were not in the field, and therefore that the con- viction of all the prisoners was good. And see B. v. Scotton, 5 Q. B. 493. In 7?. v. Whittaher, a particular close was specified in the indictment, but in the subsequent cases of R. v. Uezzell and others, 2 Den. C. 0. B. 274 ; 20 L. J., M. C. 192; Campbell, C. J., 2 Den. C. C. B. 275, observed: " Some confusion seems to have arisen in this matter, from not attending sufficiently to the provisions of the Act of parliament : it has been treated as though the word close occurred in the Act, whereas it only specifies 'any hind whether open or inclosed' 1 ; a practice has consequently prevailed of naming a certain close in the indictment, which is quite needless." In B. v. Uezzell and others, therefore, the prisoner was held to have been properly convicted, he being one of a party of three, armed with guns, one of whom was in a close occupied by G. W., in which were pheasants, for the purpose of destroying game there, and all of whom were found to have been in another adjoining close of G. W., in which there were not any pheasants, on their way to the former close ; one of the counts of the indictment charging the prisoners with being in inclosed land occupied by G. W. Merely sending a dog to drive the game in a field while the owner stands in the road is not an entry by the owner ; B. v. Nichless, 8 Car. & P. 757 ; B. v. Pratt, Dears. C. C. 502 ; 24 L. J., M. C. 113 ; but the sod of the road frequently belongs to the owner of the adjoining close, and in that case perhaps the defendants might be convicted though they never left the road. In B. v. Pratt, where the defendant had been summarily con- victed before justices for entering and being upon land in pursuit of game, the conviction was upheld under similar circumstances. See also Pickering v. Rudd, ante, p. 320, from which it appears that shooting on to a person's land would be an entry. Proof of the situation and occupation of the land where the offence was committed.^ Under the 24 & 25 Vict. c. 96, s. 17, it must be proved that the offence was committed in some warren or ground lawfully used for the breeding of hares or rabbits. That is, in some place which is either a warren, or which is similar to a warren. R. v. Garratt, 6 C. & P. 369. The indictment must particularize, in some manner, the place in which the offence was committed ; for being substantially a local offence, the defendant is entitled to know to what specific place the evidence is to be directed. R. v. Ridley, Buss. & By. 515. " A certain cover in the parish of A. " is too general a description. B. v. Crick, 5 C. & P. 508. But it has been held sufficient to charge entering certain lands in the occupation of A. B., without specifying whether it is inclosed or not. B. v. Andrews, 2 Moo. & B. 37. Where there was a variance between the allegation of the occupation of Game. 513 the land, and the proof of the occupation, Lindley, J., held that the indictment could be amended if the prisoners were not misled thereby. /,'. v. Sutton, 13 Cox, 648. Where the indictment alleged an entry into a particular close, with intent then ami there to kill game, it was held, that the intent was con- fined to the killing of game in that particular place, li. v. Barham, 1 Moo. 0. 0. 151; 11. v. Capewell, 5 C. &P. 549; 11. v. Gainer, 7 C. ,<■ /'. 231. Where it apj)eared that the prisoners were in Shutt Leasowe, a place named in the indictment, and which adjoined Short Wood, and were apparently going to the wood, Patteson, J., said, "The intent was evidently to kill game in the wood, into which none of the parties ever got for that purpose ; it is true that they were charged with being in Shutt Leasowe, but they had no intention of killing game there; they must be acquitted." li. v. Dun's, 8 C. & /'. 759. But see R. v. Higgs, 10 Cox, 527, ante, p. 512. Proof that the prosecution was commenced within the time limited.] On the trial of an indictment under the 9th section of the 9 Geo. 4, c. 09, for night poaching, it appeared that the offence was committed on the 12th January, 1844, the indictment was preferred on the 1st March, 1845, the warrant of commitment was dated on the 11th December, 1844. It was held that it was sufficiently shown that the prosecution was commenced "within twelve calendar months after the commission" of the offence within the fourth section. 11. y. A nut in, 1 C. & K. 621. So where the offence was committed on the 4th December, 1845, the information ami warrant were on the 19th December: one prisoner was apprehended on the 5th September, 1846, and the other on the 21st of October, 1846; and the indictment was preferred on the 5th of April, 1847 : it was held that the prosecution was commencedin time. 11. v. Brooke, 1 Den. C. C. R. 217. In order to prove that proceedings were commenced within the proper time a warrant for defendant's apprehension was produced, but the in- formation on which it was founded was not put in evidence, nor did the warrant purport to be grounded on an information in writing, and it was held not sufficient, li'. v. Parker, L. & C. 459; 33 L. J., M. C. 135. Proof of being armed."] Though it must be proved under the 9 Geo. 4, c 69, s. 9, that three persons at least were concerned in the commission of the offence, the statute does not require that it should appear that each was armed with a gun or other weapon, the words being "any of such persons being armed," iVc //. v. Smith, Russ. & Ry. 368. It is not oecessary that the gun should be found upon any of the defendants. The prisoners were shooting in a wood in the night, and the flash of their guns was seen by a keeper; lint liefmv they were seen they abandoned their guns, and were caught creeping away on their knees. Being convicted, the judges held this a being "found armed." //. v. Nash, Russ. & Ry. 368. See also /,'. v. Goodfellow, 1 C. & K. 724; 1 !>.„. C. C. II. 81, where it was held (oven'uling on this point li. v. Davis, 8 ( '. .t /'. 759) that if one of a party of three or more poaching in the night-time lias a gun, all are armed within the !l Geo. 4, c. <>!». s. !). See also li. \. Whittaker, 1 l>»., V. 6'. 765 ; Eastwood v. M7fer, A. B., (?. /-'. 440 ; 43 L. J., M. C. 139 ; Haigh v. Town Council of Sheffield, L. R., 10 Q. /!. 102 ; 44 L. J., M. C. 17. In the latter case it was also held that any owner or occupier might be con- victed of knowingly permitting any other person to use such house or place for the purpose of betting though the person so using it was in no sense the occupier or keeper. As to advertisements of bets not to be made in any office or place, see Cox v. Andrews, 12 Q. B. D. 126. It has recently been decided that the holding of an ordinary sweepstakes is not betting within the meaning of the Act. R. v. Jlobbs, Times, Aug. 8, 1898. The cases on the question of what is a jdace within the meaning of the Act, have recently been reviewed in Hawke v. Dunn, (1897) 1 Q. B. 579; 66 L. J., Q. B. 364, in which Hawkins, J., in delivering the judgment of the court, laid it down that any area of inclosed ground, covered or uncovered, which is known by a name or is capable of reasonably accurate description to which persons from time to time or upon any particular occasions or occasion resort, and who may very properly be described as resorting thereto, used by a professional betting man for the purpose of exercising his calling and betting with such persons, or for the purpose of carrying on a ready money betting business, may be a place within the meaning of the statute. But this decision was expressly disapproved of by the Court of Appeal in Powell v. Kempton Pari,- Racecourse Company) (1897) 2 Q. B. 242 ; 66 /.. -/., (J. B. 601 ; and it was decided that the place contemplated by the Act is a place which is analogous in its character and use to a betting house or office. Lord Esher, M. B., in his judgment disapproved of the decision in Eastwood v. Miller, supra, and the other judges seem to have agreed with him. Eigby, L. J., differed. Powell v. Kempton Park Racecourst Company is now under the consideration of the House of I. ciil-. but in //. v. Humphrey, (1898)1 Q. I>. 875, the Court for Crown ( lases Reserved were inclined to adhere to the opinion expressed in Hawke v. //nun. In li. v. Humphrey, however, the place in question was a defined archway, which, according to all the decisions, would seem clearly to be "a place " within the meaning of the Act. It has been doubted whether under the 8 & 9 Vict. c. 109, s. 17, it would be necessary to prove that the money was actually paid over, or whether it is not sutlicient if the money be lost by one side and won by the other. Per Bramwell, B., in /I. v. Moss, uoi supra. The statute, however, seems to contemplate actual payment by the use of the word "obtaining" in the latter part of the section. If the money were not actually paid over, the prisoner might be convicted of the attempt to commit the statutable misdemeanor. See the 14 & 15 Vict. c. 100, s. 9, supra, ]). 269. It is unnecessary in the trial of an indictment under s. 1 of 16 & 17 Vict. c. 11!), for keeping a house for the purpose of betting with persons resorting thereto, to show that there has been a physical "resorting," if it be shown that the house was opened and advertised as a betting house. But where the only evidence is that of resorting it is not enough to show that letters and telegrams were sent to the house ; there must be evidence of a physical resorting. 11. v. Brown, (1895) 1 Q. II. 1 1!) ; 64 L. -/., M. C. 1. The question whether a particular game is unlawful is a question for the judge. R. v. Dames, (1897) 2 Q. II. 199; 66 /.. ./., fj. J',. 513. See the 520 Gaming. same case as to what amounts to using a room for the purpose of unlawful gaming. Inciting infants to bet or borron\~\ By 55 Vict. c. 4, s. 1, "If any one for the purpose of earning commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant any circular, notice, advertisement, letter, telegram, or other document which invites or may reasonably be implied to invite the person receiving it to make any bet or wager, or to enter into or take any share or interest in any betting or wagering transaction, or to apply to any person, or at any place with a view to obtaining information or advice for the purpose of any bet or wager, or for information as to any race, fight, game, sport, or other contingency upon which betting or wagering is generally carried on, he shall be guilty of a misdemeanor, and shall be liable if convicted on indictment to imprisonment with or without hard labour, for a term not exceeding three months, or to a fine not exceeding one hundred pounds, or to both imprisonment and fine. If any such circular, notice, advertisement, letter, telegram, or other document as in this section mentioned, names or refers to any one as a person to whom any payment may be made, or from whom information may be obtained for the purpose of or in relation to betting or wagering, the person so named or referred to shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves that he had not consented to be so named, and that he was not in any way a party to, and was wholly ignorant of the sending of such document." By s. 2, " If any one for the purpose of earning interest, commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant, any circular, notice, advertisement, letter, telegram, or other document which invites or may reasonably be implied to invite the person receiving it to borrow money or to enter into any transaction involving the borrowing of money, or to apply to any person, or at any place, with a view to obtaining information or advice as to borrowing money, he shall be guilty of a misdemeanor, and shall be liable if con- victed on indictment to " the same punishment as in s. 1. ' ' If any such document as above in this section mentioned sent to an infant purports to issue from any address named therein, or indicates any address as the place at which application is to be made as to the subject- matter of the document, and at that place there is carried on any business connected with loans, whether making or procuring loans or otherwise, every person who attends at such place for the purpose of taking part in, or who takes part in or assists in the carrying on of such business shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves that he was not in any way a party to, and was wholly ignorant of the sending of such document. Sect. 3 provides that if any such document as is mentioned in the former sections is sent to an infant "at any university, college, school, or other place of education, the person sending or causing the same to be sent shall be deemed to have known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full aga." By s. 4, "If any one, except under the authority of any court, solicits an infant to make an affidavit or statutory declaration for the purpose of or in connexion with any loan, he shall be liable ... if convicted on indictment to imprisonment with or without hard labour for a term not exceeding three months, or to a fine not exceeding one hundred pounds." By s. 6, the person charged, and the wife or husband of such person may, if such person thinks fit, give evidence as an ordinary witness. Grievous Bodily Harm. 521 GRIEVOUS BODILY HARM. In numerous instances the words "grievous bodily harm" occur in criminal statutes, which make either doing such harm, or intending to do it, or attempting to do it, an offence punishable in a particular way. Sometimes the words are slightly varied. By the 24 & 2.3 Vict. c. 100, s. 11, "whosoever shall cause grievous bodily harm with intent to murder" is guilty of felony. See infra, tit. Murder, Attempt to Commit. By s. 18, whosoever shall " cause any grievous bodily harm to any person, or shoot at any person, or by drawing a trigger, or in any other manner attempt to discharge any kind of loaded arms at any person, with intent, in any of the cases aforesaid, to maim, disfigure, or disable, or to do any other kind of grievous bodily harm to any person" is made guilty of felony. Supra, p. 260. By s. 20, inflicting "grievous bodily harm upon any person with or without any weapon or instrument," is made a mis- demeanor. Supra, p. 260. By s. 23, administering poison so as to inflict " grievous bodily harm," is made a felony. Infra, tit. Poison. By s. 26, doing or causing to be done any "bodily harm" to apprentices and servants by neglect of masters, &c, is made a misdemeanor. Infra, tit. Illtreating Apprentices. By s. 28, whosoever shall do any "grievous bodily harm " to any person by explosive substances, is made guilty of felony. Ante, p. 4LS. By s. 29, causing gunpowder to explode, or sending any explosive substance, or throwing any corrosive fluid, with intent to do any " grievous bodily harm," is made a felony. Ante, p. 419. By s. 30, placing any explosive substance near any building or vessel, with intent to do any " bodily injury," is made a felony. Ante, p. 4LS. By s. 31, setting spring guns, with intent to inflict " grievous bodily harm," is made a misdemeanor. Infra, tit. Spring (inns. By s. 3.3, drivers of carriages by furious driving doing, or causing to be done, any " bodily harm," are made guilty of a misdemeanor. Supra, p. 508. The prisoner was indicted, under a repealed statute, for causing a bodily injury dangerous to life, with intent to commit murder. It appeared at the trial that the prisoner intending to cause the death of her infant child exposed it in an open field on a cold wet day, where it was found after some hours nearly dead from congestion of the lungs and heart caused thereby. The court said that looking to the character of the other offences provided for by that section (poisoning, stabbing, &c.) and seeing that in this case there had been no lesion of any part of the body of the infant, the conviction for causing " a bodily injury " could not be supported. R. v. Gray, Dears. & li. 0. C. SOffpgQ & «A , M.T. 203. See 24 & 25 Vict. c. 100, s. 27, supra, p. 348. It is not necessary to prove malice in the prisoner against the person injured; or, if the intent be punishable, that any grievous bodily harm was in fact inflicted. The prisoner having been apprehended by one Headley, in an attempt to break open his stable in the night, was taken into Headley' s house where he threatened him with vengeance and endeavoured to carry his threats into execution with a knife which lay before him ; in so doing he cut the prosecutor, one of Headley's servants,, 522 drieroits Bodily Harm. who, with Headley, was trying to take away the knife. The jury, who found the prisoner guilty, said that the thrust was made with intent to do grievous bodily harm to any body upon whom it might alight, though the particular cut was not calculated to do so. Upon the case being submitted to the consideration of the judges, they were of opinion, that general malice was sufficient under the statute, without particular malice against the person cut : and that if there was an intent to do grievous bodily harm, it was immaterial whether grievous bodily harm was done. R. v. Hunt, 1 Moo. G. C. 93. This case appears to have resolved the doubts expressed by Bayley, J., in R. v. Akenhead, Holt, N. P. C. 469. The same construction, with regard to general malice, was put upon the Coventry Act. See R. v. ('arm//. 1 East, P. C. 394, 396; B. v. Latimer, 17 Q. B. D. 359; oo L. J., M. G. 135, ante, p. 21. Where the prisoner, in attempting to commit a robbery, threw down the prosecutor, kicked him, and produced blood; Denman, C. J., left it to the jury to say, whether his intent was to disable the prosecutor, or to do him some grievous bodily harm ; adding that nothing was more likely to accomplish the robbery which he had in view than the disabling which such violence would produce. It. v. Shadbolt, 5 G. tfc P. 504. The intent to do grievous bodily harm may be inferred, although the prisoner had also an intent to commit another felony. Thus, where, on an indictment, charging the prisoner with cutting M. E-, with intent to do her some grievous bodily harm, — it appeared that the prisoner cut the private parts of a girl, ten years of age, — Graham, B., told the jury that they were to consider whether this was not a grievous bodily injury to the child, though eventually not dangerous. As to the intent, though it probably was the prisoner's intention to commit a rape, yet if, to effect the rape, he did that which the law makes a distinct crime, viz., inten- tionally did the child a grievous bodily harm, he was not the less guilty of that crime, because his principal object was another. He added, that the intention of the prisoner might be inferred from the act. The jury found the prisoner guilty, and, on a case reserved, the judges held the conviction right. R. v. Cox, Buss, tfc By. 3(52. So, where the prisoner was charged with shooting, with intent to do A. B. some grievous bodily harm, and the jury found that the prisoner's motive was to prevent his lawful apprehension, but that, in order to effect that purpose, he had also the intention of doing A. B. some grievous bodily harm ; the prisoner being convicted, the judges held that, if both the intents existed, it was immaterial which was the principal and which the subordinate ; and that the conviction was right. R. v. Gillow, 1 Moo. G. G. 85. 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 intent to do grievous bodily harm. R. v. Bowen, Carr. <& M. 149. In this case, it was also held that even if the prisoner's was not the hand that inflicted the wound, he ought to be convicted on this indictment, if the jury was satisfied that he was one of two persons engaged in the common purpose of robbing the prosecutor, and that the other person's was the hand that inflicted the wound. With respect to cases in which the prisoner's intention was to injure one person, and in which he has in fact injured another, the following points have been decided : — ■ 1. If the prisoner meant to inflict grievous bodily harm when he struck, and did in fact inflict grievous bodily harm, a mistake on the prisoner's part as to the identity of the person injured makes no difference, and he may be convicted of wounding the person, whom he did in fact wound, Grievous Bodily Harm. 523 with intent to do grievous bodily harm to that person. A. shoots at B., desiring to wound C, and supposing B. to be C, and wounds B., A. may- be convicted of wounding B. with intent to do B. grievous bodily harm. R. v. Smith, Dears. ('. 0, 559; and see JR. v. Stopford, infra. These cases appear to be inconsistent with R. v. Holt, 7 0. & P. 518, but they may perhaps be reconciled by referring to the direction of Littledale, J., to the jury in that case that a man must be held to intend the natural consequences of his act. 2. If the prisoner had a general intention to inflict grievous bodily harm on any one of a group of persons, and in pursuance of that intent did inflict grievous bodily harm on A., with respect to whom he had no specific intention, ho may be convicted of wounding A. with intent to do grievous bodily harm to A. The prisoner fired a loaded pistol at a group of boys, of whom A. was one, and hit A. Held, that he was rightly convicted of wounding A., with intent to do A. grievous bodily harm. R. v. Fretwell, I.. & C. 443. The prisoner put out the gas-lights on a staircase in a theatre with the intention of causing terror to persons who were about to descend ; and also., with the intention of obstructing the exit, placed an iron bar across the doorway. Upon the lights being thus extinguished, a panic seized the audience, and they rushed in fright down the staircase, forcing those in front against the iron bar. Several of the audience were injured by the pressure thus occasioned, and amongst them A. and B. Held, that the prisoner was rightly convicted of unlawfully and iivdidousiy inflicting grievous bodily harm upon A. and B. R. v. Martin. 8 Q. B. D. 54; 51 L. J., M. C 36. 3. If the prisoner intends to inflict grievous bodily harm on A., and in endeavouring to wound A. accidentally inflicts such harm on B., he cannot be convicted of wounding B., with intent to do grievous bodilv harm to B. R. v. Ryan, 2 M. & R. 213 ; and see R. v. Hewlett, 1 F. & F. 91, See, however, R. v. Stupford^ 11 Cox, CA'.i, where from the report it would appear that Brett, J., thought that these cases were not distinguishable from R. v. Smith, cited supra ; and see also II. v. Latimer, 17 Q. B. D. 359; 55 L. •/., .1/. C. 135, ante, p. 21 ; and 11. v. Hunt, 1 Moo. C. C. 93, supra, p. 522. All these cases are reducible to the single principle that the criminal intention referred to by the statutes is an intention to injure the person actually injured, whether the reason from which that intention proceeds was mistaken or not. Intention is the direction of the mind towards a certain result, and is altogether a different thing from motive. If I level a loaded gun at a man and fire it, I intend to shoot that man. My belief that that man is A. may be my motive for shooting him ; but it is quite independent of my intention to do sp. On the other hand, if I take A. for B., and shoot at A. on that supposition, and accidentally shoot B., though my desire to hurt B. was the cause of my intention to shoot A., I can hardly be said to have shut I!, intentionally, and it may be doubted whether a wounding of B. Tinder such circumstances would be within the statute, but the distinction would probably be considered too subtle to bo allowed to prevail. A constable was employed to guard a copse from which wood had been stolen, and for this purpose carried a loaded gun ; from this copse he saw the prosecutor come out, carrying wood which he was stealing, and called to him to stop; the prosecutor, however, running away, the constable having no other means of bringing him to justice, tired and wounded him in the leg. It appeared that the constable was not aware at the time that any felony had been committed by the prosecutor. The constable having 524 Grievous Bodily Harm. been convicted upon an indictment charging him with assaulting the prosecutor with intent to do him grievous bodily harm, the Court of Criminal Appeal held that the conviction was right, upon the ground that ' ' the fact that the prosecutor was committing a felony was not known at the time ; he was therefore liable to be convicted, though the amount of punishment might deserve great consideration. R. v. Dadson, 2 Den. C. C. R. 35 ; 20 L. J., M. C. 57. Where a party who is being assaulted, and who is entitled to defend himself, unnecessarily resorts to the use of a deadly weapon, he may be convicted of wounding with intent to do grievous bodily harm. R. v. Adgar, 2 Moo. cfc R. 497. Upon an indictment for "wounding with intent," if the proof of the intent to do grievous bodily harm fails, the defendant may be found guilty of unlawfully wounding; 14 & 15 Vict. c. 19, s. 5, infra, tit. Wounding ; and see R. v. Miller, 14 Cox, 356 ; or if the indictment be for the misdemeanor of inflicting grievous bodily harm, he may be found guilty of a common assault, ante, p. 260. See as the form of indictment, R. v. Cruse, 8 C. & P. 541 ; 2 Moo. C. C. 53, infra, tit. Murder, Attempt to commit. GUNPOWDEE, See Explosives. High ways — Nuisance. 525 HIGHWAYS. NUISANCE TO HIGHWAYS. Upon prosecutions for nuisance to a highway, the prosecutor must prove : 1st, that the way in question is a common highway ; 2nd, the obstructing of it, or other nuisance. Proof of the tray being a highway.^ Everyway which is common to the public is a highway. Thus a bridge may be a common highway. 2 Ld. Baym. 1174. So a footway. Logan v. Burton, 5 />. & C. 513; for it is a public highway for foot passengers. Allen v. Ormond, 8 East, 4. So a public bridle-way. II. v. Inhab. of Salop, 13 East, 95. So a towing-path, used only by horses employed in towing vessels, is a highway for that purpose. Per Bayley, J., R. v. Severn and Wye Bailway Co., 2 11. & A. 648. And a railway made under the authority of an Act of parliament, which provides that the public shall have the beneficial enjoyment of it, is also a highway to be used in a particular manner. R. v. Severn and Wye Bailway Co., 2 B. & A. 640. A river which is common to all the king's subjects has been frequently held to be a highway; and if its course change, the highway is diverted into the new channel. 1 Bol. Ah. 390; U. v. 'Hammond, 10 Mod. 382; Haivh. P. C. b. 1, c. 76, s. 1. It must appear that the highway was a way common to all the king's subjects; for, though numerous persons may be entitled to use it, yet if it be not common to all, it is not a public highway. Thus a private way set out by commissioners under an inclosure Act, for the use of the inhabitants of nine parishes, and directed to be repaired by them, does not concern the public, nor is it of a public nature, but merely concerns the individuals who have a right to use it, and consequently cannot be the subject of indictment. B. v. Bichards, 8 '/'. B. 634. In general, the proof of any particular way being a highway, is from the use of it by the public as such for such a number of years as to afford evidence of a dedi- cation by the owner of the soil to the public. The particular manner in which it lias been used, says Mr. Starkie, as where it has been used for some public purpose, as conveying materials for the repairs of other high- ways (R. v. Wandsworth, 1 />'. Taunt. 125, the court expressed their dissatisfaction with the dictum of Lord Kenyon in the Rugbycme; and in Wood v. Veal, 5 B. & A. 454, Abbott, C. J., did the same. There is now, however, no doubt thai a way may be a highway, though it lie what is commonly called a cul-de-sac. Bateman v. Bluck, 21 A. ./., Q. I!. 407; Campbells. Lang, 1 Macq. II. I.. Ca. 451 ; Young \. Cnthbertson, /1 ; see also A', v. Steventon, 1 C. & K. 55. Where the way was stated 1n be •• fur all the liege subjects, &c, to go, &c. with their horses, coaches, carts and carriages," and the evidence was that carts of a particular description, and loaded in a particular manner, could not pass along the way, it was held to be no variance. II. v. Lyon, Ry. & Mm,. X. /'. < '. 151. Where the way is stated to be a pack and prime way, and appears to be a carriage way, the variance is fatal. I!, v. Inhab. of St. Weonard's, 6 C. & P. ,")S2. But where the indictment alleged an immemorial way, and the evidence proved that the way had been made within legal memory, the variance was heal to he immaterial. II. v. Norweston, 16 Q. II. 109 ; 20 A. ./.. .1/. C. 46 : and now see 14 & 1.3 Vict. c. 100. s. 1, as to the power of amendment in cases of variance between the indictment and the proof, ante, p. 182. Proof of the highway as set forth with regard to the termini. ] Although it is unnecessary to state the termini of the highway, yet if stated they should be proved as laid. R. v. Upton-on- Severn, 6 C. & I'. l;>;$. See also R. v. Norioeston, supra. Proof of changing. ,] An ancienl highway cannot be changed with- out the king'.-- licence first obtained, upon a writ of ad quod damnum, and inquisition thereon found that such a change will not be prejudicial U. M M 530 Highways — Nuisance. to the public ; but it is said that the inhabitants are not bound to watch such new way, or to make amends for a robbery committed therein, or to repair it. 1 Hawk, P. C. b. 1, c. 76, s. 3. A private Act of parliament for inclosing lands, and vesting a power in commissioners to set out a new road, is equally strong, as to these consequences, with the writ of ad quod damnum. 1 Burr. 465. An owner of land, over winch there is an open l'oad, may inclose it of his own authority ; but he is bound to leave suffi- cient space and room for the road, and he is obliged to repair it till he throws up the inclosure. Ibid. The power of widening and changing highways is given to justices of the peace under certain modifications, by the Highways Act, 5 & 6 Will. 4, c. 50. See also 25 & 26 Vict. c. 61, s. 44; 27 & 28 Vict. c. 101, ss. 21, 47, 48. A statute giving authority to make a new course for a navigable river, along which there is a towing-path, will not take away the right of the public to iise that path, without express words for that purpose. B. v. Tippett, 1 Buss. Cri. 784, 6th ed. Proof of the nuisance — what acts amount to.~] There is no doubt but that all injuries whatever to any highway, as by digging a ditch or making a hedge across it, or laying logs of timber on it, or doing any act which will lender it less commodious to the public, are nuisances at common law ; and it is no excuse that the logs are only laid here and there, so that people may have a passage, by winding and turning through them. Hawk. P. C. h. 1, c. 76, ss. 144, 145. So erecting a gate across a highway is a nuisance, for it not only interrupts the public in their free and open passage, but it may in time become evidence in favour of the owner of the soil. /'/. c. 75, s. 9. It is also a nuisance to suffer the ditches adjoin- ing a highway to be foul, by reason of which the way is impaired ; or to suffer the boughs of trees growing near the highway to hang over the road in such a manner as to incommode the passage. Id. c. 76, s. 147 ; and see 5 & 6 Will. 4, c. 50. Walker v. Horner, 1 Q. B. I). 4 ; 45 I. J., M. C. 4. There can be no doubt that every contracting or narrowing of a public highway is a nuisance ; it is frequently, however, difficult to determine how far in breadth a highway extends, as where it runs across a common, or where there is a hedge only on one side of the way, or where, though there are hedges on both sides, the space between them is much larger than what is necessary for the use of the public ; in these cases it would be for a jury to determine how far the road extended. It seems that, in ordinary cases, where a road runs between fences, not only the part which is maintained as solid road, but the whole space between the fences is to be considered as highway. 1 Russ. Cri. 790, (5th ed. ; Brownlowv. Tomlinson, 1 M. & Gr. 484; B. v. Wright, 3 B. A Ad. 681 ; B. v. Birmingham Bail way. 1 Railw. C 317 ; B. v. The United Kingdom Electric Telegraph Co., 2 B. &S. 647; 31 L. J., M. C. 166. Now, however, by the 27 & 28 Vict. c. 101, s. 51, any obstruction therein mentioned, which is within fifteen feet of the centre of the highway, may be removed. Where a waggoner occupied one side of a public street in a city, before his warehouses, in loading and unloading his waggons, for several hours at a time, by night and by day, having one waggon at least usually standing before his warehouses, so that no waggon could pass on that side of the street ; this was held to be a nuisance, although there was room for two carriages to pass on the opposite side. B. v. Russell, 6 East, 427. So excavations made close to a highway are a nuisance. Barnes v. Ward, 9 C. B. 392 ; Ilardcastle v. 5. Yorkshire Railway, 4 //. & N. 67 ; Hounsell v. Smyth, 7 C. B., N. S. 731 ; Ifadley v. Taylor, L. R.. 1 C. /'. 53. So keeping coaches at a stand in Highways — Nuisance. 531 a street plying for passengers is a nuisance. R. v. Cross, 3 Camp. 226 ; Wilkins v. Day, 12 Q. B. 1>. 110. So exhibiting effigies at a window, and thereby attracting a crowd. R. v. Carlisle, 6 C. & I'. (536. Ploughing up a footpath is a nuisance, R. v. (iriesley, 1 Vent. 4 ; Wellbeloved on Iligh- voays, 443, both on the ground of inconvenience to the public, and of injuring the evidence of their title ; but there may be a limited dedication of a footpath subject to the right to plough it up; see ante. p. .326. Where at the trial it appeared that the defendants were a company, established by deed, for the purpose of lighting the streets of a town with gas ; that they had opened a trench in one of the streets for the purpose of laying down their mains along the middle of the street ; that they had obtained the permission of the highway board as well as of the commis- sioners for lighting the town appointed under a local Act for so doing ; and it was admitted that they had used reasonable despatch in laying down the pipes and restoring the road, but dming the execution of the works the street was impassable ; it was held, that inasmuch as the acts of the defendants were in no respect done in the necessary or proper use of the highway, they were guilty of a nuisance in obstructing the use of it. Ellis v. Sheffield Gas Consumers' Company, 2 E. & B. 7(57; 18 Jur. 146; R. v. I Ana/ton (las Company, 29 A. -/., M. <'. 118. See also 11. v. Train, 31 L. .'/., M. C. 169. Provision is made by the 5 & 6 Will. 4, c. 50, ss. 64, 65, 66, and the 27 & 28 Vict. c. 101, s. 51, for the removal of many such nuisances as are above mentioned, and for imposing a penalty upon the persons so obstructing the highway. The obstruction of a navigable river is likewise a public nuisance, as by diverting part of the water whereby the current is weakened, and made unable to carry vessels of the same burthen as before. Hawk. P. C. b. 1, c. 75, s. 11. The building of a bridge partly in the bed of a navigable river will be a nuisance if it obstruct the navigation, but not otherwise. 11. v. lietts, 16 Q. 11. 1022. See also York and North Midland Hail 'irai/ Co. v. R. (in error), 7 Railw. Cas. 459. In 11. v. Russell, 3 FA. & HI. 942; 23 L. J., Q. B. 173, the jury found that the obstruction, " althoiigh a nuisance, was not sufficiently so as to render the defendant •criminally liable," upon which the judge directed a verdict of acquittal, and the Court of Queen's Bench held, that the jury must be understood as finding that the obstruction in question was so insignificant as not to constitute a nuisance, and refused to disturb the verdict. But if a vessel sink by accident in a navigable river, the owner is not indictable as for a nuisance in not removing it. R. v. Watt, 3 Esp. 675. Where on the trial of an indictment for a nuisance by erecting and continuing piles and planking in a harboiu, and thereby obstructing it and rendering it insecure, a special verdict was found, that by the defendant's works the harbour was in some extreme cases rendered less secure ; it was held, that the defendant was not responsible criminally for consequences so slight, uncertain and rare, and that a verdict of not guilty must be entered. //. v. Tindall, A. & !•'. 1-43. On an indictment for a nuisance in a navigable river and common king's highway, called the harbour of C, by erecting an embankment in the water-way, the jury found that the •embankment was a nuisance, but was counterbalanced by the public benefit arising from the alteration. It was held by the Court of King's Bench, that this finding amounted to a verdict of guilty, and that it is no defence to such an indictment, that although the work be in some degree a hindrance to navigation, it is advantageous, in a greater degree, to other uses of the port. R. v. Ward, 4 J. & K. 384 ; and see R. v. Lord Grosrenar. 2 Stark. 511 ; R. v. Morris, 1 li. & Ad. 441; /.'. v. Randall, Car. &M. 496; and AUy.-Om. v. Terry, I.. R., 9 Ch. 423, per Jessel, M M 2 532 High ways — Nuisance. M. E., 425. "Where the crown has no right to obstruct the whole passage of a navigable river, it has no right to erect a weir 1o obstruct a part, except subject to the rights of the public, and therefore the weir would become illegal if those rights are interfered with. Williams v. Wilcox, 8 A. & E. 314. See R. v. The United Kingdom Electric Telegraph Co., and R. v. Train, supra. "Where the defendant's workmen stacked the refuse of the colliery so as to obstruct a navigable river, it was held that the defendant's orders to the contrary and his absence from personal superintendence did not relieve him from liability. R. v. Stephens, L. R., 1 Q. B. 702 ; 35 L. J., Q. II. 251. Proof of the nuisance — authorized by an Act of parliament.] By an Act reciting that a railway between certain points would be of great public utility, and would materially assist the agricultural interest and the general traffic of the country, power was given to a company to make such railway according to a plan deposited with the clerk of the peace, from which they were not to deviate more than one hundred yards. By a subsequent Act, the company or persons authorized by them were empowered to use locomotive engines upon the railway. The railway was made parallel and adjacent to an ancient highway, and in some cases- came within five yards of it. It did not appear whether or not the line could have been made in those instances to pass at a greater distance. The locomotive engines on the railway frightened the horses of persons- using the highway as a carriage-road. On an indictment against the company for a nuisance, it was held, that this interference with the rights of the public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorizing the use of the- engines were unqualified. R. v. Pease, 4 B. & Ad. 30. But where a railway company are authorized by Act of parliament to- obstruct public or private roads only on conditions which they have not performed, they may be indicted for a nuisance on the old highway. R. v. Scott, 3 Q. B. 543 ; and see A', v. Rigby, 14 Q. B. 687. So also- where water authorities or others interfere lawfully with the highway, they are boiuid to see that they do not create a nuisance. White v. Bindley, L. R., 10 Q. B. 219; 44 L. J., 0. B. 114; Kent v. Worthing- Local Board, 10 Q. B. D. 118 ; 52 L. J., Q. B. 77 ; Black more v. Mile End Old Town, 9 Q. B. D. 451 ; b\ R.J., Q. B. 490. Where an Act of parliament authorizes alterations in a highway, they must be made with reasonable care, and if not, the contractor is liable to- be indicted for obstructing the highway. R. v. Burt, 11 Cox, 399. Proof of the nuisance — whether justifiable from necessity.'] It not unfre- quently becomes a question, whether the obstruction complained of is justifiable by reason of the necessity of the case, as when it occurs in the usual and necessary course of the party's lawful business. The defendant, a timber-merchant, occupied a small timber-yard close to the street ; and from the smallness of his premises, he was obliged to deposit the long pieces of timber in the street, and to have them sawed up there before they could be carried into the yard. Lord Ellenborough said, " If an un- reasonable time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience be prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. HighwayB — Liability to repair. 533 The defendant is not to eke out the inconvenience of his own premises by taking the public highway into his timber yard ; and if the street be narrow, he must remove to a more commodious situation for carrying on his business." I!, v. Jones, 3 Campb. 230; Fritz x. /fob-son, 14 Ch. D. 542; 4!) /,. ./., Ch. 321. So although a person who is rebuilding a house is justified in erecting a hoard in the street, which serves as a protection to the public, yet if it encroach unreasonably upon the highway, it is a nuisance. See Jli/sh v. Steinman, 1 Bos. & Pul. -104 ; R. v. Russell, (> East, 427, ante, p. 530. See this point discussed in R. v. Lon<)t(»i Has Co., 29 A. ./., M. ('. lis. Judgment ami sentence.] Where a defendant indicted for a nuisance to a navigable river allowed judgment to go by defaxdt, and was under no recognizances to appear in the Court of Queen's Bench for jtidgment, the court would not, in his absence, give judgment that the nuisance should be abated, although notice had been left at his residence of the intention of the crown to pray for judgment, the proper course being to sue out a writ of capias and proceed to outlawry. R. v. Chichester, 2 Den. C. C. R. 458. Abatement of nuisance.'] As to the abatement of nuisances, seej/ost, tit. Nuisance. LIABILITY TO KEPAIB, HIGHWAYS. Upon an indictment for not rejmiring a highway, to which the general issue is pleaded, the prosecutor must prove : 1st, that the way in ques- tion is a public highway (vide ante, pp. 525 ft seq.), and that it agrees with the description of the way in the indictment (ante, p. 529) ; 2ndly, that it is within the parish or other district charged ; 3rdiy, that it is out of repair ; and 4thly. where the charge is not upon the parish, but against common right, as upon an individual ratione tenurw, the liability of the party to make the repairs. Proof of liability to repair— parish.'] Parishes of common right are bound to repair their highways, and by prescription one parish may be bound to repair the way in another parish. J J er Holt, C J., R. v. Ragley, 12 Mod. 409; Hawk. P. C, h. 1, c. 76 ; II. v. Midville, 4 '. 17; R. v. Wilson, IN Q. li. 348. Where a parish is situated partly in one county and partly in another, and a highway, lying in one of those parts, is out of repair, the indict- ment must be against the whole parish, and must be preferred in that county in which the ruinous part lies. 11. v. Clifton, 5 T. R. 498. By the 5 & 6 Will. 4, c. 50, s. 58, where a highway lies in two parishes, justices of the peace are to determine what parts shall be repaired by each ; and by s. 59, parishes are bound to repair the part allotted to them. The same proceeding may be adopted in the case of highways repairable by bodies politic or corporate, or private persons, ratione tenurce. Where a question arises as to the road being within the boundaries of the parish, it is sometimes necessary to prove these boundaries by giving in evidence the award of commissioners appointed to set them out. In such case it must be shown that the award of the commissioners pursues their authority. By an inclosure Act, commissioners were directed to fix the boundaries of a parish, and to advertise in a provincial newspaper such boundaries. The boundaries were also to be inserted in the award of the commissioners, and to be conclusive. The boundaries in the award varying from those in the newspaper, it was held that the commissioners had not pursued their authority, and the award was not binding as to the boundaries of the parish. 11. v. Washbrook, 4 11. & C. 732. By a similar Act, commissioners had power to settle the boundaries of certain parishes, upon giving certain previous notices to the parishes to be affected by the award. The highway in question never having been repaired by the parish to which it was allotted, the judge refused to admit the award in evidence until the requisite notices were proved to have been given ; and upon an application for a new trial, it was refused, li. v. Hastingfield, 2 M. .('■ 8. ojs. Where two parishes are separated by a river, the medium ///»//! is the boundary, li. v. Landulph, 1 Moo. <(' li. 393. On the trial of an indictment for the non-repair of a highway, a map of the parish produced from the parish chest, which map was made under an inclosure Act (which was a private Act not printed), is not receivable in evidence to show the boundaries of the parish, without proof of the inclosure Act. L'tr Erskine, J., li. v. Inhub. of Mi/ton, 1 <'. cfc K. 58. In that case it was proved l>y the surveyor, who made the map thirty-four years before the trial, that he laid down the boundaries of the parish from the information of an old man, then about sixty, who went round and showed them to him. The Le&rned judge held, that the map would have been receivable as evidence of reputation, if it had been also proved that the old man was dead, but that, without proof of his death, it was not admissible. A map attached to an old enclosure award showing an ancient highway in existence when the award was made, although good evidence of reputation that there was a public road in the direction shown on the map, is no evidence of the boundaries of the highway against a defendant whose property lies adjacent to the highway, and was not sub- ject to the jurisdiction of the Inclosure Commissioners in making their award, li. v. Berger, (1894) 1 <>. (>. To charge a township with liability by custom to repair all highways within it, which would otherwise be repairable by the parish comprising such township, it is m it necessary to prove that there are, or have been, ancient highways in the township. Without such proof a jury may infer the custom from other evidence. As that the parish consists of five townships, one of which is the township in question; that four have always repaired their own highways; that no surveyor has ever been appointed for the parish, and that the township in question has repaired a highway latch' formed within it. S. v. Barnoldswick, 4 Q. /!. 499. See also /'/. v. Midville, Ibid. 240. Upon an indictment against the inhabitants of the township of II., for the non-repair of a highway, a prior judgment of quarter sessions upon a presentment by a justice under the 13 Geo. 3, c. 78 (repealed), for non- repair of the same highway by II., and which presentment alleged thai the highway was in II., and that II. was liable to repair it. — it appearing by the judgment that two of the inhabitants of II. had appeared and pleaded guilt}', and that a fine was imposed, — was held to be conclusive 53N Highways — Liability to repair. evidence that the highway was in H., and that H. was liable to repair it. R. v. Haughton, 1 El. & Bl. 501 ; 22 L. J., M. C. 89. Upon an appeal against the appointment of a surveyor of the highways for the township of K. N., the sessions found that the parish of M. consisted of two town- ships ; that surveyors had been appointed for each ; but, latterly, to save expense, there had been two surveyors appointed for the parish at large. They likewise found that each acted as surveyor in his own township ; that distinct rates had been made for each township, and applied distinctly to the repairs of the highways in each ; that the surveyors kept distinct accounts (which were examined by the general vestry), and that the occupiers of lands had been rated, in respect of their occupation, to the repair of the highways of that township in which the houses they resided in were situate. Lord Tenterden said, that if there had been an indict- ment against either township, and an allegation that each township had immtmorially repaired the roads within it, these facts would be sufficient evidence to support the averment. R. v. King's Netoton, 1 li. & Ad. 826. On an issue, whether or not certain land, in a district repairing its own roads, was a common highway, it is admissible evidence of reputation (though slight) that the inhabitants held a public meeting to consider of repairing such way, and that several of them, since dead, signed a paper on that occasion, stating; that the land was not a public highway, there being at the time no litigation on the subject. Barraclough v. Johnson, 8 A. & E. 99 ; ante, p. 52b. It seems that the inhabitants of a district, not included within any parish, cannot be bound to repair the highways within such district. This point arose, but was not decided in the case of li. v. Kingsmoor, 2 B. . 1, c. 76, s. 8; 13 Rep. 33 ; R. v. St. dies, Cambridge, 5 M. & S. 260; Nichol v. Allen, 31 L.J., Q.B.43; 11. v. Ardsley, 3 Q. B. D. 255; 47 L. »/., M. C. 75. Yet an indictment charging a tenant in fee simple with being liable to repair, by reason of the tenure of his land, is sufficiently certain without adding that his- ancestors, whose estate he has, have always so done, which is implied in Highways — Liability t<> repair. 539 the above allegation. Haxok. P. C. b. 1, c. 76, s. 8. In order to exempt a pariah, by showing that a private person is bound to repair, it must be shown that the burthen is cast upon such other person, under an obli- gation equally durable with that which would have bound the parish, and which obligation must arise in respect of some consideration of a nature as durable as the burthen. Per Lord Ellenborough, It. v. St. (ribs, Cambridge, ~> M. & S. 260. Where lands, chargeable with the repairs of a bridge or highway, are conveyed to different persons, each of such per- sons is liable to the charge of all the repairs, and may have contributions from the others ; for the law will not suffer the owner to apportion the charge and thus to render the remedy for the public more difficult. Therefore, where a manor thus charged was conveyed to several persons, it was hold that a tenant of any parcel, either of the demesnes, or of the services, was liable to the whole repairs. And the grantees are chargeable with the repairs, though the grantor should convey the lands discharged from the burthen, in which case the grantee has his remedy over against the grantor. /'. v. Duchess of Buccleugh, 1 Salk. 358 ; It. v. Buckeridge, 4 Mod. 48; 2 Saund. 159(//). "Where a navigation company was bound under an Act of parliament to repair a highway, on an indictment for non-repair, a count alleging the liability to repair ratione tenurce was held bad ; but one alleging their liability under the Act was held good. A', v. Sheffield Canal Co., 13 'J. I',. 913; 19 /.. -A, M. C. 44. Kepairing a highway for a length of time will be evidence of a liability to repair ratione tenurce. Thus, if a person charged as being bound to repair ratione tenuros, pleads that the liability to repair arose from an encroachment which has been removed, and it appears that the road has been repaired by the defendant twenty-five years since the removal of the alleged encroachment, that is presumptive evidence that the defendant repaired ratione tenura generally, and renders it necessary for him to show the time when the encroachment was made. R. v. Skinner, o Esp. 219; 1 Buss. Cri. N().*5. Wb cil. In determining whether the act of repairing a way is evidence to prove a liability to repair ratione lcnnri> j . the nature of the repairs must be regarded. Thus it is said by Ilullock, B., that an adjoining occupier occasionally doing repairs for his own convenience to go and come, is no more like that sort of repair which makes a man liable ratione tenurai, than the repair by an individual of a road close to his door is tothe repair of the road outside his gate. 11. v. Allanson, 1 Lewin, C. C. 1.38. In A. v. Blakemore, 2 Den. C. C. J,'. 410; 21 /.. ./., M. C. 60, evidence was given of the conviction of a former owner and occupier of the lands in respect of which the liability was said to arise, for the non- repair of the same highway, which showed that he had pleaded guilty to a presentment against him, alleging his liability to repair the highway. Repairs by occupiers of the same lands subsequently to this conviction were also proved ; and evidence was given that the defendant purchased these lands after public notice of the liability to repair the highway, and that he was tlie owner and occupier of the same; it was held that there was evidence to go to the jury of immemorial usage and liability ratione tenuras. An indictment for the non-repair of a highway in the parish of A., alleging the liability by reason of the tenure of certain lands in the said parish, is not supported by proof of a liability to repair a road extend- ing through A. and other parishes by reason of the tenure of a farm made up of land in A. and the other parishes. /,'. v. Mizen, 2 Moo. db A. 382. See also A. \. Haughton, 1 A'. .1' A'. 501 ; A', v. Maybury, 4 /•'. & /•'. 90; A', v. Nether Hallam, Cox, C. C. 435. An owner of land who does not occupy it cannot be charged ratione tenurce, with the repair of a high- way. A. v. Barker, 25 Q. Ii. />. 213, Cuckjield Rural District Council v. 540 Highways — Liability to repair. Goring, [1898] 1 Q,. B. 865. As to previous conviction upon an indictment being conclusive evidence of liability, and in the case of an adjoining township, see B. v. Brightside Bin-loir, 13 Q. B. 933. By the 5 & 6 Will. 4, c. 50, s. (52, highways repaired by parties ratione tenure, may be made parish highways on payment of an annual sum, to be fixed by the justices. And see now also 25 & 26 Vict. c. 61, ss. 34, 35, as to highway districts. Proof for the defence — parish.^ Upon an indictment against a parish for not repairing, the defendants may show under the plea of not guilty, either that the way in question is not a highway, or that it does not lie within the parish, or that it is not out of repair ; for all these are facts which the j)rosecutor must allege in the indictment, and prove under the plea of not guilty. 2 Sound. 158, n. (3); 1 Buss. Cri. 813, 6th ed. But where a parish seeks to discharge itself from its liability, by imposing the burthen of repair upon others, this defence must be specially pleaded, and cannot be given in evidence under the general issue. In such special plea, the parish must show with certainty who is liable to the repairs. B. v. St. Andrews, 1 Mod. 112; 3 Salk. 183; 1 Vent. 256; /,'. v. Hornsey, forth. 212; Fort. 254; Hawk. B. '.'. b. 1, c. 76, s. 9. See also B. v. Eastington, 5 A. A- K. 765, where a plea alleging that a particular township had been accustomed to repair all roads within it, "which otherwise would be repairable by the parish at large," was held bad, in arrest of judgment, because it did not aver that the highway was one which but for custom would be repairable by the parish at large, and did not show what party other than the defendants was liable to repair. But where the burthen of repairs was transferred from the parish by Act of parliament, Lord Ellenborough held that this might be shown under a plea, of not guilty. B. v. >SY. George's, Hanover Square. 3 (.'amp. 222. Where the parish pleads specially that others are bound to repair, the plea admits the way to be a highway, and the defendants cannot under such plea give evidence that it is not a highway. B. v. Brown, 11 Mod. 273. In order to prove the liability of a parish to repair, when denied under a special plea, the prosecutor may give in evidence a conviction obtained against the same parish upon another indictment for not repair- ing, and whether such judgment was after verdict or by default, it will be conclusive evidence of the liabilitv of the whole parish to repair. B. v. St. Pancras, Peake, 219; B. v. Whitney, 7 C. dt P. 208. But fraud will be an answer to such evidence. Peake, 219. A record of acquittal is not admissible as evidence of the non-liability of the parish acquitted, for it might have proceeded upon other grounds than the non-liability of the parish to repair. Ibid. But where an indictment has been preferred against a parish consisting of several townships, and a conviction has been obtained, but it appears that the defence was made and conducted entirely by the district in which the waylay, without the privity or consent of the other districts, the indictment will be considered as in substance an indict- ment against that district only, and the others will be permitted to plead the prescription to a subsequent indictment for not repairing the highways in that parish. 2 Saund. 158 c (n) ; IL v. Toionsend, Doug. 421. On an indictment for not repairing, against the parish of Eardisland, consisting of three townships, Eardisland. Burton, and Ilardwicke, where there was a plea on the part of the township of Burton, that each of the three town- ships had immemorially repaired its own highways separately, it was held that the records of indictments against the parish generally, for not repairing highways situate in the township of Eardisland, and the town- ship of Ilardwicke, with the general pleas of not guilty, and convictions Hiyhiuays — Liability to repair. .341 thereupon, were 'prima facie evidence to disprove the custom for each township to repair separately, but that evidence was admissible to show that these pleas of not guilty were pleaded only by the inhabitants of tin- townships of Eardisland and Ilardwicke, without the privity of Burton. R. v. Eanl island, 2 Campb. 494. Proof for t/ie defenci — district or private individual.'] Where a parti- cular district, not being a parish, or where a private individual by reason of tenure, is indicted for not repairing a highway, as the prosecutor is bound to prove the sj:>ecial ground of their liability, viz., custom or tenure, under the plea of not guilty, so the defendants are at liberty under that plea to show that no special grounds exist. In such case, it is not necessary for the defendants, after disproving then* own liability, to go further, and prove the liability of others. But if, as in the case of a parish, they choose, though unnecessarily, to plead the special matter, it has been held that it is not sufficient to traverse their own liability, but that they must show in particular who is bound to repair. R. v. Yarnton, 1 Sid. 140 ; R. v. Hornsey, Carth. 212 ; 2 Saund. 159 a, n. (1); 1 Buss. Cri. 814, ttth ed. As to the evidence of custom to exempt a district from liability, see 11. v. Rollett, L. R., 10 Q. B. 469; 44 L. J., M. C. 190. Where charged ratione tenurce, the defendant may show that the tenure originated within the time of memory. R. v. flu //man, M. & M. 401. Evidence of reputation is admissible to show a liability in the occupiers of land to repair a road ratione tenurce. R. v. Bedford, 24 L. •/., Q. B. 81 ; supra, p. 311. Where the land over which the road passed was washed away by the sea, the liability of the defendant, charged ratione tenurce, was held to have ceased; //. v. Bamber, 5 Q. 11. 279; and so where the road by statutory authority is so altered in its nature and course as to be practically destroyed; II. v. Barker, 2.3 Q. B. I). 213; but the road must be substantially destroyed. R. v. Qreenhow, 1 Q. />. 1>. 703; 4-3 A. J. r M. C. 141. Particulars of the highways obstructed, &c] On an indictment for obstructing divers horse and carriage ways, and footpaths, Parke, B. upon the production of an affidavit from the attorney for the defendant, that he was unable to understand all the precise tracks indicated, made an order for the delivery of particulars of the ways in question, which were nine in number, seven described generally as highways, and two described as footways. R. v. Marquis of Downshire, 4 A. & E. 698, at p. 099. See supra, p. 168. Evidence of defendant.] By 40 Vict. c. 14, ante, p. Ill, the defendant, or the wife or husband of the defendant, is compellable to give evidence. ( 'osts, dr.] By 5 & 6 Will. 4, c. 50, s. 9.3, the costs of the prosecution upon an indictment for non-repair of highways shall be directed to be paid out of the rates by the judge of assize (sec /,'. v. Inhab. of Ipstones, infra), before whom the said indictment is tried, and it was long thought that a judge could not give costs when the defendants pleaded guilty, but that opinion is now overruled. See II. v. Inhab. of Haslemere, '■)'! I.. ./., .1/. C. 30, Hut this power is confined to the judge of assize, that is, the judge sitting under the commission of oyer and terminer; and where the indictment is removed by the defendants into the Court of Queen's Bench by certiorari, and a verdid is found for the defendants, the court lias no power under this section to award costs to the prosecutor. II. v. Inhab. of Ipstones, /.. //., 3 Q. II. 216. 542 Highways — Liability to repair. By the 5 & 6 "Will. 4, e. 50, s. 98, the court before whom any indict- ment for not repairing highways is preferred may award costs to the prosecutor, to be paid by the person so indicted, if it shall appear to the said court that the defence made to such indictment was frivolous and vexatious. But under this section there is no power for the court before whom the indictment is preferred to award costs where the defendants plead guilty. B. v. In/tab. of Denton, 34 L. J., M. C. 13, distinguishing B. v. Inhab. of Haslemere, supra. By sect. 99, presentments on account of highways or turnpike roads being out of repair are abolished. See, as to costs, B. v. Inhab. of Hickliny, 7 Q. B. 890; 15 L. J., M. C. 23; R. v. Down Holland. 15 L. J., M. C. 25 ; B. v. Clarke, 5 Q. B. 887. See B. v. Inhab. of Yorhhilt, 9 C. & P. 218 ; B. v. Inhab. of Ohedworth, 9 C. & P. 2S5 ; B.\. Inhab. of Preston, 1 C. & K. 137 ; B. v. Merionethshire, 6 Q. B. 343; B. v. Inhab. of Heanor, 6 Q. B. 745; B. v. Inhab. of Pembridge, 3 Q. B. 901 ; 3 G. & D. 5; B. v. Inhab. of Paul, 1 Moo. & B. 307, and B. v. Inhab. of Chillicumbe, therein cited, p. 311; B. v. Inhab. of Great Broughton, 2 Moo. & B. 444: B. v. Bayard, (1S92) 2 Q. B. 181. See also B. v. Bud-land, 12 I. T., X. S. 380; B. v. Heath, 12 /.. T. 492 ; B. v. Lee, 1 Q. B. D. 198 \45L. •/., M. C. 54, as to costs under the 25 & 26 Vict. c. 61. See further, tit. Bridges, ante. The amount of costs must be ascertained and ordered by the same sessions ; the sessions cannot refer the costs to be taxed by their officer after the sessions. B. v. Lambeth, 3 C. L. B. 35. New tried.'] It is now conclusively settled that where there has been an acquittal on an indictment for nuisance to a highway, the court will not grant a new trial. R. v. Russell, 3 El. & Bl . 943; 23 L. J., M. O. 173; B. v. Johnson, 29 L. J., M. C. 133; B. v. Duncan, 7 Q. B. D. 198; 50 L. J., M. O. 95; K. v. County of Southampton, 19 Q. B. D. 590; 5(i L. J., M. C. 112 ; but where the defendant is found guilty a new trial may be granted on the grounds of misdirection, misreception of evidence, or verdict against evidence. B. v. Berger, (1894) 1 Q. B. 823; 63 /,. J., Q. B. 529. It has long been the practice on an indictment against parishes for the non-repair of highways, in which the consequences are not penal in the sense that proceedings against an individual are penal, to suspend the judgment, upon an application on the part of the prosecution, B. v. Sutton. 5 Barn. & Ad. 52, if it is considered necessary that a new indictment should be preferred. And the present practice is, instead of resorting to this indirect method, to grant a new trial in similar cases. See Li. v. Russell, supra. In one case, B. v. Chorley, 12 Q. B. 515, a new trial was granted after an acquittal of an indictment for a nuisance, but that decision is explained in Jl. v. Russell, as resting on the consideration, that there the matter had resolved into a pure question of civil right. Perhaps it can scarcely now be considered as an authority. Vide supra, p. 206. Indictment by justices.'] Where under sect. 19 of 25 & 26 Vict. c. 61, the justices direct an indictment, their jurisdiction is limited to admitted highways ; but if the fact of the road being a highway is denied, and the liability to repair is admitted, the justices have no jurisdiction. B. v. Farrer, L. IL, 1 Q. B. 558 ; 35 L. J., M. C. 210. See 41 & 42 Vict. c. 77, s. 10, ante, p. 536. Homicide. o43 HOMICIDE. Those homicides which are felonies, viz., murder and manslaughter, will, for the convenience of reference, be treated of under separate heads. It will be useful in this place to distinguish the nature of the different kinds of homicide not amounting to felony. Homicides not felonious may be divided into three classes : justifiable homicide, excusable homicide, and homicide by misadventure. Justifiable homicide is where the killing is in consequence of an im- perious duty prescribed by law, or is owing to some unavoidable necessity induced bv the act of the party killed, without any manner of fault in the party killing. 1 East, P. C. 219 ; Hawk. P. C. b. 1, c. 28, 88. 1, 22. Excusable homicide is where the party killing is not altogether free from blame, but the necessity which renders it excusable may be said to be partly induced by his own act. Formerly in this case it was the practice for the jury to find the fact specially, and upon certifying the record into chancery, a pardon issued, of course, under the statute of Gloucester, c. 9, and the forfeiture was thereby saved. But latterly it was usual for the jury to find the prisoner not guilty. 1 East, P. 0. 220. And now by the 24 & 25 Met. c. 100, s. 7, " no punishment or forfeiture shall be incurred by any person who shall kill another by misfortune or in his own defence, or in any other manner without felony." Homicide by misadventure is where a man doing a lawful act, without any intention of bodily harm, and after using proper precautions to pre- vent danger, unfortunately kills another person. The act upon which the death ensues must be lawful in itself, for if it be malum in se, the case will amount to felony, either murder or manslaughter, according to the circumstances. If it be merely mat ma 'prohibitum, as (formerly) the shooting at game by an unqualified person, that will not vary the degree of the offence. The usual examples under this head are — 1, where death ensues from innocent recreations; 2, from moderate and lawful correction in foro domestico; and, 3, from acts lawful or indifferent in themselves, done with proper and ordinary caution. Homicide by chance-medley is strictly where death ensues from a combat between the parties upon a sudden quarrel ; but it is frequently- confounded with misadventure or accident. 1 East, I'. C. 221. HOUSEBKEA KING. See Dwelling House. 544 Ill-treating Apprentices, Servants, and Helpless Person*. ILL-TREATING APPRENTICES, SERVANTS, LUNATICS AND HELPLESS PERSONS. /// cases of apprentices or servants.^ The 24 & 25 Vict. c. 100, s. 26, enacts, that, "whosoever, being legally liable either as a master or a mistress to provide for any apprentice or servant, necessary food, clothing, or lodging, shall wilfully and without lawful excuse refuse or neglect to provide the same, or shall unlawfully or maliciously do or cause to be done any bodily harm to any such apprentice or servant, so that the life of such apprentice or servant shall be endangered, or the health of such apprentice or servant shall have been or shall be likely to be permanently injured, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude" (see ante, p. 203). By sect. 6 of the Conspiracy Act, 1875, 38 & 39 Vict. c. 86, " where a master being legally liable to provide for his servant or apprentice neces- sary food, clothing, medical aid or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, whereby the health of the servant or apprentice is, or is likely to be, seriously or permanently injured, he shall, on summary conviction, be liable either to pay a penalty not exceeding 20?., or to be imprisoned for a term not exceeding six months with or without hard labour." By sect. 9, the offence may be prosecuted on indictment at the request of the party accused. See as to costs, 24 & 25 Vict. c. 100, ss. 74, 75, and 77, supra, pp. 212, 213. By sect. 73 of the 24 & 25 Vict. c. 100, "where any complaint shall be made of any offence against s. 26 of this Act, or of any bodily injury inflicted upon any person under the age of sixteen years, for which the party committing it is liable to be indicted, and the circumstances of which offence amount in point of law to a felony, or an attempt to commit a felony, or an assault with intent to commit a felony, and two justices of the peace, before whom such complaint is heard, shall certify under their hands that it is necessary for the purposes of public justice that the prosecution should be conducted by the guardians of the union or place, or, where there are no guardians, by the overseers of the poor of the place in which the offence shall be charged to have been committed, such guardians or overseers, as the case may be, upon personal service of such certificate, or a duplicate thereof upon the clerk of such guardians, or upon any one of such overseers, shall conduct the prosecution, and shall pay the costs, reasonably and properly incurred by them therein, so far as the same shall not be allowed to them under any order of any court, out of the common fund of the union, or out of the funds in the hands of the guardians or overseers, as the case may be ; and where there is a board of guardians, the clerk or some other officer of the union or place, and where there is no board of guardians, one of the overseers of the poor may, if such justices think it necessary for the purposes of public justice, be bound over to prosecute." It has been held, that a master is not bound by law to furnish medical advice for his servant ; but that it is otherwise in the case of an apprentice, and that a master is bound, during the illness of his apprentice, to furnish Ill-treating Apprentices, Servants, and Helpless Persons. 545 him with proper medicines. See P. v. Smith, 8 C. & P. 13.3. And see now the statute, supra. Children.'] By the Children's Dangerous Performances Act, 1879 (42 & 43 Vict. c. 34), as amended by 60 & 61 Vict. c. 52, an employer of any male young person under the age of sixteen years, and any female young person under the age of eighteen years, may be indicted for an assault where any accident causing any actual bodily harm occurs to any such young person in the course of a public exhibition which in its nature is dangerous to life or limb. Ante, Assault, p. 262. For the offence of ill-treating or neglecting children, see ante, p. 344. Lunatics, dr.] The 53 Vict. c. 5, now regulates the care and supervision of lunatics. By sect. 315 it is a misdemeanor to receive two or more lunatics into a house which is not duly licensed under the Act. Under a similar section it lias been held that if the persons so received are found by the jury to be lunatic, the offence is made out, notwithstanding that the defendant honestly and on reasonable grounds believed that they were not lunatic. It. v. Bishop, 5 Q. /,'. D. 259; 49 L. J., M. C. 45. By s. 322, " if any manager, officer, nurse, attendant, servant, or other person employed in an institution for lunatics, or any person having charge of a lunatic, whether by reason of any contract or of any tie of relationship or marriage or otherwise, ill-treats or wilfully neglects a patient, he shall be guilty of a misdemeanor, and on conviction on indictment shall be liable to fine or imprisonment, or to both fine and imprisonment at the discretion of the court." A husband having been tried and convicted under a similar section, for that he, having the care and charge of his wife, a lunatic, did abuse and ill-treat her; upon a ease reserved, the court held that he was not a person having the care and charge of a lunatic within the meaning of the statute, which was not intended to apply to persons whose care or charge arose from natural duty. B. v. Rundle, 1 Dears. C. C. It. 432 ; 24 L. J., M. C. lli!>. But where a man voluntarily took upon himself the care and charge of a lunatic brother in his own private house, he was held to be liable to be indicted for ill-treating him. I!, v. Porter, I.. A- (J. 394; 33 /.. -/., M. C. 126; R. v. Smith, 14 Cox, 398. A mistress was indicted for manslaughter by neglecting to supply her servant who, it was contended by the prosecution, was of weak mind, with proper food and lodging. It was held that the question for the jury was, whether there was evidence that the deceased was reduced to such a state of body and mind as to he helpless and unable to take care of herself, and that she was so under the dominion and restraint of her mistress as to he unable to withdraw herself from her control. /«'. v. Smith, /.. & C. (JOT; 34 /.. . 41 for the inspection of patients by outside medical practitioners. By s. 117, it is a misdemeanor for a disqualified person to act as a visitor. By ss. 195, 200, concealing any part of the premises from the authorized K. N N 546 Ill-treating Apprentices, Servants, and Helpless Persons. visitors; by s. 321, obstructing them in their duties ; by s. 317, making wilful mis-statements or (s. 318) false entries in books or returns, are made misdemeanors. By 54 & 55 Vict. c. 65, s. 21, disobedience to the order of the commissioners, by the superintendent of a hospital permitting patients to go outside and wander at large without proper control, is made a misdemeanor. By 53 Vict. c. 5, sect. 324, "if any manager, officer, nurse, attendant, or other person employed in any institution for lunatics (including an asylum for criminal lunatics), or workhouse, or any person having the care or charge of any single patient, or any attendant of any single patient, carnally knows or attempts to have carnal knowledge of any female under care or treatment as a lunatic in the institution, or workhouse, or as a single patient, he shall be guilty of a misdemeanor, and on conviction on indictment shall be liable to be imprisoned with or without hard labour for any term not exceeding two years ; and no consent or alleged consent of such female thereto shall be any defence to an indictment or prose- cution for such offence." By sect. 329 (1.), " where any person is proceeded against under this Act, on a charge of omitting to send any copy, list, notice, statement, report or other document required to be transmitted or sent by such person, the burden of proof that the same was transmitted or sent within the time required shall lie upon such person ; but if he proves by the testimony of one witness upon oath that the copy, list, notice, statement, report or document in respect of which the proceeding is taken was properly addressed and put into the post in due time, or (in case of documents required to be sent to the commissioners or a clerk of the peace or a clerk to guardians) left at the office of the commissioners or of the clerk of the peace or clerk to guardians, such proof shall be a bar to all further proceeding in respect of such charge. " (2.) In proceedings under this Act, where a question arises whether a house is or is not a licensed house or registered as a hospital, it shall be presumed not to be so licensed or registered unless the licence or certificate of registration is produced, or sufficient evidence is given that a licence or certificate is in force." Inciting to Mutiny. 54* INCITING TO MUTINY. By 37 Geo. 3, c. 70. s. 1, it is enacted, "that any person who shall maliciously and advisedly endeavour to seduce any person or persons serving in his Majesty's forces, by sea or land, from his or their duty and allegiance to his Majesty, <>r to incite or stir up any such person or persons, to commit any act of mutiny, or to make, or endeavour to make, any mutinous assembly, or to commit any traitorous or mutinous practice whatsoever, shall, on being legally convicted of such offence, be adjudged guilty of felony. " Sect. 2 provides, " that any offence committed against this Act, whether committed on the high seas or within that part of Great Britain called England, shall and may be prosecuted and tried before any court of oyer and terminer, or gaol delivery for any county of that part of Great Britain called England, in such manner and form as if the said offence had been therein committed." By the 7 Will. 4 & 1 Vict. c. 91, s. 1, after reciting [inter alia) the above statutes, it is enacted, "that if any persons shall, after the com- mencement of this Act, be convicted of any of the offences hereinbefore mentioned, such persons shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable to be transported beyond the seas [now penal servitude] for the term of the natural life of such persons " (see ante, p. 203). By the Naval Discipline Act, 18(36, 29 & 30 Vict. c. 109, s. 10, mutiny with violence is punishable with death, and penalties are awarded for acting traitorously, with cowardice and with negligence respectively during such a mutiny. By s. 11, where the mutiny is not accompanied with violence, the ringleaders are punishable with death, and those who join in or do not endeavour to suppress such mutiny are punishable with imprisonment. By ss. 12, 13, persons inciting to mutiny or uttering or concealing mutinous words are subjected to punishment. Provisions are also made for the punishment of offences in striking superior officers and for insubordination and desertion. The annual Mutiny Aits (see the 44 & 45 Vict. cc. 57, 58, continued by the Annual Army Act) make it a misdemeanor for every person who shall, in any part of h< t Majesty's dominions, directly or indirectly, persuade any soldier to desert. K N 2 54K Larceny. LARCENY. Interpretation of terms.~\ By the 24 & 25 Vict. c. 96, s. 1, "in the interpretation of this Act the term ' document of title to goods ' shall include any bill of lading, India warrant, dock warrant, warehouse- keeper's certificate, warrant or order for the delivery or transfer of any goods or valuable thing, bought and sold note, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such documents to transfer or receive any goods thereby represented or therein mentioned or referred to. •'The term 'document of title to lands' shall include 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 estate, or to any interest in or out of any real estate. "The term 'valuable security' shall include any order, exchequer acquittance, or other security whatsoever entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of the United Kingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, whether within the United Kingdom or in any foreign state or country, or to any deposit in any bank, and shall also include any debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for money or for payment of money, whether of the United Kingdom, or of Great Britain, or of Ireland, or of any foreign state, and any document of title to lands or goods as hereinbefore defined. ' ' The term ' property ' shall include every description of real and personal property, money, debts, and legacies, and all deeds and instru- ments relating to or evidencing the title or right to any property, or giving a right to recover or receive any money or goods, and shall also include not only such property as shall have been originally in the pos- session or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and any- thing acquired by such conversion or exchange, whether immediately or otherwise. " For the purpose of this Act the night shall be deemed to commence at nine of the clock in the evening of each day, and to conclude at six of the clock in the morning of the next succeeding day." Distinction between grand ami jut it larceny aholished.^ By s. 2, " every larceny, whatever be the value of the property stolen, shall be deemed to be of the same nature, and shall be subject to the same incidents in all respects as grand larceny was before the twenty-first day of June, one thousand eight hundred and twenty-seven ; and every court whose power as to the trial of larceny was before that time limited to petit larceny shall have power to try every case of larceny, the punishment of which Larceny. o49 cannot exceed the punishment hereinafter mentioned for simple larceny, and also to try all accessories to such larceny." Bailees fraudulently converting property. ,] By s. 3, " whosoever, being a bailee of any chattel, money, or valuable security, shall fraudulently take or convert the same to his own use or the use of any person other than the owner thereof, although he shall not break bulk or otherwise determine the bailment, shall be guilty of larceny, and may be con- victed thereof upon an indictment for larceny; but this section shall not extend to any offence punishable on summary conviction." Punishment for simple larceny.'] By s. 4, "whosoever shall be con- victed of simple larceny, or of any felony hereby made punishable like simple larceny, shall (except in the cases hereinafter otherwise provided for) be liable to be kept in penal servitude or to be imprisoned (see antt , p. 203), and, if a male under the age of sixteen years, with or without whipping." Three larcenies within six months may he charged in one indictment. ,] By s. <3, "it shall be lawful to insert several counts in the same indictment against the same person for any number of distinct acts of stealing, not exceeding three, which may have been committed by him against the same person within the space of six months from the first to the last of Mich acts, and to proceed thereon for all or any of them." Election."] By s. <>, " if upon the trial of any indictment for larceny it shall appear that the property alleged in such indictment to have been stolen at one time was taken at different times, the prosecutor shall not by reason thereof be required to elect upon which taking he will proceed, unless it shall appear that there were more than three takings, or that more than the space of six months elapsed between the first and the last 'if such takings; and in either of such last-mentioned cases the prose- cutor shall be required to elect to proceed for such number of takings, not exceeding three, ;is appear to have taken place within the period of six months from the first to the last of such takings." o Larceny after a previous conviction for felony.] By s. 7, "whosoever shall commit the offence of simple larceny niter a previous conviction for felony, whether such conviction shall have taken place upon an indict- ment or under the provisions of IS & 1<> Vict. c. 126, shall be liable to he kept in penal servitude for any term not exceeding ten years, or to he imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Larceny aftt r a previous conviction for misdemeanor.] By s. s, "whoso- ever shall commit the offence of simple larceny, or any offence hereby made punishable like simple larceny, after having heen previously con- victed of any indictable misdemeanor punishable under this Act. shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and. if a male under the age of sixteen years, with or without whipping.*' Larceny after /"■<> summary convictions.] By s. !•, "whosoever shall commit the offence iif simple larceny, or any offence hereby made punish- able like simple larceny after having been twice summarily convicted of any of the offences punishable upon summary conviction, under the 550 Larceny. provisions of 7 & 8 Geo. 4, cc. 29, 30; 9 Geo. 4, cc. 55, 56 ; 10 & 11 Vict, c. 82 ; 11 & 12 Vict. c. 59 ; or of 14 & 15 Vict. c. 92, ss. 3, 4, 5, 6; or of this Act, or the Act of the session, intituled an Act to consolidate and amend the statute law of England and Ireland relating to malicious- injuries to property (whether each of the convictions shall have been in respect of an offence of the same description or not, and whether such convictions or either of them shall have been or shall be before or after the passing of this Act), shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante p. 203), and, if a male under the age of sixteen years, with or without whipping." Larceny by servant.'] By s. 67. "whosoever, being a clerk or servant, or being employed for the purpose or in the capacity of a clerk or servant,, shall steal any chattel, money, or valuable security belonging to or in the possession or power of his master or employer, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude- for any term not exceeding fourteen years, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Larceny by perscms in the Queen's service or ?'/>_ the police.'] By s. 69, "whosoever, being employed in the public service of her Majesty, or being a constable or other 'person employed in the police of any county, city, borough, district, or place whatsoever, shall steal any chattel, money, or valuable security belonging to or in the possession or powerof her Majesty, or intrusted to, or received, or taken into possession by him by virtue of his eniplovment, shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the court, to^be kept m penal servitude for any term not exceeding fourteen years" (see ante, p. 203). Conviction for larceny on indictment for embezzlement, and rice versa.] By s. 72, "if, upon the trial of any person indicted for embezzlement or fraudulent application or disposition as aforesaid, it shall be proved that he took the property in question in any such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of embezzlement, or fraudulent application or disposition, but is guilty "of simple larceny, or of larceny as a clerk, servant, or person employed for the purpose or in the capacity of a clerk or servant, or as a person employed in the public service, or in the police, as the case may be ; and thereupon such person shall be liable to be punished in the same- manner as if he had been convicted upon an indictment for such larceny ; and if, upon the trial of any person indicted for larceny, it shall be proved that he took the property in question in any such manner as to amount in law to embezzlement, or fraudulent application or disposition as aforesaid, he shall not by reason thereof be entitled to be acquitted, but the jury shall be at liberty to return as their verdict that such person is not guilty of larceny ^ but is guilty of embezzlement, or fraudulent application or disposition, as the case may be, and thereupon such person shall be liable to be punished in the same manner as if he had been eon--, victed upon an indictment for such embezzlement, fraudulent application or disposition ; and no person so tried for embezzlement, fraudulent application or disposition, or larceny as aforesaid, shall be liable to be afterwards prosecuted for larceny, fraudulent application or disposition, or embezzlement, upon the same facts." Larceny. 551 Venue.'] By s. 1 14, " if any person shall have in his possession in any one part of the United Kingdom any chattel, money, valuable security, or other property whatsoever which he shall have stolen or otherwise feloniously taken" in any other part of the United Kingdom, he may be dealt with, indicted, tried, and punished for larceny or theft in that part of the United Kingdom where he shall so have such property in the same manner as if he had actually stolen or taken it in that part ; and if any person in any one part of the United Kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever which shall have been stolen or otherwise feloniously taken in any other part of the United Kingdom, such person knowing such property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence in that part of the United Kingdom where he shall so receive or have such property, in the same manner as if it had been originally stolen or taken in that part." Larceny of property of partners, tfcc] By the 7 Geo. 4, c. 64, s. 1J, in order to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint owners, it is enacted that, "in any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the ownership of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint-tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be ; and when- ever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention, for any purpose whatsoever, any partners, joint-tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner aforesaid; and the provision shall be con- strued to extend to all joint-stock companies and trustees." Under the 7 Geo. 4, c. 4, was amended and continued by the 1 & 2 Vict. c. 96, which was made perpetual by the 5 & b' Met. c. 85, and under which a shareholder in a joint-stock banking company may be indicted for steal- ing or embezzling the goods or money of the company, it being laid as the property of a public officer of the company, duly appointed and regis- tered under the A.cts. A.S to the other offences by members of joint-stock banks, see 3 & 1 Vict, c. tf f. s. 2. which, as to the offences of stealing and embezzling merely, is repealed bythe Statute Law Revision Act, 1874 (2). By the 31 & 32 Vict. c. L16, s. 1. "if any person, being a member of any co-partnership, or being one of two or more beneficial owners of any money, goods, or elf'ects, hills, notes, securities, or other property, shall steal or embezzle any such money, goods, or effects, hills, notes, or secu- rity, or other property of or belonging to any such co-partnership, or to such joint beneficial owners, every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had 552 Larceny. not been or was not a member of such co-partnership, or one of such beneficial owners." This section applies in the case of an unregistered and therefore illegal association. R. v. Tankard, (1894) 1 Q. B. 548; 03 L. J., M. 0. 61. Larceny of property of counties, (fee] By the 7 Geo. 4, c. 64, s. 15, "in any indictment or information for any felony or misdemeanor committed in, upon, or with respect to any bridge, court, gaol, house of correction, infirmary, asylum, or other building, erected or maintained in whole, or in part, at the expense of any county, riding, or division, or on or with respect to any goods or chattels whatsoever, provided for or at the expense of any county, riding, or division, to be used for making, altering, or re- pairing any bridge, or any highway at the ends thereof, or any court or other such building as aforesaid, or to be used in or with any such court or other building, it shall be sufficient to state any such property, real or personal, to belong to the inhabitants of such county, riding, or division ; and it shall not be necessary to specify the names of any of such inhabitants." Larceny of good* for the use of the poor.'} By the 7 Geo. 4, c. 64, s. 16, with respect to the property of parishes, townships, and hamlets, it is enacted, that, "in any indictment or information for any felony or misdemeanor committed in, upon, or with respect to any workhouse, or poorhouse, or on or with respect to any goods or chattels whatsoever, provided for the use of the poor of any parish or parishes, township or townships, hamlet or hamlets, place or places, or to be used in any work- house or poorhouse in or belonging to the same, or by the master or mis- tress of such workhouse or poorhouse, or by any workmen or servants employed therein, it shall be sufficient to state any such property to belong to the overseers of the poor for the time being of such parish or parishes, township or townships, hamlet or hamlets, place or places, and it shall not be necessary to specify the names of all or any of such over- seers ; and in any indictment or information for any felony or mis- demeanor committed on or with respect to any materials, tools, or imple- ments provided for making, altering, or repairing any highway within the parish, township, hamlet, or place, otherwise than by the trustees or commissioners of any turnpike road, it shall be sufficient to aver that any such things are the property of the surveyor or surveyors of the highways for the time being of such parish, township, hamlet, or place, and it shall not be necessary to specify the name or names of any such surveyor or surveyors." By the 12 & 13 Yict. c. 103, s. 15, it is provided, that, "in respect of any indictment or other criminal proceeding, every collector or assistant overseer appointed under the authority of any order of the poor law com- missioners or the poor law board, shall be deemed and taken to be the servant of the inhabitants of the parish whose money or other property he shall be charged to have embezzled or stolen, and shall be so described ; and it shall be sufficient to state such money or property to belong to the inhabitants of such parish, without the names of any such inhabitants being specified." Larceny of property of trustees of turnpikes.] By the 7 Geo. 4, c. 64, s. 17, with respect to property under turnpike trusts, it is enacted, that, "in any indictment or information for any felony or misdemeanor com- mitted on or with respect to any house, building, gate, machine, lamp, board, stone, post, fence, or other thing erected or provided in pursuance Larceny. 553 of any Act of parliament for making any turnpike road, or any of the conveniences or appurtenances thereunto respectively belonging, or any materials, tools, or implements provided for making, altering, or repair- ing any such road, it shall be sufficient to state any such property to l»long to the trustees or commissioners of such road, and it shall not be necessary to specify the names of any such trustees or commissioners. " Larceny of 'property of commissioners of sewers, (fee] By the 7 Geo. 4, c. 04, s. IS, with respect to property under commissioners of sewers, itis enacted; that "in any indictment or information for any felony or mis- demeanor committed in or with respect to any sewer or other matter within or under the view, cognizance, or management of any commis- sioners of sewers, it shall be sufficient to state any such property to belong to the commissioners of sewers within or under whose view, cognizance, or management, any such thing shall be, and it shall not be necessary to specify the names of any of such commissioners." Larceny of property of friendly societies, cfec] By the Friendly Societies Act, 1 896 (59 & (>() Vict. c. 25, s. 49), property belonging to friendly societies vests in the trustees for the time being; and by s. .31, in all legal pro- ceedings whatsoever concerning any property vested in the trustees of a registered society or branch, the property may be stated to be the property of the trustees in their proper names as trustees for the society or branch without further description. As to Collecting Societies and Industrial Assurance Companies see <">!) & 60 Vict. c. 26, s. 11 (3.). Larceny of property of limit societies.^ By 3 & 4 Vict. c. 110, s. 8, all moneys and securities for money, and all chattels whatsoever, belonging to any society, are vested in trustees, who may bring or defend any suit, criminal as well as civil, at law or in equity, concerning the property or any claim of such society, and sue and be sued, plead and be impleaded in their proper names as trustees of such society, without any other description, &c. Larceny of property of building and industrial societies.^ By .'57 & 38 Vict. c. 42 (the Building Societies Act, 1874), s. 9, every society, upon receiving a certificate of incorporation under this Act, becomes a body corporate by its registered name. By the Industrial and Provident Societies Act, L893 (56 & 57 Vict. c. 39), every incorporated society regis- tered under any Act relating to industrial and provident societies shall be deemed to he a society registered under this Act (s. 3), and on compliance with the provisions of the Act. a new society may he registered bj an acknowledgment by the registrar (s. (!). By s. 8, the acknowledgment of registry shall he conclusive* iddence that the society is duly registered, unless it is proved that the registry of the society has been suspended or cancelled. By S. 21, the registration of a society shall render it a body corporate by the name described in the acknowledgment of registry, and shall vest in the society all property for the time being vested in any person in trust for the society, and all legal proceedings may be prosecuted by the society in its registered name. Larceny, ifcc, of property of />•<(■'> Vict. c. .'!1 , s. 8, amended by 39 & 40 Vict. c. 22, s. .'5, by which the property of a registered trade union is \ested in trustees, and may he stated to he their property in any indict- ment in their proper names as trustees of such trade union without 554 Larceny. further description. Sect. 9 further provides for the carrying on of a prosecution in case of death or removal from office of a trustee. Sect. 12 provides that no person shall he proceeded against by indictment if a con- viction shall have been previously obtained for the same offence under that Act. Larceny of property of savings banks.'] The 26 & 27 Vict. c. 87, s. 10, vests the effects, securities, &c, of savings banks in the trustees for the time being, and provides that in all criminal proceedings the property may be laid in them in their proper names without further description. Larceny of property of her Majesty , s customs.] By the Customs Laws Consolidation Acts, 39 & 40 Yict. c. 36, s. 29, any moneys, chattels, or other valuable securities which may be received in the service of the customs may be laid as the property of her Majesty. Summary jurisdiction.'] By the 42 & 43 Yict. c. 49, simple larceny, larceny from the person, larceny as a clerk or servant, and aiding and abetting the commission of those offences, may, in the case of young- persons consenting and adults pleading guilty, be dealt with summarily, and in the case of an adult consenting, if the value of the property does not exceed 40s., the offence may be dealt with in like manner. Definition of larceny.] The definitions of larceny to be found in the various books are mostly derived from Bracton, lib. iii. c. 32, p. 150, "furtum est tractatio rei alienee fraudulenta, animo furandi, invito illo cujus ilia res fuerit." This is evidently derived from the definition of furtum given by the Roman law, Inst. lib. iv. tit. 1, s. 1 ; " furtum est contractatio fraudulosa lucri faciendi causa vel ipsius rei, vel etiam usus ejus posses- sionisve." The latter, however, is not the definition of a crime, but of a civil trespass, giving rise to the actio furti. The words animo furandi in the former, and lucri causa in the latter, have a somewhat similar signifi- cation. The corresponding phrase of modern law is ' ' with a felonious intent " : thus Mr. East defines larceny to be " the wrongful or fraudu- lent taking and carrying away by one person of the mere personal goods of another with a felonious intent to convey them to his (the taker's) own use, and make them his own property, without the consent of the owner."' 2 East, P. C. 553. In R. v. Holloway, 1 Den. G. C. 370, Parke, B., cited this definition with approbation, but seemed to think it did not state quite sufficiently that the taking must be without any claim of right ; but perhaps that is sufficiently expressed by the word felonious. It is erroneous in other respects. Eyre, C. B., in the definition given by him, retained the words lucri causa ; thus in II. v. Pear, 2 East, P. O. 685, he says, " larceny is the wrongful taking of goods with intent to spoil the owner of thern lucri causa." And Blackstone says, " the taking must be felonious, that is, done animo furandi, or, as the civil law expresses it, lucri causa;" 4 Com. 232. The point aimed at by these two expressions. animo furandi and lucri causa, the meaning of which has been much dis- cussed, seems to be this ; that the goods must be taken into the pjossession of the thief with the intention of depriving the owner of his property in them. It may be remarked here, once for all, that everything in larceny, and the kindred offences of embezzlement and obtaining by false pretences, depends on a clear appreciation of the difference between possession and property. Whether or no a thing is in our possession is altogether a question of fact ; but it is nevertheless a question, the decision of which Larceny. oo5 is regulated by the law. The rules laid down on this subject by the law are, as in all such cases they necessarily must be, arbitrary to this extent, namely, that there are cases on both sides of the line in which the appli- cation of the rule is unsatisfactory. But this inconvenience is balanced by the advantage of having a settled line. Possession, in the sense in which it is used in English law, extends not only to those things of which we have manual prehension, but those which are in our house, on our land, or in the possession of those under our control, as our servants, children, &c, see J', v. Wright, and R. v. Reid, infra, p. 575. Property is the right to the possession, coupled with an ability to exercise that right. Bearing this in mind, we may perhaps safely define larceny as follows : — the wrongful taking possession of the goods of another with intent to deprive the owner of his property in them. It is not necessary to add to this definition the words " without any claim of right by the taker " ; as that is excluded by the latter branch of the definition relating to the intent. Nor is it necessary to say that the taking must be " against the will of the owner," because that is included in the word " wrongful." It will be seen that most of the decided cases accord with this view. Thus it has been held that though in taking possession of the article the intention of the taker is to destiny it, and that he never contemplated any acquisition of property himself, it is still larceny, because he intends to deprive the owner of his property. As in R. v. Cabbage, Russ. & Rij. 292, where the prisoner was charged with stealing a horse. He went to the stable, took out the horse, led it to a coal pit, and backed it into the shaft, and this was held to be larceny. Upon this case it is observed in the report of the criminal law commissioners (p. 17), that where the removal is merely nominal, and the motive is that of injury to the owner, the offence is scarcely distinguishable from that of malicious mischief. This may sometimes be so, but there is at the same time a very clear distinction between depriving a person of his property, and injuring his property without depriving him of it. A similar case was that of It. v. Jones, 1 Den. C. C. 193, where a servant, after her discharge, applied at the post office and received her master's letters ; she delivered all but one to her master, and that one she destroyed, with a view of suppressing inquiries with reference to her character. This was held to be larceny. < >n the other hand, it is clearly laid down that although the party may wrongfully take possession of the g Is, yet unless he intend to deprive the owner of his property therein, this is a trespass only and not larceny; as in the numerous cases where the evidence clearly shows that the prisoner merely intended to borrow the goods for a short time, and then return them. These cases are collected infra, ]>. 570. An unauthorized gifl by a servant of his master's goods is as much a. felony as if lie had sold or pawned them. Per Erskine, J., R. v. White, !i C. & I'. 344. Proof of the taking."] The following is the definition of a felonious taking given by the criminal law commissioners: "The taking and carrying away are felonious, where the goods are taken againsl the will of the owner, either in hi- absence, or in ;i clandestine manner, or where possession is obtained either by force or surprise, or by any trick, device, or fraudulent expedient, theownernol voluntarily parting with his entire interest in the -duds: and where the taker intends in any such case fraudulently to deprive the owner of the entire interest in the property against his will." 1st Rep. p. 1'i. To these oughl to be added cases where goods are obtained by menace-, /,'. \. McOrath, /.. A'., 1 C. C. R. 556 Larceny. 205; 39 L, J., M. C. 7; R. v. Lovell, 8 Q. 5. Z>. 185; 50 L. ./., M. 0. 91, jPos£, p. 571 ; and as to cases where the possession has been obtained in consequence of a mistake on the part of the prosecutor, and the property has not passed, R. v. Middleton, post, p. 559 ; L. R,, 2 C. 0. R. 38 ; 42 L. J., M. C. 73. Where goods are once taken with a felonious intent, the offence cannot be purged by a restoration of them to the owner. Thus, the prisoner, having robbed the prosecutor of a purse, returned it to him again, saying, " If you value the purse take it, and give me the contents," but before the prosecutor could do this the prisoner was apprehended ; the offence was held to be complete by the first taking. R. v. Peat, 2 East, P. C. 557 ; see also R. v. Wright, 2 Russ. CrL 126, 6th ed., and 9 C. & P. 554 (n) ; and R. v. Phetheon, 9 G. & P. 552. See R. v. Trebilcock, infra, p. 578. Proof of the taking — what manual taking is required.^ In order to constitute the offence of larceny, there must be an actual taking posses- sion by the thief, and this is what is meant by saying that every larceny includes a trespass, though, as we shall see presently, the trespass is sometimes constructive only. Thus, A. owing money to the prosecutor, the prisoner said he could settle the debt on A.'s behalf, and taking a receipt from his pocket put it on the table, and then took out some silver in his hand. The prosecutor wrote a receipt for the sum mentioned on the stamped paper, and the prisoner took it up and went out of the room. On being asked for the money he said, "It is all right " ; but never paid it. It was held that this was not a larceny, as the prosecutor never had such a possession as would enable him to maintain trespass. R. v. Smith, 2 Den. 0. C. 449; 21 L. J., M. C. 111. So where the prisoner assigned his goods to trustees for the benefit of his creditors, but before the trustees had taken possession he removed the goods intending to deprive his credit ors of them, it was held that he was not guilty of larceny. R. v. Pratt, 1 Pears. (J. C. 360; 11. v. Smith, 2 Pen. C. 0. R. 449; 31 L. J., M. C. 111. The change of possession need not be by the very hand of the party accused. For if he fraudulently procure another, who is himself innocent of any felonious intent, to take the goods for him, it will be the same as if he had taken them himself ; as if one procure an infant, within the age of discretion, to steal the goods for him. 2 Past, P. (J. 555 ; 1 Russ. On. 122, 6th ed, See also R, v. Williams, 1 C. & K. 195. The least removing of the thing taken from the place where it was before is sufficient ; indeed the words " take and carry away," ordinarily used iii an indictment for larceny, seem to mean no more than the word " take " alone ; thus a guest, who had taken the sheets from his bed with an intent to steal them, and carried them into the hall, where he was apprehended, was adjudged guilty of larceny. Ha irk. 1*. 0. b. 1, c. 35, s. 25 ; 3 Inst. 108 ; 2 East, P. 0. 555 ; 1 Leach,, 323 ; see also R. v. Sam- ways, 1 Dears. 0. 0. R. 371. So where a person takes a horse in a close, with intent to steal him, and is apprehended before he can get him out of the close, 3 Inst. 109 ; see further as to cattle, R. v. Williams, 1 Moo. < '. ' '. 107, and see ante, p. 337. The prisoner got into a waggon, and taking a parcel of goods which lay in the forepart, had removed it to near the tail of the waggon, when he was apprehended. The twelves judges were unanimously of opinion that as the prisoner had removed the property from the spot where it was originally placed, with an intent to steal, it was a sufficient taking and carrying away to constitute the offence. R. v. Costlet, 1 Leach, 23(5 ; 2 East, P. < '. 556. But where the prisoner had set up a parcel containing linen, which was lying lengthways in a Larceny. 557 waggon, on one end, for the greater convenience of taking the linen out, and cut the wrapper all the way down for that purpose, but was appre- hended before he had taken anything, all the judges agreed that this was no larceny, although the intention to steal was manifest. For a carrying away, in order to constitute 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. R. v. Cherry, 2 East, P. G. 556; 1 Leach, 236 (/<). The following case, though nearly resem- bling the latter, is distinguished by the circumstance that every part of the property was removed. The prisoner, sitting on a coach-box, took hold of the upper part of a bag which was in the front boot, and lifted it up from the bottom of the boot on which it rested. He handed the upper part of the bag to a person who stood beside the wheel, and both holding it endeavoured to pidl it out, but were prevented by the guard. The prisoner being found guilty, the judges, on a case reserved, were of opinion that the conviction was right, thinking that there was a complete asportavit of the bag. /.'.v. Walsh, 1 Moo. C. C. 14. The prisoner was indicted for robbing the prosecutrix of a diamond ear-ring. It appeared that as she was coming out of the opera-house the prisoner snatched at her ear-ring, and tore it from her ear, which bled, and she was much hurt. The ear-ring fell into her hair, where it was found on her return home. On a case reserved, the judges were of opinion that this was a sufficient taking to constitute robbery ; it being in the possession of the prisoner for a moment, separated from the owner's person, was sufficient, though he could not retain it, but probably lost it again the same instant that it was taken. R. v. Lapier, 2 East, P. C. 557, 70S; 1 Leach, 320. "Where a letter carrier did not deliver a letter sorted to him for delivery, nor return it in the pouch with the other undelivered letters upon his return to the office as it was his duty to do, but kept it in his pocket, the jury found that he had detained the letter with intent to steal it, and it was held that there was a sufficient taking to constitute a larceny. R. v. Poyntoxt, L. & C. 2-17; 32 L. J., M. C. 29. Where a servant animo furandi took his master's hay from his stable, and put it into hismaster's waggon, it was held to be larceny. R. v. Oruncell, 9 C. & J'. 365. So where the prisoner induced a postman to hand over to him letters which were not addressed to him, it was held that he could be convicted on an indictment for the larceny of the letters, as he was either a joint thief with the postman or an accessory before the fact, and therefore liable by 24 & 25 Vict. c. 94, s. 1, to be convicted in all respects as if he were a principal. R. v. James, 21 Q. R. 1>. 439; 59 /.. ./., .1/. C. 96. There must, however, be a possession by the party charged, however temporary. The prisoner stopped the prosecutor as lie was carrying a feather-bed on his shoulders, and told him to lay it down or he would shoot him. The prosecutor laid the bed down ; but before the pi Imhiit could take it up he was apprehended. The judges were of opinion that the offence was not completed. B. \. Farrel, 2 East, P. C. 557. There must be a severance of the goods from the possession of the owner. The prisoner took a purse out of the pocket of the owner, but the purse being tied to a bunch of keys, and the keys remaining in his pocket, and the party being apprehended while they remained in his pocket, it was held no larceny, on the ground that the owner still remained in possession of his purse; and thai there was no asportavit. I!, v. Wilkinson, 1 Hale, P. C. 508. So where goods in a shop were tied to a string, which was fastened to one end of the bottom of the counter, and the prisoner took up the goods and carried them towards the door as far as the string would permit, and was then stopped, Eyre, P>., ruled that o58 Larceny. there was no severance, and consequently no felony. Anon., cited in P. v. Cherry, 2 East, P. C. 550 ; 1 Leach, 321 (n). The prisoner was indicted for stealing five thousand cubic feet of gas. The gas company had contracted to supply him with gas, to be paid for by meter. The gas was received from the company's main into an entrance- pipe belonging to the prisoner, and passed through the meter which the prisoner had hired of the company into another pipe, the property of the prisoner, called the exit-pipe, which fed the burners. The prisoner fraudulently, by fixing a pipe connecting the entrance and exit-pipe, made a passage through which the gas rose to the burners without passing through the meter, which consequently did not show all the gas consumed. The jury found that the prisoner had not by contract any interest in or control over the gas until it passed the meter. It was held, that the prisoner, by opening the stop-cock of the connecting-pipe, and letting the gas from out of the entrance-pipe into it, sufficiently secured a portion of the gas to constitute an asportavit, and that he was guilty of larceny of the gas. P. v. White, 1 Dears. C. C. P. 203 ; 22 L. J., M. C. 123. The workmen of a colliery were allowed to take water from the taps of a pipe through which water was supplied on payment of a fixed price ; it was held that the water thus stored could be the subject of larceny at common law, and that any one taking it unlawfully might be convicted of larceny. Ferens v. O'Brien, 11 Q. B. 1). 21 ; 52 L. J., M, 0. 70. Proof of taking — possession obtained by mistake.'] The proof that the goods were taken with a felonious intent may be rebutted, by showing that the party charged with the larceny took them by mistake. Thus, if the sheep of A. strayed from his flock into that of B., and the latter by mistake drives them with his own flock, or shears them, that is not felony ; but if he knows the sheep to be another's, and marks them with his own mark, it is said that would be evidence of a felony. 1 Hale, P. ( '. .507. Seel qu. And where the prisoner by mistake drove away with his flock of sheep one of the prosecutor's lambs, and afterwards finding out that he had the lamb, immediately sold it as his own : it was held, that as the original taking was not rightful, but was an act of trespass, the subsequent appropriation was larceny. II. v. Riley, 1 Pears. C. 0. P. 149; 22 L. J., M. C. 48. 8o if he appears desirous of concealing the property, or of preventing the inspection of it by the owner, or by any other who might make the discovery, or if, being asked, he deny the having them, although the knowledge be proved ; these likewise are circumstances tending to show the felonious intent. 2 East, P. C. 661. But there is a distinction between things taken by mistake, and things delivered by mistake. In the case of things delivered by mistake one important circumstance to be considered is whether at the moment of delivery the prisoner had an animus fur an cli or not. If he had previously intended to procure the delivery to himself, then the case would fall under the class to be presently considered, where the question is whether the possession only is obtained by the fraud, or whether the property has passed : if the property has passed, whether in consequence of the fraud or not, no subsequent appropriation of the goods will amount to larceny, so long as the lawful possession continues. P. v. Mueklow, 1 Moo. C. C. 160; P. v Davis, 25 L. J., M. C. 91. But there is another class of cases, viz., where the prisoner has not previously intended to procure the delivery, and the prosecutor by some mistake delivers the goods to the prisoner, who, at the moment of delivery, has an animus furaudi; in that case it has been held that the property in goods has not passed to the prisoner, but still remains in the prosecutor, and the prisoner receiving Larceny. 559 them an i mo fur audi is guilty of larceny. In /?. v. Middleton, L. It., 2 C. C. 11. 38 ; 42 L. J., M. C. 73, the prisoner was a depositor in a post-office savings bank to the amount of eleven shillings. He gave notice to with- draw, and a warrant for the amount was duly sent to the prisoner, and a letter of advice to the post-office to pay the amount to the prisoner. When the prisoner delivered his warrant to the clerk at the post-office, the clerk by mistake referred to another letter of advice for 8/. 16s. 10'/., and placed that amount upon the counter. The clerk entered the amount paid in the prisoner's deposit book, and stamped it, and the prisoner took up the money and went away. The jury found that the prisoner had the a/nimw 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. Seven of the judges out of fifteen considered that the test of larceny in this case was whether the property had in fact passed or not, and not whether it was the intention of the prosecutor to pass it. If, they said, a man obtains a sale and delivery to himself by fraud, the property passes to him, and he cannot commit larceny of it. (The vendor may have a right to rescind the contract when the fraud is discovered, but in the meantime the property has passed.) lhit if things arc delivered by mistake no property passes, and larceny may be committed by the person receiving such property. (If a merchant sells six sacks of beans, and by mistake delivered six sacks of coffee, larceny of the coffee may be committed.) They held that, as a matter of fact, a mistake had been committed, and as a matter of law that no property passed, and the prisoner could commit larceny of the property so delivered to him by mistake. Four of the judges regarded the case from an entirely different view. They thought that larceny was a crime of a peculiarly grave character, and that what gave it that grave character was that the act was done invito domino. By intending the property to pass, and by delivering it with that intention, a prosecutor by his own act places the prisoner in a position different from that in which the law supposes him to be when he does an act in vito dom ino. If the prisoner by his own fraud has induced the prosecutor to part with the possession of property, that is another matter ; but where the prisoner is acting honestly, and the prosecutor by his own act alone puts the goods in the way of the prisoner, then, what- ever else he may be guilty of, he is not guilty of the very grave offence of larceny. They held that as a matter of fact the prosecutor intended to pass the property to the prisoner, and delivered it to him with that inten- tion, and therefore as a matter of law he could not commit larceny of it. The fact of the intention of the prosecutor having failed, and the property not having passed in law, was immaterial. One learned judge thought as a matter of fact that even the possession had never been parted with, and three learned judges decided the case upon an entirely distinct point. See post, p. 509. The result is that the question is hardly yet decided whether, there being no fraud up to the moment of delivery, larceny can be committed with respect to <;oods delivered by the prosecutor to the prisoner under a mistake as to the identity of the goods delivered, or the identity of the prisoner. I n the course of the judgment of the majority, it is said : "We admit that the case is undistinguishable from the one supposed in the argument, of a person handing to a cabman a sovereign by mistake for a shilling; but after carefully weighing the opinions to the contrary, we are decidedly of opinion that the property in the sovereign would not vest in the cabman, and that the question whether the cabman was guiltv of larceny or not would depend upon this, whether at the time he took the sovereign he was aware of the mistake, and had then the guilty intent, the animus fv/remdi." 560 Larceny, The proposition here suggested came before the full Court for Crown Cases Reserved in R. v. Ashwell, 10 Q. B. T). 190; 55 L. J., M. ('. 65, where the prisoner having asked the prosecutor for the loan of a shilling the prosecutor gave the prisoner a sovereign, believing it to be a shilling. The prisoner took the coin under the same belief, but some time after dis- covering it to be a sovereign, he fraudulently appropriated it to his own use. Seven judges (Smith, Mathew, Stephen, Bay, Wills, Manisty, and Field, JJ.) were of opinion that there was no larceny, and seven (Lord Coleridge, C. J., Cave, Hawkins, Denman, and Grove, JJ., Pollock and Huddleston, BB.) that there was. There does not appear to have been any doubt in the minds of any of the judges that the rule of law is well established that there can be no larceny except the felonious intent is contemporaneous with the receipt. The difference of opinion arose from a different view as to the point of time at which the receipt took place. Those judges who held there had been no larceny thought that the receipt of the sovereign took place when the supposed shilling was taken by the prisoner, and the felonious intent arose subsequently, when the prisoner discovered that he had a sovereign in his possession ; while, upon the other hand, those judges who held there had been a larceny thought that, though the receipt of the coin (as and for a shilling) took place at the time when the prisoner received the coin, yet the receipt of the sovereign, as and for a sovereign, did not take place, and could not take place, until the moment when the prisoner found out that it was a sovereign, at which moment he feloniously made up his mind to steal it. In Ireland it has been held by the Court for Crown Cases Beserved under sinidar circum- stances that there was no larceny, R. v. Hehir, 18 Cox, 267. The case of R. v. Flowers, 16 Q. B. I). 643, shows that the old rule of law is not affected by R. v. AslnveU. The jury found that the prisoner "received' the 7s. 11}/1. at one time, and at a " subsequent" time fraudulently appro- priated it, so that upon that rinding there was clearly no larceny; but if the question of the time of receijtt had been left open, the court woidd have had the same difficulty as in R. v. AslnveU. In a case of R. v. Jacobs, reported in 12 Cox, 151, Mr. Serjeant Cox seems to have previously ruled the contrary, where a purchaser gave by mistake a half-sovereign for a sixpence. A somewhat simdar case to the above is that of 7?. v. Bramley, L. & C. 21, post, p. 566. Proof of the taking — possession obtained by fraud at the time of taking — property not parted with.'] It is clear that if the possession of goods be obtained by fraud, this is a taking possession of the goods so as to consti- tute larceny, unless the property be also parted with, in which case there is no larceny. See infra, p. 562. Assuming, therefore, that the prose- ( utor has no intention to, and does not, in fact, part with his property, the cases of possession obtained by fraud turn upon the intention of the prisoner at the time that he obtained possession. Formerly, if his inten- tion was originally fraudulent, then it was larceny ; if it was originally innocent, then he was merely bailee, and a subsequent fraudulent appro- priation was not necessarily larceny. Now, however, inasmuch as every fraudulent appropriation by a bailee is, in consequence of the provisions (if the 24 & 25 Vict. c. 100, s. 3, supra, p. 549, a larceny, and the prisoner in this case would be, at least, a bailee, the distinction is of less import- ance ; but it is not desirable to lose sight entirely of the decisions on the point, the principal of which are here given. Thus, where the prisoner hired a mare for a day to go to L., and said he should return the same and gave a false reference. In the afternoon of the same day Larceny. o(il he sold the mare in Smithfield; this was held to be larceny. 11. v. Pear, 2 East, P. ('. 685 ; Lea. 212. A postboy applied to the prosecutor, a livery-stable keeper, for a horse, in the name of Mr. Ely, saying that there was a chaise going to Barnet, and that Mi'. Ely wanted a horse for his servant to accompany the chaise, and return with it. The horse was delivered by the prosecutor's servant to the prisoner, who mounted him, and, on leaving the yard, said he was going no further than Barnet. lie only proceeded a short way on the road to Barnet, and on the same day sold the horse for a guinea and a half, including saddle and bridle. The court observed that the judges, in II. v. Pear, had determined that if a person, at the time he obtained another's property, meant to convert it to his own use, it was felony ; that there was a distinction, however, to be observed in this case, for if they thought that the prisoner, at the time of hiring the horse for the purpose of going to Barnet, really intended to go there, but finding himself in possession of the horse, afterwards deter- mined to convert it to his own use, instead of proceeding to the place, it would not amount to a felonious taking. 11. v. Cliarlwood, 2 East, 1'. C. (5(S9 ; 1 I. each, 409. Semple, under the name of Harrold, had been in the habit of hiring carriages from the prosecutor, a coachmaker, and on the 1st of September, 17. >/., ^r. C. 97; />. II., 1 C C. 11. 125. See also R. v. Tivist, 12 Cox, 509; R. v. Hollis, 12 Q. II. IK 25. In two recent cases, the prisoner was charged with stealing nineteen Larceny. 665 shillings. In both, the prosecutor gave the prisoner a sovereign, under the expectation that nineteen shillings change was to be given. In the first case, the chairman of Quarter Sessions amended the indictment to one for stealing a sovereign, and directed the jury that if they believed that the prisoner, at the moment of obtaining the sovereign, intended by a trick feloniously to deprive the prosecutor of the sovereign, they were to find a verdict of guilty, and it was held that the direction was right. U. v. (tumble, 42 L. J., M. 0. 7; L. R., 2 C. C. R. 1. In the second case, the indictment was not amended, and therefore the prisoner could not be convicted, as she had never taken nineteen shillings at all; but the majority of the judges thought that she might have been convicted on an indictment for stealing one sovereign, if the issue had been properly left to the jury. R. v. Bird, 12 ( 'ox, 257 ; 42 L. J., M. C. 44. So, also, where money has been merely deposited by the prosecutor with the prisoner, the prisoner may commit larceny of it. Thus, obtain- ing money or goods by ring-dropping, &c, has been held to be larceny. The prisoner, with some accomplices, being in company with the prosecu- tor, pretended to find a valuable ring wrapped up in a paper, appearing to be a jeweller's receipt " for a rich brilliant diamond ring." They offered t< i share the value of it with the prosecutor, if he would deposit some money and his watch as a security. The prosecutor, having accordingly laid down his watch and money on a table, was beckoned out of the room by one of the confederates, while the others took away his watch and money. This was held to amount to larceny. R. v. Patch, 1 Leach, 238; 2 East, P. ( '. ()7. 182; 57 L. ,1., M. C 2.',. The prisoner agreed to sell a horse to the prosecutor for 23/., and the prosecutor handed him 81., in return for which the prisoner gave him a receipt, which stated that the balance was to he paid on delivery. The prisoner never delivered and never intended to deliver the horse to the prosecutor. It was held thai the prisoner was lightly convicted of larceny by a trick, since the prosecutor had not intended to part with the properly in the 81. until he received the horse, but had only paid it as a deposit. R. v. Russett, (1892) 2 Q. Jl. 312. Where the prisoner covered some coals in a cart with slack, and gave it to be weighed as slack, and after it was weighed paid for it as slack only, and converted the coal so obtained to his own use, it was held that this 566 Larceny. was a larceny of the coal, for the prosecutor had not parted and never intended to part with the property in the coal. R. v. Bramley, L. d~ C. 21. In all the above cases it was held that the prosecutor had not com- pletely parted with his property in the goods. The doctrine is clearly established that, if the owner intends to part with the property in the goods, and, in pursuance of such intention, delivers the goods to the prisoner, who takes them away, and the property becomes his, this is not larceny, even though the prisoner has from the first a fraudulent intention. This is what constitutes the offence of obtaining by false pretences ; and as that is now an offence as easily and as fully punishable as larceny, there is no reason whatever why the acknowledged principle should not be strictly applied. The following are instances in which the offence has been held not to amount to larceny, on the ground that the property in the goods has- passed to the prisoner. One of the defendants, in the presence of the prosecutor, picked up a purse containing a watch, a chain, and two seals, which a confederate represented to be gold, and worth 1 8/. ; upon which the prosecutor purchased the share of the party who picked up the purse for 7?. ; Coleridge, J., held that ■this was not larceny. R. v. Wilson, 8 G. & P. 111. Compare this case with R. v. Patch, supra, where the prisoner had only deposited his imney. The prisoner was indicted for horse stealing, and it appeared in e adence that he met the prosecutor at a fair with a horse, which the latter had brought there for sale. The prisoner, being known to him, proposed to become the purchaser. On a view of the horse, the prosecutor told the prisoner he should have it for 81., and calling his servant, ordered him to deliver it to the prisoner, who immediately mounted the horse, telling the prosecutor that he would return immediately and pay him. The prosecutor replied, "Very well," and the prisoner rode away, and never returned. Gould, J., ordered an acquittal, for here was a complete contract of sale and delivery ; the property as well as possession was entirely parted with. R. v. Harvey, 2 East, P. G. 669 ; 1 Leach, 467. The prisoner pretended to put three shillings into a purse and offered the purse and its contents to the prosecutor for one shilling. The prosecutor gave the prisoner a shilling and took the purse, but on opening it found it contained only three half -pence. It was held that the prisoner could not be convicted of larceny of the shilling since the prosecutor clearly intended to part with the property in it. R. v. Solomons, 17 Gox, 93. Parkes was indicted for stealing a piece of silk, the property of Thomas Wilson. The prisoner called at Wilson's warehouse, and having looked at several pieces of silk, selected the one in question. He said that he lived at No. 6, Arabella-row, and that if Wilson wotdd send it that evening, he would pay him for it. Wilson accordingly sent his shopman with it, who, as he was taking the goods, met the prisoner. The latter took him into a room at No. 6, Arabella-row, examined the bill of parcels, and gave the servant bills drawn at Bradford, on Taylor and Co., in London, for more than the price of the goods. The servant could not give the change, but the prisoner said he wanted more goods, and should" call the following day, which he did not do. Taylor and Co. said the notes were good for nothing, and that they had no correspondent at Bradford. Before the goods were sent from Wilson's they were entered in a memorandum-book, and the prisoner was made debtor for them, which was the practice where goods were not paid for immediately. It was left to the jury to consider whether there was from the beginning a pre- meditated plan on the part of the prisoner to obtain the goods without Larceriji. 567 paying value for them, and whether this was a sale hy Wilson, and a delivery of the goods with intent to part with the property, he having received bad bills in payment through the medium of his servant. The jury found that from the beginning it was the prisoner's intention to defraud Wilson, and that it was not Wilson's intention to give him credit; and they found him guilty. But the judges were of opinion that the conviction was wrong, the property, as well as the possession, having been parted with, upon receiving that which was accepted as payment by the prosecutor's servant, though the bills afterwards turned out to beof no value. R. v. Parkes, 2 East, P (J. 671; 2 Leach, 614. See R. v. Small, post, p. 570. The prisoner was a servant in the employment of grocers who were in the habit of purchasing "kitchen stuff." It was his duty to receive and weigh it, and if the chief clerk was in the counting-house, to give the seller a ticket, specifying the weight and price of the article, and the name of the seller, which ticket was signed with the initials of the prisoner. The seller, on taking the ticket to the chief clerk, received the price of the " kitchen stuff." In the absence of the chief clerk, the prisoner had himself authority to pay the seller, and afterwards, on producing the ticket to the chief clerk, was repaid. The prisoner had, on the day mentioned in the indictment, presented a ticket to the chief clerk, purporting to contain all the usual specifications, and marked with the prisoner's initials, and demanded the sum of 2s. '3d., which he alleged that he had paid for "kitchen stuff." He received the money, and appro- priated it to his own use ; and it was afterwards discovered that no such person as was described in the ticket had ever sold any such article to the prosecutors, but that the ticket was fraudulently made out, and presented by the prisoner. The court held that this was a case of false pretences, and that an indictment for larceny could not be sustained, " as the clerk delivered the money to the prisoner with the intent of parting with it wholly to him." if. v. 1 lames, 2 Den. C. C. R. 59. A case of frequent occurrence is the following. The prisoner being the prosecutor's servant, it was his duty to receive and pay moneys for the prosecutor, and make entries of such receipts and payments in a book which was examined by the prosecutor from time to time. On one occasion the prisoner showed a balance of 21. in his favour, by taking credit for payments falsely entered m his book as having been made by him, when in fact they had not been so made, and thereirpon was paid by his master - the 2/. as a balance due to him. The prisoner having been convicted of larceny, the Court of Criminal Appeal held the conviction wrong, but several judges expressed an opinion that an indictment for obtaining money by false pretences might have been sustained. R. v. Green, 1 Dears. C. C. 323; but see R. v. Cooke, infra. It was the duty of the prisoner to ascertain the amount of certain dock dues payable by the prosecutors, and having received the money from their cash-keeper, to pay the dues over to those who were entitled to them; he falsely represented a sum of 2,1. 10s. \<1. to be due, whereas in truth a less sum was then due, and having obtained the larger sum, con- verted the difference to his own use; it was laid not to be larceny, but an obtaining by false pretences. R. v. r rhmiij>so)>, L. A- C. 2'3'3; 32 L, J., M. 0. 57. Tt is said that the above decision went entirely upon the question whether there was a larceny in the first instance, and not whether the subsequent appropriation was larceny, as it seems it was. //. v. Cooke, 1.. //., 1 C. C. R. 295; 40 L. J., M. C. 68. See this case, infra, as to possession obtained by servants, p. 573. Where the goods have been purchased by a thin! person, and the 568 Larceny. prisoner obtains possession of them in that person's name by false pretences, as the owner intends to part with his property, though not to the prisoner, it has been held not to amount to felony. The prisoner was indicted for stealing a hat, in one count laid to be the property of Robert Beer, in another of John Paul. The prisoner bought a hat of Beer, a hat-maker, at Islington ; but was told he could not have it without paying for it. While in the shop he saw a hat which had been made for Paul, and saying that he lived next door to him, asked when Paul was to come for his' hat. He was told in half an hour or an hour. Having left the shop he met a boy, asked him if he knew Beer, saying, that Paul had sent him to Beer's for his hat; but that, as he owed Beer for a hat himself, which he had not the money to pay, he did not like to go. He asked the boy (to whom he promised something for his trouble) to carry the message to Beer's, and bring Paul's hat to him (the prisoner). He also told the boy not to go into Beer's shop if Paul, whom he described, should be there. The boy went and delivered the message, and received the hat, which, after carrying part of the way by the prisoner's desire, he delivered to him, the prisoner saying he would take it himself to Paul. The prisoner was apprehended with the hat in his possession. It was objected for him that this was not larceny, but an obtaining goods under false pretences. The prisoner being found guilty, the question was reserved for the opinion of the judges, who decided that the offence did not amount to a felony, the owner having parted with his property in the hat. R. v. J-/"///. '1 Buss. On. 145, 6th ed. See also R. v. Box, 9 C. & P. 126. But see R. v. Kay, infra, tit. Post Office. And see the remarks on the above case contained, in the judgment of seven of the judges in R. v. Middleton, ante, p. 559, from which it seems that the property in the hat had never passed to the prisoner, and that the offence amounted to larceny. The'prisoners, Nicholson, Jones, and Chappel, were indicted for stealing- two bank post bills and seven guineas. The prisoner Nicholson intro- duced himself to the prosecutor, at the apartments of the latter, in the Charter House, under the pretence of inquiring what the rules of the charity were. Discovering that the prosecutor had some money, he desired to walk with him, and having been joined by the prisoner Chappel, they went to a public-house. The prisoner Jones then came into the room, and said that he had come from the country to receive 1,400/., and produced a quantity of notes. Chappel said to him, "I suppose you think that no one has any money but you." Jones answered, "I'll lay 10/. that neither of you can show 40/. in two hours." They then all went out, Nicholson and Chappel said that they should go to the Spotted Horse, and they both asked the prosecutor if he could show 40/. He answered he believed he could. Nicholson accompanied the prosecutor home, when the latter took out of his desk the two bank post bdls and five guineas. Nicholson advised him to take a guinea or two more, and he accordingly took two guineas more. They then went to the Spotted Horse, where Jones and Chappel were in a back room. Jones put down a 10/. note for each who could show 40/. The prosecutor showed his 40/. by laying down the notes and guineas, but did not recollect whether he took up the 10/. given to him. Jones then wrote four letters in chalk upon the table, and going to the end of the room, turned his back, and said, that he would bet them a guinea apiece that he would name another letter that should be made and a basin put over it. Another letter was made and covered with a basin. Jones guessed wrongly, and the others won a guinea each. Chappel and Nicholson then said, "We may as well have some of Jones's money, for he is sure to lose, and we may as well Larceny. 569 make it more, for we are sure to win." The prosecutor then staked his two notes and the seven guineas. Jones guessed right, and the notes lying on the table, he swept them all off, and went to the other end of the room, the other prisoners sitting still. A constable immediately came and apprehended the prisoners. The pi'osecutor, on cross-examination, said that he did not know whether the 10/. note given to him by Jones on showing 40/. was a real one or not. That having won the first wager, if the matter had ended there, he should have kept the guinea. That he did not object to Jones taking his 40/. when he lost, and would have taken the 40/. if he had won. The officers found on the prisoners many pieces of paper having numbers, such as 100, 50, &c, something in the manner of bank notes, the bodies of the notes being advertisements of different kinds. No good notes were found upon them, but about eight guineas in cash. A lump of paper was put into the prosecutor's hands by Jones, when the officers came in, which was afterwards found to contain the two post bills. On the part of the prisoners it was contended, that this was a mere gaming transaction, or at most only a cheat, and not a felony. A doubt being entertained by the bench, on the latter point, it was left to the jury to consider whether this was a gaming transaction, or a pre- concerted scheme by the prisoners, or any of them, to get from the prosecutor the post bills and cash. The jury were of opinion that it was a preconcerted scheme in all of them, for that purpose, and found them guilty; but the judges held the conviction wrong, for in this case the property as well as possession had been parted with by the prosecutor, under the idea that it had been fairly won. It. v. Nicholson, 2 East, /'. <'. 000; 2 Leach, 010. Proof of flu' talcing — possession obtained from servant In/ fraud — property •parted with by servant.'] Sometimes the question of whether the prosecutor has parted with his property in the goods or not becomes further compli- cated by the question whether he has delegated to the servant a general authority or only a limited one, and if the latter whether a servant has pursued such limited authority or not. In the following cases it has been held that the servant having only a limited authority and not having pursued it, the property has not passed, and the prisoner was rightly convicted. If a carman having orders to deliver goods to a certain person, in mistake deliver them to another person, who appropriates them to his own use, such person is guilty of larceny, as the carman has only a special authority and does not part with his master's property in the goods by delivering them to a wrong party. /.'. v. Longstreeth, 1 Moo. G. C. 137*; R. v. Little, 10 Cox, 559. In the case of R. v. Middleton, which is stated ante, p. 559, it was thought by Bovill, ('. J., Kelly, < '. B., and Keating, J., that the clerk at the post-office only had a special authority to hand the proper sum to the proper person ; but by Bramwell, 15., and Brett, J., that he had a general authority to part with the money. In a case tried before Denman, .1., R. v. Dowdeswell, at Derby Spring Assizes, 1873, the prisoner for\his own fraudulent purposes had stopped the letter carrier, and by a lie induced him to deliver up certain letters directed to other persons, and tic learned judge ruled that tic letter carrier could not he held to he the agent of the Postmaster- General for wrongfully giving up the letters, and that the offence was a larceny. The prisoner, by false statements, induced the prosecutor to send by his servant, to a particular house, goods to the value of 2s. 10-/. with change for a crown piece. On the way he met the servant, and induced 570 Larceny. him to part with the goods and change, giving him a crown piece which proved to be bad. Both the prosecutor and the servant swore that the latter had no authority to part with the goods or change without receiv- ing the crown piece in payment, but the former admitted that he intended to sell the goods, and never expected them back again. Mr. Serjeant Arabin told the jury that if they thought the servant had an uncontrolled authority to part with the goods and the change, they ought to find the prisoner not guilty ; but if they should be of a contrary opinion, then, in his judgment, it amounted to larceny. He further stated that Parke, B., and Patteson, J., agreed with the opinion he had formed. R. v. Small, 8 C. :i. See also R. v. Aden, 12 Cox, 512. Where a traveller receives from his employers silk to sell for them, but which is to remain their property until disposed of to customers, such traveller is rightly convicted of larceny as a bailee, if he fraudulently disposes of 5 .572 Larceny, them for his own use. R. v. Richmond, 12 Cox, 495. So where the prisoner was to have two brooches for a week or ten days to sell, but after ten days had elapsed he sold them and arranged for their redemption at the end of two months, he was held guilty of larceny as a bailee, for his duty was to return the two brooches in ten days if he could not sell them before. //. v. Henderson, 11 Cox, 593. The prisoner, who received a bill of exchange for the purpose of getting it discounted, and handing back the proceeds, instead of getting it dis- counted, indorsed it as his own to a creditor in payment of his account, the jury finding he intended to pass the bill absolutely to the creditor. He was held to be a bailee of a valuable security, and faulty of a fraudulent conversion of the same to his own use. R. v. Oxenham, 46 L. J., M. C. 125. L., one of the trustees of a friendly society duly enrolled, was sent to the bank to pay to the credit of the society 40/. in gold and silver, which was taken from a box in the possession of C, the treasurer. L. applied the money to his own use. Held, that he was not a bailee of the money of C. R. v. Loose, Bell, C. C. 259. The prisoner received money to pay for some coals, and he was to bring them home in his own cart. He purchased the coals, and loaded them into his own cart, but he afterwards abstracted a portion of the coals. It was held that he was guilty of larceny as a bailee, some of the judges thinking that the coal being purchased with money given by the prosecutor for that purpose, the property vested in the prosecutor, and that thereupon a bailment arose, others thinking that there ought to be evidence of a specific appropriation of the coals to the prosecutor, and all the court agreed that there was such evidence. R. v. Burikall, 33 L. J., M. C. 75 ; L. & C. 371. A carter was employed by the owner of a cargo of coals to go and load the coals in his cart from the vessel, and deliver specified quantities to persons whose names were on a list given to the carter. He sold two of the loads of coals fraudulently, and appropriated the moneys to his own use : on a case reserved for the opinion of the Court for Crown Cases Reserved, he was held to be rightly convicted of stealing the coals of the owner who employed him. R. v. Davies, 10 Cox, 239. The owner of a wrecked ship made a contract to recover the wreck with a person who employed the defendant's father to do the work. The defendant was put in charge of the wreck by his father, and while so engaged corresponded with the person employed by the owner of the wreck, although that person still considered the father responsible. The defendant stole some of the wreck, and the jury found that he did so animo furandi, but were not asked whether he was bailee. It was held by the majority of the court in Ireland that he was a bailee and was rightly convicted. R. v. Clegg, 11 Cox, 212. \Yhere all control over the chattel is parted with, the prisoner cannot be convicted although he has obtained possession by fraud. R. v. II nut, S Cox, 495. A married woman can, it seems, be guilty of larceny as a bailee under the above section. R. v. Robson, L. & C. 93. And so also can an infant. In R. v. MacdonaJd, 15 Q. B. I>. 323, the prisoner who was twenty years of age was supplied with furniture under a hiring agreement, by which he undertook to pay for the same by instalments, and in the meantime not to dispose of them. It was further agreed that the goods should not belong to him until fully paid for. Before the completion of the purchase the prisoner fraudulently converted the goods to his own use. It was held that he was rightly convicted of larceny as a bailee of the goods. Larceny. 57$ Proof of the tailing — possession ohtainal hy servants.'] It has been long settled, that if a servant have possession of his master's goods, and appro- priate them, to himself, he is guilty of larceny: and this intention to- appropriate may be proved by any unequivocal act or acts indicative of such an intention. This, like larceny from a bailee, comes within the definition of larceny given above (p. 55-1) ; the wrongful change of possession taking place by the servant ceasing to hold the goods for the benefit of his master, and assuming to hold them for himself. Thus it is said by Lord Hale that it is larceny if the butler who has charge of his master's plate, or the shepherd who has the charge of his- master's sheep, appropriates them, and so it is of an apprentice that felo- niously embezzles his master's goods. 1 Hale, 506 ; 2 East, P. < '. 554. So where a carter goes away with his master's cart. R. v. Robinson, 2 East, P. C. 565; R. v. Reid, 1 Dears. C. G. II. 257; 23 L. J., M. 0. 25. The- prisoner was a drover, and had been employed by the prosecutor as such, off and on, for nearly five years. Being employed by him to drive a num- ber of sheep to a fair, he sold several of them, and applied the money to- las own purposes. He was found guilty of larceny; but the jury also found that he did not intend to steal the sheep at the time he took them into his possession. On a case reserved, the judges were of opinion, that as the owner parted with the custody only, and not with the possession, the prisoner's possession was the owner's and that the conviction was right. //. v. M'Namee, 1 Moo. CO. 368. See R. v. Hey, 1 Den. C.C. 11. 602. The prisoner was employed by the prosecutor as his foreman and book-keeper, but did not live in his house. The prosecutor delivered a bill of exchange tn him, with orders to take it to the post, that it might be transmitted to London. The prisoner got cash for the bill, with which he absconded. It was objected that by the delivery the prosecutor had parted with the possession of the bill, and the case was likened to that of a carrier intrusted with goods; but the judges held it larceny, on the principle that the possession still remained in the master. R. v. Paradice, 2 East, I'. C. '>(>'), cited 1 Leach, a'l'A, 524. The prisoner was employed as a porter by the prosecutor, who delivered to him a parcel to carry to a customer. While carrying it he met two men, who persuaded him to dispose of the- goods, which he did, taking them out of the parcel and receiving part of the money. All the judges held this to be larceny, as the possession still remained in the master. II. v. Bass, 2 East, P. C. 566; 1 Leach, 25U 523. So where the prosecutor delivered to his servant a sum of money to carry to a person, who was to give him a bill for it. and the servant appropriated it to his own use, the judges were of opinion that this was not a mere breach of trust, but a felony. It. v. Lavender, 2 East, P. G. 566; 2 Rnss. Cri. 328, 6th <■ris< >ner . The prisoner furnished weekly accounts of moneys received and paid by him, showing the balance in his hands, and of what notes, cash, or securities that balance consisted. In September, 1855, the prisoner's accounts were audited, and his cash examined and found correct; but for the two years following, though the weekly accounts were furnished as usual, the cash balance was not examined. In September, 1857, the manager having come to examine the cash balance, the prisoner said he was .'),()()()/. short, and handed over to the manager 755/. 10s., which he said was all the cash he had left, and which sum he took from a drawer in the counter, and not from the sale. The jury found the prisoner guilty of larceny as a clerk, and the Court of Criminal Appeal held that there was evidence that the prisoner, as his duty was, placed in the safe the money which he had received from the customers; that he thereby determined his own exclusive possession of the money, and that by taking some of such money out of the safe, animo furandi, he was guilty of larceny. A. had agreed to buy straw of B., and sent his servant C. to fetch it. C. did so, and put down the whole quantity of straw at the door of A.'s stable, which was in a courtyard of A., and then went to A. and asked liim to send some one with the key of the hayloft which was over the Stable, which A. did, and ('. put pari of the straw- into the hayloft and carried the rest away to the public-house and sold it. Tindal, ( '. J., held that this carrying away of the straM by ('., if done with a felonious intent, was a larceny, and not an embezzlement, as the delivery of straw to A. u;is complete when it was pu1 down at the stable door. //. v. //ai/ward, 1 0. & K. 518. The following are eases in -which the master or employer has been laid not to have such a possession as is necessary in order that the servant may he guilty of larceny. The prisoner, a cashier at the Bank of England, was indicted for stealing certain India bonds, laid as the property of the bank in one 576 Larceny. count, and in another, of a person unknown. The bonds were paid into the bank by order of the Court of Chancery, and, according to the course of business, ought to have been deposited in a chest in the cellars. The prisoner, who received them from the Court of Chancery, put them in his own desk, and afterwards sold them. The court before which the prisoner was tried was of opinion that this was not larceny ; that the jtossession of the bonds was always in the prisoner, and that the bank had no posses- sion. B. v. Waite, 2 East, P. <'. 570. Money, in cash and bank-notes, was paid into a bank to a clerk there, whose duty it was to receive and give discharges for money, and to place the bank-notes in a drawer ; he gave an acknowledgment for the sum in question, but kept back a 100/. bank-note, and never put it in the drawer. On a case reserved, the judges agreed that this was no felony, inasmuch as the note was never in possession of the bankers, though it would have been otherwise if the prisoner had deposited it in the drawer, and had afterwards taken it. B. v. Bazeley, 2 East, P. C. 571 ; 2 Leach, 835 ; 2 Buss. Cri. 334, 6th ed. The prosecutor suspecting that he was robbed by the prisoner, his shop- man, employed a customer to come to his shop on pretence of purchasing, and gave him some marked silver of his own, with which the customer came to the shop in the absence of the owner, and bought goods of the prisoner. Soon after, the master coming in, examined the till, in which the prisoner ought to have deposited the money when received, and not finding it there, procured him to be arrested, and, on search, the marked money was found upon him. On a case reserved, the judges were of opinion that the prisoner was not guilty of felony, but only of a breach of trust, the money never having been put into the till ; and, therefore, not having been in the possession of the master as against the defendant. B. v. Bull, cited in B. v. Bazeley, supra. So where a servant was sent by his master to get change of a 5/. note, which he did, saying it was for his master, but never returned, being convicted of stealing the change, the judges, on a case reserved, held this to be no larceny, because the master never had possession of the change except by the hands of the prisoner. B. v. Sullen, 1 Moody, C. C. 129. So where A. owed the prosecutor ol. and paid it to the prisoner, who was the prosecutor's servant, supposing him authorized to receive it, which he was not, and the prisoner never accounted for the money to his master, Alderson, B., held that this was- neither embezzlement nor larceny. B. v. Haivtin, 7 C. & P. 281. Where the prisoner was sent by his fellow-workmen to their common employer to get their wages, and he received the money wrapped up in paper, the names and sums due being written inside the paper, it was held that he was the agent of his fellow-workmen, and could not be convicted on an indictment laving the property in the employer. B. v. Barnes, L. B., 1 C. C. B. 45 ;* 35 L. J., M. ('. 204. Proof of the intent to deprive the owner of his property. ] We now come to the other ingredient which is necessary to constitute larceny; the intent to deprive the owner of his property. This, like every other intent, is to be inferred from the mode in which the party charged deals with the property. It will, however, be a general presumption that where a party takes wrongful possession of the goods of another, that his intention is to steal them, and the onus will lie upon him to prove the contrary. If a man carries away the goods of another openly, though wrongfully, before his face, this carries with it evidence of being a trespass only. 1 Hale, P. C. 509. It is, however, a question of fact which the jury must decide. B. v. Farnlor&ugli, (1895) 2 Q. /!. 484 ; 64 L. J., M. (".'270.' A servant, taking his master's horse to ride on his own business is not guilty of Larceny. oil larceny. Ibid. The prisoners were charged with stealing two horses. It appeared that they went in the night to an inn kept by the prosecutor, and took a horse and mare from the stable, and rode about thirty-three miles to a place where they left them in the care of the ostler, stating that they should return. They were apprehended on the same day about fourteen miles from the place. The jury found the prisoners guilty, but added that they were of opinion that the prisoners merely meant to ride the horses to the place where they left them, and to leave them there ; and that they had no intention either of returning them or making any further use of them. The judges held that, upon this finding, it was a trespass only, and not a larceny. They all agreed that it was a question for the jury, and that, if the jury had found a general verdict of guilty on this evidence, it could not be questioned. R. v. Phillips, 2 East, P. C. f><>2. So where, upon an indictment for stealing a horse, two saddles, &c, it appeared the prisoner got into the prosecutor's stables and took away the horse and other articles all together ; but that, when he had got some distance, he turned -the horse loose, and proceeded on foot with the saddles ; Garrow, B., left it to the jury to say, whether the prisoner had any intention of stealing the horse ; for that if he intended to steal the other articles, and only used the horse as a mode of carrying off the plunder more conveniently, he would not be guilty of larceny of the horse, R. v. Crump, 1 C. & P. 658. Upon the same principle the following case was decided. The prisoner was indicted for stealing a straw bonnet. It appeared that he entered the house where the bonnet was, through a window which had been left open, and took the bonnet which belonged to a young girl whom he had seduced, and carried it to a hay-mow of his own, where he and the girl had been twice before. The jury thought that the prisoner intended to induce the girl to go again to the hay-mow, but that he did not intend to deprive her of the bonnet. Of course this was held not to be larceny. li. v. Dickenson, linns. A- Ry. 420. It is not necessary that the prisoner should intend to appropriate the goods to his own benefit ; it is sufficient if he intends to deprive the owner of his property in them, and in the words of Parke, B., in R. v. Holloway, infra, to assume the entire dominion over them. As where the prisoner took away a horse for the purpose of destroying it; R. v. ( 'abbage, Russ. , s. 1, "any servant taking from his master's possession any corn, pulse, roots, or other food, contrary to his master's orders, for the purpose of giving the same to his master's horses or other animals, shall nol by reason thereof he deemed guilty of or be proceeded against for felony." In another case the prisoner was supplied with a quantity of pig-iron by B. & Co., his employers, which he was to put into a furnace to be melted, and he was paid according to the weight of the metal which run R. r p 578 Larceny. out of the furnace, and became puddle-bars. A. put the pig-iron into the furnace, and also put in with it an iron axle of B. & Co., which was not pig-iron ; the value of the axle to B. & Co. was 7s., but the gain to the prisoner by melting it, and thus increasing the quantity of metal which ran from the furnace was If?. Tindal, C. J., held that if the prisoner put the axle into the furnace with an intent to convert it to a purpose for his own profit, it was larceny. R. v. Richards, 1 C. & K. 532. Where the prisoner took some skins of leather, not with the intent to sell or dispose of them, but to bring them in and charge them as his own work, and get paid by his master for them ; they having been dressed, not by the prisoner, but by another workman ; it was held not to be a larceny. R. v. HoMoway, 1 Deu. 0. C. 381. The distinction between this case and the last seems to be this : that in the former there was such a conversion of the goods to the prisoner's own purposes as that the master never could have thern again in their original condition ; whereas in the latter their condition was never altered. So in R. v. Poole, Dears. & B. C. C. 345, the prisoners were in the prosecutor's employ as glove finishers, and the practice was to take the finished gloves into an upper room on the prosecutor's premises, and lay them on a table, in order that the workmen might be paid according to the number they had finished. The prisoners took a quantity of finished gloves out of a store-room on the same premises, and laid them on the table with intent fraudulently to obtain payment for them as for so many gloves finished by them. It was held that this was not larceny. Where a servant took his master's goods, and offered them for sale to the master himself, as the goods of another, he was held to be guilty of larceny, as it was clear that he intended to assume the entire dominion over the goods. R. v. Hall, 1 Den. C. C. 381; 18 L. J., M. C. 62; ace. R. v. Manning, Dears. C. C. 21 ; 22 L. J., M. C. 21. If the prisoner has once assumed the entire dominion over the goods, a return of the goods will not be sufficient to prevent the offence amounting to larceny. Thus, where the jury found a verdict of guilty, but recom- mended the prisoner to mercy on the ground that they believed that he intended ultimately to return the property, some of the judges doubted whether this was in law any other than a general verdict of guilty, but all thought that the conviction was good. R. v. Trebilcock, Dears. & B. O. C. 453. See R. v. Feat, supra, p. 556. Proof of the intent to deprive the owner of his property — goods taken under uld have given the purchaser a colour- able right to the contents, in which case the abstraction of the money would not have been felonious. Parke, B., said, " Suppose a person find a cheque iii the street , and in the first instance takes it up merely to see what it is; if afterwards he cashes it, and appropriates the money to his own use, that is felony ; though he is a mere finder till he looks at it. If the finder knows who the owner of the lost chattel is, or if, from any mark upon it, or the circumstances under which it is found, the owner could be reasonably ascertained, then the fraudulent conversion anirno Jurandi constituted a larceny. ... It is said that the offence cannot be Larceny, unless the taking would be a trespass, and that is true ; but if the tinder, from the circumstances of the case, must have known who was the owner, and instead of keeping the chattel by him, meant from pp2 580 Larceny. the first to appropriate it to his own use, he does not acquire it by a rightful title, and the true owner might maintain trespass ; and it seems, also, from E. v. Wynne, 1 Leach, 413, that if, under the like circum- stances, he acquire possession and mean to act honourably, but afterwards alter his mind, and open the parcel, with intent to embezzle the contents, such unlawful act would render him guilty of larceny." Merry v. Green, 7 M. & W. 623. The whole law with reference to this subject was considered in E. v. Thurhurn, 1 Den. G. G. E. 387 ; 18 L. J., M. C.140. The prisoner found a bank-note, which had been accidentally dropped on the high road. There was no name or mark on it indicating who was the owner, nor were there any circum stances attending the finding which would enable him to discover to whom the note belonged when he picked it up ; nor had he any reason to believe that the owner knew where to find it again. The prisoner meant to appropriate it to his own use when he picked it up. The day after, and before he had disposed of it, he was informed that the prose- cutor was the owner, and had dropped it accidentally ; he then changed it, and appropriated the money taken to his own use. The jury found that he had reason to believe, and did believe, it to be the prosecutor's property before he thus changed the note, and the prisoner was convicted. The court held that the conviction was wrong. The above case was fully supported in the case of E. v. Glyde, 37 L. J., M. C. 107; Tj. E., 1 C. C. E. 139, where a man found a sovereign, and had no means of knowing the owner, but intended at the time of finding to keep the sovereign as against the owner, and upon the owner being found, refused to give up the sovereign. It was held that this was no larceny. See also E. v. Mattheius, 12 Cox, 489. In E. v. Preston, 2 Den. C. C. E. 3)3 ; 21 L. J., M. V. 41, a case of a lost bank-note found by a person who appropriated it to his own use, it was decided that the iury are not to be directed to consider at what time the prisoner, after taking it into his possession, resolved to appropriate it to his own use, but whether, at the time he took possession of it, he knew, or had the means of knowing, who the owner was, and took pos- session of the note with intent to steal it ; for if his original possession of it was an innocent one, no subsequent change of his mind or resolution to appropriate to his own use woidd amount to larceny. See further on this point the judgments delivered in the case of E. v. Ash well, ante, p. 560. Where the prisoner was indicted for stealing a watch, which he had found, and the jury returned the following verdict: "We find the pri- soner not guilty of stealing the watch, but guilty of keeping it in the hope of reward from the time he first had the watch," this was held to amount to a finding of not guilty. E. v. Yorke, 1 ])en. G. G. 11. 335 ; 18 L. J., M. G. 38. So, also, where a boy found a cheque and the prisoner obtained it from him, knowing to whom it belonged, and ke])t it in the hope of getting a reward for it ; it was held that this was not a larceny. E. v. Gardner, 32 L. J., M. G. 35. Where the jury found that the notes were lost, that the prisoner did not know the owner, but that it was pro- bable that he could have traced him, it was held that the prisoner was not bound to do that, and that he had been wrongfully convicted of stealing the notes. E. v. Dixon, 25 L. J., M. G. 39. The question as to what is lost property was considered in E. v. West, 1 Dears. C. G. E. 402 ; 24 L.J., M. G.4. A purse containing money was left by a purchaser on the prisoner's stall. A third person afterwards pointed out the purse to the prisoner, supposing it to be hers. She put it in her pocket, and afterwards concealed it ; and on the return of the owner denied Larceny. 581 all knowledge of it. The jury found that the prisoner took up the purse knowing that it was not her own. and intending at the time to appropriate it to her own use, hut that she did not know who was the owner at the time she took it. It was held, under these circumstances, that the purse was not lost property, and that the prisoner was properly convicted of larceny. In R. v. Christopher, 1 Bell, C. C. 27; 28 /,. J., M. C. 35, the court distinctly laid down the principle, that in order to convict the finder of property of larceny, it is essential that there should he evidence of an intention to appropriate the property, at the time of finding. In that case the learned judge had told the jury that a felonious intent was necessary to every larceny, but that the intent might be inferred from acts subse- quent to, as well as immediate upon, the finding, and that if the prisoner, when he discovered the owner, did not take measures to make restitution, they might from his behaviour infer such an intention. The Court of Criminal Appeal, however, held this direction wrong, as it was calculated to lead the jury to suppose that a felonious intent subsequent to the find- ing was sufficient, and not merely that they might look at the subsequent circumstances, with a view of seeing what was the intention at the time of finding. Tn R. v. Heaves, 11 Cox, 227, the prisoner's child found six sovereigns and brought them to the prisoner, who told the bystanders she had found one sovereign only, and offered to treat them. The prisoner also found a half sovereign and a bag at the spot where the child had found the money. The same evening the prisoner gave half-a-sovereign to a woman who came to inform the prisoner that the owner was found. Four of the Irish judges thought there was no evidence to show that the prisoner knew the property had an owner, while three of them thought the fact of conceal- ing the amount at the time of finding and buying the silence of those who knew of the matter, was evidence that the prisoner believed that the owner could be found. In R. v. Moore, L. & C. 1 ; 30 /,. J., M. C. 77, the prisoner was indicted for stealing a bank-note. It appeared that a customer having made a payment in the prisoner's shop from a purse in which the bank-note was, dropped the note there. In answer to questions put to them, the jury found : first, that the prisoner found the note in his shop ; secondly, that the prisoner at the time he picked up the note did not know, nor had he means of knowing who the owner was; thirdly, that he afterwards acquired a knowledge of who the owner was, and after that he converted the note to his own use; fourthly, that the prisoner intended when he picked up the note to take it to his own use, and deprive the owner of it, whoever he might be ; fifthly, that the prisoner believed at the time he picked up the note, that the owner could be found. The Courtof Criminal Appeal held that the prisoner was rightly convicted of larceny, apparently resting their judgment on the fourth finding, and disregarding the third finding, which is inconsistent with it. It is also difficult to reconcile the fifth finding with the second ; but here again, the court probably con- sidered that, taken together, the two findings came to this, that there wire no marks apparent on the face of the note indicating who was the owner, but that the prisoner might, nevertheless, if he had taken reason- able pains, have ascertained who was the owner. At any rate, there isno indication that the court had any intention of overruling the previous eases. It is perhaps very doubtful whether the property was, strictly speaking, lost property at all. See 11. v. West, supra. Where a chattel is found on private land it would seem that there is a presumption that it belongs to the possessor of the land. South Stafford- shire Water Co. v. Sharman, (1896) 2 Q. II. 44; 65 L.J., Q. B. 4(H). If 582 Larceny. this is so, it would seem that in cases such as R. v. Moore, and Merry v. Green, supra, no larceny was committed. See this case fully discussed in the Appendix to Clerk and Lindsell on Torts, 2nd ed. Cases of cattle taken hy mistake, or straying into a field and subse- quently appropriated, will be found ante, p. 337. Larceny by the owner.~\ It is of course under ordinary circumstances- impossible for a man to commit larceny by taking possession of his own property. But there is a passage in the Year Booh, 7 H. 6, 45 a, in which it is said, "that if I bail to you certain goods to keep, and then retake them feloniously, that I should be hung for it, and yet the property was- in me : and Norton said that this was law." Tins passage, however, at least requires qualification. It is repeated in all the criminal treatises, with the addition that it is felony if the goods be taken ' ' with a fraudu- lent design to charge the bailee with the value." 1 Hale. P. C. 513, 514 ; Foster, 123; 2 East, P. C. 558; 4 Bl '. Com. 331. In B. v. Wilkinson, Buss. & By. 470, it appeared that the prosecutors were lightermen, and were employed by one C, a merchant, to pass nux vomica through the custom-house. The prosecutors entered it for a vessel about to sail, then lying in the London Docks, and having done what was necessary, delivered back the cocket bill and warrants to C., and joined with C. in a bond to government to export these goods. The prosecutors then employed the prisoners to convey the goods to the ship, and lent them one of their lighters for the purpose. The prisoner W. accordingly took the nux vomica on board the lighter, but instead of delivering it on board the ship, he, in company with and assisted by the other prisoner, M., emptied the bags- and refilled them with cinders ; the nux vomica was then sent by them to London, and the bags Of cinders delivered on board as and for the nux vomica. The prisoners were indicted for stealing nux vomica, the property of the prosecutors, but it appeared at the trial that it was really the property of the prisoner, M., and that C. had only lent his name to facili- tate the passing of the goods at the custom-house. It was also proved that the object of the transaction was to defraud the government of the duty. The case was considered by eleven judges. Four of them thought that it was no larceny, as there was no intent to cheat the prosecutors, but only the crown. Seven of the judges held it larceny, because the prosecutors had a right to the possession until the goods reached the ship ; and they had also an interest in that possession, and the intent to deprive them of their possession wrongfully and against their will was a felonious intent as against them, because it exposed them to a suit upon the bond. In the opinion of part of the judges this would have been larceny, although there had been no felonious intent against the prosecutors, but only an intention to defraud the crown. It may be doubted whether the law has not been somewhat distorted in this case in order to punish a flagrant fraud. If the prisoner, who was- the true owner of the goods, had demanded them, the prosecutors could scarcely have refused to deliver them to him ; so that the decision at least comes to this, that the prisoner obtaining possession of his own goods, to which possession he has an undeniable right, by a false pretence, with intent to defraud, is guilty of larceny. There might be a difference in cases where the bailee has a right to retain the property as a pledge or security, as in that case he has more than the bare possession ; he has what is called a special property in the goods ; but it is extremely difficult to reconcile even this case with any accurate view of the offence of larceny ; and, moreover, the case of R. v. Wilkinson stands almost, if not quite, alone. Larceny. 583 Larceny by part owners."] As with owners so with part owners, a larceny cannot in general be committed of the goods which they have in common, for one part owner taking the whole only does that which by law he is permitted to do. Hale, P. C. 513. This, upon principle of common law, would not apply to a larceny of the goods of a corporation by a member, because an individual member has no right of property or possession in the goods of the corporation ; and it might be doubtful whether it applied where by mutual arrangement the part owner had no right to the posses- sion of the goods, or when it was clear that there was an intention by the part owner to deprive his partners entirely of their property ; the passage in Hale means no more than that a part owner, in the absence of any arrangement to the contrary, may assume the entire possession without committing a trespass. The state of the law has now, however, been materially altered by the 31 & 32 Yict. c. 116, s. 1, ante, p. 551. It has been held that that enactment does not apply to a receiving of goods stolen by a partner. 11. v. Smith, /.. 11., 1 C. C. R. 266; 39 L. J., M. G. 112. Nor to an association having for its object not the acquisition of gain, but the spiritual and mental improvement of its members. R. v. Robson, 16 Q. B. D. 137 ; 55 L. J., M. C. 55 ; and see ante, p. 401. In R. v. Bramley, Euss. & Ry. 478, the prisoner was indicted for burglary. It appeared that she was a member of a friendly society, and that the money of the society was kept in a box at the house of T. N. She broke into the house and carried off the box. In the indictment the property was laid in one count as belonging to T. X. ; and in the other as belonging to the three stewardesses of the society. The question reserved was, whether, considering the situation the prisoner stood in with respect to the property, the conviction was proper ; and the judges were clear that as T. N. was responsible fur the luss of the property the conviction was right. In the case of R. v. Webster, 31 L. J., M. C. 17, the same point arose as in that of R. v. Bramley. There H. was the sole manager of the business of a friendly society, and, as such, carried on a shop, in the profit and loss of which all the members shared. II. was responsible for all the moneys of the society coming into his possession. The prisoner was also a member of the society, and assisted H. in the management of the shop. On one occasion the prisoner had taken some sovereigns from the till and appropriated them. It was held that the prisoner might be con- victed oil an indictment laving the money as the propertv of II. alone. See also //. v. Burgess, /.. & C. 299; 32 L. J., M. C. 185. The prisoner was an officer of a friendly society, some of whose rules were in restraint of trade, but it was held that as the rules were not criminal, the society was entitled to the protection of the criminal law, and that the prisoner who had fraudulently appropriated the funds of the societv, was guiltv of embezzlement. 1!. v. Stainer, I.. II., 1 C. C.B.23Q; B. v. Tankard, (1894) 1 Q. ll. 548. With regard to friendly and other societies, the difficulty is met by the different statutes mentioned supra, p. 553. The effect of this seems to be to vest the property in the trustees as against the members of the society. It. v. Cain, 2 Moo. C. C. 201. See also 7 Geo. 4, c. 64, s. 14, supra, p. 551. In cases of partnerships not proved to be incorporated, it is sufficient to state that the property is the property of one of the partners by name, and others. See 7 Geo. 4, c. 64, s. 11, and 31 <& 32 Vict. c. 110, s. 1, ante, p. 551. As to incorporated companies, see post, p. 591. A Bible had been given to a society of Wesleyan dissenters, and was bound at the expense of the society. No trust deed was produced. The Bible having been stolen, the indictment charged the property to be in A. 584 Larceny. and others. A. was a trustee of the chapel and a member of the society. Parke, J., held the indictment right. R. v. lion/ton, 5 0. <(' P. 537. It is not requisite that a strict legal partnership should exist. Where C. and D. carried on business in partnership, and the widow of C, upon his death, without taking out administration, acted as partner, and the stock was afterwards divided between her and the surviving partner, but before the division, part of the stock was stolen ; it was held that the goods were properly described as the joint property of the surviving partner, and the widow. R. v. Oabey, Riiss. & R. 178. And where a father and son took a farm on their joint account, and kept a stock of sheep, their joint property, and, upon the death of the son, the father carried on the business for the joint benefit of himself and his son's children, who were infants ; it was held, upon an indictment for stealing sheep bred from the joint stock, some before and some after the death of the son, that the property was well laid in the father, and his son's children. R. v. Scott, Russ. & R. 13; 2 East, P. 0. 655. By the 1 & 2 Yict. c. 96, s. 1, made perpetual by the o & 6 Vict. c. 85 {vide supra, p. 551), in all cases of banking co-partnerships under 7 Geo. 4, c. 46, the members are liable for larceny, embezzlement, and other criminal appropriation of the goods of the company, in the same way as if they were not members of the company. See Grant, Law of Bankers, p. 601. There does not, however, seem to be any analogous provision with refer- ence to banks formed under subsequent statutes. If, however, they be corporate bodies, there would probably be no difficidty with regard to them for the reason mentioned above. In an indictment for larceny from a banking company consisting of more than twenty persons, the property of the goods stolen was laid in the public officer. Upon failure of proof of the appointment of the public officer and of the registration of the company, an amendment was asked for, and made, stating the property to be in "W. and others," it being proved that W. was one of the members of the company. It was held by the Court of Criminal Appeal that, under the 7 Geo. 4, c. 64, s. 14, the allegation of ownership, as amended, was right ; and that the 7 Geo. 4, c. 46, s. 9, did not make it absolutely imperative that the property belong- ing to a banking companv should be laid in their public officer. R. v. Pritchard, 1 L. & C. 34; 30 L. J., M. C. 169. Larceny by wife.'] Very akin to the case of larceny by part owners was that of larceny by a wife. By the common law if a wife took goods of which the husband was the joint or sole owner, the taking was not larceny, because they were in law but one person, and the wife had a kind of interest in the goods. Hawk. P. C. b. 1, c. 33, s. 19. Therefore, where the wife of a member of a friendly society stole money belonging to the society, lodged in a box in her husband's custody, under the lock of the stewards of the society, it was held by the judges not to be larceny, the property being laid in the husband. R. v. Willis, 1 Moody, 0. C. 375. But where the prisoner, a married woman, was intrusted with goods and she stole them, the husband being entirely innocent, it was held that she was guilty of either simple larceny or larceny as a bailee. R. v. JRobson, L. & O. 93. Whether, where a stranger and the wife jointly stole the husband's propertv, it was larceny in the stranger, was the subject of contradictorv decisions. R. v. Clark, 0. B. 1818, 1 Moo. C. C. 376 (n) ; R. v. ToJfree, I Moody, (J. C. 243. In R. v. Thompson, ,1 Pen. C. C. R. 549, the prisoner went away with the prosecutor's wife, and took with them from the prose- cutor's house several articles belonging to him. The jury found the Larceny. 585 prisoner guilty ; adding that they did so on the ground that there was a joint taking by the prisoner and the prosecutor's wife ; and the court were unanimously of opinion that the conviction was right. In R. v. Featherstone, 1 Dears. C. 0. R. 369; 23 L. J., M. O. 127, the prosecutor's wife had taken from his bedroom thirty-five sovereigns, and on leaving the house called out to the prisoner, who was in a lower room of the house, "George, it is all right, come on." The prisoner left a few minutes afterwards, and he and the prosecutor's wife were traced to a public-house where they passed the night together. When taken into custody the prisoner had twenty-two sovereigns upon him. The jury found the prisoner guilty, stating that they did so "on the ground that he received the sovereigns from the wife, and that she took them without the authority of her husband." The court held that the conviction was right. It is the same whether the adultery be actually committed or only intended. R. v. ToJlett, 0. & Moo. 112; R. v. Thompson, supra. And the fact that the man was in the husband's service, and acted under the wife's directions in removing the property, is no answer to a charge of stealing. R. v. Mutters, L. &. C. 511 ; 34 L. J., M. C. 54. But the male prisoner cannot be convicted of stealing the husband's money unless he be proved to have taken some active part in removing the goods or spend- ing the money. R. v. Taylor, 12 Cox, (527. If the wife and the adulterer take away only the wife's wearing apparel it is not larceny. /.'. v. Fitch, Dears. & B. 0. C. 187; 2(5 L. J., M. C. 169. Where there Mas no evidence of a taking of the goods by any one other than the wife, it was held, under the old law, that the prisoner could not be convicted of receiving the property, knowing it to have been stolen, though he was found with the wife in Ireland in manual possession of some of the husband's property, and it was also held that it was immaterial whether the wife had committed adultery or not. R. v. Kenny, 2 Q. Ji. J>. 307 ; 46 L. •/., M. C 156. There must be a joint possession within the jurisdic- tion of the court in order to convict the male prisoner of larceny within that jurisdiction. R. v. Prince, 11 <'<>r, 145. A change, however, has now taken place in the law upon this subject in certain cases, for the effect of sects. 12 and 1(5 of the Married Women's Property Act, 18S2, infra, is that a- husband may prosecute his wife for any offence against his property if she is living apart; but if they are living together he can only prosecute her if she wrongfully takes any of his property when leaving or deserting or about to leave or desert him. The case of a wife taking her husband's goods and running off with them is clearly met, and moreover if she ran away with an avowterer, as she can be found guilty now of stealing, so the avowterer may be found guilty of receiving, or of jointly stealing according to the facts. By s. 12, " Every woman, whether married before or after this Act, shall have in her own name ag.iinst all persons whomsoever, including her husband, . . . (subject, as regards her husband, to the proviso, herein- after contained) the same remedies and redress by way of criminal pro- ceedings for the protection and security of her own separate property, as if such property belonged to her as a feme sole. ... in any indictment or other proceeding under this section it shall be suflicient to allege such property to be her property; and in any proceedings under this section a husband or wife shall be competent to give evidence against each other. any statute or rule of law to the contrary notwithstanding. Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any act done by the husband while they were living 586 Larceny. together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting or about to leave or desert his wife." By s. 16, " A wife doing any act with respect to any property of her husband, which if done by the husband with respect to the property of the wife would make the husband liable to criminal proceedings by the wife under this Act, shall in like manner be liable to criminal proceedings by her husband." Sect. 12 would not entitle a wife to take criminal proceedings against her husband for personal libel, as such proceedings are not for "the pro- tection and security for her own separate property." Li. v. Lord Mayor of London, 16 Q. B. D. 772; 55 L. J., M. C. 118. In order to clear up certain difficulties which arose in the case of II. v. Brittleton, \ 2 Q. B. D. 266, as to the competency of a husband to give evidence against his wife upon a charge of stealing the husband's goods, it has been enacted by 47 & 48 Vict. c. 14, s. 1, that, " in any such criminal proceeding against a husband or wife as is authorized by the Married Women's Property Act, 1882, the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence." And by the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 4, see Appendix of Statutes, the wife or husband of a person charged with an offence under ss. 12 or 16 of 45 & 46 Vict. c. 75 may be called as a witness either for the prosecution or defence and without the consent of the person charged. Ijarceny by husband.'} Formerly the wife not having separate property, and being with the husband one person in the eye of the law, the husband could not be convicted of stealing the wife's goods. But by s. 12 of the Married Women's Property Act, 1882, supra, the property of the wife is protected from the injurious acts of all persons (including her husband) as if she were a feme sole, provided that the wife cannot take criminal proceedings against the husband unless they are living apart, in which case it would seem she can take any criminal proceedings as to or con- cerning any of her property except for any act done while living together, and she can prosecute him for "taking " her property, i.e., for larceny (if they are living apart) committed when leaving or deserting or about to leave or desert. Distinction between larceny, embezzlement, and false pretences.'] The cases which explained the distinction between larceny and embezzlement have already been stated ante, pp. 408, 573. It must be borne in mind that, though by the 24 & 25 Vict. c. 96, s. 72, supra, p. 550, a prisoner, on an indictment for larceny, may be found guilty of embezzlement, and on an indictment for embezzlement may be found guilty of larceny, yet the verdict must be found according to the facts, and a prisoner cannot be legally convicted of one of these offences on facts which constitute the other. Li. v. Garbutt, ante, p. 409. If the prisoner be indicted for obtaining money or goods by false pre- tences, and the offence turn out to be larceny, the prisoner is not entitled to be acquitted of the misdemeanor ; so that there is no difficulty in this cusc analogous to that which was the subject of decision in Li. v. Garbutt, supra, but, at the same time, on an indictment for false pretences, the false pretences must be proved as laid in the indictment. See per Cromp- ton, J., R. v. Buhner, L. t& C. 482. If, however, the prisoner be indicted for larceny, and it appears that the offence was really an obtaining by false pretences, the prisoner must be acquitted. It is necessary, there- fore, to distinguish the offences. The cases illustrating this distinction Larceny. 587 will be found .at pp. ,560, ,362. See also p. 434. But, of course, if a prisoner has been convicted of obtaining credit by false pretences, lie cannot afterwards be convicted for larceny of the same goods in respect of which he obtained credit. /.'. v. King, '(1897) 1 Q. B. 214; 66 L. J., <>. II. 87. Proof of value."] The rule that evidence of some value must be given, for which it is usual to quote R. v. Phipoe, 2 Leach, 680, has been ques- tioned by Parke, B., in R. v. Morris, 9 C. & P. 349 ; at any rate, it is said by that learned judge, that it need not be of the value of any coin known to the law. Three pigs which had been bitten by a mad dog wore shot and buried, and were the same evening dug up by the prisoner and sold by him for 91. 3s. 9d., it was argued that the pigs had been abandoned, and were of no value to the owner, but the jury found that the pigs were not abandoned, and the court upheld the conviction. R. v. Edwards, 13 Cox, 384. Neither is it necessary that the property should be of value to third persons, if valuable to the owner. Therefore a man may be convicted of stealing bankers' re-issuable notes, which have been paid. R. v. Clarke, 2 Leach, 1037; R. v. Ransom, Id. 1090; Russ. '. 507. But if A. steals the horse of B., and afterwards delivers it to C, who was no 588 Larceny. party to the first stealing, and C. rides away with it, animo furandi, yet C. is no felon to B., because, though the horse was stolen from B., yet it was stolen by A., and not by C, for C. did not take it, neither is he a felon to A., for he had it by his delivery. Ibid. The doctrine as to property not being changed by felony, holds also with regard to property taken by fraud, for otherwise a man might derive advantage from his own wrong. Noble v. Adams, 7 Taunt. 39 ; Kelly v. Wilson, By. & Moo. N. P. C. 178; Irving v. Motley, 7 Bing. 543. Proof of ownership — of goods in custodid legis.] Goods seized by the sheriff' under a fi,. fa. remain the property of the defendant until a sale. Lucas v. Nockells, 10 Bing. 182. A sheriff's officer seized goods under a ' fi. fa. against J. S., and afterwards stole part of them. The indictment against him described the goods as the goods of J. S.. upon which it was objected that thev were no longer the goods of J. S., and should have been described as the goods of the sheriff ; but upon the point being reserved, the judges held, that notwithstanding the seizure, the general property remained in J. S., and the loss would fall upon him if they did not go to liquidate the debt ; that the seizure left the debt as it was, and that the whole debt continued until the goods were applied to its discharge. 11. v. Eastall, 2 Muss. Cri. '263, 6th ed. Proof of ownership — goods of an adjudged felon.] Forfeiture is now abolished, except as to outlawry. The goods of a " convict," that is, of a person under judgment of penal servitude or death, will vest in the administrator of his estate appointed under the 33 & 34 Vict. c. 23, s. 10. Proof of ownership — goods in possession of children.] Clothes and other necessaries provided for children by their parents are often laid to be the property of the parents, especially where the children are of tender age ; but it is good either way. 2 East, P. C. 654 ; 2 Buss. Cri. 266, 6th ed. Where a son, nineteen years of age, was apprenticed to his father, and in pursuance of the indentures of apprenticeship was furnished with clothes by the father, it was held that the clothes were the property of the son exclusively, and ought not to have been laid in the indictment to be the property of the father. B. v. Forsgate, 1 Leach, 463. Where the prisoner was indicted for stealing a pair of trousers the property of J. Jones, and it appeared that J. Jones bought the cloth of which the trousers were made, and paid for it, but the trousers were made for his son, who was seventeen years of age, and lived with his father ; Patteson, J., said, ' ' I think the property is well laid. It may be laid in these cases either in the father or the child, but the better course is to lay it in the child." B. v. Hughes, 2 Buss. Cri. 267, 6th ed. ; Carr. & M. 593. In B. v. Green Dears. & B. C. C. 113, it appeared that A. was a boy of fourteen years of age living with and assisting his father ; that the boots which the prisoner was charged with stealing were the property of the father, but that at the time they were stolen A. had the temporary care of the stall from which they were taken. It was held that the ownership of the goods could not properly be laid in A. Proof of ownership — goods in possession of bailees.'] Any one who has a special property in goods stolen, may lay them to be his in an indictment, as a bailee, pawnee, lessee for years, carrier, or the like; a fortiori, they may be laid to be the property of the respective owners, and the indict- ment is good either way. But if it appear in evidence that the party, whose goods they are laid to be, had neither the property nor the pos- session (and for this purpose the possession of a feme covert or servant is, generally speaking, the possession of the husband or master), the prisoner Larceny. 5S9 ought to be acquitted on that indictment. 1 Hale, P. C. 413 ; 2 East, P. C. 652. Many cases have been decided on this principle. Goods stolen from a washerwoman, who takes in the linen of other persons to wash, may be laid to be her property; for persons of this description have a possessory property, and are answerable to their employer, and could all maintain an appeal of robbery or larceny, and have restitution. R. v. Parker, 2 East, P. C. 653 ; 1 Leach, 357 (n). So- an agister, who only takes in sheep to agist for another, may lay them to be his property ; for he has the possession of them, and may maintain trespass against any who takes them away. R. v. Woodward, 2 Ea4, T. C. 653; 1 Leach, 357 (n). A coach-master in whose coach-house ;i carriage is placed for safe custody, and who is answerable for it, may lay the property in himself. R. v. Taylor, 1 Leach, 356. Goods at an inn, used by a guest, when stolen, may be laid to be either the property of the innkeeper or the guest. R. v. Todd, 2 East, P. C. 653. Where the landlord of a public house had the care of a box belonging to a benefit society, and by the rules he ought to have had a key, but in fact had none, and two of the stewards had each a key ; the box being stolen, upon an indictment laying the property in the landlord, Parke, J., held, that there was sufficient evidence to go to the jury of the property being in the landlord alone. R. v. Wymer, 4 C. «fc P. 391. A house was taken by K., and M., who lived on his own property, carried on the business of a silversmith there for the benefit of K. and his family, but had himself no- share in the profits and no salary, but had power to dispose of any part of the stock, and might, if he pleased, take money from the till as ho wanted it. M. sometimes bought goods for the shop, and sometimes K. did. Bosanquet, J., held, that M. was a bailee of the stock, and that the property in a watch stolen out of the house might properly be laid in him. U. v. Bird, i» C. & I'. 44. When property is parted with by a bailee under a mistake, his special property in it is not divested ; and if a larceny of it be committed, it may well be laid asthe property of such bailee. II. v. I lucent, 2 Den. G. <'. II. 464, Proof of ownership— goods in possession of carrier s.~\ Carriers, as bailees of goods, have such a possession as to render an indictment, laying the- property in them, good. Supra. And so it has been held with regard to the driver of a stage-coach. R. v. Dealcin, 2 /.each, 862, 876 ; 2 East, /'. C. 653; 2 Russ. Cri. 265, 6th ed. Proof of ownership goods of deceased persons.] Where a person dies intestate, and the goods of the deceased are stolen before administration granted, the property mnst be laid in the ordinary: but if he dies. Leaving a will, and making executors, the property may be laid in them, though they have not proved the will; audit is not necessary that the? prosecutor should name himself ordinary or executor, because he proceeds on his own possession. 1 Hale, I'. (\ 514; 2 East, I'. C. 652. Where the deceased had appointed executors who would not prove the will, Holland, 15., and Coleridge, J., held, that tin- property must be laid in the- ordinary, and not in a person who, after the commission of the offence, but before the indictment, had taken out letters of administration. II. v. George Smith, 7 0. & I'. 147 ; II. \. Johnsm, Dears. & /;. 340; 27 /.. -/., 1/. C. 52. There can be no property in a dead body, and though a high misdemeanor, the stealing of it is no felony. See p. 386. A shroud stolen from the corpse must be laid to be the property of the executors, or of whoever else buried tin- deceased. So, the coffin may be laid to be the goods of the executors. But if it do not appear who is the personal representative of the deceased, laving the goods to be the goods of a 590 Larceny. person unknown is sufficient. 2 East, P. C. 652. A knife was stolen from the pocket of A. as he lay dead on the road in the diocese of W. A.'s last place of abode was at T. in the diocese of G., but Patteson, J., held, that there was sufficient proof to support a count for larceny, laying the property in the Bishop of W. B. v. Tippin, C. & M. 545. In some cases the property of an intestate has been held to be rightly described as being in the party in actual possession, no administration having been granted, B. v. Gabey, Bass. Cox, 231. Stephen, J., in the "Fortnightly Review" of March, 1884, has shown good reason for believing that the law always was. and, therefore, is now, that to attack the root of Christianity in writing is to be guilty of a blasphemous libel. Lord Coleridge, C. J., has, however, ruled that the law " is and always has been, that if the decencies of controversy are obsened, even the fundamentals of religion maybe attacked without a Q u 1 596 Libel. person being guilty of blasphemous libel " ; and it is certain that no case can be found in which a person has been convicted of a blasphemous libel merely for a denial of the truth of Christianity without levity or indecency. Blasphemous libels — statutes.'] By the 1 Ed. 6, c. 1, persons reviling the sacrament of the Lord's Supper are punishable by imprisonment. By the 1 Eliz. c. 2, s. 3, applied to the present Book of Common Prayer by 14 Car. 2, c. 4, s. 20, ministers and others speaking in derogation of the Book of Common Braver are punishable as therein mentioned. See also the 12 Eliz. c. 12 ; 3 jac. 1, c. 21, s. 9. By the 9 & 10 Will. 3, c. 32, s. 1, "if any person or persons having been educated in, or at any time having made profession of, the Christian religion within this realm, shall, by writing, printing, teaching, or advised speaking, [deny any one of the persons in the Holy Trinity to be God, or shall] assert or maintain there are more gods than one, or shall deny the Christian religion to be true, or the Holy Scriptures of the Old and New Testament to be of divine authority, shall, upon an indictment or information in any of his Majesty's courts at Westminster, or at the assizes, be thereof lawfully convicted by the oath of two or more credible witnesses, such person or persons for the first offence shall be adjudged incapable and disabled in law, to all intents and purposes whatsoever, to have or enjoy any office or offices, employment or employments, ecclesias- tical, civil, or military, or any part in them, or any profit or advantage appertaining to them or any of them. And if any person or persons so convicted as aforesaid, shall, at the time of his or their conviction, enjoy or possess any office, place, or employment, such office, jilace, or employ- ment shall be void, and is hereby declared void. And if such person or persons shall be a second time lawfully convicted as aforesaid of all or any of the aforesaid crime or crimes, then he or they shall from henceforth be disabled to sue, prosecute, plead, or use any action or information in any court of law or equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy of deed or gift, or to bear any office, civil, or military, or benefice ecclesiastical for ever within this realm ; and shall also suffer imprison- ment for the space of three years, without bail or mainprize, from the time of such conviction." By s. 2, information of such words must be given upon oath before a justice, within four days after such words spoken, and the prosecution of such offence be within three months after such information. By s. 3, persons convicted shall for the first offence (upon renunciation of such offence or erroneous opinions in the court where they were convicted, within four months after such conviction) be discharged from all penalties and disabilities incurred bv such conviction. So much of the 1 Will. 3, c. 18, s. 17, and 9 & 10 Will. 3, c. 32, as related to persons denying the doctrine of the Trinity, was repealed by the 53 Geo. 3, c. 160. The statute of the 9 & 10 Will. 3 has been held not to affect the common law offence, being cumulative onlv. B. v. Carlisle, 3 B. .1. Aid. 101 ; B. v. Waddington, 1 B. & C. 26. It was held by Lord Coleridge, C. J., that s. 7 of the 6 & 7 Yict. c. 96 (Lord Campbell's Act), post, p. 606, applies to the case of blasphemous libels. B. v. Bradlaugh, 1.3 Cox, 217. In decent libels.] Although an opinion formerly prevailed that the publication of an obscene or indecent writing not containing reflections xipon any individual was not an indictable offence; HatvJc. P. C. b. 2, Libel. 597 c. 73, 8. 9 ; yet a different rule has been since established, and it is now clear that an indictment at common law may be maintained for any offence which is against public morals or decency. R. v. Sedley, Sid. 1(58; E. v. Wilkes, 4 Burr. 2530 ; Holt on Libel, 73, 2nd ed. Under this head may be comprehended every species of representation, whether by writing, by printing, or by any manner of sign or substitute which is indecent and contrary to public order. Holt, ubi supra. The principle of the cases also seems to include the representation of obscene plays an offence which has formed the ground of many prosecutions. 2 Stark. on Slander, 159, 2nd nl. ; Unit, 73. In an indictment for publishing an obscene book, it was formerly not sufficient to describe the book bv its title only, but the words alleged to be obscene had to be set out. Bradlaug'li v. /.'., 3 Q. 11. />. 607 ; 48 L. J., M. C. 5. But now by 51 & 52 Vict. c. 64, s. 7, it is not necessary to set out in the indict- ment the obscene matter, but the book, &c, with particulars, must be deposited. A summary power of searching for obscene books, pictures, and other articles, and pimishine; persons in whose possession they are found, is .uiven by the 20 & 21 Vict. c. S3. Libels on the government. ~\ The result of the numerous cases respecting libels on the government is thus given by Mr. Starkie : " It is the undoubted right of every member of the community to publish bis own opinions on all subjects of public and common interest, and so long as ho exercises this inestimable privilege, candidly, honestly, and sincerely, with a view to benefit society, he is not amenable as a criminal. This is a plain line of demarcation ; where this boundary is overstepped, and the limit abused for wanton gratification or private malice, in aiming to stab at the private character of a minister under colour and pretence of discussing his public conduct, or where either public men or their measures are denounced in terms of obloquy or contumely, under pre- tence of exposing defects, or correcting errors, but in reality for the piu-pose of impeding or obstructing the administration of public affairs, or of alienating the affections of the people from the king and his government, and by weakening the ties of allegiance and loyalty, to pave the way for sudden and violent changes, sedition, or even revolution ; in these and similar instances, where public mischief is the object of the act, and the means used are calculated to effect that object, the publica- tion is noxious and injurious to society, and is therefore criminal." 2 Stark, ok Slander, 183, 2nd "/. ,• 1 Russ. Cri. 622, 6t7i ed. ; see also R. v. Lambert, 2 Campb. 398; R. v. Tuchin, Holt, /,'. 424; ."> St. Tr. 583; Holt on Libel, 88, 89; I!. v. Collins, !) <'.,(■ I'. 465; R. v. Lovett, ibid. 462 ; I!, v. Sullivan, 1 1 ( 'ox, 44. Libels mi iltc administration <;/' justice.~\ Where a person either by writing, by publication in print, or by any other means calumniates the proceedings of a court of justice, the obvious tendency of such an act is to weaken the administration of justice, and consequently to sap the very foundations of the constitution itself. Per Buller, J., I!, v. Watson, 2 '/'. I!, 199. It certainly is lawful, with decency and candour, to discus- the propriety of the verdict of a jury or the decisions of a judge; but if the writing in question contain no reasoning or discussion, but only declamation and invective and is written, nol with a view to elucidate the truth, hut to injure the character of individuals, and to bring into hatred and contempt the administration of justice, such a publication is punishable. /'< , Grose, J., R. v. WJiite, 1 Campb. 359. 59S Libel. Libels upon individuals.^ A libel upon an individual is defined by Mr. Serjeant Hawkins to be a malicious defamation, expressed either in print- ing or writing, and tending either to blacken the memory of one that is dead, see infra, p. 599, or the reputation of one that is alive, and expose him to public hatred, contempt, or ridicule. I burl- . P. C. b. 2, c. 73, s. 1. Though the words impute no punishable crime, yet if they contain that sort of imputation which is calculated to vilify a man and to bring him into hatred, contempt, and ridicule, an indictment lies. Per Mansfield. 0. J., Thorleyv. LordKerry, 4 Taunt. 364; Digbyy. Thompson, 4 B. &Ad. S21. No man has a right to render the person or abilities of another ridiculous, not only in publications, but if the peace and welfare of individuals or of society be interrupted, or even exposed by types or figures, the act by the law of England is a libel. Per Lord Ellenborough, R. v. Cobbett, Holt on Libel, 114, 2nd ed. Thus an information was granted against Dr. Smollett for a libel in the "Critical Review," upon Admiral Knowles, insinuating that he wanted courage and veracity, and tending to cause it to be believed that he was of a conceited, obstinate, and incendiary disposition. R. v. Smollett, Holt on Libel, 224 (n). So an information was granted against the printer of a newsjiaper for a ludicrous paragraph giving an account of the Earl of Clanricarde's marriage with an actress at Dublin. R. v. Kinnersley, 1 IV. Bl. 294. And for a libel on the Bishop of Durham contained in a paragraph which represented him as a "bankrupt." Anon., K. 11. Hil. T. 1819 ; Holton Libel, 224 (//), 2nd ed. It has been held that the rule to be collected from the modern decisions is that a criminal information for libel can only be granted at the suit of persons who are in some public office or position, and not at the suit of private persons. R. v. Labouchere, 12 Q. Ji. L). 320. A letter containing immodest proposals to a young woman has been held to be a libel, on the ground that it was of a character to provoke a breach of the peace. R. v. Adams, 22 Q. B. J). 66 ; 58 L. J., M. C. 1. It is extremely difficult to define the boundaries beyond which re- flections upon the character of an individual are commonly cognizable. It is said by Mr. Holt, that where there is no imputation on the moral character, no words of ridicule or contempt, and nothing which can affect the party's reception in life, it is no libel ; and he illustrates this position by the following case. The alleged libel was this: "The he v. John Robinson and Mr. James Robinson, inhabitants of this town, not being- persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room." This libel was published in the casino room at Southwold, by posting it on a paper. It was held, that the paper and mode of promulgating it did not amount to a libel : 1st, because it did not, by any necessary or probable implication, affect the moral fame of the party; 2ndly, that it was the regulation of a subscription assembly, and the paper might import no more than that the party was not a social and agreeable character in the intercourse of common life; 3rdly, that the words charged him with nothing definite, threw no blemish on his reputation, and implied no unfitness for general society. Robinson v. Jermyn, 1 Price, 11 ; Holt on Libel, 218, 2nd, ed. In Gregory v. A'., 1,3 Q. 11. 9.37, the Court of Exchequer Chamber held the following words sufficient to maintain an indictment for libel : " Why should T. be surprised at anything Mrs. W. does ; if she chooses to enter- tain B. (the prosecutor) she does what very few will do ; and she is of course at liberty to follow the bent of her own inclining, by inviting all infatuated foreigners who crowd our streets to her table if she thinks tit," Where a placard was posted up to the following effect: " B. Oakley, game aiul rabbit destroyer, and his wife, the seller of the same in country Libel. 599 and town/' Quain, J., ruled that this was not prima facie libellous ; and, as there was no innuendo showing that it charged an indictable offence, or that it related to the calling of the prosecutor, the learned judge quashed the indictment. R. v. Yates, 12 Car, 233. It is a defamatory libel to write of a person who has been convicted of felony that he is "a convicted felon," if he has received a pardon, or suffered his sentence, for he is bv law no longer a felon. Leyman v. Latimer, 3 Ex. J). 352; 47 L. J., Ex. 470. Wherever an action will lie for a libel without laying special damage, an indictment will also lie. Also, wherever an action will He for verbal slander without laying special damage, an indictment will lie for the same words if reduced to writing and published. But the converse of this latter proposition will not hold good ; for an action or indictment may be maintained for words written, for which an action could not be maintained if they were merely spoken. Thorley v. Lord Kerry, 4 Taunt. 355. As for instance, if a man write or print, and publish, of another that he is a scoundrel. J' Anson v. Stuart, 1 T. B. 748; or villain, Bell v. Stone, 1 B. & P. 331, it is a libel, and punishable as such; although, if this were merely spoken, it would not be actionable without special damage. 2 //. Bl. 531. hut no indictment will lie for mere words not reduced into writing; 2 Salk. 117; Pi. v. Langley, 6 3Iad. 125; unless they be seditious, blasphemous, grossly immoral, or uttered to a magistrate in the execution of his office, or uttered as a challenge to fight a duel, or with an intention to provoke the other party to send a challenge. Arclib. 613, 10th ed. With regard to libels on the memory of persons deceased, it has been held, that a writing, reflecting on the memory of a dead person, not alleged to be published with a design to bring scandal or contempt on the family of the deceased, or to induce them to break the peace, is not punishable as a libel. B. v. Topham, 4 T. /'. 127; and see R. v. Taylor, 3 Sal/,-. 198; Holt an Lib. 230, 2nd ed. ; and semble, that an application for a criminal information for a libel upon a deceased person made by his rejjresentative will be refused. I!, v. Labouchere, infra. A libel upon a foreigner is indictable. Thus Lord George Gordon was found guilty upon an information for a libel on the Queen of France : 2 Star/,-, mi Slander, 217, 2nd ed. ; and informations have also been granted for libels upon the characters of the Emperor of Russia, and of Napoleon. /(/. In the latter case, Lord Ellenborough appears to have considered the situation of the individuals as forming the ground of the decision. "I lay it down as law," he says, "that any publication which tends to disgrace, revile, and defame persons of considerable situations of power and dignity in foreign countries, may be taken to be and treated as a libel, and particularly where it has a tendency to interrupt the amity and peace between the two corn tries." The fact that the applicant for a criminal information for libel does not reside in this country is a strong reason for rejecting the supplication. H. v. Labouchere, 12 Q. II. />. 320. It is not necessary that the libel should reflect upon the character of any particular individual, provided it immediately tend to produce tumult and disorder; 2 Star/,-, an Slander, 213, 2ml ed.; although the contrary was formerly held. Ilaiek. I'. ('. b. 1, c, 28, 8. 9. Thus an information was granted for a libel, containing an account of a murder of a Jewish woman and child, by certain Jews lately arrived from Portugal; and the affidavits set forth that certain persons recently arrived from Portugal had been attacked by the mob, and barbarously treated in consequence of the libel. /,'. v. Osborne, Sess. Ca. 260; Barnard. K. />'. 138, 1(5(3. Informations at the suit of public bodies upon the application of 600 Libel. individuals presiding over them, have been frequently granted by the Court of King's Bench, 11. v. Campbell, R. v. Bell, Holt on Lib. 240, 2nd ed. ; R. v. Williams, 5 B. & A. 595. The Married "Women's Property Act, 1882, does not empower a wife to take criminal proceedings against her husband for personal libel. R. v. Lord Mayor of London, 16 Q. B. D. 772 ; 55 L. J., M. C. 118. Indictment. ,] An indictment charged the defendant with " unlawfully " publishing a libel, but omitted the word "maliciously"; it was held that an averment of malice was unnecessary, and that the indictment was good ; and further that even if it had been necessary the defect would have been cured by verdict. R. v. Munslow, (1895) 1 Q. B. 758; 64 L. J., M. C. 138. Punishment.'] The punishment for a libel, at common law, was fine or imprisonment, or both. Now by the 6 & 7 Vict. c. 96 (Lord Campbell's Act), s. 4, "If any person shall maliciously publish any defamatory libel, knowing the same to be false, every such person, being convicted thereof, shall be liable to be imprisoned in the common gaol or house of correction, for any term not exceeding two years, and to pay such fine as the court shall award." By s. 5, " If any person shall maliciously publish any defamatory libel, every such person, being convicted thereof, shall be liable to fine or imprisonment, or both, as the court may award, such imprisonment not to exceed the term of one year." On an indictment for publishing a defamatory libel, " knowing the same to be false," the defendant may be convicted of merely publishing a defamatory libel. Boaler v. R., 21 Q. B. I). 284 ; 57 L. J., M. C. 85. Costs.] By s. 8, in case of any indictment or information by a private prosecutor for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prose- cutor the costs sustained by the said defendant by reason of such indict- ment or information ; and upon a special plea of j ustification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs sustained by the prosecutor by reason of such plea, such costs so to be recovered by the defendant or prosecutor respectively to be taxed by the proper officer of the court before which the said indictment or information is tried. This will include the costs of unsuccessfully opposing the rule nisi. R. v. Steele, 1 Q. B. D. 482 ; 45 L. J., Q. £.'391. Appeal was brought from the decision, but was dismissed, on the ground that there is no appeal to the Court of Appeal in a criminal case except for error on the record. See the case reported 2 Q. B. B. 37 ; 46 L. J., M. C. 1. Under the 8th section, if judgment be given for the defendant, he is entitled to recover from the prosecutor the costs sustained by reason of the indictment or information, although the only plea is not guilty, and the judge certifies that there was reasonable cause for preferring the same. R. v. Latimer, 15 Q. B. 1077 ; 20 L. J., Q. B. 129. Such costs can be recovered by action in one of the superior courts. See Richardson v. Willis, L. 11.. 8 Exch. 69; 12 Cox, 351. Proof of introductory averments.'] Where the indictment contains introductory averments, inserted for the purpose of explaining and pointing the libel, such averments must be proved as laid. It frequently happens that the libel is directed against the prosecutor in a particular Libel. 601 character, and an intent to libel him in that character is averred. In such case, it must be made to appear that the prosecutor bore that character. But in general, where the character is a public one, it will be sufficient if it appear that the prosecutor had acted in it, and it will not be necessary to give strict evidence of his appointment. Thus, if the indictment allege that the prosecutor was, at the time of the supposed injury, a magistrate or a peace-officer, it is sufficient to show that he previously acted as such. Berryman v. Wise, 4 T. R. 366; 2 Stark. on Slander, 2, 2nd ed. Where the title to the particular situation is not the subject of any express documentary appointment, the acting in the situation is, of course, the onlv evidence which the fact admits of. 2 Star/,-. Ev. 860, 1st ed. Whether a person practising as a physician, and libelled in his character as such, was bound to prove, by strict evidence, the introductory aver- ment that he was a physician, was long a matter of doubt. In a case at Nisi Prius, Buller, J., required such proof to be given; PicJe/ord v. Qutch, 1787; 2 Stark, mi Slander, 3 (//), 2nd ed. ; but in a subsequent case, the Court of Common Ideas was equally divided upon the point. Smith v. Tat/lor, 1 Bos. & I'. X. I!. 19(5. It has, however, been decided that to support an averment that the party was a physician, it is necessary to give regular evidence that he possessed lawful authority to practise as such. Collins v. Carnegie, 1 A. &E. 695; 2 Nev. (t- M. 703. In order to prove the prosecutor to be an attorney, an examined copy of the roll of attorneys, signed by the plaintiff, i- sufficient. So the books from the master's office containing the names of all the attorneys, pro- duced by the officer in whose custody it is kept, is good evidence, together with proof that the party practised as an attorney at the time of the offence. R. v. Crossley, 2 Esp. :>2C>; Lewis v. Walter, 3 /.'..I- C. 138; Jones v. Stevens, 11 Price, 1251. The stamp-office certificate, counter- signed by the master of the Court of King's Bench, is sufficient prima facie evidence of the party being an attorney of that court. Sparling v. Heddon, 9 Bing. 11. Where the indictment specifies the particular mode in which the party was invested with the particular character in which he has been injured, it will, as it seems, be necessary to prove such descriptive allegation with all its circumstances, although a more general allegation would have been sufficient; for though a totally irrelevant allegation may be regarded as surplusage, one which is material and descriptive of the Legal injury must be proved as laid. 2 Stark, on Slander, 8, 2nd ed. In all cases where the libel itself is an admission of the particular character alleged, further proof of such particular character is unneces- sary. Thus, where in an action for words spoken of the plaintiff as an attorney, it appearing that the\ contained a threat to have the plaintiff struck off the roll of attorneys, it was held unnecessary to give any proof of the plaintiff's professional character. Berryman v. Wise, 4 '/'. I!. 366, So where the words were. " lie is a pettifogging, blood-sucking attorney." Armstrong v. Jordan, cor. Hidlock, •/.. 2 Stark, on Slander, 11 (n), 2nd ed. Where the declaration alleged that the plaintiff held a certain office and place of trust and confidence, to wit. the office of overseer of a certain common field, and the alleged libel treated the plaintiff as holding an office of public trust, and charged him with not having given a proper account of the public property, the libel itself was held to be evidence of the introductory averment, though the plaintiff's own witnesses proved that the office was not one of trust and confidence, and that hi' was not trusted with the receipt of money. Bagnall v. Underwood, 11 Price, 621. 602 Libel. In the same manner, where the libel admits any other of the intro- ductory averments, such averments need not be proved. Where the declaration averred that the plaintiff had been appointed envoy by certain persons exercising' the powers of government in the republic or state of Chili, in South America, the libel, stating that the plaintiff had colluded to obtain money in the matter of a loan for the republic or state of Chili, was held to be sufficient proof of the existence of such a state. Yrisarri v. Clement, 3 Bing. 432. So where a libel alleged that certain acts of outrage had been committed, and there was a similar introductory aver- ment, it was held that the latter required no proof. R. v. Sutton, 4 M. & S. 548. If an introductory averment be immaterial, it may be rejected as sur- plusage, and need not be proved ; and in general, where it is not matter of description, it is divisible, and part of it only may be proved. The averment that the libel was published "of and concerning" the prosecutor, or "of and concerning" the particular matters averred, must be proved as laid. The declarations of spectators, while viewing a libellous picture publicly exhibited in an exhibition room, were admitted by Lord Ellen- borough as evidence to show that the figures portrayed were meant to represent the parties alleged to have been libelled. Dubost v. Beresford, 2 Camp. 512. Proof of publication — in general.^ All who are concerned in publishing a libel are equally guilty of a misdemeanor : Bac. Ab. Libel (B.); unless the part they had in the transaction was a lawful or an innocent act. 1 Ruse. < 'ri. 632, 6th ed. ; but the writing or composing of a libel without a publication of it is not an offence. The mere writing of a defamatory libel which the party confines to his own closet, and neither circulates nor reads to others, is not punishable. E. v. Paine, 5 Mod. 165, 167. So the taking a copy of a libel is not an offence unless the person taking the copy publishes it. Com. Dig. Libel [B. 2). The question of publication is ordinarily one of mere fact, to be decided by the jury ; but this, like all other legal and technical terms, involves law as well as fact, and it is a question for the court in doubtful cases whether the facts, when proved, constitute a pubHcation in point of law. 2 Stark, on. Slander. 311, 2nd ed. Production of a libel, and proof that it is in the handwriting of the defendant, afford a strong presumption that he published it. R. v. Bean-, 1 Lord Rayrn. 414. So if the manuscript of a libel be proved to be in the handwriting of the defendant, and it be also proved to have been printed and published, this is evidence to go to a jury that it was published by the defendant, although there be no evidence given to show that the printing and publication were by the direction of the defendant. R. v. Lovett, 9 C. cfc P. 462. But the defendant may show that the publication was without his authority or knowledge, see 2 } ost, p. 609. So printing a libel, unless qualified by circumstances, will, prima facie, be understood to be a publishing, for it must be delivered to the compositor and the other subordinate workmen. Per cur. Baldwin v. Efphinstone, 2 W. Bl. 1037. A delivery of a newspaper (containing a libel) according to the provisions of the repealed statute to the officer of the stamp-office, has been held a publication, though such delivery was directed by the statute, for the officer had an opportunity of reading the libel. R. v. AmphliM, 4 B. .1 ( '. 35 ; see also Cook v. Ward, 6 Bing. 409. If a letter containing a libel have the post-mark upon it, that is prima facie evidence of its having been published. Warren v. Warren, 1 C. M. & R. 360; 4 Tyr. 850; Libel 003 Shipley v. Todhunter, 7 C. <('■ /'. 680. It is said by Forteseue, J., to have been ruled that the finding of a libel on a bookseller's shelf is a publica- tion of it by the bookseller. R. v. Dodd, 2 Sess. Ca. 33 ; Holt's L. of L. 248, 2nd . 2, c. 73, s. 10. Dictating a libellous letter to a clerk who in the ordinary course of business writes and sends it to a firm where it is opened and read by another clerk, is a publication to both clerks. Pull, nun v. Hill, (1891) 1 Q. Ji. 524 ; 00 L. J., Q. R. 299. Although in civil cases publication of a libel to the party libelled is not sufficient to support an action, yet in criminal cases such publication will maintain an indictment or information. Hawk. P. C. 1>. 1, c. 73, s. 11; 1 Rass. Cri. 034, 6th ed. R. v. Wegener, 2 Stark. X. /'. C. 245. But such publication must be alleged to have been sent with intent to provoke the prosecutor to a breach of the peace, and not with intent to injure him in his profession, &c. R. v. Wegener, supra. "Where the libel is in a foreign language, and it is set out in the indict- ment, both in the original and in a translation, the translation must be proved to be correct. In a case of this kind, an interpreter being called, read the whole of that which was charged to be a libel in the original, and then the translation was read by the clerk at nisi prius. R. v. Peltier, Sehv. X. P. 917. "Where the libel has been printed by the directions of the defendant, and he has taken away some of the impressions, a copy of those left with the printer may be read in evidence. R. v. Watson, 2 Stark. X. P. C. 129. In orderto show that the defendant had caused a libel to lie inserted in a newspaper, a reporter to the paper was called, who proved that he bad given a written statement to the editor, the contents of which had been communicated by the defendant for the purpose of publication; and that the newspaper produced was exactly the same, with the exception of one or two Blight alterations not affecting the sense; it was held that what the report published might be considered as published by the defendant, but that the newspaper could not be read in evidence without producing the written statement delivered bx the reporter to the editor. Adams v. Kelly, Ry. & Moo X. I'. <'. 157; and see /,'. v. Cooper, 8 (J. R. .133 ; 15 /,. •/., Q. /!. 200; and Fryer v. Gathtrcole, 4 Ex.262; IS I,. ./., Ex. 389. Where a libel is printed the sale of each copy is a distinct publication, and a fresh offence; and a conviction or acquittal on an indictment for publishing one copy, will be no bar to an indictment for pubHshing another copy. It. v. <'arlilr, i C/iitt//, 451 ; 2 Stark, on Slander, 320, 2ml ril. Proof of publication of libels contained in newspapers.~\ Tin' proof of tbe publication of libels contained in newspapers was formerly facilitated by the (> & 7 Will, -f, c. 70, which has been repealed. Sect. 19 of the & 7 Will. 4, c. 70, had however been embodied in 32 <£ 33 Vict. C. 24, sched. 2. and therefore is still in force. If any person shall file any bill in any court for the disco> eiT of the name of any person concerned as printer, publisher, or proprietor of any newspaper, or of any matters relative to the printing or publishing of any newspaper, in order the more effectually to bring or carry on any suit or action for damage alleged to have been sustained by reason of any slanderous or libellous matter 604 Libel. contained in any such, newspaper respecting such person, it shall not he lawful for the defendant to plead or demur to such hill, hut such defendant shall be compellable to make the discoveiy required ; provided always that such discovery shall not be made use of as evidence or otherwise in any proceeding against the defendant, save only in that proceeding for which the discovery is made. The Newspaper and Libel Eegistration Act, 1881 (44 A 45 Vict. c. 60), enacts, by s. 1, the word "newspaper" shall mean any paper containing public news, intelligence or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically or in parts or numbers, at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers. Also any paper printed in order to be dispersed and made public, weekly or oftener, or at intervals not exceeding twenty-six days, containing only or principally advertisements. The word "proprietor" shall mean and include as well the sole pro- prietor of any newspaper as also, in the case of a divided proprietorship, the persons who as partners or otherwise represent and are responsible for any share or interest in the newspaper as between themselves and the persons in like manner representing or responsible for the other sliares or interests therein, and no other person. Sections 2 and 3 are repealed by the Law of Libel Amendment Act (51 & 52 Yict. c. 64), which, by s. 3, enacts that " a fair and accurate report in any newspaper of proceedings publicly heard before any court exercis- ing judicial authority shall, if published contemporaneously with such proceedings, be privileged ; provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter." By s. 4, newspaper reports of proceedings of public meetings, and of certain bodies and persons, are privileged under certain conditions. By s. S, "No criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the prosecution of a newspaper for any libel published therein without the order of a judge at chambers being first had and obtained." There is no appeal from this order. Ex parte Pulbrook, (1S92) 1 Q. B. 86; 61 L. J., M. C. 91. II. v. Yates, 11 Q. B. 1). 750; 52 L. J., M. V. 778; affirmed on appeal, 14 Q. B. 1). 648; 54 A. ./,, Q. B. I>. 258, decided that s. 3 of the 44 & 45 Vict. c. 60, and therefore probably s. S of 51 & 52 Vict. c. 64, does not apply to criminal informations for libel filed by the order of the court at the instance of private prosecutors ; neither does it apply to criminal informations filed by the Attorney-General: but it applies to prosecutions in the ordinary sense of the term, viz., a criminal charge made before a magistrate or a grand jury. " I hereby allow the prosecution of the publisher, proprietor, or editor of the Freethinker, or any other person responsible for the publication therein of blasphemous articles between the dates of March 26, and July 11. 1882," was held to he a sufficient fiat within the Act. B. v. Bradlaugh, 15 Vox, 217. The fiat should mention by name every person against whom the prosecution is authorized to be instituted ; and merely authorizing the prosecution of the "publisher, editor, or printer" of the paper is insufficient. B. v. Allison. 16 Cox, ~)~>9. By ss. 4 and 5 (14 & 45 Vict. c. 60), inquiry may be made by a court of summary jurisdiction as to the libel being for the public benefit or being true, and the court, if they think a jury would acquit, may dismiss the case, or if they think the libel was of a trivial character, they may ask the defendant if he consents to being dealt with summarily. The Vexatious Indictments Act applies : see ante, p. 166. /. ibel. 605 The 4th. section of the Act appears to have been inserted in consequence of the decision in R. v. Garden, 5 Q. B. D. 1 ; 49 L. J., M. 0. 1, that a magistrate has no jurisdiction to inquire into the truth of a libel. In 11. v. Duffy, 2 Cox, 45; 9 /r. A. Rep. 329, y««f, p. 613, it was held that Lord CampbeE's Act, 6 & 7 Vict. c. 96, s. 6, post, p. 612, has no application to .seditious libels, and the same lias been held with regard to s. 4 of the present statute, as it is said to be absurd to suppose sedition to be for the benefit of the public. 11. v. O'Brien, 15 Cox, 180. It seems to have been assumed and not disputed that the libel complained of was seditious. It is also to be remarked that it is said in R. v. Duffey, supra, that Lord ( lampbell's Act. s. 6, did not apply to blasphemous libels, and Lord Coleridge, C. J., in /,'. v. Bradlaugh, 15 <'o.r, 217, at p. 226, said that there were some sections as to which a serious argument might be raised whether they had any application to the case of a blasphemous libel. By subsequent sections of the Act, provision is made for the registration of the names of newspaper proprietors, and by s. 15, copies of entries in and extracts from the register are made evidence. See ante, Documentary Evidence, p. 150. The production of a certified copy of the affidavit and of a newspaper corresponding in the title and in the names and descriptions of printer and publisher with the newspaper mentioned in the affidavit, was sufficient evidence of publication. Mayne v. Fletcher, 9 B. & C. o.S2 ; 11. v. Hunt, .'il Slate Trials, 'tf~>. But where the affidavit and the newspaper varied in the place of residence of the party, Murray x. Souter, cited (i Biny. 414, or in the name of the printing place, /,'. v. Francey, 2 A. & K. 49, it was held insufficient. See as to what was sufficient evidence of the identity of the newspaper under the (i iV 7 Will. 4. c. 76, s. 8, Baler v. Wilkinson, Carr. & M. 399; see also A', v. Woolmer, 12 J. & K. 422; Duke of Brunswick v. Harmer,3 C. & A". Hi; 14 0. II. 110; 19 7.. ./., Q. B. 10;' and Gathercole \. Miall, 15 M. and some small variances onlv excepted. It was objected that this evidence did mil entitle the prosecutor to read the book, the admission not being absolute ; but Pratt, < '. J., allowed it to be read, and said he would putit to the defendant to prove material variances. A*, v. Hall, 1 8tr. -llii. An admission of the signature to a libel is no admission of its having been published in a particular county. Case of Hie Seven Ili*//i>/>«, 12 //""■, St. Tr. L83. An admission of being the publisher of a periodical work cannot be extended beyond the date of such admission. M'Leod v. Wakley, 15 C. & I', oil. Publication constructive publication. It was well established at com- mon law that, in order to render a party guilty of publishing a libel, it. was not necessary that he should be the actual publisher of it, or that he should even have a knowledge of the publication; not only was a person 606 Libel. who procured another to publish a libel himself guilty of the offence, Hawk. J'. C. b. 1, c. 73, s. 10, but a bookseller or publisher, whose servant published a libel, was criminally answerable for that act, though it was done without his knowledge. It. v. Almon, 5 Burr. 2686. This being the state of the common law, Lord Campbell's Act (6 & 7 Vict. c. 96) was passed. By s. 7, "whensoever, upon the trial of any indictment or information for the publication of a libel, under the plea of not guilty, evidence shall have been given which shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, it shall be competent to such defendant to prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part." At the trial of a criminal information against the defendants for a libel published in a newspaper, of which they were proprietors, it was proved that each of them managed a different department of the newspaper, but that the duty of editing what was called the literary department was left by them entirely to an editor whom they had appointed, named G. The libel in question was inserted in the paper by G. without the express authority, consent, or knowledge of the defendants. It was held by Cockburn, C. J., and Lush, J., that it was a question for the jury whether the libel was published without the defendants' authority, consent, or knowledge, and whether the publication arose from any want of due care and caution on their part. Cockburn, C. J., said thats. 7 was intended to meet the anomaly of holding a man criminally responsible for something in which he had taken no part, and, in fact, of which he was not even cognizant. Mellor, J., dissented, holding that the defendants having, for their own benefit, employed an editor to manage a particular department of the newspaper, and given him fidl discretion as to the articles to be inserted in it, must be taken to have consented to the publication of the libel by him, and that 6 & 7 Vict. c. 96, s. 7, had no application to the facts proved. 11. v. Holbrook, 3 Q. B. I). 60; 47 L. J., Q. B. 35. The case was sent down for a new trial for the jury to deter- mine the above questions ; on a motion for a second new trial, it was held by the same judges, Mellor, J., dissenting, that the general authority given to G. was not per se evidence that the defendants had authorized or consented to the libel. >S*. C, 4 Q. B. J>. 42 ; 48 L. J., (J. B. 113. Where the libel is published by an agent of the defendant, the autho- rity of that agent must be strictly proved. In the case of booksellers and 2)ublishers, proof that the party actually vending the libel was a servant in the way of their business, is sufficient ; for in such case an authority to sell will be implied, but it is not so with regard to other persons. Thus, where it appeared that the libel in question was in the handwriting •of the defendant's daughter, who was usually employed by him to write his letters of business, but there was no evidence that the defendant had authorized her to write this particular document, it was held to be no evidence of publication as against him. Harding v. Greening, 8 Taunt. VI. Proof of innuendos.'] Where, in older to bring out the libellous sense of the words, innuendos are inserted in the indictment, they must, if material, be proved by witnesses acquainted with the parties, and with the transaction to be explained. It is sufficient if such witnesses speak in the first instance as to their belief with regard to the intended applica- tion of the words ; the grounds of such belief may be inquired into on cross-examination. 2 IStark. on Slander, 51, 2nd ed. If the witness ■derives his conclusion from the terms of another libel, with the publica- Libel 607 tion of which the defendant is not connected, this is not sufficient. Bourkev. Warren, 2 C, A I'. :H)~. If a good innuendo, ascribing a par- ticular meaning to certain words, is not supported in evidence, the party wdl not be permitted to ascribe another meaning to those words. Williams v. Stott, 1 Cram. A M. 675; Archbishop of Tuam v. Robinson, 5 Bimj. 17; but see Harvey v. French, 1 Crom. A M. 11. Thus, where the words in fact imputed either a fraud or a felony, but by the innuendo were confined to the latter, Lord Ellenborough ruled that the plaintiff must prove that they were spoken in the latter sense. Smith v. ( 'arey, 3 Campb. 461. If a libel contains blanks, the jury ought to acquit the defendant, unless they are satisfied that those blanks are filled up in the indictment according to the sense and meaning of the writer. Per Lord Mansfield, R. v. A I man, .3 Burr. 2686. It is said by Tindal, C. J., that where words spoken import in themselves a criminal charge, and the innuendo introduces matter which is merely useless, it may be rejected as surplusage. Day v. Robinson, 1 A. A- E. 554; see also Williams v. Gardiner, Tyr. A G. 578 ; 1 M. A W. 24.3 ; West v. Smith, Tyr. A G. 825. And see //care \. Silverlocke, 12 Q. B. 625. Proof of 'malice.'] Where a man publishes a writing, which upon the face of it is libellous, the law presumes that he does so with that malicious intention which constitutes an offence, and it is unnecessary on the part of the prosecution to give evidence of any circumstances from which malice may be inferred. Thus it was said by Lord Tenterden, that a person who publishes what is calumnious concerning the character of another, must be presumed to have intended to do that which the publi- cation is necessarily and obviously intended to effect, unless he can show the contrary. R. v. Harvey, 2 B. A C. 2-37; 11. v. Burdett, 4 11. & Aid. 95. In such case it is incumbent upon the defendant, if he seeks to discharge himself from the consequences of the publication, to show that it was made under circumstances which justify it. It is, however, frequently necessary, upon prosecutions for libel, where the expressions are ambiguous, or the intentions of the defendant doubtful, to adduce evidence for the purpose of showing the malice which prompted the act of publication. Thus, where the occasion of the publication would, •prima facie, justify the defendant, yet, if the libel be false and malicious, it is an offence; in such case evidence of the malice must be given on the part of the prosecution to rebut the presumed justification. " Where the material question," says Mr. Starkie, " is whether the defendant was justified by theoccasion, oracled from express malice, it seems, in principle, thai any circumstances are admissible which can elucidate the transaction, and enable the jury correctly to conclude whether the defendant acted fairly and honestly, or mala fide and vindictively, for the purposl of causing evil consequences." 2 Stark, on Slander, 55, 2nd ed. Upon this principle, in an action for libel con- tained in a weekly paper, evidence was allowed to be given of the sale of other papers with the same title at the same office, for the purpose of showing that the papers were sold deliberately, and in the regular course of circulation, and vended in regular transmission for public perusal. Plunkett v. Cvbbett, 5 Esp. 136. So where, on the trial of an action for libel contained in a newspaper, subsequent publications by the defendant in the same paper were tendered in evidence to show quo animo the defendant published the libel in question, Lord Ellenborough said, no doubt they would be admissible in the case of an indictment. Stuart v. Lovel, 2 Stark. X. I'. C. O.'S. Again, in the trial of an action against the editor of a monthly publication for a libel contained in it. articles 608 Libel. published from month to month alluding to the action, and attacking the plaintiff, are admissible to show quo animo the libel was published, and that it was published concerning the plaintiff. Chubb v. Westley, i> ('. (t- P. 436. In Jkirrett v. Long, 3 //. L. Cas. 395, other publications of the defendant, going back more than six years, before the publication complained of, were held to be admissible to prove malice. So it was held by Lord Ellenborough, that any words or any act of the defendant are admissible, in order to show quo animo he spoke the words which are the subject of the action. Rustel v. Macquister, 1 Campb. 49. So either the prosecutor or the defendant is entitled to have extracts read from different parts of the same paper or book which contains the libel, relating to the same subject. R. v. Lambert, '1 Campb. 398. When the publication is prima facie excusable on account of the cause of writing it, as in the case of servants' characters, or confidential advice, or communications to persons who ask it or have a right to expect it, malice in fact must be proved. Per Bavlev, J., Bromage v. Prosser, 4 B. & C. 256; and see M'Pherson v. Daniels. 10 B. . 60; 47 L. ./., Q. B. 35, ante, p. 606. So the defendant, under the plea of not guilty to the indictment, may show that the libel was published under circumstances which the law recognizes as constituting either an absolute justification or excuse, independently of the question of intention, or a qualified justification, dependent on the actual intention and motive of the defendant. 2 Stark. on Stand. 308, 2nd ed. Thus, the defendant may show that the alleged libel was presented bond fide to the king as a petition for the redress of R. R R 610 Libel. grievances; Case of the Seven Bishops, 12 St. Tr. 183; or to parliament ; Hawk. P. C. b. 2, c. 73, s. 8; or that it was contained in articles of the peace exhibited to a magistrate, or in any other proceeding in a regular course of justice. Ibid. "It seems," says Hawkins, "to have been held by some, that no want of jurisdiction in the court to which such complaint is exhibited will make it a libel, because the mistake of the proper court is not imputable to the party, but to his counsel ; yet if it shall manifestly appear from the whole circumstances of the case, that a prosecution is entirely false, malicious and groundless, commenced, not with a design to go through with it, but only to expose the defen- dant's character under the show of legal proceeding, it would form a ground for indictment at the suit of the king, as the malice of the pro- ceeding would be a good foundation for an action on the case of the suit of the party." Ibid. Though it is a defence to show that the alleged libel was published by a person in a privileged capacity, as by a member of parliament in his place, or by some person in the course of a judicial proceeding, yet if it appear that the publication took place by the party when not invested with the privileged capacity, or by a third person who has never been invested with it, this furnishes no defence. Thus a member of parliament who, after delivering his speech in parliament, publishes it, is criminally responsible for the libel ; R. v. Creevey, 1 M. & S. 273 ; though by Act of Parliament the members are protected from ail charges against them for anything said in either house. 1 W. & M. st. 2, c. 2, but see infra. So it was held by the Court of Queen's Bench that it is no defence in law to an action for publishing a libel, that the defamatory matter is part of a document which was, by order of the House of Commons, laid before the house, and thereupon became part of the proceedings of the house, and which was afterwards, by orders of the house, printed and published by the defendants ; and that the House of Commons heretofore resolved, declared, and adjudged, " that the power of jmblishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests, is an essential incident to the constitutional functions of parliament, more especially to the Commons House of Parliament as the representative portion of it." On the demurrer to a plea suggesting such a defence, it was also held that a court of law is competent to determine whether or not the House of Commons has such privileges as will support the plea. Stockdale v. Hansard, 9 A. & E. 1 ; but see now 3 & 4 Vict, c. 9, and StocMale v. Hansard, 11 A. & E. 297. And it has been held that the publication in a public newspaper of a faithful report of a debate in either House of Parliament is privileged, so that the publisher is not responsible for defamatory statements made in the course of the debate, and reproduced in such faithful report. Nor is he liable for the publi- cation of fair comments upon the debates so reported. Wasou v. Walter, L. R., 4 Q. B. 73; 38 L. J., Q. B. 34. As to reports of proceedings in Courts of Justice, see Macdougall v. Knight, 25 Q. B. D. 1. It will upon the same principle, be a defence to show that the supposed libel was written bona fide with the view of investigating a fact in which the party is interested, provided the limits necessary for effectuating such inquiry are not exceeded. Delany v. Jones, 4 Esp. 190 ; Einden v. West- lake, Moo. & Malk. 461 ; Brown v. Croome, 2 Stark. N. P. C. 297. So where the libel was an advertisement for the discovery of the plaintiff, an absconding debtor, published at the request of the party who had sued out a cajiias, for the purpose of enabling the sheriff to take him. Lay v. Laivson, 4 A. & E. 795. So the showing of a libel to the person reflected on, with the bona fide intention of giving him an opportunity for making Libel. 611 an explanation, or with a friendly intention to enable him to exculpate himself, or seek his legal remedy, is no offence. 2 Shirk, on Slander, 249, 'laded. ; B. N. P. 0.8; M- Bengali v. Olaridge, 1 Campb. 267. And the same with regard to a letter of friendly advice. Id. Thus a letter from a son-in-law to his mother-in-law, volunteering advice respecting her proposed marriage, and containing imputations upon the person whom she was about to marry, is a privileged communication and not actionable, unless malice be shown. Todd v. Hawkins, 2 Moo. & R. 20. But an unnecessary publicity would render such a communication libellous, as if the letter were published in a newspaper. R. v. Knight, Bar. Ab. Libel (.1. 2). So a representation made bund fide, by the defendant to a public officer respecting the conduct of a plaintiff, a person acting under him, is not prima facie actionable. Blake v. Pi! fold, 1 Moo. <(; R. 19S. So a letter to the postmaster-general, complaining of misconduct in a post- master, is not libellous if it contains a bund fide complaint. Woodward v. lAttidor,6 C. ossess i° n °f injured property liable to be convicted.] See 24 & 25 Vict. c. 97, s. 59, supra, p. 251. Form of indictment.] See 24 & 25 Vict. c. 97, s. 60, supra, p. 251. Proof of damaging machinery.] Where the prisoner was indicted under a similar statute now repealed, for entering a shop, and maliciously damaging Machinery. 615 a certain frame used for the making of stockings, and it appeared that he had unscrewed and earned away a part of the frame, called the half -jack, an essential part of the frame, without which it is useless, this was held a damaging of the frame within the statute. B. v. Tacey, Buss. & By. 452. And where the prisoner screwed up the working parts of the engine of a threshing machine, and had reversed the plug of the pump which supplied the boiler, and had also stopped up one of the pipes, so that the machine could not be again set in motion without great difficulty, and if it had been left in the state in which the prisoner left it, the boiler would have burst ; it was held to be a damaging within the statute, and that the damage in such cases need not be of a permanent nature. B. v. Fisher, L. B.,1 C. C. B.7; 35 L. J., M. C. 57. Where the machine is imperfect.'] Even where the machine at the time it is broken has been taken to pieces and is in different places, so long as it is capable of being fitted together again, an offence against the statute may be committed by a person maliciously damaging any of the parts. B. v. Mackerell, 4 0. tfc P. 448. So where the machine was worked by water, and the prosecutor, expecting a riot, took it to pieces, and removed the pieces to the distance of a quarter of a mile, leaving only the water-wheel and its axle standing, and the wheel was destroyed by the prisoners ; this was held to be an offence within the statute. B. v. Fuller, 4 C. & P. 449. Where certain sideboards were wanting to a machine at the time it was destroyed, but did not render it so defective as to prevent it altogether from working, though it would not work so effectually, it was still held to be a machine within the statute. B. v. Bartlett, Salisb. ftp. Com., 2 Deac. Dig. C. L. 1517. So also where the owner removed a wooden stage belonging to the machine, on which the man who fed the machine was accustomed to stand, and had also taken away the legs ; and it appeared that, though the machine could not be conveniently worked without some stage for the man to stand on, yet that a chair or table, or a number of sheaves of corn, would do nearly as well, and that it could also be worked without the legs ; it was held to be within the statute. B. v. Chubb, Salisb. Sp. Com., 2 Deac. Dig. C. L. 1518. But where the owner had not only taken the machine to pieces, but broken the wheel, for fear of its being set on fire ; and it appeared that, without the wheel, the engine could not be worked ; this was held to be a case not within the statute. B. v. West, Halisb. Sp. Com., 2 Deac. Dig. C. L. 1518. 616 Maintenance, &c. MAINTENANCE, &c. Maintenance — nature of the offence.'] Maintenance signifies an unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of couvmon right. Hawk. P. C. b. 1, c. 83, s. 1. It may be either with regard to matters in suit, or to matters not in legal controversy. Ibid. s. 2. It is an offence punishable at common law with fine and imprisonment, and is forbidden by various statutes. 1 Ed. 3, st. 2, c. 14 ; I Rich. 2, c. 4 ; 32 Hen. 8, c. 9, s. 3. These Acts, however, are only declaratory- of the common law, with additional penalties. Pechell v. Watson, 8 M. d: W. 691. According to the old authorities, whoever assists another with money to carry on his cause, or retains one to be of counsel for him, or otherwise bears him out in the whole or any part of his suit, or by his friendship or interest saves him that expense which he might be otherwise put to, or gives evidence without being called upon to do so, or speaks in another's cause, or retains an attorney for him, or being of great power and interest, says publicly that he will spend money to labour the jury, or stand by the party while his cause is tried, this is maintenance. Ha irk. P. C. b. 1, c. 83, ss. 5, 6, 7. It maybe doubted, however, whether, at the present day, some of these acts would be held to amount to an indictable offence, unless they were plainly accompanied with a corrupt motive. A bare promise to maintain another is not in itself maintenance, unless it be so in respect of the public manner in which, or the power of the person by whom it is made. Ibid. s. 8. So the mere giving of friendly advice as to what action it will be proper to bring to recover a certain debt, will not amount to maintenance. Ibid. s. 11. "To bind oneself after the commencement of a suit to pay the expenses of another in that suit, more especially if that other be a person himself of no means, and the suit be one which he cannot bring, is still, as it always was, maintenance. . . . This general statement requires two qualifications : first, that the acts of the maintainer must be [legally] immoral, and that the maintainer must have been actuated by a [legally] bad motive ; next, that if he has, or believes himself to have, a common interest with the plaintiff in the residt of the suit, his acts, which would otherwise be maintenance, cease to be so." See per Lord Coleridge, C. J., in Bradlaugh v. Newdegate, II Q. B. I). 1, at p. 9 ; 52 I. J., Q. B. 454. In order to justify maintenance there must either be a common interest recognized by the law in the matter at issue or the case must fall within one of the specific exceptions established by authoritv. Alabaster v. Harness, (1894) 2 Q. B. 897 ; (1895) 1 Q. B. 339; 64 I. J., Q. B. 76. Maintenance — justifiable — in respect of interest.'] Those who have a cer- tain interest, or even bare contingent interest, in the matter in variance, may maintain another in an action concerning such matter ; as in the case of landlord and tenant, trustee and cestui que trust. Hawk. P. G. b. 1, c. 83, ss. 19, 20, 21. So where A. at the request of B. defended an action brought for the recovery of a sum of money in which B. claimed an Maintenance, &c. 617 interest, upon B. undertaking to indemnify him from the consequences of such action, this was held not to be maintenance. Williamson v. Henley, 6 Bing. 299. So wherever persons claim a common interest in the same thing, as in a way, common, &c, by the same title, they may maintain one another in a suit relating to the same. Hawk. P. C. b. 1, c. S3, s. 24. See also Bradlaugh v. Newdegate, supra. Maintenance — justifiable — master and servant.'] A master may go with his servant to retain counsel, or to the trial and stand by him, but ought not to speak for him ; or if arrested, may assist him with money. Hawk. /'. C. b. 1, c. 83, ss. 31, 32. So a servant may go to counsel on behalf of his master, or show his evidences, but cannot lawfully lay out his own money to assist his master. Ibid. s. 34. Maintenance — justifiable — affinity.'] Whoever is in any way of kin or affinity to either of the parties, may stand by him at the bar, and counsel or assist him ; but unless he be either father or son, or heir-apparent, or the husband of such an heiress, he cannot justify laying out money in his cause. Hawk. P. C. b. 1, c. 83, s. 26. Maintenance — justifiable — poverty.] Any one may lawfully give money to a poor man to enable him to carry on his suit. Hawk. P. C. b. 1, c. 83, s. 36; Harris v. Briscoe, 17 Q. B. D. 504. Maintenance — justifiable — counsel and solicitors.] Another exception to the general rule with regard to maintenance is the case of counsel and solicitors. But no counsel or solicitor can justify the using of any deceitful practice in the maintenance of a client's cause, and they are liable to be severely punished for any misdemeanors of this kind. Hawk. P. C. b. 1, c. 83, s. 31. And by Stat. West. 1, c. 29, if any serjeant, pleader, or other, do any manner of deceit or collusion in the king's court, or consent to it, in deceit of the court, or to beguile the court or the party, he shall be imprisoned for a year and a day. Procuring a solicitor to appear for a man, and to confess judgment without a warrant, lias been held within this statute. Ibid. s. 36. So bringing a prcecipe against a poor man, knowing he has nothing in the land, on purpose to get the possession from the true tenant. Ibid. s. 35. Champerty.] Champerty is a species of maintenance, accompanied by a bargain to divide the matter sued for between the parties, whereupon the champertor is to cany on the suit at his own expense. 4 Bl. Com. 135; 1 Buss. Gri. 482, 6th ed. Champerty may be in personal as well as in real actions; Hawk. /'. C. b. 1, c. 84, s. 5; and to maintain a defendant may be champerty. Ibid. 8. 8. " By 31 Eliz. c. 5, the offence of champerty may be laid in any county at tlie pleasure of the informer. This statute is repealed, except as to criminal proceedings, by 42 & 43 Vict. c. 59. Various cases have occurred in modern times in which the doctrine of champerty has come in question. Where a bill was filed to set aside an agreement made by a seaman, for the sale of his chance of prize-money, Sir William Grant, M. R., expressed an opinion that the agreement was void from the beginning, as amounting to champerty, viz., the unlawful maintenance of a suit, in consideration of a bargain for a part of a tiling, or some profit out of it. Sfe vena v. Bagwell, 15 Ves. 139. So it has been held, that an agreement to communicate such information as should enable a party to recover a sum of money by action, and to exert 618 Maintenance, &c. influence fov procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered, was illegal. Stanley v. Jones, 7 Bingh. 369 ; 5 Moure & P. 193 ; see Potts v. Sparroiv, 6 C. & P. 749, and Bradlaugh v. Newdeyate, supra, p. 614. Embracery .~\ Embracery, likewise, is another species of maintenance. Any attempt to corrupt, or influence, or instruct a jury, or to incline them to be more favourable to one side than the other, by money, promises, letters, threats, or persuasions, except only by the strength of the evidence, and the arguments of the counsel in open court at the trial of the cause, is an act of embracery, whether the jurors gave any verdict or not, and whether the verdict given be true or false. Hawk. P. C. b. 1, c. 85, s. 1. The giving of money to a juror after the verdict, without any preceding contract is an offence savouring of embracery ; but it is otherwise of the payment of a juror's travelling expenses. Ibid. s. 3. Embracery is punishable by fine and imprisonment. Ibid. s. 1. Analogous to the offence of embracery is that of persuading, or endeavouring to persuade, a witness from attending to give evidence, an offence punishable with a fine and imprisonment. It is not material that the attempt has been unsuccessful. Hawk. P. C. b. 1, c. 21, s. 15 ; B. v. Lawley, 2 Str. 904; 1 Buss. Cri. 486, 6th ed. 1 Malicious Injuries. 619 MALICIOUS INJURIES TO PROPERTY. By the 24 & 25 Yict. c. 97, s. 51, "whosoever shall unlawfully and maliciously commit any damage, injury, or spoil to or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is hereinbefore provided, the damage, injury, or spoil being to an amount exceeding five pounds, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour : and in case any such offence shall be committed between the hours of nine of the clock in the evening and six of the clock in the next morning shall be liable to be kept in penal servitude " (see ante, p. 203). There is a similar provision contained in s. 52 (only the words there are wilfully or maliciously, as to which see Roper v. Knott [1898], 1 Q. B. 168), with respect to convictions before a justice, and a proviso is added that the section shall not extend to cases where ' • the party acted under a fair and reasonable supposition he had a right to do the act complained of." It has been held that in the case of a private individual this means something more than a mere bona fide belief in the right; White v. Feast, L, R., 7 Q. B. 353 ; 41 L. J., M. C. 81 ; otherwise in the case of a person acting in a public capacity, as surveyor of highways. Denny v. Thwaites, 2 Ex. D. 21 ; 46 /.. J., 3i. C. 141. An incorporeal right, such as "a right to herbage," is not "real or personal property" within s. 52. Laws v. Eltringham, 8 Q. B. D. 283; 51 L. J., M. (J. 13. And in order to support a conviction there must be proof of actual damage to the realty itself ; mere damage to uncultivated roots or plants growing upon the realty, e.g., mushrooms, is insufficient. Gardner v. Mausbridge, 19 Q. B. D. 217. Rut where damage to the grass to the extent of 6'/. had been done, the conviction was upheld, Qayford v. Chowler, [1898] 1 Q. B. 316. Where the defence set up is a claim of right, the jury, if they are of opinion that the defendants did more damage than they could reasonably suppose to be necessary for the assertion of that right, must convict the defendants. R. v. Clemens, [1898] 1 Q. B. 556. Under s. 51 (supra), the prisoner, who had been fighting with persons in the street and had thrown a stone at them, which struck a window and did damage to an amount exceeding 5/., was indicted for "unlawfully and maliciously" causing this damage. The jury convicted him, but found that ho threw the stone at the people he had been fighting with, intend- ing to strike one or more of them, but not intending to break the window. It was held that what is intended by the statute is a wilful doing of an intentional act causing injury to property, which the finding of the jury negatived, and that the conviction must, therefore, be quashed. Had the jury found that the prisoner was reckless of the consequences of his act, and might reasonably have expected that it would result in breaking the window, the conviction might have been supported. II. v. Pembliton, I.. /.'., 2 C. C.R. 119; 43 L.J., M. G. 91 ; see also R. v. Martin, 8 Q. B. D. 54; 51 L. >/., M. C. 36; /<'. v. Faulkner, 13 Cox, 550; and cases cited ante, p. 20. 620 Manslaughter. MANSLAUGIITEB. Punishment.'] By the 24 & 25 Vict. c. 100, s. 5, " whosoever shall be •convicted of manslaughter shall be liable to be kept in penal servitude for life (see ante, p. 203), or to pay such fine as the court shall award, in addition to or without any such other discretionary punishment as aforesaid." Form of indictment.'] See 24 & 25 Vict. c. 100, s. 6, infra, p. 641. Manslaughter abroad.] See 24 & 25 Vict. c. 100, s. 9, ante, p. 224. Manslaughter ivhere the death or cause of death happens abroad.] See 24 & 25 Vict. c. 100, s. 10, ante, p. 223. Distinction between manslaughter and murder.] Manslaughter is princi- pally distinguishable from murder in this, that though the act which occasions the death is unlawful, or likely to be attended with bodily mis- chief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting in manslaughter, the act being rather imputed to the infirmity of human nature. 1 East, P. 0. 218 ; Foster, 290. Murder is unlawful homicide with malice aforethought. Manslaughter is unlawful homicide without malice aforethought. Per Stephen, J., in B. v. Doherty, 16 Cox, 306. It has also been said to differ from murder in this respect, that there cannot be any accessories before the fact to manslaughter, since the act is presumed to be altogether sudden and without premeditation. 1 Hale, P. C. 437. But in the case of R. v. Gaylor, Dears. & B. C. C. 288, upon the above passage being referred to in the course of the argument, Erie, J., said that he thought that Lord Hale was there speaking of manslaughter per infortunium or se defendendo only, and that he did not understand him to mean that in ordinary cases of manslaughter there could be no accessory. See 3 Buss. Cri. 171, 6th ed. A stakeholder to a fight, but who was not present at the fight, is not accessory before the fact to the manslaughter of one of the combatants who died from injuries received during the fight. B. v. Taylor, L. B., 2 C. C. B. 147; 44 L. J., M. C. 67, ante, tit. Accessories. It is clear that there may be accessories after the fact to manslaughter. Where A. was indicted for the wilful murder of B., and C. was indicted for receiving, harbouring, and assisting A.., well knowing that he had committed the felony and murder aforesaid; Tindal, C. J., held that if the offence of A. was reduced to manslaughter, C. might, notwithstanding, be found guilty as an accessory after the fact. B. v. Greenacre, 8 C. & P. 35. See also B. v. Richards, 2 Q. B. D. 311; 46 L. J., M. C. 200. Provocation.] Whenever death ensues from sudden transport of passion or heat of blood, if upon reasonable provocation and without malice, or upon sudden combat, it will be manslaughter ; if without such provoca- tion, or if the blood has had reasonable time to cool, or if there be Manslaughter. 621 evidence of express malice, it will be murder. 2 East, P. ('. 232 ; Foster r 313. See the cases collected post, tit. Murder. Mutual combat.'] Death in the course of a mutual combat, though in some cases it amounts to murder, is generally found to constitute man- slaughter only, there being most frequently an absence of that malice- requisite to a conviction for murder, and a sufficient degree of provocation to show such absence. See the cases collected post, tit. Murder. Resistance to officers of justice, (fee] The cases of homicide which arise in the instances of officers of justice, or others having authority to arrest, where resistance is made to them in the execution of their duty, include- every species of homicide. If the officer is killed in the lawful execution of his duty by the party resisting him, it is murder. If he be killed when acting under a void or illegal authority, or out of his jurisdiction, it is manslaughter or excusable homicide, according to the circumstances of the case. If the party about to be arrested resist, and be killed, or attempt to make his escape, and the officer cannot take him without killing him, it will be manslaughter or excusable or justifiable homicide, according to circumstances. These distinctions will be noticed, and the different authorities and cases collected, under the head Murder. In what instances peace officers are authorized to arrest individuals, and where they have power to do so without warrant, and in what cases the process under which they act is regular or irregular, and what is the consequence of such irregularity, is fully stated in other parts of this work. Vide post, tit. Murder, and supra, tit. Apprehension* Killing in the performance of an unlawful or negligent act.] If a person commits an act which he knows may produce serious injury, and he is indifferent and reckless as to the consequences, he commits an unlawful act. R. v. Bradshaiv, 11 Cox, 83. See this case, post, p. 624. If in doing an unlawful act death ensue in consequence of the negligence of the party, but without any intent to do bodily harm, it is manslaughter at the least. Foster, 2(31. As to the cases where the question has arisen whether the offence was one of murder or manslaughter, see post, tit. Murder. Thus if a person in sport throw stones down a coal-pit, whereby a man is killed, this is manslaughter, though the party killed was only a tres- passer. R. v. Fenton, 1 Lewin, C. C. 170. So where a lad, as a frolic, without any intention to do any harm to any one, took the trapstick out of the front part of a cart, in consequence of which it was upset, and the carman, who was in it putting in a sack of potatoes, was pitched back- ward on the stones and killed, (inrney, B., and Williams, J., held that the lad was guilty of manslaughter. R. v. Sullivan, 7 C. & I'. (541. So if an improper quantity of spirituous liquors be given to a child heedlessly, and for brutal sport, and death ensues, it will be manslaughter. R. v. Martin, 3 C. & P. 211. Where a mother, being angry with one of her children, took up a small piece of iron, used as a poker, and on his running to the door of the room which was open, threw it after him, and hit another child who happened to be entering the room at the moment, in consequence of which the latter died, Park, J., held this to be manslaughter, although it appeared that the mother had no intention of hitting her child with whom she was angry, but only intended to frighten him. The learned judge said, " If a blow is aimed at an individual unlawfully and this was undoubtedly unlawful, as an improper mode of correction — and strikes another and kills him, it is manslaughter; and there is no doubt if the child at -622 Manslaughter. whom the blow was aimed had been struck and died it would have been manslaughter, and so it is under the present circumstances." R. v. Conner, 7 C. & P. 438. The prisoner was indicted for manslaughter. The deceased had entered the prisoner's house in his absence, and on his return was ■desired to withdraw, but refused to go. Upon this words arose, and the prisoner, becoming excited, proceeded to use force, and, by a kick which he gave to the deceased, caused an injury which produced his death. Alderson, B., said, "A kick is not a justifiable mode of turning a man out of your house, though he be a trespasser. If the deceased would not have died but for the injury he received, the prisoner, having unlawfully caused that injury, he is guilty of manslaughter." R. v. Wild, 2 Lew. C. C. 214. A man was in possession, under the sheriff. One of the prisoners, of whose goods he was in ]iossession, assisted by the other prisoner, plied the man with liquor, themselves drinking freely also. When he was very drunk they put him into a cabriolet, and caused him to be driven about the streets ; about two hours after he had been put into the cabriolet he was found dead. Lord Denman, C. J., told the jury, that if the prisoner, when the deceased was drunk, drove him about in his cabriolet, in order to keep him out of possession, and by so doing accele- rated his death, it would be manslaughter. R. v. Packard, Carr. & Jf. 246. If A. and B. agree together to assault C. with their fists, and C. receives a chance blow of the fists from either of them, causing death, both A. and B. are guilty of manslaughter. But should A. of his own impulse, kill C. with a weapon suddenly caught up, B. would not be responsible for the death, he being only liable for acts done in pursuance of the common design of himself and A. Per Lush, J., R. v. Caton, 12 Cox, 624. The prisoner having the right to the possession of a gun which was in the hands of the deceased, and which he knew to be loaded, attempted to take it away by force. In the struggle which ensued the gun went off accidentally and caused the death of the deceased. Lord Campbell directed the jury that, though the prisoner had a right to the possession of the gun, to take it away by force was unlawful ; and that, as the evidence showed that the discharge of the gun, though accidental, was the result of this unlawful act, it was their duty to find the prisoner guilty of man- slaughter. R. v. Archer, 1 F. & F. 351. But the death must be the direct and not the indirect consequence of the unlawful act. The prisoner was a maker of fireworks, and he made and kept them in a manner contrary to the provisions of a repealed statute at his own house. During his absence, by the negligence of one of his servants, the fireworks became ignited, by which a neighbouring house was set fire to, and a person therein burnt to death. It was held that the prisoner was not indictable for manslaughter, as the death was caused by the negligence of the servant. R. v. Bennett, 1 Bell, C. C. 1 ; 28 L. J., M. C. 27. Where a station-master despatched trains at too short an interval after each other, and a signal-man caused a collision by a mistake with the signals, Erie, C. J., advised the grand jury to throw out the bill against the station-master. R. v. Ledger, 2 F. & F. 858. A. in unlawfully assaulting B., who at the time had in her arms an infant, ■so frightened the infant that it died ; A. is guilty of manslaughter if the jury think that the assault on B. was the direct cause of death. Per Denman, J., R. v. Towers, 12 Cox, 530. See as to the negligent omission of a duty, R. v. Hughes, 1 Bears. & B. C. C. 248 ; 26 L. J., M. C. 133. As to manslaughter committed by the captain and mate of a vessel on one of the crew, see R. v. Leggett, 8 C. & P. 191. Manslaughter* 623 Killing in the course of lawful or unlawful sports.^ Where death ensues in the case of sports or recreations, such recreations being innocent and allowable, it falls within the rules of excusable homicide, because bodily harm is not the motive on either side. Foster, 250 ; 1 East, P. 0. 268. Therefore persons playing at cudgels, Comb. 408, or foils or wrestling, li. v. Lane, 1 East, P. C. 268, are excusable if death ensue. Lord Hale appears to be of a different opinion, lie says, " he that voluntarily and know- ingly intends hurt to the person of a man, though he intends not death, yet if death ensue, it excuses not from the guilt of murder or manslaughter at least; as, if A. intends to beat B. but not to kill him, yet if death ensue, this is not per infortunium, but murder or manslaughter, as the circumstances of the case happen; and, therefore," he continues, "I have known it ruled, that if two men are playing at cudgels together, or wrestling, by consent, if one by a blow or fall kills the other, it is man- slaughter, and not per infortunium, as Mr. Dalton {cap. 90) seems to doubt it ; and accordingly it was resolved, P. 2, Car. 2, by all the judges, upon a special verdict, from Newgate, where two friends were playing at foils at a fencing school, and one casually killed the other ; resolved to be manslaughter." 1 Hale, I'. C. 472. The questions in these cases appear to be twofold, 1st, whether the sport was lawful ; and 2nd, whether the parties engaged in it with a friendly mind, or with intent to do each other some bodily harm. The cases mentioned by Lord Hale seem to proceed upon the latter supposition, and on this ground they are distinguished by Foster, J., from the case of persons who in perfect friendship engage by mutual consent in recreations for the trial of skill or manhood, or for improvement in the use of arms. Foster, 259, 260 ; 1 East, P. C. 268. But if there be dangerous weapons used in such sports, and there be any negligence in the use of them, and one of the parties be killed, such negligence may render the act manslaughter. Sir John Chichester, fencing with his servant, made a pass at him, which the servant parried off with a bedstaff. In the heat of the exercise, the chape of the scabbard new off, and the man was killed by the point of the sword. It was held that this was manslaughter, because though the act which occasioned the death intended no harm, nor could it have done harm, if the chape had not been struck off by the party killed, and though the parties were in sport, yet the act itself, the thrusting at the servant, was unlawful. Aleyn, 12 ; 1 Halt, I'. 0. 472. Foster, J., puts this decision on another ground, observing that the party did not use the degree of circumspection which common prudence would have suggested ; and therefore the fact so cir- cumstanced might well amount to manslaughter. Foster, 260 ; 1 East, I'. (7.269. Death in the course of a friendly contest may also amount to man- slaughter if any undue advantage has been taken. Thus, if two persons are engaged to play at cudgels, and one of them makes a blow at the other likely to hurt, before he was upon his guard, and without warning, and death ensues, the want of due and friendly caution would make the act amount to manslaughter. 1 East, /'. 0. 2i>!>. It' death is caused by an injury received in a friendly sparring-match, which is not a thing likely to cause death, it is not manslaughter, unless the parties tight on until the sport becomes dangerous. R. v. Young, 10 ( 'ox, 371. But if the parties met intending to fight for money till one gave in from exhaustion or injury received, the contest would be a prize- right, although only gloves were used. A', y. Orton, 14 Cox, 226. "Charg- ing " in a game of football, knowing that charging in the manner adopted is likely to produce serious injury to another, and being reckless and indifferent as to the consequences, woidd be an unlawful act, and if death 624 Manslaughter. was thereby caused, it would be manslaughter. R. v. Bradshaw, 14 Cox, 83. Though the weapons be of a dangerous nature, yet if they be not directed by the persons using them against each other, and so no danger be reasonably apprehended, if death casually ensue, it is only misad- venture. 1 East, P. C. 269. Therefore, if a person be shooting at game or butts, or other lawful object, and a bystander be casually killed, it is only misadventure. 1 Hale, P. 0. 38, 39, 472 ; 1 East, P. C. 269. But if the sport or recreation be unlawful, and death ensues in the course of it, it will be murder or manslaughter, according to the circumstances of the case. Thus, where a man playing at the diversion of cock-throwing missed his aim, and a child looking on, received a blow from the staff, of which he died, Foster, J., ruled it to be manslaughter. Foster, 261. Prize-fights, public boxing-matches, and the like, exhibited for the sake of lucre, are not lawful sports, for they serve no valuable purpose, but, on the contrary, encourage a spirit of idleness and debauchery. Foster, 260. In such case, the intention of the parties is not innocent in itself, each being careless of what hurt may be given, provided the promised reward be obtained ; and besides, such meetings have in their nature a strong tendency to a breach of the peace. Therefore, in P. v. Ward, the prisoner having been challenged to fight by his adversary, for a public trial of skill in boxing, and also urged to engage by taunts, although the occa- sion was sudden, yet, having killed his opponent, he was held guilty of manslaughter. 1 East, P. C. 270. Upon an indictment for murder, charging the prisoner with being present, aiding and abetting, it appeared that there had been a fight between the deceased and another person, at which a great number of persons were assembled, and that in the course of the fight the ring was broken in several times by the persons assembled, who had sticks which they used with great violence. The deceased died in consequence of the blows he received on this occasion. There was contradictory evidence as to the prisoner having acted as second. In summing up, Littledale, J., said, "My attention has been called to the evidence that the prisoner did nothing ; but I am of opinion that persons who are at a fight, in consequence of which death ensues, are all guilty of manslaughter if they encouraged it by their presence ; I mean if they remained present during the fight. If they were not merely casually passing by, biit stayed at the place, they encouraged it by their presence, although they did not say or do anything. But if the death ensued by violence un- connected with the fight itself — that is, by blows not given by the other combatant, but by persons breaking in the ring, and striking with their sticks, those who were merely present are not, by being present, guilty of manslaughter. The case is at most one of manslaughter only." P. v. Murphy, ('. & P. 103. It has been ruled, however, that persons present at a fatal prize fight are not such accomplices as that their evidence requires confirmation. P. v. Hargrave, 4''. & P. 170. The summing up of Little- dale, J., in P. v. Murphy, as above reported, was considered by the majority of the Court for Crown Cases Beserved to be misleading, because it led to the inference as a matter of law that mere presence at a fight renders persons so present guilty of an assault in aiding and abetting in such fight. This proposition was directly overruled by Denrnan, J., Huddle- ston, B., Manisty, Hawkins, Lopes, Stephen, Cave, and North, JJ. On the other hand, Lord Coleridge, C. J., Pollock, B., and Mathew, J., were of opinion that the legal inference to be drawn from mere presence as a voluntary spectator at a prize-fight is, in the absence of other evidence to rebut such inference, that the person so present is encouraging, aiding, and abetting. P. v. Coney, 8 Q. B. D. 534 ; 51 L, J., M. C. 66. In that case, .. Manslaughter. 625 the prisoners were amongst a crowd of people surrounding two men, who fought in a ring formed by ropes supported by posts. It did not appear that the prisoners took any active part in the management of the fight, or that they said or did anything. The ground on which the majority of the court proceeded was thus put by Cave, J., in giving judgment : " "Where presence may be entirely accidental, it is not even evidence of aiding or abetting. Where presence is prima facie, not accidental, it is evidence, but no more than evidence, for the jury." Killing in the course of lawful employment.^ Where death casually ensues in the course of a lawful employment, and there is a want of due caution on the part of the person from whom it proceeds, it will not be misadventure, but manslaughter. A., having deer frequenting his corn- field out of the precinct of any forest or chase, set himself in the night- time to watch in a hedge, and B., his servant, to watch in another corner of the field with a gun, charging him to shoot when he heard the deer rustle in the com. The master himself improvidently rushed into the corn, when the servant, supposing it to be the deer, shot and killed his master. This was held to he only chance-medley, for the servant was misguided by the master's own directions. But it seemed to Lord Hale, who tried the prisoner, that if the master had not given such directions, it would have been manslaughter to have shot a man, though mistaking him for a deer, because he did not use due diligence to discover his mark. 1 Hale, P. C 47(5. An iron founder being employed by an oilman and dealer in marine stores to make some cannon, to be used on a day of rejoicing, and after- wards to be put into a sailing boat, after one of them had burst, and had been returned to him in consequence, sent it back in so imperfect a state that, on being fired, it burst again, and killed the deceased; on his trial before Bayley, B., Patteson, J., and Gurney, B., he was found guilty of manslaughter. It. v. Carr, 8 C. & P. 163. Death ensuing in the performance of an act otherwise lawful may amount to manslaughter, by the negligence of the party performing the act; as in the instance of workmen throwing down stones from the top of a house when' they were working, where there is a small probability of persons passing by. 1 East, I'. C. 262 ; Foster, 262. The most common cases of this class are those where the death has been occasioned by negligent driving. A. was driving his cart with four horses in the highway at Whitechapel. lie, being in his cart, and the four horses at a trot, they threw down a woman who was going the same way with a burden upon her head, and killed her. Holt, 0. J., two other judges, and the recorder, held this to be misadventure only; but per Holt, < '. J., if it had been in a street where people usually passed, it had hern manslaughter. Upon this (use, Mr. East has made the following observation: "It must be taken Eor granted from this note of the case that the accident happened in a highway where people did not usually pass, for otherwise the circumstance of the driver being in the cart, and going so much faster than is usual tor carriages of that construction, savoured much of negligence and impropriety; for it was extremely difficult, if not impossible, to stop the course of the horses suddenly in order to avoid any person that could not gel out of the way in time. And, indeed, such conduct in the driver of such heavy carriages might, under such circum- stances, be thought to betoken a want of duo care if any, though few, persons might probably pass by the same road. The greatest possible care is not to be expected, nor is it to be required, but whoever seeks to excuse himself from having unfortunately occasioned by any act of his R. S S 626 ManslaiKjhter. own the death of another, ought at least to show that he took that care to avoid it which persons in similar situations are accustomed to do. 1 East, P. (J. 263. The deceased was walking along the road in a state of intoxi- cation. The prisoner was driving a cart drawn by two horses, without reins. The horses were cantering, and the prisoner was sitting in front of the cart. On seeing the deceased, he called to him twice to get out of the way, but from the state he was in, and the rapid pace of the horses, he could not do so, and was killed. Garrow, B., said, that if a man drive a cart at an unusually rapid pace, whereby a person is killed, though he calls repeatedly to such person to get out of the way, if from the rapidity of the driving or any other cause the person cannot get out of the way in time enough, but is killed, the driver is guilty of manslaughter. He added, that it is the duty of every man who drives any carriage to drive it with such care and caution as to prevent, as far as in his own power, any accident or injury that may occur. R. v. Walker, 1 C. & P. 320. What will constitute negligence in the case of driving carriages must depend greatly upon the circumstances of each particular case. It was ruled by Bayley, J., that a carter by being in the cart instead of at the horse's head, or by its side, was guilty of negligence; and, if death ensued, of manslaughter. R. v. Knight, 1 Lew in, C. 0. 168. And the same point was ruled by Hullock, B. Anon., Ibid. The prisoner was charged with manslaughter. It appeared that there were two omnibuses, which were running in opposition to each other, galloping along a road, and that the prisoner was driving that on which the deceased sat, and was whi}iping his horses just before his omnibus upset. In summing up to the jury, Patteson, J., said, "The main questions are, were the two omnibuses racing? and was the prisoner driving as fast as he could in order to get past the other omnibus ? and had he urged his horses to so rapid a pace that he could not control them ? If you are of that opinion, you ought to convict him." R. v. Tim m ins, 7 C. & P. 499. As to the doctrine of contributory negligence, see post, p. 627. To make the captain of a steam-vessel guilty of manslaughter in causing a person to be drowned by running down a boat, the prosecutor must show some act done by the captain, and a mere omission on his part in not doing the whole of his duty is not sufficient. But if there were sufficient light, and the captain of the steamer is either at the helm or in a situation to be giving the command, and does that which causes the injury, he is guilty of manslaughter. Per Park, J., and Alderson, B., R. v. Green, 7 0. & P. 156. A mere mistake in judgment will not be sufficient. R. v. Elliott, 16 Cox, 710. See infra, p. 631. The prisoner was indicted for manslaughter, and it appeared that it was his duty to attend a steam-engine, and that on the occasion in question he had stopped the engine and gone away. During his absence a person came to the spot and put it in motion, and being unskilled was unable to stop it again ; and, in consequence of the engine being thus put in motion the deceased was killed. Alderson, B., stopped the case, observing that the death was the consequence, not of the act of the prisoner, but of the person who set the engine in motion after the prisoner went away, and that it was necessary, in order to a conviction for manslaughter, that the negligent act which caused the death should be that of the party charged. R. v. Hilton, 2 Leiu. C. C. 214. See also R. v. Lowe, post, p. 631, and R. v. Bennett, ante, p. 622. Negligent use of dangerous iveapons.~\ It is sometimes very difficult to trace the boundaries between manslaughter and misadventure, as in the following case : — A man found a pistol in the street which he had reason Manslaughter. 627 to believe was not loaded, he having tried it with the rammer. He carried it home and showed it to his wife, and she standing- before him he pulled the cock and touched the trigger. The pistol went off and killed the woman, and this was ruled to be manslaughter. Kel. 41. Admitting, says Foster, J., that this judgment was strictly legal, it was, to say no better of it, summum jus. But, he continues, I think it was not so; for the law in these cases docs not require the utmost caution that ran be used; it is sufficient that a reasonable precaution, what is usual and ordinary in like cases, should be used. Foster, 2(>4. Foster, J., mentions a similar case : "I once upon a circuit tried a man for the death of his wife by a like accident. Upon a Sunday morning the man and his wife went a mile or two from home with some neighbours, to take a dinner at the house of their common friend, lie carried his gun with him. hoping to meet with some diversion by the way. But before he went to dinner he discharged it, and set it up in a private place in his friend's house. After dinner he went to church, and in the evening returned home with his wife and neighbours, bringing his gun with him, which was carried into the room where his wife was. lie taking it up touched the trigger, when it went off and killed his wife, whom he tenderly loved. It came out in evidence that while the man was at church a person belonging to the family privately took the gun, charged it, and went after some game, but before the service at church was ended, restored it loaded to the place whence it was taken, and where the defendant, ignorant of what had passed, found it, to all appearance, as he had left it. "I did not," says he, "inquire whether the poor man had examined the gun before he carried it home, but being of opinion, upon the whole evidence, that he had reasonable grounds to believe that it was not loaded, I directed the jury that if they were of the same opinion they should acquit him, and they did acquit him accordingly." Foster, 265. "If a man takes a gun, not knowing whether it is loaded or unloaded, and using no means to ascer- tain, and tires it in the direction of any other person, and death ensues, he is guilty of manslaughter." II. v. Campbell, 11 Cox, 323. This latter direction seems preferable to that of Foster, J., for to point a gun in the direction of another, even with most reasonable grounds of a nega- tive character for believing it to be unloaded, is only an act of folly, and it is not too much to require that a man should take positive means to ascertain that it is not loaded before he points it in the direction of another person. And see the questions asked of the jury by ( lockburn, C. J., in //. v. Weston, 11 Cox, 346, post, p. 662. Where three men went out with a, rifle and set up a mark in a tree in the proximity of houses, and a brdlet from the rifle killed a boy at the distance of ;>',):'> yards, it was held that so shooting without taking any precautions was such negligence as to constitute manslaughter. //. v. Salmon, (i Q. /:. />. 70; 50 /.. -/.. .1/. C. 25. See this case, ante, p. 158. Contributory negligence.] It lias been frequently attempted in these cases to setup the civil doctrine of contributory negligence as a defence. The law upon this point does not appear to be settled ; but it is submitted that the rule in criminal cases is that, assuming the negligence of the deceased, if the death was caused also by negligence on the part of the defendant, he is guilty. It has been distinctly ruled in several cases, that it is no ground of defence that the death was partlv caused by the negli- gence of others: /'. v. Ledger, 2 /•'. & F. 857 ; R. v. Haines, 2 < '. a- A". 368; //. v. Barrett, 2 C. & K. 343; /,'. v. Benge, 1 /•'. & /•'. 504; and it lias also been frequently ruled that it is no ground of defence that the death was partly caused by the negligence of the deceased himself; pu- ss'! 62S Manslaughter. Pollock, C. B., in P. v. Swindall, 2 C. & K. 230; per Garrow, B., in P. v. Walker, 1 C. tfc P. 320; per Byles, J., in R. v. A'e;r, 12 Oba;, 355; per Lush, J., in R. v. Jones, 11 Cocc, 544; P. v. Longbottom, 3 Coai, 439; P. v. Hutchinson, 9 Coos, 555. There is, however, some doubt as to the extent to which this doctrine can be carried. A man turned out a horse, which he knew to be vicious, on the common, over which he knew people were in the habit of passing, and over which they had a right to pass by certain paths. A child was killed by the horse, either on or very near one of the paths. It was held that the owner of the horse was rightly convicted of manslaughter, and some of the judges were disposed to think that it would have made no difference if the child had been on any part of the common on to which people were in fact accustomed to go, whether right- fully or not. P. v. Bant, L. & C. 567; 34 L. J., M. C. 119. See also P. v. Benge, supra. Upon the other hand, in the case of P. v. Birchall, 4 /•'. & F. 1087, Willes, J., said that where the deceased has contributed to his death by his own negligence, although there may have been negli- gence on the part of the prisoner, the latter cannot be convicted of man- slaughter, and that until he saw a decision to the contrary he should hold that a man was not criminally responsible for negligence for which he would not be responsible in an action. But as to this case Lush, J., said, in It. v. Jones, supra, that it was quite at variance with what he had always heard laid down ; and in R. v. Shaw, Leeds Summer Assizes, 1868, the same learned judge ruled that at all events a child could not be guilty of such contributory negligence as to afford any defence to a defendant, who had negligently run over it. In P. v. Keu\ supra, Byles, J., said, contributory negligence was no defence either in the case of a child or an adult. In P. v. Gregory, 2 F. & F. 153, the death was due entirely to the IK ^ligence of the deceased, and it was not shown that the prisoner was negligent at all. As stated by Pollock, C. B., in P. v. Swindall, supra, where there is a loss of life " 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 pei'son has contributed to the death of another person." It should always be remembered that a trial for manslaughter is not in the nature of a suit between parties, but is a prosecution on the part of the Crown. Killing by persons practising surgery or rnedicine,~\ Where a person, practising medicine or surgery, whether licensed or unlicensed, is guilty of gross negligence, or criminal inattention, in the course of his employment, and in consequence of such negligence or inattention death ensues, it is manslaughter, but if there is no gross negUgence it is not manslaughter. Cases of great difficulty and nicety have arisen with regard to the question of malice, where medicines have been carelessly or unskilfully adminis- tered by incompetent persons. The law on this subject is thus laid down by Lord Hale : " If a physician gives a person a potion without any intent of doing him any bodily hurt, but with intent to cure or prevent a disease, and, contrary to the expectation of the physician, it kills him, this is no homicide ; and the like of a surgeon. And I hold their opinion to be erroneous that think, if it be no licensed surgeon or physician that occa- sions this mischance, then it is a felony, for physic and salves were before licensed physicians and surgeons, and therefore, if they be not licensed according to the statutes, they are subject to the penalties in the statutes, but God forbid that any mischance of this kind should make any person not Hcensed guilty of murder or manslaughter." 1 Hale, P. C. 429. Upon the latter point Sir William Blackstone appears to concur in opinion Manslaughter. 629 with Lord Hale. Tf a physician or surgeon, he says, gives his patient a potion or plaister to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter, but misadventure, and lie shall not be punished criminally, however liable he might formerly have been to a civil action for neglect or ignorance ; but it lias been held that if he be not a regular physician or surgeon who administers the medicine or performs the operation it is manslaughter at the least. Yet Sir M. Hale very justly questions the law of this determination. 4 Bl. Com. c. 14. The correctness of Sir M. Hale's opinion lias been recognized in several late cases. Thus, in II. v. Van Butchell, 3 C. & P. 632, llulloek, B., ruled that it made no difference whether the party was a regular or an irregular surgeon ; adding, that in remote parts of the country many persons would be left to die, it' irregular surgeons were not allowed to practise. The same opinion was expressed by Bayley, B., in a subsequent case, in which he observed, that whether the party was licensed or unlicensed, is of no consequence except in this respect, that he may be subject to pecuniary penalties for acting contrary to charters or Acts of Parliament. II. v. Long, 4 < '. (fe /'. 398. Bui whether the party be licensed or unlicensed, if he display gross ignorance, or criminal inattention, or culpable rashness, in the treatment of hi- patient, he is criminally responsible. There is no doubt, says Hullock, B., that there may be cases where both regular and irregular surgeons may be liable to an indictment, as there may be cases where from the manner of the operation even malice might be inferred. /.'. v. Van Butchell, 3 C. & /'. (533; 4 <". & p. 407. Where a person who, though not educated as a surgeon, had been in the habit of acting as a man-midwife, and had unskilfully treated a woman in childbirth, in consequence of which she died, was indicted for the murder, Lord Ellen- borough said that there was no evidence that the prisoner was guilty of murder, hut it was for the jury to consider whether the evidence went so far as to make oul a case of manslaughter. To substantiate that charge the prisoner must have been guilty of criminal misconduct, arising either from the grossest ignorance or the most criminal inattention. One or other of these was necessary to make him guilty of that criminal negli- gence and misconduct which are essential to make out a case of man- slaughter. II. v. Williamson, 3 C. & I'. 635. This ruling was cited with approbation by Bayley, B. . in II. \. Long, infra, where he held that, to support the charge of manslaughter, it must appear that there was gross ignorance or inattention to human life. In //. v. Long, 4 C. A- I'. 4-32. a case was cited by counsel as having occurred on the northern circuit, where a man who was drunk delivered a woman, who, by his mismanage- ment, died, and he was sentenced to six months imprisonment. And where a person grossly ignorant, undertook to deliver a woman and killed the child in the course of the delivery, it was resolved by the judges that he was rightly convicted of manslaughter. //. v. Senior, 1 Moo. C. ''. 346, The rule with regard to the degree of misconduct which will render a person practising medicine criminally answerable is thus laid down by Bayley, J.: "It matters not whether a man has received a medical education or not. The tiling to look at is, whether, in reference to the remedy he has used, and the conduct he has displayed, he has acted with a due degree of caution, or, en the contrary, has acted with gross and improper rashness and wanl of caution. I have no hesitation in saying, that if a man be guilty of gross negligence in attending to hi- patient, after he has applied a remedy, or of gross rashness in the application of it and death ensues in consequence, he will he liable to a conviction for man- slaughter." /,'. v. Long, 4 < '. & /'. 123. The prisoner was indicted for manslaughter. It appeared that the deceased, a sailor, had been dis- 630 Manslaughter, charged from tlie Liverpool infirmary as cured, after undergoing salivation, and that he was recommended by another patient to go to the prisoner for an emetic, to <;et the mercury out of his bones. The prisoner was an old woman, residing in Liverpool, who occasionally dealt in medicines. She gave him a solution of corrosive sublimate, one dose of which caused his death. Bayley, J., in addressing the jury, said, " I take it to be perfectly clear, that if a person, not of medical education, in a case where profes- sional aid ought to be obtained, undertakes to administer medicines which may have a dangerous effect, and thereby occasions death, such person is guilty of manslaughter. He may have no evil intention, and may have a good one, but he has no right to hazard the consequences in a case where medical assistance may be obtained. If he does so, it is at his own peril. It is immaterial whether the person administering the medicine prepares it, or srets it from another." R. v. Simpson, Wilcoch on Lairs of Med. Prof. Appendix, 227 ; 4 0. & P. 407 (n) ; 1 Leivin, V. G. 172. The prisoner was indicted for manslaughter. It appeared that the deceased, a child, being afflicted with a scald-head, the prisoner had directed a plaister to be apjdied, from the effects of which the child was supposed to have died. Bolland, B., addressing the jury, said, "The law as I am bound to lay it down, is this — if any person, whether he be a regular or licensed medical man or not, professes to deal with the life or health of his Majesty's sub- jects, he is bound to have competent skill to perform the task that he holds himself out to perform, and he is bound to treat his patients with care, attention, and assiduity." B. v. Spiller, o C. &P. 333. The direction given by Tindal, C. J., in a case of this kind, where the prisoner was charged with neglecting to attend and take due care of a woman during her delivery, was as follows: "You are to say, whether in the execution of the duty which the prisoner had undertaken to perform he is proved to have shown such a gross want of care, or such a. gross and culpable want of skill, as any person undertaking such a charge ought not to be guilty of, and that the death of the person named in the indictment was caused thereby." it. v. Ferguson, I Lewin, C ('. 181. The law on this subject was thus laid down by Lord Lyndhurst, C. B. : "I agree that in these cases there is no difference between a licensed physician or surgeon, and a person acting as physician or surgeon without a 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 death ensues, he is not thereby guilty of manslaughter; but if, where proper medical assistance can be had, a person, totally ignorant of the science of medicine, takes upon himself to administer a violent and dangerous remedy to one labour- ing under disease, and death ensues in consequence of that dangerous remedy having been so administered, then he is guilty of manslaughter. I shall leave it to the jury to say whether death was occasioned or accelerated by the medicines administered; and if they say it was, then I shall tell them, secondly, that the prisoner is guilty of manslaughter, if they think that in so administering the medicines, he acted either with a criminal intention, or from any gross ignorance." ./'. v. Webb, 1 Moo. A- Huh. 40."> ; 2 Lew. C. C. 196. See also l\. v. Markuss, 4 F. & F. 356. The prisoner, who was indicted for manslaughter, had, for nearly thirty years, earned on the business of an apothecary and man-midwife in the county of York, and was qualified by law to carry on that profession. His practice was very considerable, and he had attended the deceased on the birth of all her children. It appeared that on the occasion in question he made use of a metal instrument, known in midwifery by the name of a vectis, or lever, inflicting thereby such grievous injuries on the person of the deceased as to cause her death within three hours. It was proved by the medical Manslaughter. 631 witnesses that the instrument was a very dangerous one, and that at that period of the labour it was very improper to use it at all ; and also, that it must have been used in a very improper way, and in an entirely wrong- direction. Coleridge, J., told the jury that the questions for them to decide were, whether the instrument had caused the death of the deceased, and whether it had been used by the prisoner with due and proper skill and caution, or with gross want of skill or gross want of attention. No man was justified in making use of an instrument, in itself a dangerous one, unless he did so with a proper degree of skill and caution. If the jury thought that in this instance the prisoner had used the instrument with gross want of skill or gross want of caution, and that the deceased had thereby lost her life, it would be their duty to find the prisoner guilty. The prisoner was convicted. 11. v. Spilling, 2 Moo. & R. 107. A chemist, likewise, who negligently supplies a wrong drug, in consequence of which death ensues, is guilty of manslaughter. The apprentice to a chemist by mistake delivered a bottle of laudanum to a customer, who asked for paregoric; and a portion of the laudanum being administered to a child can siil its death. The apprentice being indicted for manslaughter, Bayley, J., directed the jury that if they thought him guilty of negli- gence, they should find him guilty of the manslaughter. R. v. Tessymond, \ Leunn, C. 0. 169. See also A'.' v. Carr, ante, p. 625. Neglect of duty.'] A person may, by a neglect of duty, render himself liable to be convicted of manslaughter: as where an engineer, employed to manage a steam-engine, used to draw up miners from a coal-pit, left the engine in charge of a boy who he knew was incapable of managing- it, and death ensued in consequence to one of the miners, the engineer was held by Campbell, ('. J., to be guilty of manslaughter. R. v. Lowe, 3 C. & K. 123. See also R. v. Haines, 2 C. & K. 368; R. v. Hughes, Bears. & B. 248, sec post, p. 653; and R. v. Barrett, '2 G. & A". 343. Trustees, appointed under a Local Act for the purpose of repairing roads in a district, with power to contract for executing such repair, are not chargeable with manslaughter if a person, using one of such roads, is accidentally killed in consequence of the road being out of repair through neglect of the trustees to contract for repairing it. R. v. Pollock, 17 Q. /:. 34. In II. v. Waters, 1 Ben. < '. C. R. 356; 18 L. J., M. C. '>'■'>. the prisoner was held to be properly com icted of the manslaughter of her infant female child, being of such tender age and feebleness as to be incompetent to take charge of herself, upon an indictment which stated the death to have been caused l>v exposure, whereby the child became mortally chilled, frozen, and benumbed. Where the grandmother of a child chose to undertake the charge of an infant, she was held hound ko execute such charge withoul wicked negligence. Brett, J., said. "There must be negligence so ureal as to satisfy a jury that the offender had a wicked mind in the sense of being reckless and careless whether death occurred or not." R. v. Nicholls, 13 Cox, 7o. As to charges of murder by neglect, see p. 653, and as to ill-treatment and neglect of children, see p. 344. But where there is no Legal duty to give assistance, which miuht have been given, and would have saved the life of the person in need ot it, the withholding of such assistance appears not to be criminal; as where a mother omitted to procure the assistance of a midwife for her daughter, a girl of eighteen years of age, who was taken in labour in the mother's house m the absence of the mother's husband. I!, v. Shepherd, A. «(■ ( '. 1 17. As toalegal duty arising from a moral obligation, see R. \ . Install, post, p. <>o7. 632 Manslaughter. On the other hand, a wilful neglect of a duty imposed by statute, will, if death ensues in consequence of such neglect, amount to manslaughter by the person so neglecting. The prisoner, who belonged to a sect styling themselves " peculiar people," was indicted for the manslaughter of his infant child by neglect- ing to call in medical advice when the child was ill. It was proved that the child, after being ill and wasting for eight or nine months from chronic inflammation of the lungs and pleura, had died. The prisoner, in accord- ance with the custom of the " peculiar people," did not call in medical aid, but called in the elders of the church to pray over the sick child; he also consulted the person called in to pray over the child, but neither had such person nor the prisoner himself any medical skill. They thought the child was teething, and gave it such (bet as they thought suitable. The prisoner had sufficient means to procure medical advice, which was easily obtainable. It was found by the jury, that the prisoner wilfully neglected to provide medical aid, where it was in fact reasonable so to do, and he had the ability, and that death was caused by such neglect ; and, upon a conviction for manslaughter under the above facts, the court held that the prisoner was properly convicted, on the ground that the above statute imposed a positive duty to provide medical aid when necessary, and that death had ensued in consequence of that duty having been wilfully neglected by the prisoner, B. v. Dowries, 1 Q. B. D. 25 ; 45 L. J., M. C. 8. In order to justify a verdict of manslaughter there must be positive evidence that the death was caused or accelerated by the neglect of a duty. Where the evidence only went to show that proper medical aid and attendance might have saved or prolonged the child's life, and would have increased its chance of recovery, but that it might have been of no avail, the Court for Crown Cases Beserved held that, although there was a neglect of duty, yet a conviction for manslaughter could not be sustained, because it was not shown that the neglect had the effect of shortening life. B. v. Morhy, 8 Q. B. I). 571 ; 51 L. J., M. C. 85. It was laid down by Martin, B., after consulting Erie, C. J., that if parents have not the means of providing food and nourishment for their infant children who are incapable of taking care of themselves, it is their duty to apply for the assistance provided by the poor law, from which they have by law a right of support, and that if their children die through the wilful neglect of that dutv they will be criminally responsible. B. v. Mabbett, 5 ' 'ox, 339. Correction of child by parent or others.'] Parents, masters, and other persons having authority in foro domestico may give reasonable correction to those under their care, and if death ensue without their fault it will be no more than accidental death; 3 Buss. Cri. 135, 6th ed. ; but if the cor- rection exceed the bounds of due moderation and death ensue, it will be murder or manslaughter according to circumstances. See the cases, post, Murder, p. 658. And see ante, tit. Ill-treating Apprentices, andpost, tit. Murder. Killing in defence of person or property. ,] The rule of law upon this subject is thus laid down by Mr. East. A man may repel force by force, in defence of his person, habitation, or property, against one who mani- festly intends or endeavours by violence or surprise to commit a known felony, such as rape, robbery, arson, burglary, or the like. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing it is Manslaughter. 633 justifiable self-defence; as, on the other hand, the killing by such felons of any person so lawfully defending himself will he murder. But a hare fear of any of these offences, however well grounded, as that another lies in wait to take away the party's life, unaccompanied by any overt act indicative of such an intention, will not warrant him in killing that other by way of precaution, there beine,' no actual danger at the time. 1 East, P. C. 271, 272. Xot only is the party himself, whose person or property is the object of the felonious attack, justified in resisting, in the manner above mentioned, but a servant or any other person may lawfully inter- 2>ose, in order to prevent the intended mischief. Thus, in the instances of arson and burglary, a lodger may lawfully kill the assailant in the same manner as the owner himself mi<2;ht do, but subject to the same limitations. (S<. 273; 54 A. ./.. M. C. 27:5. post, tit. Murder, p. 690, for an instance where a man was held guilty of murder for killing another in order to eat his flesh and so escape death by hunger. With regard to the nature of the intended offence, to prevent which it is lawful instantly to use the last violence, and to put the assailant to death, it is only to such crimes as in their nature betoken an urgent necessity, which admits of no delay, that the rule extends. Of this nature are what have been termed Inmirii felonies, in contradistinction as it seems to such secret felonies as may be committed without violence to the person, such as picking the pocket, &<•. Foster, 274; 1 East, /'. C. 273. Where an attempt is made to murder or to rob, or to ravish, or to commit burglary, or to set fire to a dwelling-house, if the attack be made by the assailant with violence and by surprise, the party attacked may lawfully put him to death. Ibid. The rule extends to felonies only. Thus, if one comes to beat another, or to take his goods as a trespasser, though the owner may justify a battery for the purpose of making him desist, yet if he kill him, it will be manslaughter. 1 Hale, I'. C. 485, 486; 1 East, P. C. 272. It is not essential that an actual felony should be about to be committed in order to justify the killing. If the circumstances are such as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justified in making the resistance, as in the following case; Level being in bed and asleep, his servant, who had procured Freeman to help her in her work, went to the door about twelve o'clock at night, to let her out. and conceived she heard thieves about to break into the house. Upon this she awakened her master, telling him w hat she apprehended. He took a drawn sword, and the servant fearing that freeman should be seen, hid her in the buttery. Mrs. Level seeing freeman in the buttery, and not knowing her, con- ceived her to be the thief, and called to her husband, who entering the buttery in the dark, and thrusting before him with his sword, struck Freeman under the breast, of which wounds she instantly died. This was ruled to he misadventure only. U. v. /.ml. Cro. ( ' have keen kindled on both sides, and that 636 Manslaughter* blows have passed between the parties ; but in manslaughter it is either presumed that the combat has continued on both sides till the mortal stroke was given, or that the party giving such stroke was not at that time in imminent danger of death. Foster, 27(5, 277. r The true criterion between manslaughter and excusable homicide, or chance-medley, is thus stated by Sir William Blackstone : When both parlies are actually combating at the time the mortal stroke is given, the slayer is guilty of manslaughter ; but if the slayer has not begun to fight, or (having begun) endeavours to decline any further struggle, and afterwards being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defence. 4 Jll. Com. 184. In all cases of excusable homicide, in self-defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice. For if one attack another with a dangerous weapon, unprepared, with intent to murder him, that would stand upon a different ground ; and in that case, if the party whose life was sought killed the other, it would be in self-defence, properly so called. » But if the first assault be open malice, and the flight be feigned as a pretence for carrying that malice into execution, it would undoubtedly be murder ; for the flight rather aggra- vates the crime, as it shows more deliberation. 1 East, P. C. 282. Where a person is set to watch premises in the night, and shoots at and kills another who intrudes upon them, the nature of the offence will depend upon the reasonable ground which the party had to suspect the intentions of the trespasser. Any person, said Garrow, B., in a case of this kind, set by his master to watch a garden or yard, is not at all justified in shooting at, or injuring in any way, persons who may come into those premises even in the night ; and if he saw them go into his master's hen- roost, he would still not be justified in shooting them. He ought first to see if he coidd not take measures for their apprehension. But here the life of the prisoner was threatened ; and if he considered his life in actual danger, he was justified in shooting the deceased as he has done ; but if, not considering his own life in danger, he rashly shot this man, who was only a trespasser, he will be guilty of manslaughter. R. v. Scully, i a. & P. 319. In the following case, Bayley, J., seems to have been of opinion that a lodger does not enjoy the privilege which, as above stated, is possessed by the owner of a house, of standing to its protection, without retreating. Several persons tried to break open the door of a house in which the prisoner lodged. The prisoner opened the door, and he and the parties outside began to fight. The prisoner was taken into the house again by another person, but the parties outside broke open the door in order to get at the prisoner, and a scuffle again ensued, in which the deceased was killed by the prisoner with a pair of iron tongs. There was a back door through which the prisoner might have escaped, but it did not appear that he knew of it, having only come to the house the day before. • Bayley, J., said, " If you are of opinion that the prisoner used no more violence than was necessary to defend himself from the attack made upon him, you will acquit him. The law says a man must not make an attack upon others unless he can justify a full conviction in his own nunc! that, if he does not do so, his own life will be in more danger. If the prisoner had known of the back door, it would have been his duty to go out backwards, in order to avoid the conflict." R. v. Ihikiu, 1 Lewin, C. C. 166. Upon an indictment for manslaughter it appeared, that the deceased and his servant insisted on placing corn in the prisoner's barn, which she refused to allow ; they exerted force, a scuffle ensued, in which the prisoner received a blow on the breast : whereupon she threw a stone at the deceased, Manslaughter. 6o7 upon which he fell down, and was taken up dead. Ilolroyd, J., said, " The case fails on two points : it is not proved that the death was caused by the blow, and if it had been it appears that the deceased received it in an attempt to invade the prisoner's barn against her will. She had a right to defend the barn, and to employ such force as was reasonably necessary for that purpose, and she was not answerable for any unfor- tunate accident that might happen in so doing." The prisoner was acquitted. 11. v. Hinchcliffe, 1 Lewin, <'. G. 161. For cases where the offence amounted to murder, see post, tit. J/w/Yifer. 038 Manufacture. MANUFACTURES. Destroying goods in process of manufacture.'] By the 24 & 25 Vict. c. 97, ■s. 14, " whosoever shall unlawfully and maliciously cut, break or destroy, or damage with intent to destroy or to render useless, any goods or articles ■of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any one or more of those materials mixed with each other or mixed with any other material, or any framework-knitted piece, stocking hose or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, •or in any stage, process or progress of manufacture, or shall unlawfully and maliciously cut, break or destroy, or damage with intent to destroy or to render useless, any warp or shute of silk, woollen, linen, cotton, hair, mohair or alpaca, or of any one or more of those materials mixed with each other, or mixed with any other material, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Stealing goods in the process of manufacture.] By the 24 & 25 Vict. c. 96, s. 62, "whosoever shall steal to the value of ten shillings any woollen, linen, hempen or cotton yarn, or any goods or articles of silk, woollen, linen, cotton, alpaca or mohair, or of any one or more of those materials mixed with each other, or mixed with any other material, whilst laid, placed or exposed, during any stage, process or progress of manufacture, in any building, field, or other place, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). Where on an indictment under a repealed statute, for stealing yarn from a bleaching ground, it appeared that the yarn at the time it was stolen was in heaps for the purpose of being carried into the house, and was not spread out for bleaching, Thompson, B., held that the case was not within the statute. R. v. Hugill, 2 Buss. < 'ri. 403, 6th ed. So where the indict- ment was for stealing calico, placed to be printed and dried in a certain building, it was held, that it was necessary to prove that the building from which the calico was stolen was used either for drying or printing calico. R. v. Dixon, R. & R. 53. But the statute under which this case was decided mentioned particularly a building, &c, made use of by any calico printer, &c, for printing, whitening, booking, bleaching or dyeing. It has been decided that goods remain in a " stage, process or progress of manufacture," within the meaning of the former statute, though the texture be complete, if thev are not yet brought into a condition for sale. R. v. Woodhead, 1 Moo. & R. 549. Mines. 639 MINES. Setting fire to a coal mine.~\ See 24 & 25 Vict. c. 97, ss. 26, 27, supra, p. 249). Conveying /rater into a mine, obstructing the shaft, &c.~\ By the 24 iS: 25 Vict. c. 97, s. 28, " whosoever shall unlawfully and maliciously cause any water to be conveyed or run into any mine, or into any subterraneous passage communicating therewith, with intent thereby to destroy or damage such mine, or to hinder or delay the working thereof, or shall with the like intent unlawfully and maliciously pull down, rill up or obstruct, or damage with intent to destroy, obstruct, or render useless, any airway, waterway, drain, pit, level or shaft, nf or belonging to any mine, shall be guilty of felony, and being- convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and if a male under the age of sixteen years, with or without whipping: provided that this provision shall not extend to any damage committed underground by any owner of any adjoining mine in working the same, or by any person duly employed in such working." Damaging steam-engines, staiths, waggon-ways, &c, for working mines. ^ By s. 29, "whosoever shall unlawfully and maliciously pull down or destroy, or damage with intent to destroy or render useless, any steam- engine or other engine, for sinking, draining, ventilating or working, or for in any wise assisting in sinking, draining, ventilating or working any mine, or any appliance or apparatus in connection with any such steam or other engine, or any staith, building, or erection used in conducting the business of any mine, or any bridge, waggon-way, or trunk for conveying minerals from any mine, whether such engine, staith, building, erection, bridge, waggon-way, or trunk, be completed or in an unfinished state, or shall unlawfully and maliciously stop, obstruct or hinder the working of any such steam or other engine, or of any such appliance or apparatus as aforesaid, with intent thereby to destroy or damage any mine, or to hinder, obstruct or delay the working thereof, or shall unlawfully and maliciously wholly or partially cut through, sever, break or unfasten, or damage with intent to destroy or render useless ..ny rope, chain, or tackle, of whatso- ever material the same shall be made, used in any mine, or in or upon any inclined plane, railway or oi her way. or other work whatsoever, in any- wise belonging or appertaining to, or connected with, or employed in any mine or the working or business thereof, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and if a male under the age of sixteen years, with or without whipping." As to riotously damaging machinery used in mine.-, gee 21 iv_ 25 Vict. c. 97, ss. 11, 12, infra, tit. Riot. Larceny /'rem mines.'] By the 21 & 25 Vict. c. 96, s. 38, "whosoever shall steal, or sever with intent to steal, the ore of any metal or any lapis 640 Mines. calaminaris, manganese or mundick, or any wad, black eawke, or black- lead, or any coal or cannel coal, from any mine, bed, or vein thereof respectively, sball be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour. Miners removing ore with intent to defraud.'] By s. 39, " whosoever, being employed in or about any mine, shall take, remove, or conceal any ore of any metal, or any lapis calaminaris, manganese, mundick, or other mineral found or being in such mine, with intent to defraud any pro- prietor of or any adventurer in such mine, or any workman or miner employed therein, shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour. Venue.'] See, as to offences under the 24 & 2d Vict. c. 96, supra, pp. oo 1, 592. Malice against owner of property injured tin necessarily.'] See 24 & 2.3 Yict. c. 97, s. 58, supra, p. 251. Persons in possession of property injured liable to be convicted.] See 24 & 25 "Vict. c. 97, s. 59, supra, p. 251. Form of indictment for injury.] See 24 & 25 Vict. c. 97, s. 60, supra, p. 251. In an indictment under this section the mine may be laid as the property of the person in possession and working it, though only an agent for others, P. v. Jones, 2 Moo. C. C. 293. Proof of injury to mine.] The provisions of 24 & 25 Vict. c. 97, ss. 28, 29, do not render a person criminally liable for acts causing such damage, if done in bona fide exercise of a supposed right, and without a wicked mind. 7?. v. Maitheios, 14 Cox, 5. Where A. and B. were the owners of adjoining collieries, and A., asserting that a certain airway belonged to him, directed his workmen to stop it up, and they, acting bond fide, and believing that A. had a right to give such an order, did so, Lord Abinger, C. B., held they were not guilty of felony under the above section. R. v. James, 8 C. & P. 131. But if such workmen knew that the stopping up of the airway was a malicious act of their master, such workmen would be guilty of felony. Ibid. Murder. (54 J MURDER. Punishment.'] By the 24 & 25 Vict. c. 100, s. 1, "whosoever shall be convicted of murder, shall suffer death as a felon." Sentence for murder.] By s. 2, "upon every conviction for murder the court shall pronounce sentence of death, and the same may be carried into execution, and all other proceedings upon such sentence and in respect thereof may be had and taken, in the same manner in all respects as sentence of death might have been pronounced and carried into execu- tion, and all other proceedings thereupon, and in respect thereof might have been had and taken, before the passing of this Act, upon a convic- tion for any other felony for which the prisoner might have been sentenced to suffer death as a felon." Body to be buried in prison.] By s. 3, " the body of every person exe- cuted for murder shall be buried within the precincts of the prison in which he shall have been last confined after conviction, and the sentence of the court shall so direct." Conspiring or soliciting to commit murder.] See 24 & 25 Vict. c. 100, s. 4, supra, p. 370. Form of indictment.] By the 24 & 25 Vict. c. 100, s. 6, " in any indictment for murder or manslaughter, or for being an accessory to any murder or manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in any indictment for murder to charge that the defendant did feloniously, wilfully, and of his malice aforethought kill and murder the deceased ; and it shall be sufficient in any indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased ; and it shall be sufficient in any indictment against any accessory In any murder or manslaughter to charge the principal with the murder or manslaughter (as the case may be) in the manner hereinbefore specified, and then to charge the defendant as an accessory in the manner heretofore used and accustomed." Petit treason abolished.] By s. S, " every offence which before the com- mencement of the Act of the ninth year of King George the Fourth, chapter thirty-one, would have amounted to petit treason, shall be deemed to be minder only, aid no greater offence ; and all persons guilty in respect thereof, whether as principals or as accessories, shall ha dealt with, indicted, tried, and punished as principals and accessories m murder." Venue in cases of murder committed abroad.] See 24 & 25 Vict. c. 100, s. <), ante, p. 224. Child murder.] By s. (50, " if any person tried for the murder of any child shall be acquitted thereof, it shall be lawful for the jury, bv whose R. T T 642 Murder. verdict sucli person shall be acquitted, to find, in case it shall so appear in evidence, that the child had recently been born, and that such person did by some secret disposition 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 concealment of the birth." See p. 350. Punishment of accessory after the fact to murder.'] By s. 67, "every accessory after the fact to murder shall be liable to be kept in penal servitude for life " (see ante, p. 203). Proof of a murder ha ring been committed .] The corpus delicti, that a murder had been committed by some one, is essentially necessary to be proved ; and Lord Hale advises that in no case should a prisoner be con- victed, where the dead body has not been found — where the fact of murder depends upon the fact of disappearance. Ante, p. 14. A girl was indicted for the murder of her child, aged sixteen days. She was proceeding from Bristol to Llandogo, and she was seen near Tintern with the child in her arms, at six o'clock in the evening ; she arrived at Llandogo between eight and nine without the child. The body of a child was afterwards found in the Wye, near Tintern, which appeared not to be the child of the prisoner. Lord Abinger, C. B., held that the prisoner must be acquitted, and that she could not by law either be called upon to account for her child, or to say where it was, unless there was evidence to show that her child was actually dead. P. v. Hopkins, 8 G. , ves, 9 Carr. & /'. 25. In II. \. Trilloes, 2 Moo. C. C. 260, it was held that murder may be committ d on a child still attached to tin?- mother by the navel string. T T 2 644 Murder. It is said by Lord Hale, that if the child be born alive, and afterwards die in consequence of the blows given to the mother, this is not homicide. 1 Hale, P. C. 433. And see 5 Taunt. 21. But Lord Coke, on the contrary, says that if the child be born alive, and die of the potion, battery, or other cause, this is murder. 3 Inst. 50. The latter is generally regarded as the better opinion, and has been followed by text writers. Hawk. P. C. b. 1, c. 31, s. 16; 4 Bl. Com. 198; 3 Pass. Cri. 6, 6th ed. See 5 C. & P. 541 («.). And in conformity with the same opinion, the case of R. v. Senior, 1 Moo. C. C. 346, was decided. See ante, p. 629. It seems unnecessary now to set out the cases such as R. v. Smith, 6 C. & P. 151 ; R. v. Biss, 8 0. & P. 773; and R. v. Stroud, 1 C. & K. 187, in which a variance between the description of an infant child in the indictment and the evidence was held fatal. Such a variance would undoubtedly now be amended under 14 & 15 Vict. c. 100, s. 1. See ante, p. 182. If the child has not been named it seems that the best course is to describe it in the indictment as "a certain male (or female) child then lately born of the body of A. B. and which said child was then unnamed." See R. v. Hogg, 2 Moo. & R. 380; R. v. Willis, 1 Den. C. C. R. 80. Proof that the prisoner was the party killing. ~] When it has been clearly established, says Mr. Starkie, that the crime of wilful murder has been perpetrated, the important fact, whether the prisoner was the guilty agent, is, of course, for the consideration of the jury, under all the circumstances of the case. Circumstantial evidence in this, as in other criminal cases, relates principally, — 1st, To the probable motive which might have urged the prisoner to commit so heinous a crime ; for, however strongly other circumstances may weigh against the prisoner, it is but reasonable, in a case of doubt, to expect that some motive, and that a strong one, should be assigned as his inducement to commit an act from which our nature is abhorrent, and the consequence of which is usually so fatal to the criminal. 2ndly, The means and opportunity which he possessed for perpetrating the offence. 3rdly, His conduct in seeking for opportunities to commit the offence, or in afterwards using means and precautions to avert suspicion and inquiry, and to remove material evidence. The case cited by Lord Coke and Lord Hale, and which has already been adverted to, is a melancholy instance to show how cautiously proof arising by inference from the conduct of the accused is to be received, where it is not satis- factorily proved by other circumstances, that a murder has been com- mitted ; and even where satisfactory proof has been given of the death, it it still to be recollected that a weak, inexperienced, and injudicious person, ignorant of the nature of evidence, and unconscious that the truth and sincerity of innocence will be his best and surest protection, and how greatly fraud and artifice, when detected, may operate to his prejudice, will often, in the hope of present relief, have recourse to deceit and mis- representation. 4thly, Circumstances which are peculiar to the nature of the crime, such as the possession of poison, or of an instrument of violence, corresponding with that which has been used to perpetrate the crime, stains of blood upon the dress, or other indications of violence. 2 Stark. Ev. 521, 2nd ed. On a trial for murder, where the case against the prisoner was made up entirely of circumstances, Alderson, B., told the jury, that before they could find the prisoner guilty, they must be satisfied ' ' not only that those circumstances were consistent with his having com- mitted the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty party." R. v. Hodge, 2 Leu>. C. C. 227. Murder. 645 In order to convict the prisoner of murder it is not necessary to prove that the fatal blow was given by his hand. If he was present, aiding and abetting the fact committed, he is a principal in the felony. The presi nee need not always be an actual immediate standing by, within sight or hearing of the fact. 4 III. Corn. 34. Thus, if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him, some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favour, if need be, the escape of those who are more immediately engaged, they are all, if the fact be committed, in the eye of the law, present at it. Foster, 350. But in order to render a party principal in the felony, he must be aiding or abetting at the fact, or ready to afford assistance if necessary. Therefore if A. happens to be present at a murder, but takes no part in it, nor endeavours to prevent it, nor apprehends the murderer, this, though highly criminal, will not of itself render him either principal or accessory. Foster, 350. But in case of assassination or murder committed in private, the circumstances last stated may be made use of against A., as evidence of consent or concurrence on his part, and in that light should be left to the jury, if he be put upon his trial. Foster, 350. Where the prisoner is charged with committing the act himself, and it appears to have been committed in his presence by a third person, the indictment is sustained. Thus, where the indictment charged that the prisoner strangled a child, and it was doubtful whether the murder was not committed in the prisoner's presence by third persons ; Park, J., in summing up, said, "If you are satisfied that this child came by her death by suffocation or strangulation, it is not necessary that the prisoner should have done it with her own hands ; for if it was done by any other person in her presence, she being privy to it, and so near as to be able to assist, she may be properly convicted on this indictment." Ft. v. Calkin, 5 C. A- /'. 121. Although where a man goes out with intent to commit a felony, and in the pursuit of that unlawful purpose death ensues, it is murder ; yet, if several go out with a common intent to commit a felony, and death ensues by the act of one of the party, the rest will not necessarily be guilty of murder. If three persons, says Park, J., go out to commit a felony, and one of them, unknown to the others, puts a pistol in his pocket, and commits a felony of another kind, such as murder, the two who did not concur in this second felony, will not be guilty of it, notwith- standing it happened while they were engaged with him in the felonious act for which they went out. R. v. Duffey, 1 Levin, C. C. 194. Three soldiers went together to rob an orchard ; two got upon a pear-tree, and the third stood at the gate with a drawn sword in his hand. The owner's son, coming by, collared the man at the gate, and asked him what busi- ness he had there, whereupon the soldier stabbed him. It was ruled by Holt, C. J., to be murder in him, but that those in the tree were innocent. They came to commit an inconsiderable trespass, and the man was killed on a sudden affray without their knowledge. It would, said Holt, C. J., have been otherwise if they had come thither with a general resolution against all opposers. This circumstance, observes Foster, J., would have slmwn that the murder was committed in prosecution of their original purpose. But that not appearing to have been the case, those in the tree were to be considered as mere trespassers. Their offence could not be connected with that of him who committed the murder. Foster, 353. The following is a Leading case on the subject. A great number of persons assembled at a house called Sissinghurst, in Kent, and committed a great riot and battery upon the possessors of a wood adjacent. One of their (346 Murder. names, viz., A., was known, but the rest were not known, and a warrant was obtained from a justice of the peace to appiehend the said A. and divers persons unknown, who were all together in Sissinghurst-house. The constable, with sixteen or twenty other persons, his assistants, went with the warrant to the house, demanded entrance, and acquainted some of the persons within that he was a constable, and came with the justice's warrant, demanding A. and the rest of the offenders who were in the house. One of the persons from within coming out, read the warrant, but denied admission to the constable, or to deliver A. or any of the malefactors, but goin<; in, commanded the rest of the company to stand to their staves. The constable and his assistants, fearing mischief, went away, and being about five roods from the door, several persons, about fifteen in number, issued out, and pursued the constable and his assistants. The constable commanded the peace, but they fell on his company, killing one and wounding others, and they then retired into the house to their companions, of whom A. and one G., who read the warrant, were two. I 1 or this, A. and Gr. with those who had issued from the house, and others, were indicted for murder, and these points were resolved by the court of K. B. : 1. That although the indictment was that B. gave the stroke, and the rest were present aiding and assisting, and though in truth C. gave the stroke, or it did not appear upon the evidence which of them gave it, but only that it was given by one of the rioters, yet that such evidence was sufficient to maintain the indictment, for in law it was the stroke of all the party, according to the resolution in R. v. Mackalhy (9 Co. 67 b). 2. That, in this case all that were present and assisting the rioters were guilty of the death of the party slain, though they did not all actually strike him or any of the constable's company. 3. That those within the house, if they abetted or counselled the riot, were in law present, aiding and assisting, and principals, as well as those that issued out and actually committed the assaidt, for it was but within five roods of the house, and in view of it, and all done as it were at the same instant. 4. That there was sufficient notice that it was the constable, before the man was killed ; because he was the constable of the village ; and because he notified his busineas at the door before the assault ; and because, after his retreat, and before the man was slain, he commanded the peace. 5. It was resolved that the killing the assistant of the constable was murder, as well as the constable himself. 6. That those who came to the assistance of the constable, though not specially called thereto, were under the same protection as if they had been called to his assistance by name. 7. That though the constable retired with his company upon the non-delivery up of A., yet the killing of the assistant in that retreat was murder; because the retreat was one continued act in pursuance of his office, being necessary when he coidd not attain the object of his warrant ; but principally because the constable, in the beginning of the assault, and before the man was struck, commanded the peace. In the conclusion the juiy found nine of the prisoners guilty, and acquitted those within, not because they were absent, but because there was no clear evidence that they consented to the assault, as the jury thought. Sissinghurst-house case, 1 Hale, /'. C. 461. Although the criminal intent of a single person, who, without the know- ledge or assent of his companions, is guilty of homicide, will not involve them in his guilt, yet it is otherwise where all the party proceed with an intention to commit an unlawful act, and with a resolution at the same time to overcome all opposition by force ; for if, in pursuance of such resolution, one of the party be guilty of homicide, his companions will be liable to the penalty which he has incurred. Foster, 353 ; Hawk. P. C. b. 2, c. 29, s. 8. A person of the name of John Thorn, who called himself Murder. 647 Sir William Courtenay, and who was insane, collected a number of persons together, having a common purpose of resisting the lawfully-constituted authorities, Thorn having declared that he would cut down any constables who came against him. Thom, in the presence of the two prisoners, afterwards shot an assistant of a constable who came to apprehend him, under a warrant. It was held by Lord Denman, C. J., that the prisoners were guilty of murder as principals in the first degree, and that any apprehension that they had of personal danger to themselves from Thom, was no ground of defence for continuing with him after he had so declared his purpose; and also that it was no ground of defence, that Thom and his party had no distinct or particular object in view when they assembled together ami armed themselves. R. v. Tyler, 8 C. & I'. 616. The appre- hension of persona] danger does not furnish any excuse for assisting in doing any act which is illegal. Ibid. See also R. v. Sheet, 4 F. & /•'. 931. Proof of tin' means of killing.'] The killing may be by any of the thousand forms of death by which life may be overcome. 4 Bl. Com. 196. But there must be a corporal injury inflicted ; and therefore, if a man, by working upon the fancy of another, or by unkind usage, puts another into such a passion of grief or fear, as that he either dies suddenly or contracts some disease, in consequence of which he dies, this is no felony, because no external act of violence was offered of which the law can take notice. 1 Hale, l\ C. 429. Forcing a person to do an act which is likely to produce and does produce death, is murder; and threats may constitute such force. The indictment charged, first, that the prisoner killed his wife by beating; secondly, by throwing her out of the window; and thirdly and fourthly, that he threatened to throw her out of the window and to murder her, and that by such threats and violence she was so terrified that, through fear of his putting his threats into execution, she threw herself out of the window, and of the beating and bruising received by the fall, died. There was strong evidence that the death of the wife was occasioned by the blows she received before her fall, but Heath, Gibbs, and Bayley, JJ., were of opinion, that if her death was occasioned partly by blows, and partly by the fall, yet, if she was constrained by her husband's threats of further violence, and from a well-grounded apprehension of his doing such further violence as would endanger her life, he was answerable for the consequences of the fall, as much as if he had thrown her out of the window himself. The prisoner, however, was acquitted, the jury being of opinion that the deceased threw herself out of the window from her own intemperance, and not under the influence of the threats. R. v. Evans, .'5 Ru88. Cri. 12, 6th ed. ; sec also R. v. Pitts, Carr. & M. 284; It. v. Ealliday, (i Times I.. /,'. 109. If a man has a beast which is used to do mischief, and he, knowing this, purposely turns it loose, though barely to frighten people, and make what is called sport, and death ensues, it is as much murder as if he had incited a bear or a dog to worry the party ; and if, knowing its propensity, he suffers it to go abroad, ai.d it kills a man, even this is manslaughter in the owner. 4 /;/. Com. 1!>7 ; Palmer, 545 ; 1 Hale. /'. C. 431. In proving murder by poison, the evidence of medical men is frequently required, and in applying that evidence to the facts of the case, it is not imusual for difficulties to occur. Upon this subject the following obser- vations are well deserving attention. In general, it may be taken that where the testimonials of professional men are affirmative, they may be safely credited; but where negative, they do not appear to amount to a disproof of a charge otherwise established by strong, various, and 648 Murder. independent evidence. Thus on the view of a body after death, on suspicion of poison, a physician may see cause for not positively pronouncing that the party died by poison ; yet, if the party charged be interested in the death, if he appears to have made preparations of poisons without any probable just motive, and this secretly; if it be in evidence that he has in other instances brought the life of the deceased into hazard ; if he has discovered an expectation of the fatal event ; if that event has taken place suddenly and without the previous circumstances of ill-health ; if he has endeavoured to stifle the inquiry by prematurely burying the body, and afterwards, on inspection, signs agreeing with poison are observed, though such as medical men will not positively affirm could not be owing to any other cause, the accumulative strength of circumstantial evidence may be such as to warrant a conviction, since more cannot be required than that the charge should be rendered highly credible from a variety of detached points of proof, and that supposing poison to have been employed, stronger demonstrations could not reasonably have been expected, under all the circumstances, to have been produced. Loft, in 1 Gilb. Ev. 302. With regard to the law of principal and accessory, there is a distinction between the case of murder by poison and other modes of killing. In general, in order to render a party guilty as principal, it is necessary either that he should with his own hand have committed the offence, or that he shoxdd have been present aiding and abetting ; but in the case of killing by poison it is otherwise. If A., with an intention to destroy B., lays poison in his way, and B. takes it and dies, A., though absent when the poison is taken, is a principal. So if A. had prepared the poison and delivered it to D., to be administered to B. as a medicine, and D., in the absence of A. accordingly administered it, not knowing that it ivas poison, and B. had died of it, A. would have been guilty of murder as principal. For D. being innocent, A. must have gone unpunished, unless he could be con- sidered as principal. But if D. had known of the poison as well as A. did, he would have been a principal in the murder, and A. would have been accessory before the fact. Foster, 349 ; Kel. 52. An indictment for the murder of A. B. by poison, stating that the prisoner gave and administered a certain deadly poison, is supported by proof that the prisoner gave the poison to C. D. to administer as a medicine to A. B., but C. D. neglecting to do so, it was accidentally given to A. B. by a child ; the prisoner's intention throughout being to murder. R. v. Michael, 2 Moo. C. C. 120 ; 9 C. & P. 356. Whether or not the giving false evidence against another upon a capital charge, with intent to take away his life (the party being executed upon such evidence) will amount to murder appears to be a doubtfid point. There are not wanting old authorities to prove that such an offence amounts to wilful murder. Mirror, c. 1, s. 9; Brit. c. 52 ; Bract. I. 3, c. 4 ; see also Hawk. P. C. b. 1, c. 31, s. 7. But Lord Coke says, " it is not holden for murder at this day." 3 Inst. 43. The point arose in R. v. McDaniel, where the prisoners were indicted for wilful murder, and a special verdict was found, in order that the point of law might be more fully considered. But the attorney-general declining to argue the point of law, the prisoners were discharged. Foster, 131. The opinion of Foster, J., who has reported the case, is against the holding the offence to be murder, though he admits that there are strong passages in the ancient writers which countenance such a prosecution. The practice of many ages, however, he observes, by no means countenances those opinions, and he alludes to the prosecutions against Titus Oates, as showing that at that day the offence could not have been considered as amounting to murder, otherwise Oates would undoubtedly have been so charged. Foster, 132. Sir W. Blackstone Murder. 649 states, on the contrary, that though the attorney-general declined, in B. v. McDaniel, to argue the point of law, yet he has good grounds to believe it was not from any apprehension of his that the point was not maintainable, but from other prudential reasons, and that nothing, there- fore, should be concluded from the waiving of that prosecution. 4 Bl. Com. 196 {)i.). And it is asserted by Mr. East that he has heard Lord Mansfield say that the opinions of several of the judges at the time, and his own, were strongly in support of the indictment. 1 East, I'. C. 333 («.). Sir W. Blackstene has not given any positive opinion against such an indictment, merely observing that the modern law (to avoid the danger of deterring witnesses from giving evidence upon capital prosecutions, if it must be at the risk of their lives) has not yet punished the offence as murder. 4 Bl. Cum. 197. Doubts occasionally arise in cases of murder whether the death has been occasioned by the wound or by the unskilful and improper treatment of that wound. The law on this point is laid down at some length by Lord Hale. If, he says, a man give another a stroke, which, it may be, is not in itself so mortal but that with good care he might be cured, yet if he dies within the year and day, it is a homicide or murder as the case is, and so it has been always ruled. But if the wound be not mortal, but with ill* applications by the party or those about him of unwholesome salves or medicines, the party dies, if it clearly appears that the medicine and not the wound was the cause of the death, it seems it is not homicide. But if a man receive a wound which is not in itself mortal, but, for want of helpful applications or neglect, it turn to a gangrene or a fever, and the gangrene or fever be the immediate cause of the death, yet this is murder or manslaughter in him that gave the stroke or wound; for that wound, though it was not the immediate cause of the death, yet if it were the mediate cause, and the fever or gangrene the immediate cause, the wound was the cause of the ^an^rene or fever, and so consequently causa causans. 1 Hale, I'. C. 428. Neglect or disorder in the person who receives the wound will not excuse the person who gave it. Thus it was resolved that if one give wounds to another who neglects the cure of them, and is disorderly, and does not keep that rule which a wounded person should do, if he die it is murder or manslaughter, according to the circum- stances of the case, because, if the wounds had not been given, the man had not died. B. v. Rews, Eel. 26. So Maule, J., has held that a party inflicting a wound which ultimately becomes the cause of death, is guilty of murder, though life might have been preserved if the deceased had not refused to submit to a surgical operation. II. v. Holland, 2 Moo. & R. 351. In the above case the deceased had been severely cut with an iron instru- ment across one of his fingers, and had refused to have it amputated. At the end of a fortnight lockjaw came on, the finger was then amputated, bul too late, and the lockjaw ultimately caused death. The surgeon gave it as his opinion that if the finger had been amputated at first, the deceased's life would most probably have been preserved. Whether the infliction of a blow which, had the party upon whom it was inflicted been sober, would not have produced death, will, when inflicted upon a person intoxicated and producing death, be deemed murder or manslaughter, may admit of much question. The point arose in the following case : -Upon an indictment for manslaughter, it appeared that the prisoner and the deceased had been fighting, and the deceased was killed. A surgeon stated that a blow on the stomach in the state in which the deceased was, arising from passion and intoxication, was calculated to occasion death, but not so if the party had been sober. Ilullock, 1!.. directed an acquittal, observing thai where the death was occasioned partly €50 Murder. by a blow and partly by a predisposing circumstance, it was impossible to apportion the operations of the several causes, and to say with certainty that the death was immediately occasioned by any one of them in parti- cular. His lordship cited from his notes the following case, R. v. Brown, April, 1824: Indictment charged with killing by striking. The jury found that the death was occasioned by over-exertion in the fight. The judges held that the prisoner was entitled to an acquittal, R. v. Johnson, 1 I a' a- in, C. C. 161. It may be doubted how far the ruling of the learned judge in this case was correct ; for if by the act of the prisoner the death of the party was accelerated, it seems that the prisoner would be guilty ■of the felony. And although a state of intoxication might render the party more liable to suffer injury from the blows, yet it is difficult to say that the intoxication was the cause of his death anymore than the infirmity of age or sickness, which could not, it is quite clear, be so esteemed. Upon a trial for manslaughter, it appeared that the deceased, at the time of the blow given, was in an infirm state of health, and this circumstance was observed upon on behalf of the prisoner, but Park, J., in addressing the jury, remarked : " It is said that the deceased was in a bad state of health, but that is perfectly immaterial, as if the prisoner was so unfortunate as to accelerate her death, he must answer for it." R. v. Martin, 5 C. & P. 130. See also R. v. Murton, 3 F. & F. 492. Proof of malice — in general. I The malice necessary to constitute the ciime of murder is not confined to an intention to take away the life of the deceased, but includes an intent to do any unlawful act which may probably end in the depriving the party of life. The malice prepense, says Blackstone, essential to murder, is not so properly spite or malevo- lence to the individual in particular, as an evil design in general, the dictate of a wicked, depraved, and malignant heart, and it may be either express or implied in law, — express, as where one, upon a sudden provo- cation, beats another in a cruel and unusual manner, so that he dies, though he did not intend his death ; as where a park-keeper tied a boy who was stealing wood to a horse's tail, and dragged him along the park ; and a schoolmaster stamped on his scholar's belly, so that each of the sufferers died. These were justly held to be murders, because the correc- tion being excessive, and such as could not proceed but from a bad heart, it was equivalent to a deliberate act of slaughter. 4 Bl. Coin. 199. Also, continues the same writer, in many cases where no malice is expressed, the law will imply it, as where a man wilfully poisons another; in such a deliberate act the law presumes malice, though no particular enmity can be proved. And if a man kills another without any, or without a considerable provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no aj>parent cause. Ibid. 200. " He that doth a cruel act voluntarily, doth it of malice prepensed." Per Holt, C. J., in R. v. Mawgridge, Kelyng, 175. See also per Stephen, J., in R. v. IJohertg, 1G Cox, 306; and ante, p. 19. " Where it appears that one person's death has been occasioned by the hand of another, it behoves that other to show from evidence, or by inference from the circumstances of the case, that the offence is of a miti- gated character, and does not amount to murder." Per Tindal, C. J., R. v. Greenacre, 8 C. & P. 35. Threats and menaces are ordinary evidence of malice. 1 Phill. Ev. 514. Proof of 'malice — death ensuing in the performance of an unlawful or vjanton act."} The rule in this case is thus laid down by Foster, J. : If an e> Murder. 651 action, unlawful in itself, be done deliberately and with intention of mischief, or great bodily harm to particulars, or of mischief indiscrimi- nately, fall it where it may, and death ensue, against or beside the original intention of the party, it will be murder. But if such mis- chievous intention do not appear (which is matter of fact to be collected from the circumstances), and the act was done heedlessly and incautiously, it will be manslaughter, not accidental death, because the act which ensued was unlawful. Foster, 261. Thus, where an injury intended to be inflicted upon A. by poison, blows, or other means of death, would, had he sustained it, have been murder; it will amount to the same offence, if .13. by accident happens to lose his life by it. But, on the other hand, if the blow intended for A. arose from a sudden transport of fury, which, in case A. had died by it, would have reduced the offence to manslaughter, the fact will admit of the same alleviation, if B. should happen to fall by the blow. Foster, 2h2 ; 1 Hale, /'. C. -iSH. See R. x.'JIunt, 1 Moo. ('. 0. 93, post, tit. Attempt to commit Murder; and Ji. v. Latimer, 17 Q. B. I>. :W) ( .); 55 L. J., M. ('. 135, aide, p. 21. So where two parties meet to fight a deliberate duel, and a stranger •come to part them, and is killed by one of them, it is murder in the latter. 1 Hale, /'. C. 441. And where the prisoner, intending to poison his wife, gave her a poisoned apple, which she, ignorant of its nature, gave to a child, who took it and died ; this was held murder in the husband, although, being present, he endeavoured to dissuade his wife from giving it to the child. R. v. Saunders, Plowd. 474. Such also was the case of the wife who mixed ratsbane in a potion sent by the apothecary to her husband, which did not kill him, but killed the apothecary, who, to vindicate his reputation, tasted it himself, having first stirred it about. A Co. 81; Hawk. I'. C. b. 1, c. 31, s. 46. So, where the prisoner, intending to murder A., shot at and wounded B., supposing him to be A., it was held that he was properly convicted of wounding B. with intent to murder him. R. v. Smith, 25 A. J., M. 0. 29 ; Dears. 0. C. 559, see ante, p. 52;}. It is said that whenever death is caused, even unintentionally, in the commission of a felony, the crime is murder; and as Foster 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 circum- stances, it will be murder, by reason of the felonious intent ; but if it was done wantonly and with nit that intention, it will be barely manslaughter." In R. v. Horsey ('•'> /•'. <('■ /•'. 287), a man set fire to a stack, and a person sleeping by it was burned to death. Bramwell, B., in summing up, adopted the rule laid down by Foster; but he suggested to the jury that if the deceased was not shown to he in the barn at the time when the prisoner set tire to the stack they mighl acquit him. on the ground that the man's death was not the natural and probable consequence of his act. This, however, is virtually to repeal the rule laid down by Foster. It is very doubtful whether Foster's view of the law would he taken to he correct at the present dav. See per Blackburn, J., in H. v. Pembliton, A. A'., 2 C. 0. R. Hi); hi A. ■/., M. I'. 91 ; and ,,rr Stephen, J., in It. v. Serne, 1(> Cox, 311, where that learned judge considered that a better definition would he "any act known to be dangerous to life or likely in itself to cause death, done for the purpose of committing a felony which caused death." But as to cases of intent to i unit an offence, see ante, p. 522. The prisoners were indicted for murder. The deceased, being in liquor, had gone at night into a glasshouse, and laid himself down upon a chest. "While there asleep the prisoners covered anil surrounded him with straw, and threw a shovel of hot cinders upon his belly, the consequence of which was, that the straw ignited, and he was burnt to death. There was no 652 Murder. evidence of express malice on the part of the prisoners. Patteson, J., told the jury that if they believed the prisoners really intended to do any serious injury to the deceased, although not to kill him, it was murder ; but if they believed their intention to have been only to frighten him in sport, it ■was manslaughter. The prisoners were convicted of the latter offence. R. v. Errinyton, 2 Lew. C. C. 217. As to intending the consequences of an act, see R. v. Faulkner, 13 Cox. 550, ante, tit. Arson, p. 257, and R. v. Martin, 8 Q. B. I). 54; 51 /,. J., M. C. 36, ante, p. 21. It is not necessary, in order to render the killing murder, that the unlawful act intended would, had it been effected, have been felony. Thus, in the case of the person who gave medicine to a woman (1 Half, P. C. 429), and of him who puts skewers into a woman's womb, with a view in both cases to procure abortion, whereby the women were killed ; such acts were clearly held murder, though the original attempt, had it succeeded, would only have been a great misdemeanor ; for the acts were in their nature malicious and deliberate, and necessarily attended with great danger to the persons on whom they were practised. 1 East. P. C. 230. So if in case of a riot or quarrel, whether sudden or premeditated, a justice of the peace, constable, or watchman, or even a private person, be slain in endeavouring to keep the peace and suppress the affray, he who kills him is guilty of murder ; for notwithstanding it was not his primary intention to commit a felony, yet inasmuch as he persists in a less offence with so much obstinacy as to go on in it, to the hazard of the lives of those who only do their duty, he is, in that respect, equally criminal as if his intention had been to commit felony. Hawk. P. C. b. 1, c. 81, s. 54. If a person rides a horse known to be used to kick, amongst a multitude of people, although he only means to divert himself, and death ensues in consequence, he will, it is said, be guilty of murder. Hawk. P. C. b. 1, c. 31, s. 61 ; 1 Lord Raym. 143 ; Foster, 261 ; 1 East, P. C. 231. And if a man, knowing that the people are passing along the street, throw a stone likely to create danger, or shoot over the house or wall, with intent to do hurt to people, and some one is consequently killed, it is murder, on account of the previous malice, though not directed against any particular individual ; for it is no excuse that the party was bent on mischief gene- rally; but if the act were merely done incautiously, it would only be manslaughter. 1 East, P. C. 231 ; 1 Hale, P. C. 475. In all these cases the nature of the instrument and the manner of using it, as calculated to produce great bodily harm or not, will vary the offence. 1 East, P. C. 257. If a person fires at another a rifle, knowing it to be loaded, and therefore intending to kill or to do grievous bodily harm, it is murder, but if he did not know, then no such presumption of intent arises. If he negligently used no means to ascertain whether it was loaded or not, and fired the rifle in the direction of any other person and death ensue, he would be guilty of manslaughter. R. v. Campbell, 11 Cox, 323. See ante, p. 627. The rule above stated must be taken to extend only to such acts as are mala in se ; for if the act be merely malu m proh ibitnm , as (formerly) shooting at game by a person not qualified to keep a gun for that piu-pose, the case of him so offending will fall under the same rule as that of a qualified person. The mere imposing of jjenalties will not in a case of this kind change the character of the accident. Foster. 259. So if one throw a stone at another's horse, and it hit a person and kill him, it is manslaughter only. 1 East, P. C. 257 ; 1 Hale, P. C. 39. Death ensuing in consequence of a trespass committed in sport will be manslaughter. The prisoners were indicted for manslaughter, in having caused the death of a man by throwing stones down a coal-pit. Tindal, Murder. 6.")3 C. J., in addressing the jury said, " if death ensue in consequence of a wrongful act which the party who commits it can neither justify nor excuse, it is not accidental death, but manslaughter. If the wrongful act was done under circumstances which show an intent to kill or do any serious injury in the particular case, or any general malice, the offence becomes that of murder. In the present instance the act was one of mere wantonness and sport, but still the act was wrongful and was a trespass." R. v. Fenton, 1 Lewin, C. V. 179; see further, ante, p. 621. Wilful neglect ofduty.~\ Death ensuing in consequence of the wilful omission of a duty will be murder; death ensuing in consequence of the negligent omission of a duty will be manslaughter. R. v. Hughes, Dears. his opinion, she died from consumption, but that her death was hastened by the treatment she was said to have received. It appeared that the prisoner, when she beat the deceased for not doing her work, always said she was sure that she was acting - the hypocrite, and shamming illness, and that she had a very strong constitution. The prisoner having pleaded guilty to the charge of manslaughter, the counsel for the prosecution declined to offer any evidence upon the charge of murder, thinking there was not proof of malice sufficient to constitute that offence, in which opinion Yaughan, 13., concurred. P. v. Cheeseman, 7 C. '. 232. Where the provocation is sought by the prisoner, it can not furnish any defence against the charge of murder. Thus where A. and B. have fallen out, A. says he will not strike, but will give 15. a pot of ale to touch him, on which B. strikes, and A. kills him, this is murder. 1 E. A gentleman named Luttrell, being arrested for a small debt, prevailed on one of the officers to go with him to his lodgings, while the other was sent for the attorney's bill. Words arose at the lodgings about civility mow//, and Luttrell went upstairs to fetch money for the payment of debt and costs. He soon returned with a brace of loaded pistols in his bosom, which, on the importunity of his servant, he laid down on the table, saying he did not intend to hurt the officers, but he would not be ill-used. The officer who had been sent for the bill arriving, and some angry words passing, Luttrell struck one of the officers in the face with a walking- cane and drew a little blood, whereupon both of them fell upon him, one stabbed him in nine places, he all the while on the ground begging for mercy, and unable to resist them, and one of them fired one of the pistols at him while on the ground, and gave him his death-wound. This was held manslaughter, by reason of the first assault by the cane. Foster, J., has observed what an extraordinary case it is — that all these circumstances of aggravation, two to one. being helpless on the ground, and begging for mercy, stabbed in nine places, and then dispatched with a pistol — should not outweigh a slight stroke with a cane. The learned judge proceeds to state that in the printed trial (St. Tr. 195) there are some circumstances which have been entirely dropped, and others very slightly mentioned by the reporter. 1. Mr. Luttrell had a sword by his side which, after the affray was over, was found drawn and broken. 1 low that happened did not appear in evidence. 2. When Luttrell laid the pistols on the table, lie declared that he brought them because he would not be forced out of his lodgings. ;3. He threatened the officers several times. One of the officers appeared to be wounded in the hands with a pistol-shot (both the pistols being discharged in the affray), and slightly on the wrist with some sharp-pointed weapon, and the other was slightly wounded in the hand with a like weapon. 1. The evidence touching Luttrell's begging for mercy was not that he was on the ground begging for mercy, but that on the ground he held up his hands as if begging for mercy. The Chief Justice directed the jury that if they believed Luttrell was endeavouring to rescue himself (which he seemed to think was the case, and which. adds Foster, J., probably was the case), it would be justifiable homicide in the officers. However, as Luttrell gave the first blow, accompanied with menaces to the officers, and having regard to the circumstance of G(>2 Murder. producing loaded pistols to prevent their taking him from his lodgings, which it would have been their duty to do if the debt had not been paid or bail given, he declared it could be no more than manslaughter. R. v. Reason, Foster, 293; 1 Str. 499; 1 East, P. C. 820. Two soldiers, having a recruit in a room under their care, who wished to leave them, one of them stationed himself at the door with his sword drawn to prevent ingress or egress, and a person wishing to enter the room (which was a public-house, kept by his father), was resisted by the soldier at the door; whereupon a struggle ensuing, the other soldier, coming out, struck the party struggling with his bayonet in the back. Being indicted for stabbing with intent to murder, and convicted, the judges held the conviction right, the soldiers having no authority to enlist ; and they said that it would have been murder if death had ensued. R. v. Longden, Russ. &Ry. 228. On a trial for murder of a wife by her husband, evidence that the wife had on other occasions tried to strangle him with his neckerchief, was allowed to be given in order to show .the character of the assault he had to apprehend. It appeared from the evidence that the prisoner was very sensitive about the neck from old abscesses, and that the wife on several occasions had twisted his neckerchief round his neck until he became black in the face. R. v. Hopkins, 10 Cox, 229. Where the prisoner levelled a gun at the deceased, and it was a question whether the gun went off accidentally or not, Cockburn, C. J., left the following questions to the jury: — 1. Was the discharge of the gun intentional or accidental? (a) If intentional, was it from ill-feeling to the deceased, or desire to get rid of him on account of his wife ? in which case it would be murder, (b) If it was not so done, was it done by the prisoner in self-defence, and to protect himself from death or serious bodily injury intended towards him by the deceased ; or (c) from the reasonable apprehension of it induced by the words and conduct of the deceased, though the latter may not, in fact, have intended death or serious injury ? (d) If not so, was it done after an assault made by the deceased on the prisoner, though short of an assault calculated to kill or cause serious bodily injury ? or (e) Was it done under such a degree of alarm and bewilderment of mind, caused by the conduct of the deceased, as to deprive the prisoner for the time of his reason and power of self-control ? or (/) Was the effect of the language and conduct of the deceased such as to provoke the angry passions of the prisoner so as to deprive him of his reason and power of self-control ? 2. If the discharge of the gun was accidental — in which case the prisoner cannot be convicted of murder, but may be of manslaughter — (a) Was the gun levelled by the prisoner at the deceased in self-defence against an attack of the deceased, endangering life or limb, or reasonably appre- hended by the prisoner as likely to do so, in either of which cases the prisoner would be entitled to acquittal ? or (h) Was the gun levelled by the prisoner at the deceased unnecessarily under the circumstances, but without the intention of discharging it, in which case it would be man- slaughter. R. v. Weston, 14 Cox, 346. Under this head may be mentioned the case of peace officers endeavour- ing to arrest without proper authority, the killing of whom will not, unless the party can retreat, amount to murder ; the attempt to make an unlawful arrest being considered a sufficient provocation. R. v. Curvan, 1 Moo. ('. C. 132 ; and see all the cases stated, post. Proof of malice — provocation — instrument used.'] In considering the question of malice where death has ensued after provocation given by the deceased in assaulting the prisoner, or upon other provocation, especial Murder. 663 attention is to be paid to the nature of the weapon with which death was inflicted. If it was one likely to produce that result, as used by the prisoner, he will be presumed to have used it with the intention of killing, which will be evidence of malice ; if, on the contrary, it was a weapon nut likely to produce death, or calculated to give a severe wound, that presumption will be wanting. It must be admitted to be extremely difficult to define the nature of the weapons which are likely to kill (/,'/. lull/in. 1498) ; since _jt is rather in the mode in which the we apon is used than in the nature (n^nlT^elrpTm^rtself that fhe^anger TioTrfe consists. Accordingly, the decisions upon this head are far from being satisfactory, and do not lay down any general rule with regard to the nature of the weapons. In one instance, Foster, J., takes a nice distinction with regard to the size of a cudgel. The observations arise upon R. v. Rowley, 12 Rep. 17 ; 1 Hale, P. C. 453; which was as follows:— The prisoner's son fights with another boy and is beaten. He runs home to his father all over blood, and the father takes a staff, runs three- ojjiartCTsj^ji_niilj}^ boy, who dies of the^eatrng. This is said to have^e^nruled manslaughter, b~ecause done vh sudden mat and passion. "Surely," says Foster, J., "the provocation was not very grievous : the boy had fought with one who happened to be an overmatch for him and was worsted. If, upon this provocation, the father, after running three-quarters of a mile, had set his strength against the child and despatched him with a hedge stake, or any other deadly weapon, or by repeated blows with a cudgel, it would, in my opinion, have been murder; since any of these circumstances would have been a plain indication of the malitia, the mischievous vindictive motive before explained." But with regard to these circumstances, with what weapon or to what degree the child is beaten, Coke is totally silent. But Croke (Oro. Jac. 296) sets the case in a much clearer light. His words are: — " Bowley struck the child with a small cudgel [Godbold, 182, calls it a rod], of which stroke he afterwards died." " I think," continues Foster, "it might be fairly collected by (. Yoke's manner of speaking, that the accident happened by a single stroke with a cudgel not likely to destroy, and that death did not immediately ensue. The stroke was given in heat of blood, and not with any of the circumstances which import the malitia, the malignity of heart attending the facts already explained and therefore manslaughter. I observe Lord Raymond lays great stress on the circum- stance that the stroke was with a cudgel not likely to kill." Lord Raym. 1498 ; Foster, 294. The nature of the instrument used, as being most material on the question of malice, was much commented upon in the following case : It was found upon a special verdict that the prisoner had directed her daughter-in-law, a child of nine years old, to spin some yarn, and upon her return home, finding it badly done, she threw a four-legged stool at the child, and struck her on the right temple, of which the child soon afterwards died. The jury I'oimd that the stool was of su fficien t size and weight to gi\ < ■ a mortal Blow] Bui thai the prisoner whe3 she threw it did not intenci 1o kill the deceased. She afterwards threw the body into the river, and told hei husband that the child was lost. The case was referred to the consideration of all the judges, but no opinion was ever delivered, as some of the judges thought it a proper case to recom- mend a pardon. R. v. Hazel, 1 East, /'. G. 236; 1 Leach, 368. Where the prisoner had given a pair of clogs to the deceased, a boy, to clean, and finding them not cleaned struck him with one of them, of which blow the boy died ; this was held to be only manslaughter, because the prisoner could not, from the size of the instrument made use of, have bad any intention to take away the boy's life, R. x. Turner, Ld. Raym. 141, 1499. 664 Murder. The prisoner, a butcher, seeing some of his sheep getting through the hurdles of their pen, ran towards the boy who was tending them, and taking up a stake that was on the ground threw it at him. The stake hit the boy on the head and fractured his skull, of which he soon after- wards died. Nares, J., said to the jury: You will consider whether the stake which was lying on the ground, and was the first thing the prisoner saw in the heat of his passion, is or is not, under such circumstances, and in such a situation, an improper instrument for the purposes of correction. For the using a weapon from which death is likely to ensue, imports a mischievous disposition, and the law implies that a degree of malice attending the act, which, if death actually happen, wdl be murder. Therefore, if you should think the stake an improper instrument, you will further consider whether it was used with an intent to kill. If you think it was, you must find the prisoner guilty of murder. But, on the contrary, if you are persuaded that it was not done with an intent to kill, the crime will then amount at most to manslaughter. R. v. Wigg, 1 Leach, .'387 (n.). A. finding a trespasser on his land, in the first transport of his passion he beats him, and kills him ; this has been held manslaughter. 1 Hale, P. C. 47o. But it must be understood, says Foster, J., that he beat him not with a mischievous intention, but merely to chastise and deter him. Foi if he had knocked his brains out with a bill or hedgestake, or given him an outrageous beating with an ordinary cudgel, beyond the bounds of a sudden resentment, whereof he had died, it would have been murder. Foster, 291. The prisoner was indicted for manslaughter. It appeared that he was in the habit of going to a cooper's shop for chips, and was told by the cooper's apprentice that he must not come again. In the course of the same day he came again, and was stopped by the apprentice, upon which he immediately went off, and in passing a work-bench took up a whittle (a sharp-pointed knife with a long handle) and threw it at the apprentice, whose body it entered, and killed him. Hullock, B., said to the jury, "If Avithout adequate provocation a person strike another with a weapon likely to occasion death, although he had no previous maHce against the party, yet he is to be presumed to have had such malice, from the circumstances, and he is guilty of murder." The jury found the prisoner guilty, and Hullock, B., observed, that had he been indicted for murder, the evidence would have sustained the charge. R. v. Langstaff, 1 Lewin, C. (J. 162. Provocation in other cases — third parties.'] There is one peculiar case of provocation which the law recognises as sufficient to reduce the act of killing to manslaughter; where a man finds another in the act of adultery with his wife, and kills him in the first transport of his passion. R. v. Manning, Sir T. Raym. 212 ; 3 Buss. Cri. 49, 6th ed. But if the husband kill the adulterer deliberately, and upon revenge, after the fact and sufficient cooling time, the provocation will not avail in alleviation of the guilt. 1 East, P. C. 251 ; R. v. Kelley, 2 C. .(:• A'. 814, j)er Bolfe, B. So if a father see a person in the act of committing an unnatural offence with his son, and instantly kill him, it seems that it will be only man- slaughter, and that of the lowest degree ; but if he only hear of it, and go in search of the person, and meeting him strike him with a stick, and afterwards stab him with a knife and kill him, in point of law it will be murder. R. v. Fisher, 8 C. & P. 182. 1 In the above case, Parke, J., said, 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 Murder. 665 for the jury to find what length of time elapsed between the provocation received and the act done. It is, however, submitted that the whole question is for the jury. It has been held by Eolf e, B., that a blow given to the prisoner's wife would afford the same justification as a blow given to the prisoner him- self, so as to reduce the killing to manslaughter. 11. v. Rodgers, MS. York Spr. Ass. 1842. And in one case, Cockburn, C. J., is reported to have held that the charge of wilful murder was reducible to manslaughter where the prisoner had killed his son-in-law, who had assaulted the prisoner's daughter in his presence in a violent manner, although not in a manner to endanger life. R. v. Harrington, 10 Cox, 370. Proof of malice — provocation must be recent.^ In order to rebut the evidence of malice, it must appear that the provocation was recent ; for in every case of homicide, however great the provocation may be, if there be a sufficient time for passion to subside, and for reason to interpose, such homicide will be murder. Foster, 296. With respect to the interval of time allowed for passion to subside, it has been observed, that it is much easier to lay down rules for determining what eases are without the limits than how far exactly those limits extend. It must be remembered, that in these cases the immediate object of inquiry is, whether the sus- pension of reason arising from sudden passion continued from the time of the provocation received to the very instant of the mortal stroke given; for if, from any circumstance whatever, it appears that the party reflected, deliberated, or cooled, any time before the mortal stroke given, or if, in legal presumption, there was time or opportunity for cooling, the killing will amount to murder, it being attributable to malice and revenge rather than to human frailty. 1 East, J'. C. 252; 2 Ld. Raym. 1496. The following are stated as general circumstances amounting to evidence of malice, in disproof of the party's having acted under the influence of passion only. If, between the provocation received and the stroke given, the party giving the stroke fall into other discourse or diversions, and continue so engaged a reasonable time for cooling ; or if he take up or pursue any other business or design not connected with the immediate object of his passion, or subservient thereto, so that it may be reasonably supposed that his intention was once called off from the subject of his provocation ; again, if it appear that he meditated upon his revenge, or used any trick or circumvention to effect it, for that shows deliberation which is' inconsistent with the excuse of sudden passion, and is the strongest evidence of malice ; in these cases the killing will amount to murder. It may further be observed, in respect to time, that in pro- portion to the lapse between the provocation and the stroke, less allow- ance ought to be made tor any excess of retaliation, either in the instrument or the manner of it. The length of time intervening between the injury and the retaliation adds very much to the presumption of malice in law, and is in some cases evidence in itself of deliberation. 1 East, /'. C. 252. A leading case on this subject is that of Major Oneby, who was indicted for the murder of a Mr. Gower. A special verdict was found, which stated that the prisoner, being in company with the deceased and three other persons at a tavern, in a friendly manner, after some time began playing at hazard, when Rich, one of the com- pany, asked if any one would set him three half-crowns, whereupon the deceased, in a jocular manner, laid down three half-pence, telling Rich he had set him three pieces, and the prisoner at the same time set Rich three half-crow ns and lost them to him ; immediately after which the prisoner in an angry manner turned to the deceased and said, it was an 666 Murder. impertinent thing to set half -pence, and he was an impertinent puppy for so doing, to which the deceased answered, whoever called him so was a rascal. Upon this the prisoner took up a bottle, and with great force threw it at the deceased's head, but did not hit him. The deceased immediately tossed a candlestick or bottle at the prisoner, which missed him ; upon which they both rose to fetch their swords, which hung in the room, and the deceased drew his sword, but the prisoner was prevented from drawing his by the company. The deceased then threw away his sword, and the company interposing, they sat down again for the space of an hour. At the expiration of that time the deceased said to the prisoner, " We have had hot words, but you were the aggressor; but I think we may pass it over," and at the same time offered his hand to the prisoner, who replied, "No, damn you, I wdl have your blood! " The reckoning being paid, all the company, except the prisoner, went out of the room to go home, but he called to the deceased, " Young man, come back, I have something to say to you," on which the deceased came back. The door was immediately closed, and the rest of the company excluded, but they heard a clashing of swords, and the deceased was found to have received a mortal wound. It was also found that at the breaking up of the company the prisoner had his great- coat thrown over his shoulders, and that he received three slight wounds in the fight, and the deceased being asked on his death-bed whether he received his wound in a manner among swordsmen called fair, answered, " I think I did." It was further found, that from the throwing of the bottle there was no reconciliation between the prisoner and the deceased. Upon these facts all the judges were of opinion that the prisoner was guilty of murder, he having acted upon malice and deliberation, and not from sudden passion. R. v. Oneby, 2 Str. 766 ; 2 Ld. Raym. 14S9. It must, I think, says Mr. East, be taken upon the facts found in the verdict, and the argument of the Chief Justice, that after the door had been shut the parties were upon an equal footing, in point of preparation, before the fight began in which the mortal wound was given. The main point then upon which the judgment turned, and so declared to be, was express malice, after the interposition of the com- pany, and the parties had all sat down again for an hour. Under these circumstances the court were of opinion that the prisoner had had reason- able time for cooling, after which, upon an offer of reconciliation from the deceased, he had made use of that bitter and deliberate expression he would have la's blood I And again, the prisoner remaining in the room after the rest of the company had retired, and calling back the deceased by the contemptuous appellation of young mini, on pretence of having something to say to him, altogether showed such strong proof of deliberation and coolness, as precluded the presumption of passion being continued down to the time of the mortal stroke. Though even that would not have avafied the prisoner under these circumstances, for it must have been implied, according to R. v. Mawgridge (Kel. 128), that he acted upon malice, having in the first instance, before any provocation received, and without warning or giving time for preparation on the part of the deceased, made a deadly assaiut upon him. 1 East, P. (J. 254. The following case will illustrate the doctrine in question. The deceased was requested by his mother to turn the prisoner out of her house, which, after a short struggle, he effected, and in doing so gave him a kick. On the prisoner leaving the house, he said to the deceased, "he would make him remember it," and instantly went up the street to his own lodging, which was distant from two to three hundred yards, where he was heard to go to his bedroom, and, through an adjoining kitchen, to a pantry, and thence to return hastdy back again by the same way, to the street. In Murder. 667 the pantry the prisoner had a sharp butcher's knife with which he usually ate. He had also three similar knives there, which he used in his trade of a butcher. About five minutes after the prisoner had left the deceased the latter followed him for the purpose of giving him his hat, which he had left behind him, and they met about ten yards distant from the prisoner's lodgings. They stopped for a short time, and were heard talking together, but without any words of anger, by two persons who went by them, the deceased desiring the prisoner not to come down to his mother's house that night, and the prisoner insisting that he would. After they had walked on together for about fifteen yards, in the direc- tion of the mother's house, the deceased gave the prisoner his hat, when the latter exclaimed, with an oath, that he would have his rights, and instantly stabbed the deceased with a knife or some sharp instrument in two places, giving him a sharp wound on the shoulder, and a mortal wound in the belly. As soon as the prisoner had stabbed the deceased a second time, he said he had served him right, and instantly ran back to his lodgings, and was heard, as before, to pass hastily through his bed- room and kitchen to the pantry, and thence back to the bedroom, where he went to bed. No knife was found upon him, and the several knives appeared the next morning in their usual places in the pantry. Tindal, C. J., told the jury that the principal question for their consideration would be, whether the mortal wound was given by the prisoner, while smarting under a provocation so recent and so strong, that he might not be considered at the moment the master of his own understanding : in which case, the law, in compassion to human infirmity, would hold the offence to amoirnt to manslaughter only ; or whether there had been time for the blood to cool, and for reason to resume its seat, before the mortal wound was given ; in which case the crime would amount to wilful murder. That, in determining this question, the most favourable circum- stance for the prisoner was the shortness of time which elapsed between the original quarrel and the stabbing of the deceased ; but on the other- side, the jury must recollect that the weapon which inflicted the fatal wound was not at hand when the quarrel took place, but was sought for by tlic prisoner from a distant place. It would be for them to say, whether the prisoner had shown thought, contrivance, and design, in the mode of possessing himself of this weapon, and again replacing it imme- diately after the blow was struck: for the exercise of contrivance and design denoted rather the presence of judgment and reason than of violent and ungovernable passion. The jury found the prisoner guilty of murder. A', v. Hayward, <> C. ~i. " If a person receives a blow, and immediately avenges it with any instrument that he may happen to have in his hand, then the offence will be only manslaughter, provided the blow is to be attributed to the passion of anger arising from that previous provocation, for anger is a passion to winch good and bad men are both subject. But the law requires two things: first, that there should be that provocation; and secondly, that the fatal blow should be cleariy traced to the influence of passion arising from that provocation." Per rarke, B., B. v. Thomas, 7 G. & P. 817. In the same case the learned baron held, that, if from the circumstances it appeared that the party, before any provocation given, intended to use a deadly weapon towards any one who might assault him, tins would show- that a fatal blow given afterward- to a person who struck him ought not to be attributed to the provocation, and the crime would therefore be murder. And see next heading. The prisoner was charged with the wilful murder of his son, John K i rkham, by stabbing him with a knife. A witness named Chorlton 668 Murder. stated, " I was alarmed on the morning of Saturday, the 24th of June, at about four o'clock, and got up. On entering the prisoner's house I saw the prisoner and his son on the floor ; the son was uppermost, and they were wrestling together. I asked the deceased to get up ; he did so, and went to the door. The prisoner then took up a coal-pick (a sort of small pick-axe), which must have been in the room, as he did not leave the room to get it. The prisoner threw the coal-pick at his son, which struck him on the back. The deceased said it hurt him, and the prisoner said he would have his revenge. The coal-pick flew into the street, and the deceased fetched it, and tossed it into the house, but not at the prisoner. The deceased stood at the door with his hands against it, when the prisoner took a knife off the table, and jobbed the deceased with it on the left side. The deceased said, ' Father, you have killed me ! ' and retreated a few paces into the street, reeling as he went. I told the prisoner he had stabbed his son. He said, ' Joe, I will have my revenge.' The deceased came into the house again, and the prisoner stabbed the deceased again in the left side. The deceased died at seven o'clock the same morning. I think from my first going to the house till the fatal blow was struck was about twenty minutes." Coleridge, J., told the jury, "I will suppose that all was purely unpremeditated till Chorlton came, and then the case will stand thus : — the father and son have a quarrel ; the son gets the father down, the son has the best of it, and the father has received considerable provocation ; and if, when he got up, and threw the pick at the deceased, he had at once killed him, I should have said at once that it was manslaughter. Now comes the more important question (the son having given no further provocation), whether in truth that which was in the first instance sufficient provocation, was so recent to the actual deadly blow, that it excused the act that was done ; and whether the father was acting under the recent sting, or had had time to cool, and then took up the deadly weapon. I told you just now he must be excused if the provocation was recent, and he acted under its sting, and the blood remained hot ; but you must consider all the circumstances, the time which elapses, the prisoner's previous conduct, the deadly nature of the weapon, the repetition of the blows, because though the law condescends to human frailty, it will not indulge human ferocity." The prisoner was found guilty of manslaughter. It. v. Kirkham, 8 0. & P. llo. The prisoner, who was charged with murder, went to an inn, in company with his brother. Other persons, including the deceased, were there. A dispute arose about paying the reckoning, and a fight took place between the prisoner and a man named Burrows. In the scuffle the deceased jumped over the table and struck the prisoner. The deceased was turned out by the landlord, but admitted again in about ten minutes, and the parties all remained drinking together after that for a quarter of an hour, when the prisoner and his brother went out. The deceased remained about a quarter of an hour after the prisoner, and then left. The prisoner and deceased were both in liquor. The deceased tried to get out directly after the prisoner and his brother left, but was detained by the persons in the room. As soon as they let him go, he jumped over the table, and went out of the house, saying, as he went, that if he caught them he would serve them out. The deceased was a person who boasted of his powers as a fighter. A witness named Croft stated that he was near Church-lane, and heard voices which induced him to run towards a bar there, and when within a yard of the bar he heard a blow like the blow of a fist ; this was followed by other blows. After the blows he heard a voice say, "Take that," and in half a minute, to the best of his judgment, the same voice said, " He has stabbed me ! " The wounded man then ran towards him, Murder. 669 and he discovered it to be the deceased. He said, " I am stabbed," three times, and soon after fell on the ground ; the prisoner was soon after taken into custody, and was then bleeding at the nose. The prisoner had not any arms ; but his brother, who was with him, had a bayonet. For the defence, the prisoner's brother was called as a witness, and stated, when they had got about twenty yards through the bar mentioned in Croft's evidence, he heard somebody say something, but did not take notice of it, and deceased came up and struck him on the back of the head, which caused him to fall down, and his bayonet fell out of the sheath upon the stones, and the deceased picked it up, and followed the prisoner, who had gone on ; there was a great struggle between them, and very shortly after the deceased cried out " I am stabbed ! I am stabbed ! " A surgeon proved that there were wounds on the prisoner's hands such as would be made by stabs of a bayonet, and that his back was one uniform bruise. Bosanquet, J., in summing up, to the jury, said, "Did the prisoner enter into a contest with an unarmed man, intending to avail himself of a deadly weapon ? for if he did, it will amount to murder ; but if he did not enter into the contest with the intention of using it, then the question will be, Did he use it in the heat of passion, in consequence of an attack made upon him ? if he did, then it will be manslaughter. But there is another question. Did he use the weapon in defence of his life '? Before a person can avail himself of the defence, he must satisfy the jury that that defence was necessary ; that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance, and no means of escape, in such case, if he retreated as far as he could, he will be justified.." The prisoner was found guilty of manslaughter, but strongly recommended to mercy. B. v. Smith, 8 <'.& P. 160. Proof of malice — drunkenness.'] It has been held by Park and Little- dale, JJ., that B. v. Orindley, \ lias*. Cri. 143, 6th ed., in which Holroyd, J., ruled that though voluntary drunkenness cannot excuse for the com- mission of crime, yet where, as upon a charge of murder, the question is whether an act is premeditated or not, or done only from sudden heat or impulse, the fact of the party being intoxicated was a circumstance proper to be taken into consideration, is not law. R. v. Carroll, 7 C. & P. 14.5. See post, tit. Insanity — cases caused by intoxication. It would seem that where the very essence of the crime is the intention with which the act is done, it may be Left to the jury to say whether the prisoner was so drunk as not to be capable of forming any intention whatever, and if so they may acquit him of the intent. R. v. Cruse, 8 C. & P. .541 ; 7?. v. Morikhou&e, 4 Cox, C. C. 55. "Where the prisoner was indicted for stabbing with a fork with intent to murder, and it appeared that he was in liquor, Alderson. !>.. said, "If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when hi' made an intemperate use of it, as you would if he had used a different kind of weapon; but wheiv a dangerous weapon is used, which, if used, must produce grievous bodily harm, drunkennes- can have no effect on the consideration of the malicious intent of the party." A', v. Meakin, 7 C. & I'. 297. In I!, v. Thomas, /■ second blow makes the afro// ; and this, adds Lord Hale, was the opinion of myself and others. 1 Hale, I'. < '. 4,3(5 ; Foster, 295. But if B. had drawn his sword, and made a pass at A., his sword thin undrawn, and thereupon A. had drawn, and a combat had ensued, in which A. had been killed, this would have been murder; for B., by making his pass, his adversary's sword undrawn, showed that he sought his blood, and A.'s endeavour to defend himself, which he had a right to do, will not excuse B. But if B. had hist drawn, and forborne till his adversary had drawn too, it had been no more than manslaughter. Foster, 295; 1 East, I'. 0. 242. With regard to the use of deadly weapons, as in case of mutual combat, the rule was laid down by Bayley, J., in the following case. The prisoner and Levy quarrelled, and went out to fight. After two rounds, which occupied little more than two minutes, Le\ y was found to be stabbed in a great many places, and of one of those stabs he almost instantly died. It appeared that nobody could have stabbed him but the prisoner, who had a clasp knife before the affray, liavley, J., told the jury that if the prisoner used the knife privately from the beginning, or if, before they began to fight, he placed the knife so that he might use it during the affray, and used ii accordingly, it was murder; but that if he took to the knife after the fighl began, and without having placed it to be ready during the affray, it was only manslaughter. The jury found the prisoner guilty of murder. /-'. v. Anderson, 3 Russ. Cri. 63, 6th "I. Another Later case exhibited nearly similar circumstances. The prisoner returning home, was overtaken by the prosecutor. They were both intoxicated, and, a quarrel ensuing, the prosecutor struck the prisoner a blow. They foughi for a dew minutes, when the prisoner ran back a short distance, and the prosecutor pursued and overtook him. On this the prisoner, who had taken out his knife, gave the prosecutor a cut across the abdomen. The prisoner being indicted for cutting the prose- cutor with intent to murder him, Parke, J., left it to the jury \\ hether the prisoner ran back with a malicious intention of getting out his knife to 672 Murder. inflict an injury on the prosecutor, and so gain an advantage in the con- flict ; for, if he did, notwithstanding the previous fighting between them on equal terms, and the prosecutor having struck the first blow, he was of opinion that, if death had ensued, the crime of the prisoner would have been murder ; or whether the prisoner bond fide ran away from the pro- secutor with intent to escape from an adversary of superior strength, but finding himself pursued, drew his knife to defend himself ; and in the latter case, if the prosecutor had been killed, it would have been man- slaughter only. R. v. Kessal, 1 C. & P. 437. In the following case, the use of a deadly weapon during a fight was held to be no evidence of malice, the prisoner happening to have the knife in his hand at the commence- ment of the affray. William Snow was indicted for the murder of Thomas Palmer. The prisoner, who was a shoemaker, lived in the neighbourhood of the deceased. One evening the prisoner, who was much in liquor, passed accidentally by the house of the deceased's mother, near which the deceased was at work. He had a quarrel with him there, and after high words they were going to fight, but were prevented by the mother, who hit the prisoner in the face, and threw water over him. The prisoner went into his house, but came out in a few minutes, and sat himself down upon a bench before his gate, with a shoemaker's knife in his hand, paring a shoe. The deceased, on finishing his work, returned home by the prisoner's house, and called out to him as he passed, "Are not you an aggravating rascal!-'" The prisoner replied, "What will you be when you are got from your master's feet ? " on which the deceased took the prisoner by the collar, and, dragging him off the bench, they both rolled into the cart-way. While they were struggling and fighting, the prisoner underneath the deceased, the latter cried out, " You rogue, what do you do with that knife in your hand ? " and caught at his arm to secure it ; but the prisoner kept his hand striking about, and held the deceased so hard with his other hand that he could not get away. The deceased, however, at length made an effort to disengage himself, and during the struggle received the mortal wound in his left breast, having before received two slight wounds. The jury found the prisoner guilty of nrurder ; but the judges were of opinion that it was only manslaughter. They thought that there was not sufficient evidence that the prisoner lay in wait for the deceased with a malicious design to provoke him, and under that colour to revenge his former quarrel by stabbing him, which would have made it murder. On the contrary, he had composed himself to work at his own door, on a summer's evening ; and when the deceased passed by provoked him neither by word nor by gesture. The deceased began first by ill- language, and afterwards by collaring him and dragging him from his seat and rolling him in the road. The knife was used openly, before the deceased came by, and not concealed from the bystanders, though the deceased in his passion did not perceive it till they were both down ; and though the prisoner was not justified in using such a weapon on such an occasion, yet it being already in his hand, and the attack upon him very violent and sudden, they thought it only amounted to manslaughter, and he was recommended for a pardon. II. v. Snow, 1 East, P. C. 244, 245. Not only will the premeditated use of deadly weapons, in cases of mutual combat, render the homicide murder, but the combat itself may be of such a nature as to make it murder if death ensue. The prisoner was indicted for manslaughter, and the evidence was, that he and the deceased were " fighting up and down," a brutal and savage practice in the north of England. Bayley, J., said to the jury, fighting " up and down" is calculated to produce death, and the foot is an instrument Murder. ' 673 likely to produce death. If death happens in a fight of this description it is murder, and not manslaughter. The prisoner being convicted, Bayley, J., told him that if he had been charged with murder, the evidence adduced would have sustained the indictment. E. v. Thorpe, 1 Lewin, C. C. 171 ; see E. v. Murphy, 6 G. & P. 103. In order to bring the case within the rule relating to mutual combats, so as to lessen the crime to manslaughter, it must appear that no undue advantage was sought or taken on either side. Foster, 295. To save the party making the first assault upon an insufficient legal provocation from the guilt of murder, the occasion must not only be sudden, but the party assaulted must be upon an equal footing, in point of defence at least, _ at the outset ; and this is pecxdiarly requisite where the attack is made with deadly or dangerous weapons. 1 East, I'. 0. 242. Where persons fight on fair terms, says Bayley, J., "and merely with fists, where life is not likely to be at hazard, and the blows passing between them are not likely to occasion death, if death ensues, it is manslaughter ; and if per- sons meet originally on fair terms, and after an interval, blows having been given, a party draws, in the heat of blood, a deadly instrument, and inflicts a deadly injury, it is manslaughter only. But if a party enters into a contest dangerously armed, and fights under an unfair advantage, though mutual blows pass, it is not manslaughter, but murder." It. v. Whiteley, 1 Lewin, *". r. 173. The lapse of time, also, which has taken place between the origin of the quarrel and the actual contest, is in these cases a subject of great con- sideration, as in the following instance : — The prisoner was indicted for murder. It appeared that the prisoner and the deceased, who had been for three or four years upon terms of intimacy, had been drinking together at a public-house till about twelve o'clock; that about one they were together in the street, when they had some words, and a scuffle ensued, during which the deceased struck the prisoner in the face with his fist, and gave him a black eye. The prisoner called for the police, and on a policeman coming, went away. He, however, returned again, between five and ten minutes afterwards, and stabbed the deceased with a knife on the left side of the abdomen. The prisoner's father proved that the knife, a common bread and cheese knife, was one which the prisoner was in the habit of carrying about with him, and that he was rather weak in his intellect, but not so much so as not to know right from wrong. Lord Tenterden, in summing up, said, " It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter. But it depends upon the time elapsing between the blow and the injury; and also, whether the injury was inflicted with an instrument at the moment in the possession of the party, or whether he went to fetch it from another place. It is uncertain, in this case, how long the prisoner was absent. The witness says from five to ten minutes, according to the best of his knowledge. Unless attention is particularly called to it, it seems to me that evidence of time is very uncertain. The prisoner may have been absent less than five minutes. There is no evidence that he went any- where for the knife. The father says that it was a knife he carried about with him ; it was a common knife, such as a man in the prisoner's situa- tion in life might have ; for aught that appears, he might have gone a little way from the deceased, and then returned, still smarting Tinder the blow he had received. Yen will also take into consideration the previous habits and connection of the deceased and the prisoner in respect to each other. If there had been any old grudge between them, then the crime which the prisoner committed might be murder. But it seems they had 674 MtM-der. been long in habits of intimacy, and on the very nigbt in question, about an hour before the blow, they had been drinking in a friendly way together. If you think that there was not time and interval sufficient for the passion of a man, proved to be of no very strong intellect, to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter ; but if you think that the act was the act of a wicked, malicious, and diabolical mind (which, under the circumstances, I think you hardly would), then you will find him guilty of murder." The jury found the prisoner guilty of man- slaughter. P. v. Lynch, 5 C. & P. 324. In cases of mutual combat, evidence is frequently given of old quarrels between the parties, for the purpose of showing that the person killing acted from malice towards the deceased, but it is not in every case of an old grudge that the jury will be justified in finding malice. Thus, where two persons who had formerly fought in malice are afterwards, to all appearance, reconciled, and fight again on a fresh quarrel, it shall not be presumed that they were moved by the old grudge; Hawk. P. C. b. 1, c. 31, s. 30; unless it appear that the reconciliation was pretended only. 1 Hale, P. C. 452. If, says Lord Hale, A. sues B., or threatens to sue him, this alone is not sufficient evidence of malice prepense, though possibly they meet and fall out and fight, and one kills the other, if it happens upon sudden provocation ; but this may, by circumstances, be heightened into malice prepense, as if A., without any other provocation, strikes B. upon account of that difference in law, or lies in wait to kill him, or comes with a resolution to strike or kill him. 1 Hale, P. C. 451. If two parties go out to strike one another, and do so, it is an assault in both, and it is quite immaterial which strikes the first blow. P. v. Lewis, 1 C. & K. 419. All struggles in anger, whether by fighting, wrestling, or in any other mode, are unlawful, and death occasioned by them is manslaughter at the least. P. v. Canniff, 9 C. & P. 359. Proof of malice — cases of mutual combat — duelling.'] Deliberate duelling, if death ensues, is in the eye of the law murder ; for duels are generally founded in deep revenge. And though a person should be drawn into a duel, not on a motive so criminal, but merely upon the punctilio of what the swordsmen falsely call honour, that will not excuse him. For he that deliberately seeks the blood of another, in a private quarrel, acts in defiance of all laws, human and divine, whatever his motive may be. But if upon a sudden quarrel the parties fight upon the spot, or if they presently fetch their weapons, and go into the field and fight, and one of them falls, it will be only manslaughter, because it may be presumed that the blood never cooled. It will, however, be otherwise, if they appoint to fight the next day, or even upon the same day, at such an interval as that the passion might have subsided, or if from any circumstance attend- ing the case it may be reasonably concluded that their judgment had actually controlled the first transport of passion before they engaged. The same rule will hold, if after a quarrel they fall into other discourse or diversions, and continue so engaged a reasonable time for cooling. Foster, 297. It seems agreed, says Hawkins, that wherever two persons in cool blood meet, and fight on a precedent quarrel, and one of them is killed, the other is guilty of murder, and cannot help himself by alleging that he was first struck by the deceased, and that he had often declined to meet him, but was prevailed upon by his importunity, or that it was his intention only to vindicate his reputation, or that he meant not to kill, but only to disarm his adversary, for since he deliberately engaged in an Murder. 675 act highly unlawful, he must, at his peril, abide the consequences. Hawk. P. C. b. i, c. 31, 8. 21. It is said by Lord Hale, that if A. and B. meet deliberately to fight, and A. strikes B., and pursues him so closely that B. in safeguard of his own life kills A., this is murder in B., because their meeting was a compact and an act of deliberation, and therefore all that follows thereupon is presumed to be done in pursuance thereof, and thus is Dalton (cap. 92, p. 241) to be understood. 1 Hale, P. 0. 452. But yet, (jna-re, adds Lord Hale, whether if B. had really and bond fide declined to fight, ran away as far as he could (suppose it half a mile), and offered to yield, yet A., refusing to decline it, had attempted his death, and B. after all this kills A. in self-defence, whether it excuses him from murder ? But if the running away were only a, pretence to save his own life, but was really designed to draw out A. to kill him, it is murder. Ibid. Blaekstonc lias noticed this doubt, but has given no opinion upon the subject; 4 Com. 185; bat Mr. East has argued at some length in support of the proposition, that such homicide will not amount to murder, on the ground that B., by retreating, expressly renounces the illegal com- bat, and gives reasonable grounds for inducing a belief that he no longer seeks to hurt his opponent, and that the right of self-defence ought not therefore to be withheld from him. 1 East, 285. But if B. does not retreat voluntarily, but is driven to retreat by A., in such case the killing would be murder. Thus it is said by Hawkins, that if a man assault another with malice prepense, and after be driven by him to the wall, and kill him there in his own defence, he is guilty of murder in respect of his first intent. Hawk. P. C. h. 1, c. 31, s. 26. In cases of deliberate duelling, in which death ensues, not only is the principal who inflicts the wound guilty of murder, but also the second, and it has been doubted whether the second of the_ party killed is not also guilty of the same offence. For the latter position Lord Hale cites the book of 22 Edw. 3, Coron. 262 ; but he adds, that he thinks the law too much strained in that case, and that, though a great misdemeanor, it is not murder. 1 Hair, /'. ('. 442. But see R. v. Cuddy, 1 C. & K. 210, where it was held by Williams, J. (Rolfe, B., being present), that 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 duel may be convicted of murder, on an indictment charging him with being present, aiding and abetting the person, by whose act the •death of his principal was occasioned. The prisoners were indicted for the murder of Charles Flower Mirfin, who was killed in a duel by a Mr. Elliott. Neither of the prisoners acted as a second on the occasion, but there was evidence to show that they and two other persons went to the ground in company with Mr. Elliott, and that they were present when the fatal shot was fired. Vaughan, I'.., told the jury, " When upon a previous arrangement, and after there had been time for the blood to cool, two persons 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. The question then is, did the prisoners give their aid and assistance by their countenance and encouragement of the principals in this contest ?" After observing that neither prisoner had acted as a second, the learned judge continued : " If, however, cither of them sustained the principal by his advice or presence; or if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not say or do any- thing, yet if he was present and was assisting, and encouraging at the moment when the pistol was fired, he will be guilty of the offence imputed x x 2 676 Murder. by this indictment." The prisoners were found guilty. 7?. v. Young, 8 G. &P. 644. Peace officers and private persons killed, or killing others in apprehending them.'] If, as is frequently the case, the apprehension and detainer of one person by another be lawful, then two consequences follow which are important with reference to the crime of murder. First, if the party apprehended resist with violence, and in so doing kill the party appre- hending him, it is murder or manslaughter ; secondly, if the party apprehending in repressing the violence of the party apprehended neces- sarily kill him, it is excusable. The right of private persons and of constables to apprehend without warrant has already been considered. Supra, pp. 228 et seq. If the apprehension be under a warrant, and the warrant be legal and be rightly executed, every person will be bound to obey it, whether or no he be guilty of the charge which gave rise to the issue of the warrant or not. Peace officer killed or killing others in apprehending them — when the peace officer is protected.^ A peace officer is to be considered as acting strictly in discharge of his duty, not only while executing the process entrusted to hini, but likewise while he is coming to perform, and returning from the performance of his duty. He is under the protection of the law, eundo, morando, et redeundo. And, therefore, if corning to perform his office he meets with great opposition and retires, and in the retreat is killed, this will amount to murder. Poster, 308 ; 1 Hale, P. G. 463. Upon the same princijde, if he meets with opposition by the way, and is killed before he comes to the place (such opposition being intended to prevent his perform- ing his duty, a fact to be collected from the evidence), it will also amount to murder. Foster, 309. The authority of a constable or other peace officer ceases with the limits of his district, and if he attempts to execute process out of the jurisdiction of the court or magistrate by whose orders he acts, and is killed, it is only manslaughter, as in the case of void process. 1 Hale, P. G. 458 ; 1 Past, P. C. 314. So where a plaintiff attempted to execute a writ without a non omittas clause, within an exclusive liberty, Holroyd, J., held him a trespasser, and the defendant, who had wounded him in resisting, and who was indicted for maliciously cutting with intent, &c, was acquitted. B. v. Mead, 2 Stark. N. P. G. 205. But if the warrant be directed to a particular constable by name, and it is executed by him within the jurisdiction of the court or magistrate issuing the same, although it be out of the constable's village, that is sufficient. 1 East, P. C. 314 ; Hawk. P. C. b. 2, c. 13, s. 27. A warrant directed " To the constable of Gr.," under 11 & 12 Vict. c. 43, s. 23, must be read as directed to the parish constable of Gr., and its execution by a county policeman was held to be illegal. P. v. Saunders, 36 L. J., M. G. 87 ; io Cox, 445, post, p. 678. By the 11 & 12 Vict. c. 43, and by the 11 & 12 Vict. c. 42, s. 10, pro- vision is made for warrants to be directed generally to all constables and peace officers of the county or district in which the justices have jurisdic- tion, and the warrant may be executed there or within seven miles of the border without being backed. Where a constable having a warrant to arrest the prisoner gave it to his son, and the latter attempted to apprehend the prisoner, the constable then being in sight, but a quarter of a mile off, Parke, B., held that the arrest was illegal. P. v. Patience, 7 C. & P. 775. In general, where it becomes necessary to prove that the deceased, or Murder. 677 the prosecutor, or other person was a constable, it will be sufficient to prove that he acted in that character, which will be prima facie evidence of his regular appointment, without its production. Vide ante, pp. 5, 16. For felony a man may be arrested without warrant, but in misde- meanors it is essential that the warrant should be in the possession of the person seeking to arrest, for the man arrested has a right to see the warrant, and may resist unless it is produced, though it is immaterial whether he asks for it or not. Codd v. Cabe, 1 Ex. T). 352; 45 Jj. J., M. C. 101 ; R. v. Carey, 14 Cox, 214. Where it becomes necessary to show the warrant or writ upon which a constable or other officer has acted, it is sufficient to produce the warrant or writ itself, without proving the judgment or decree upon which it is founded. Foster, 311, 312; 1 Fast, P. C. 310. But it is not sufficient to prove the sheriff's warrant to the officer without producing the writ of capias, &c, upon which it issued. R. v. Mead, 2 Stark. N. P. C. 205 ; 2 Stark. Ev. 51S, 2nd ed. Where it is requisite to prove that the party was acting under an authority derived from the articles of war, a copy of the articles, printed by the king's printer, must be produced. In several instances prisoners have been acquitted on a charge of murder for want of such evidence. 2 Stark. Ev. 519, '2nd ed. Peace officers hilled or hilling others in apprehending them — regularity of ]>rocess.~\ Where a peace officer, or other person, having the execution of process, cannot justify without a reliance on such process, it must appear that it is legal. But by this it is only to be understood that the process, whether by writ or warrant, be not defective in the frame of it, and issue, in the ordinary course of justice, from a court or magistrate having juris- diction in the case. Though there may have been error or irregularity in the proceedings previous to the issuing of the process, yet if the sheriff or other minister of justice be killed in the execution of it, it will be murder, for the officer to whom it is directed must, at his peril, pay obedience to it ; and therefore, if a ca. sa. or other writ of the kind issue, directed to the sheriff, and he or any of his officers be killed in the execution of it, it is sufficient, upon an indictment for the murder, to produce the writ or warrant, without showing the judgment or decree. R. v. Rogers, Foster, 312. So in case of a warrant obtained from a magistrate by gross imposition, and false information touching the matters suggested in it. //. v. Curtis, Foster, 135, 311. So though the warrant itself be not in strictness lawful, as if it express not the cause particularly enough, yet if the matter be within the jurisdiction of the party granting the warrant, the killing of the officer in the execution of his duty is murder ; for he <"innot dispute the validity of the warrant, if it be under the seal of the justice, &c. 1 Hale, /'. C. 460. In all kinds of process, both civil and criminal, the falsity of the charge contained in such process, — that is, the injustice of the demand in one case, or the party's innocence in the other, will afford no matter of alleviation for killing the officer; for every man is bound to submit himself to tin- regular course of justice. 1 East, I'. I '. 310; 1 Hale, P. C. 157. The provisions with regard to the issuing, backing, and service of war- rants, and the duties generally of justices out of sessions, with respect to persons charged with indictable offences, are embodied in tin ■ statutes 11 & 12 Vict. c. 42; 12 & 13 Vict. c. 69; 14 & 15 Vict. c. 93; 27 & 2S Vict. c. 53; 44 & 45 Vict. c. 24. If the process be defective in the frame of it, as if there be a mistake in the name or addition of the party, or if the name of the party or of the officer be inserted without authority, and after the issuing of the process, 678 Murder. and the officer in attending to execute it be killed, this is only man- slaughter in the party whose liberty is invaded. Foster, 312 ; 1 East, P. C. 310. The prisoner, who had been arrested and rescued, declared that if Welsh, the officer, attempted to arrest him again, he would shoot him. A writ of rescue was made out and carried to the office of Mr. Deacle, who acted for the under-sheriff of the county, to have the warrants made out. The under-sheriff's custom was to deliver to Deacle sometimes blank warrants, sometimes blank pieces of paper, under the seal of the office, to be afterwards filled up as occasion shovdd require. Deacle made out a warrant against the prisoner on one of these blank pieces of paper, and delivered it to Welsh, who inserted therein the names of two other persons on the 1 2th of July. In executing this warrant one of these persons in getting into the house to assist in the arrest was shot by the prisoner. Upon a reference to the judges, they certified that the offence in point of law amounted only to manslaughter. P. v. Stockley, 1 East, P. C. 310. So where the name of another sheriff's officer was inserted in a sheriff's warrant, after it had been signed and sealed, the arrest by the substituted officer was held illegal. B. v. Stevenson, 10 St. Tr. 846. But where the name of an officer is inserted before the warrant is sent out of the sheriff's office, it seems the arrest will not be illegal on the ground that the warrant was sealed before the name of the officer was inserted. 3 Puss. Cri. 102, 6th ed. Thus, where the names of two officers were interlined in a writ of possession, after it was sealed, but before it left the sheriff's office, and in executing it one of the officers was wounded, the party wounding having been indicted and convicted, the judges held the conviction right. P. v. Harris, 3 Puss. Cri. 102, 6th ed. Where a magistrate kept a number of blank warrants ready signed, and, on being applied to, filled up one of them, and delivered it to an officer, who in attempting to make the arrest was killed, it was held that this was murder in the party killing. Per Lord Kenyon, B. v. Inhab. of Wit/wick, 8 T. P. 454. But where a blank warrant signed by a magistrate was filled up by a police sergeant in the absence of the magistrate, and delivered by him to an officer, who in attempting to arrest the prisoner was killed by him, it was held, in the absence of malice, that the offence was manslaughter only, and not murder. Pafferty v. The People, 12 Cox, 617. Where a county constable attempted to arrest the defendant under warrant, directed to the constable of Gainsborough, it was held that the attempted apprehension was illegal, and therefore that a conviction for wounding the constable in the execution of his duty with intent to resist lawful apprehension could not be sustained. P. v. Sounders, 36 L. J., ~M. C. 87 ; 10 Cox, 445. A warrant to commit for an assault, issued by county justices of Worcester, and served on the prisoner in the borough of Worcester, without being backed by a justice for the borough was held to be defective. P. v. Cumjpton, 5 Q. B. I). 341 ; 40 L. J., M. C. 41. A justice's warrant, commanding a constable to apprehend and bring before him the body of A. to answer all such matters and things as on her Majesty's behalf shall be objected against him, on oath by B., for an assault committed upon B., on, &c, is bad, as not showing any informa- tion on oath upon which the warrant issues. Caudle v. Seymour, 1 Q. B. 880. Under this head it may properly be considered how far any defect in the frame of the process, or any other illegality in the arrest, will be a defence to a third person interfering to prevent it, and killing the officer in so doing. The question is ptvt by Mr. East in this form. How far the mere view of a person under arrest or about to be arrested, supposing it to be illegal, is of itself such a provocation to a bystander as will extenuate Murder. 679 his guilt in killing the officer, in order to set the party free or prevent the arrest? In the following case it was held by seven of the judges against five that it was such a provocation. One Bray, constable of St. Margaret's, Westminster, came into St. Paul's, Covent Garden, and without warrant took up one Anne Dekins, as a disorderly person, though she was innocent. The prisoners, strangers to Dekins, meeting her in Bray's custody, drew their swords, and assaulted Bray to rescue her ; but on his showing his staff, and declaring he was about the Queen's business, tbey put up their swords, and he carried her to the round-house in Covent Garden. Soon afterwards the prisoners drew their swords, and assaulted Bray, in order to get the woman discharged. "Whereupon Bray called Dent to his assistance, to keep the woman in custody, and to defend him- self from the violence of the prisoners, when one of the prisoners, before any stroke received, gave Dent a mortal wound. All the judges, except one, agreed that Bray acted without any authority ; but that one thought showing his staff was sufficient, and that, with respect to the prisoners, he was to be considered as a constable de facto. But the main point upon which they differed was, whether the illegal imprisonment of a stranger was, under these circumstances, a sufficient provocation to bystanders ; or in the language of Lord Holt, a provocation to all the subjects of England. Five judges held the case to be murder, and thought that it would have been a sufficient provocation to a relation or a friend, but not to a stranger. The other seven judges, who held it to be manslaughter, thought that there was no ground for making such a distinction, and that it was a provocation to all, whether strangers or others, so as to reduce the offence to manslaughter, it being a sudden action, without any precedent malice or apparent design of doing hurt, but only to prevent the imprisonment of the woman, and to rescue one who was unlawfully restrained of her liberty. /*'. v. Tooley, 2 Lord Raym. 1296 ; 1 Fast, P. C. 325. The prisoners, observes Foster, J., upon their first meeting, drew their swords upon the constables, who were unarmed, but put them up, appearing, on cool reflection, to be pacified. At the second meeting the constable received his death-wound, before any blow given or offered by him or his party. There was no pretence of a rescue; for, before the second encounter, the woman had been lodged in the round-house, which the soldiers could not hope to force ; so that the second assault upon the con- stable seemed rather to be grounded upon resentment, or a principle of revenge for what had passed, than upon any hope to rescue the woman. He concludes with expressing an opinion that the doctrine advanced in this case is utterly inconsistent with the known rules of law touching a sudden provocation in a case of homicide, and, which is of more importance, inconsistent with the principles upon which all civil government is founded, and. must subsist. Foster, 314, 315; 1 East, I'. ''. 326. In a later case also, upon //. \. Tooley being cited, Alderson, J., observed that it had been overruled. /,'. v. Warner, 1 Moo. C. G. 388. The majority of the judges, in the preceding case, appear to have grounded their opinion upon two former decisions. The first of these is thus stated by Kelynge. 1'xitv and two others pressed a man without authority: the man quietly submitted, and went along witli them. The prisoner, with three others, seeing them, instantly pursued them, and required to see their warrant; on which Berry showed them a paper, which the prisoner and his companions said was no warrant, and imme- diately drawing their swords to rescue the impressed man, thrust at Berry. < in this, Berry and bis two companions drew their swords, and a fight ensued, in which Eugget killed Berry. R. v. Hugget, Kel. b'l. Lord Hale's report of tliis case is more brief. A press-master seized B. 680 Murder. for a soldier, and with the assistance of C. laid hold of him ; D. finding fault with the rudeness of C, there grew a quarrel between them, and D. killed C. By the advice of all the judges, except very few, it was ruled that this was but manslaughter. 1 Hale, P. C. 465. The judges were, however, divided in opinion, four holding that it was murder, eight that it was manslaughter. Foster, 314. Foster, J., is inclined to rest the authority of this case upon the ground of its having been a sudden quarrel and affray, causing a combat between the prisoner and the assistant of the press-master; and he observes that Hale, who, at the conference, concurred in opinion with those who held it to be manslaughter only, says nothing touching the provocation which an act of oppression towards individuals might be supposed to give to the bystanders. He admits, however, that the case, as reported m Kelynge, does indeed turn upon the illegality of the trespass, and the provocation such an act of oppression may be presumed to give to every man, be he stranger or friend, out of mere compassion, to attempt a rescue. Foster, 314. The other case, referred to in R. v. Tooley, was that of Sir Henry Ferrers. Sir Henry Ferrers being arrested for debt upon an illegal warrant, his servant, in attempting to rescue him, as was pretended, killed the officer. But upon the evidence it appeared that Sir H. Ferrers, upon the arrest, obeyed, and was put into a house before the fighting between the officer and his servant, and the servant was acquitted of the murder and man- slaughter. R. v. Ferrers, Cro. Car. 371. Upon this case, Foster, J., observes, that from the report it does not appear upon what provocation the quarrel and affray began, and that it is highly probable that no rescue was thought of or attempted. Foster, 313. This doctrine underwent some discussion in a later case. The prisoner was tried at the Old Bailey for the murder of an assistant to a constable, who had come to arrest a man named Farmello (with whom the prisoner cohabited) as a disorderly person, with an insufficient warrant. Farmello made no resistance, but the prisoner immediately, on the constable and his assistant requiring Farmello to go along with them, without any request to desist, and without speaking, stabbed the assistant. Hotham, B. , said it was a very different case from what it would have been if the blow had been given by Farmello himself. If he, when the constable entered the room with an insufficient warrant, had immediately, in his own defence, rather than suffer himself to be arrested, done the deed, the homicide would have been lessened to the crime of manslaughter. The offence also might have been of a different complexion in the eye of the law if the prisoner had been the lawful wife of Farmello ; but standing in the light she did, she was to be considered an absolute stranger to him, a mere stander-by, a person who had no right whatever to be in any degree concerned for him. Thus, being a stranger, and having, before any person had been touched, and when the officers had only required Farmello to go with them, and without saying a word to prevent the intended arrest, stabbed the assistant, she was guilty of murder. He then adverted to R. v. Hugget and R. v. Tooley {supra), and observed that the circum- stances there were extremely different from those of the present case. Gould and Ashurst, JJ., concurred in this opinion ; but it was thought fit that the jury should find a special verdict, as the case was one of great importance. A special verdict was accordingly found, and the case_ was subsequently argued before ten of the judges, but no judgment was given, the prisoner either being discharged, or having made her escape from prison, during the riots in 1780. It is said that the judges held the case to be manslaughter only. R. v. Adey, 1 Leach, 206 ; 1 East, P. C. 329 («) ; 3RU88. Cri. 118 (n), 6th ed. Murder. 681 The above questions have been discussed in certain correspondence which passed between judges and counsel subsequently to the trial of Allen and others, at the Manchester Special Commission, for the murder of Brett, a police officer, whom they shot in attempting to rescue a Fenian prisoner. The law upon the subject is thus laid down in a letter from Blackburn, J. : — ■" When a constable, or other person properly authorized, acts in the execution of his duty, the law casts a peculiar protection around him, and consequently, if he is killed in the execution of his duty, it is in general murder, even though there be such circumstances of hot blood and want of premeditation as would in an ordinary case reduce the crime to manslaughter. But where the warrant under which the officer is acting is not sufficient to justify him in arresting or detaining prisoners, or there is no warrant at all, he is not entitled to this peculiar protection, and consequently the crime may be reduced to manslaughter when the offence is committed on the sudden, and is attended by circum- stances affording reasonable provocation." See Stephen's Dig. of Gr. Law, 375, 3rd ed. Although a distinction may exist between the case of servants and friends, and that of a mere stranger, yet it must be confessed, says Mr. East, that the limits between both are nowhere accurately defined. And, after all, the nearer or more remote connection of the parties with each other seems more a matter of observation to the jury, as to the probable force of the provocation, and the motive which induced the interference of a third person, than as furnishing any precise rule of law, grounded on such a distinction. 1 East, P. 0. 292. Peace officers killed or killing others in apprehending them — notice of their authority.] With regard to persons who, in the right of their offices, are conservators of the peace, and in that right alone interfere in the case of riots and affrays, it is necessary, in order to make the offence of killing them amount to murder, that the parties killing them should have some notice with what intent they interpose, otherwise the persons engaged may, in the heat and bustle of the affray, imagine that they came to take a part in it. But, in these cases, a small matter will amount to a due notification. It is sufficient if the peace be commanded, or the officer in any other manner declare with what intent he interposes. And if the officer be within his proper district, and known or generally acknowledged to bear the office which he assumes, the law will presume that the party killing had due notice of his intent, especially if it be in the daytime. In the night some further notification is necessary ; and commanding the peace, or using words of the like import notifying his business, will be sufficient. Foster, .'310. A bailiff or constable, sworn in at the leet, is presumed to be known to all the inhabitants or residents who are bound to attend at the leet, and are consequently bound to take notice that he is a constable ; 1 Hate. P. C. 4(31 ; and in such ease the officer, in making the arrest, is not bound to show the warrant. Id. 4<>9. But if the constable be appointed in some other way, from which the notoriety of his character could not be pre- sumed, some other circumstances would be required to found the pre- sumption of knowledge. And in tin ■ night-time, some notification would be necessary, in the ease of a leet constable. But whether in the day or night-time, it is sufficient if he declares himself to he the constable, or commands the peace in the king's name. 1 Hale, I'. C. 401. Where a man, assisting two sergeants- at-mace in the execution of an escape warrant, had been killed, a point was reserved for the opinion of the judges, whether or not sufficient notice of the character in which the 682 Murder. constables came had been given. It appeared that the officers went to the shop where the party against whom they had the warrant, and the prisoner, who was with him, were ; and calling out to the former, informed him that they bad an escape warrant against him, and required him to surrender, otherwise they should break open tbe door. In pro- ceeding to do so, the prisoner killed one of the sergeant's assistants. Nine of the judges were of opinion that no precise form of words was required; that it was sufficient that the party had notice, that the officer came not as a mere trespasser, but claiming to act under a proper authority. The judges who differed thought that the officers ought to have declared in an explicit manner what sort of warrant they had. They said that an escape does not ex vi termini, or, in notion of law, imply any degree of force or breach of the peace, and consequently the prisoner had not due notice that they came under the authority of a warrant grounded on a breach of the peace ; and they concluded that, for want of this due notice, the officers were not to be considered as acting in the discbarge of their duty. R. v. Curtis, Foster, 135. With regard to a private bailiff' or special bailiff, it must either appear that the party resisting was aware of his character, or there must be some notification of it by the bailiff, as by saying / arrest you, which is of itself sufficient notice ; and it is at the peril of the party if he kills him after these words, or words to the same effect, and it will be murder. 1 Hale, P. C. 461 ; R. v. Mackalley, 9 Co. 69, b. It is said, also, that a private bailiff ought to show the warrant upon which he acts, if it is demanded. 3 Russ. Cri. 109, 6th ed. It seems, however, that this must be understood of a demand made, after submitting to the arrest. The expression in Hale (459) is, " such person must show his warrant, or signify the con- tents of it " ; and it appears, from the authority of the same writer, supra, that even the words, "I arrest you," are a sufficient signification of the officer's authority. Peace officers hilled or hilling others in apprehending them — mode of exe- cuting their duty.~\ In cases of felony actually committed, if the offender will not suffer himself to be arrested, but stands upon his own defence, or flies, so that he cannot possibly be apprehended alive by those who pursue him, whether public officers or private persons, with or without a warrant, he may be lawfully killed by them. Hawk. P. C. b. 1, c. 28, s. 11. Where, says Foster, J., a felony is committed, and the felon flies from justice, and a dangerous wound is given, it is the duty of every man to use his best endeavours for preventing an escape ; and if, in the pursuit, the party flying is killed, where he cannot be otherwise overtaken, it is justi- fiable homicide. Foster, 271. In case an innocent person is indicted for felony, and will not suffer himself to be arrested by the officer mho has a warrant for that purpose, he may be lawfully killed by him, if he cannot otherwise be taken ; for there is a charge against him on record, to which, at his peril, he is bound to answer. Hawk. P. C. b. 1, c. 28, s. 12. It seems, however, that a constable, or other peace officer, is bound to arrest a person indicted of felony without a warrant, and that, therefore, if it be not possible other- wise to apprehend him, he will be justified in killing him, although he have no warrant. See 1 East, P. C. 300. Whether or not a peace officer who attempts, without a warrant, to apprehend a person on suspicion of felony, will be; justified in killing him, in case he cannot otherwise apprehend him, is a case requiring great con- sideration. Even in the instance of breaking open the outward door of a house, a peace officer is not justified, unless he is acting under a warrant, Murder. 683 in proceeding to that extremity; Foster, 321, and ride infra; still less could he be justified in a matter concerning life. However, according to Lord Hale, the officer would be justified in killing the party if he fly, and cannot otherwise be apprehended. 2 Hale, P. 0. 72, 80. In cases of misdemeanors, the law does not admit the same severe rale as in that of felonies. The cases of arrests for misdemeanors and in civil proceedings are upon the same footing. Foster, 271. H a man charged with a misdemeanor, or the defendant in a civil suit, flies, and the officer pursues, and in the pursuit kills him, it will be murder. 1 Hale, P. (J. 4Nl ; Foster, 451. Or rather, according to Foster, J., it will be murder or manslaughter, as circumstances may vary the case. For if the officer, in the heat of the pursuit, and merely to overtake the defendant, should trip up his heels, or give him a stroke with an ordinary cudgel, or other weapon not likely to kill, and death should ensue, it seems that this would amount to no more than manslaughter, and in some cases not even to that offence. But if he had made use of a deadly weapon, it would have amounted to murder. Foster, 271; and see Coddr. Cabe,4oL. J., M. C. 101 ; 1 Ex D. 3o2, ante, p. 677. H persons engaged in a riot, or forcible entry, or detainer, stand on their defence, and continue the force in opposition to the command of a justice of the peace, &c, or resist such justice endeavouring to arrest them, the killing of them may be justified; and so perhaps may the killing of any dangerous rioters by private persons, who cannot otherwise suppress them or defend themselves from them. Hawk. P. ('. b. 1, c. 28, s. 14. It is to be observed, that in all the above cases where the officer is justified by his authority, and exercises that authority in a legal manner,. if he be resisted, and in the course of that resistance is killed, the offence will amount to murder. With regard to the point of time at which a constable or other peace officer is justified, in case of resistance, in resorting to measures of violence, it is laid down, that although, in the case of common persons, it is their duty, when they are assaulted, to fly as far as they may, in order to avoid the violence yel a constable or other peace officer, if assaulted in the execution of his duty, is not bound to give way, and if he kills his assailant, it is adjudged homicide in self-defence. 1 Hale, I'. ( '. 481. This rule holds in the case of the execution of civil process, as well as in apprehensions upon a criminal charge. Hawk. P. C. b. 1, c. 28, 8. 17. But though it be qoI necessary that the officer should retreat at all, yet he ought not to come to extremities upon every slight interrup- tion, nor without a reasonable necessity. Therefore, when a collector, having distrained for duty, laid hold of a maid servant who stood at the door to prevent the distress being carried away, and beat her head and back several times against the door-post, of which she died ; although the court held her opposition to them to be a sufficient provocation to extenuate the homicide, yet they were clearly of opinion that the prisoner was guilt}- of manslaughter, in so far exceeding the necessity of the case. And where no resistance at all is made, and the officer kills, it will be murder. So if the officer kills the party after the resistance is offered, and the necessity has ceased, it is manslaughter at least; and if the blood had time to cool, it would, it seems, he murder. 1 East, /'. C. 2'J~ . Tn respect of the time of executing process, it may be done at night as well as by day; and therefore killing a bailiff, or other officer, under pretence of his coming at an unseasonable hour, would be murder. But since the statute 12!) Car. 2, c. 7, s. li. all process warrants, &c, served or executed on a Sunday are void, except in cases of treason, felony, or 684 Murder. breach of the peace, and therefore an arrest on any other account, made on that day, is the same as if done without any authority at all. 1 East, P. C. 324. But see now 11 & 12 Vict. c. 42, s. 4. In executing their duty, it often becomes a question in what cases constables and other peace officers are justified in breaking open windows and doors. In no case whatever is an officer justified in breaking an outward door or window, unless a previous notification has been given, and a demand of entrance made and refused. Foster, 320 ; Hawk. P. 0. b. 2, c. 14, s. 1. Where a felony has been actually committed, or a dangerous wound given, a peace officer may justify breaking an entrance door to apprehend the offender without any warrant, but in cases of misdemeanors and breach of the peace a warrant is required ; it likewise seems to be the better opinion tbat mere suspicion of felony will not justify him in proceed- ing to this extremity unless he be armed with a warrant. Foster, 320, 321 ; Hawk. P. C. b. 2, c. 14, s. 7 ; sed vide, 1 Hale, P. (J. 583 ; 2 Id. 92. In cases of writs, an officer is justified in breaking an outer door upon a capias, grounded on an indictment for any crime whatever, or upon a capias to find sureties for the peace, or the warrant of a justice for that purpose. Hawk. P. C. b. 2, c. 14, s. 3. So upon a capias utlagatum, or capias pro fine; Id. 1 Hale, P. C. 459; or upon an habere facias posses- sionem; 1 Hale, P. (,'. 458; or upon the warrant of a justice of the peace for levying a forfeiture in execution of a judgment or conviction ; Hawk. P. C. b. 2, c. 14, s. 5 ; or upon a writ of attachment. Harvey v. Harvey, 20 Ch. I). 644. If there be an affray in a house, and manslaughter or bloodshed is likely to ensue, a constable having notice of it, and demanding entrance, and being refused, and the affray continuing, may break open the doors to keep the peace. 2 Hale, P. C. 95; Haivk. P. C. b. 2, c. 14, s. 8. And if there be disorderly drinking or noise in a house at an unseasonable hour of the night, especially in inns, taverns, or alehouses, the constable or his watch demanding entrance, and being refused, may break open the doors to see and suppress the disorder. 2 Hale, P. 0. 95 ; 1 East, P. < '. 322. So if affrayers fly to a house, and he follows them with fresh suit, he may break open the doors to take them. Hawk. P. C. b. 1, c. 63, s. 16. But it has been doubted whether a constable can safely break open doors in such a case without a magistrate's warrant, and it is said, that at least there must be some circumstances of extraordinary violence to justify him in so doing. 3 Muss. Cri. Ill, 6th ed. In civil suits an officer cannot justify the breaking open an outward door or window to execute the process ; if he do break it open he is a trespasser. In such case, therefore, if the occupier resist the officer, and in the struggle kill him, it is only manslaughter. For every man's house is his castle for safety and repose to himself and his family. It is not murder, because it was unlawful for the officer to break into the house ; but it is manslaughter, because he knew him to be a bailiff. Had he not known him to be a bailiff, it would have been no felony because done in his house. 1 Hide, P. C. 458. This last instance, says Mr. East, must be understood to include at least a reasonable ground of suspicion that the party broke into the house with a felonious intent, and that the party did not know, or had no reason to believe, that he was only a trespasser. 1 East, P. (J. 321, 322. The privilege is confined to the outer doors and windows only — for if the sheriff or a peace officer enter a house by the outer door being open, he mny break open the inner doors, and the killing in such case would be murder. 1 Hale, P. C. 458. If the party whom the officer is about to Murder. 685 arrest, or the goods which, he is about to seize, be within the house at the time, he may break open any inner doors or windows to search for them, without demanding admission. Per Gibbs, J., Hutchinson v. Birch, 4 Taunt. 619. But it seems that if the party against whom the process is issued be not within the house at the time, the officer must demand admittance before he will be justified in breaking open an inner door. Ratcliffe v. Burton, 3 ft. II. Ad. bob. Proof of the degree of annoyance which /rill constitutea public nuisance.'] It is a matter of some difficulty to define the degree of annoyance which is necessary to constitute a public nuisance. Upon an indictment for a nuisance, in making great quantities of offensive liquors near the king's highway, it appeared in evidence that the smell was not only intolerably offensive, but also noxious and hurtful, giving many persons head-aches. It was held, that it was not necessary that the smell should be unwhole- some, but that it was enough if it rendered the enjoymenl of life and property uncomfortable, ft. v. White, 1 linn-. 333. So it is said that the carrying on of an offensive trade is indictable, where it is destructive of the health of the neighbourhood, or renders the houses untenantable or uncomfortable. A*, v. Davey, ~> Esp. 217. So it wasruled, by Abbott, C. J., in the case of an indictment for carrying on the trade of a varnish maker, that it was not necessary that a public nuisance should be injurious to health ; that if there were smells offensive to the senses, it was enough, 698 Nuisance. as the neighbourhood had a right to pure and fresh air. R. v. Neil, 2 0. & P. 485. As will be seen from R. v. Lister, infra, p. 699, though no actual annoyance have taken place, yet, if the lives and property of the public are endangered, as by the keeping of large quantities of inflammable or explosive substances in a crowded neighbourhood, an indictment for a nuisance will lie. Proof — with regard to situation.'] A question of considerable difficulty frequently presents itself, as to the legality of carrying on an offensive trade in the neighbourhood of similar establishments, and as to the length of time legalizing such a nuisance. Where the defendant set up the business of a melter of tallow in a neighbourhood where other manu- factories were established, which emitted disagreeable and noxious smells, it was ruled that he was not liable to be indicted for a nuisance, unless the annoyance was much increased by the new manufactory. R. v. Nevill, Peake, 91. And it has also been ruled, that a person cannot be indicted for continuing a noxious trade which has been carried on in the same place for nearly fifty years. R. v. Nevill, Peake, 93. But upon this case it has been observed, that it seems hardly reconcilable with the doctrine, that no length of time can legalize a public nuisance, although it may supply an answer to an action by a private individual. 1 Russ. Cri. 734, 6th ed. ; vide post, p. 699. It should seem, continues the same writer, that, in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, where the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. Upon an indictment for carrying on the business of a horse-boiler, it appeared that the trade had been carried on for many years before the defendants came to the premises ; but its extent was much greater under them. For the defendants, it was shown that the neighbourhood was full of horse-boilers and other noxious trades, and evidence was given of the trade being carried on in an improved manner. Lord Tenterden, observing that there was no doubt that this trade was in its nature a nuisance, said, that, considering the manner in which the neighbourhood had always been occupied, it would not be a nuisance, unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. He left it, therefore, to the jury to say whether there was any increase of the nuisance ; if, in consequence of the alleged improvements in the mode of conducting the business, there was no increase of annoy- ance, though the business itself had increased, the defendants were entitled to an acquittal ; if the annoyance had increased, this was an indictable nuisance, and the defendants must be convicted. R. v. Watt, Moo. & Mai. N. P. C. 281. Where a paper manufacturer had been used to send the washings of rags into the plaintiff's water, but found out a new way of making paper and discharged the refuse of a certain fibrous plant into the water, it was held that he could do so provided he did not increase the pollution. Baxendale v. McMurray, L. R., 2 Oh. 790; see also Ball v. Ray, L. R., 8 Oh. 467. If a noxious trade is already established in a place remote from habita- tions and public roads, and persons afterwards come and build houses within the reach of its noxious effects ; or if a public road be made so near it, that the carrying on of the trade become a nuisance to the persons using the road ; in those cases, the party is entitled to continue his trade, because it was legal before the erecting of the houses in the one case, and the making of the road in the other. Per Abbott, C. J., R. v. Cross, 2 C. & P. 483. Nuisance. 699 Proof — with regard to /myth of time. ~\ No length of time will legitimate a nuisance ; and it is immaterial how long the practice has prevailed. Though twenty years' user may bind the right of an individual, yet the public have a right to demand the suppression of a nuisance, though of long standing. Welti v. Hornby, 7 East, 199. Thus upon an indictment for continuing a shell fishery across the river at Carlisle, though it appeared that it had been established for a vast number of years, yet Buller, J., held that it continued unlawful, and gave judgment that it should be abated. Anon., cited by Lord Ellenborough, 3 Camp. 227. So it is a public nuisance to place a wood-stack in the street of a town before a house, though it is the ancient usage of the town, and leaves sufficient room for passengers, for it is against law to prescribe for a nuisance. Fotuler v. Sanders, Cro. -lac. 446. In one ease, however, Lord Ellenborough ruled, that length of time and acquiescence might excuse what might otherwise be a common nuisance. Upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used as a market for the sale of clothes for above twenty years, and that the defendant put the bags there for the purpose of sale. Under these circumstances, Lord Ellenborough said, that after twenty years' acquiescence, and it appearing to all the world that there was a market or fair kept at the place, he could not hold a man to be criminal who came there under a belief that it was such a fair or market legally instituted. 11. v. Smith, 4 Esp. 111. Proof of particular nuisances — highways.'] See supra, tit. Highways. Proof of 'particular nuisances — particular trades.] Certain trades, producing noxious and offensive smells, have been held to be nuisances when carried on in a populous neighbourhood, as making candles in a town by boiling stinking stuff, which annoys the whole neighbourhood with stenches. P. v. Tohayle, cited Cro. Car. 510; but see 2 Roll. Ab. 139; Hawk. 1'. <'. b. 1, c. 75, s. 10. And it seems that a brewhouse erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighbourhood, may be indicted as a common nuisance ; and so in the case of a glasshouse or swineyard. Hawk. V. < '. b. \,c. 75, s. 10; R. v. Wigg, 2 /./.~\ Common stages for rope-dancers, and common gaming-houses, are nuisances in the eye of law, not only because they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, to the inconvenience of the neighbourhood. Hawk. P. C. b. 1, c. 75, s. 6. So collecting together a number of persons in a field for the purpose of pigeon-shooting, to the disturbance of the neighborhood, is a public nuisance. B. v. Moore, 3 B. & Ad. 184 ; see this case more fully, post, p. 706. It is upon this same principle that many of the acts after mentioned have been held to be public nuisances. Exposing the dead body of a child in a public highway is a nuisance. R. v. Clark, 15 Cox, 171. Cremation if so conducted as not to shock public decency, is not an indictable nuisance at common law. See ante, tit. Dead Bodies. An indecent exposure in a place of public resort, if actually seen only by one person, no other jierson being in a position to see it, is not a common nuisance. B. v. Webb, 1 Ben. C. C. B. 338; 18 L. J., M. C. 39; and see B. v. Farrell, !> Cox, 446. But this view of the law has since been doubted in the case of B. v. Elliott, I.. & C. 103. The prisoner was indicted for an indecent exposure in an omnibus, several passengers being therein. The indictment contained two counts ; one laid the offence as having been committed in an omnibus, and the other in the public high- way. It was held that an omnibus was sufficiently a public place to sustain the indictment; R. v. Holmes, 1 Dears. C. C. B. 207; 22 L. J., M. (\ 122; and semble that a railway carriage would under similar cir- cumstances be also a public place. Langrish v. Archer, 10 Q. B. D. 44; 52 /,. '/., .1/. C. 47. So, also, where a man indecently exposed his person upon the roof of a house, where his act could not be seen by persons passing along the highway, but where it was seen by seven persons from the back windows of another house, it was held that he was rightly con- victed of exposing his person in a public place. R. v. Thallman, L. & C. 336; 33 L. •/.. .1/. C 58. A urinal open to the public, situate in Hyde I 'ark, near to a lodge, the window of which, on a first floor, commands a view of the urinal at a distance of 14 feet, the urinal being approached by a gate opening from a public footpath, is a public place. B. v. Harris, L. /,'., 1 C. C. R. 2S2; and 40 L. J., M. C. 07, where see the remarks of Willes, J., overruling R. v. Orchard, ;; Cox, 248. In //.v. Wellard, 14 Q. B. />. 63; 54 L. J., M. C. 14, the prisoner indecently exposed himself to several little girls in a place called the Marsh out of sight of a public footpath which ran through it. The public were in the habit of resorting to the Marsh without interference, although they had no legal right to go there. It was held that the jury were justified in finding that the place was public. It seems also from the same case that the offence may he indictable if committed before several people, even if the place be not public. By 48 & 40 Vict. c. 69, s. 11, the commission of an act of indecency by one male person with another male person is a misdemeanor whether in public or private. See the section, post, tit. Sodium/, p. 828. What outrages public decency, and is injurious to public morals, is indictable as a misdemeanor. Hawk. I'. ('. b. 1, c. 75, s. 4; 4 Black. 702 Nuisance. Coram. 65. Thus bathing in the open sea, where the party can be distinctly seen from the neighbouring houses, is an indictable offence, although the houses had been recently erected, and, until their erection, it had been usual for men to bathe in great numbers at the place in question: "for," said M'Donald, C. B., "whatever place becomes the habitation of civilized men, there the laws of decency must be enforced." R. v. Crunden, 2 Campb. 89 ; R. v. Sed/y, Sid. 168. Bathing so near a public footway frequented by females that exposure must occur is a nuisance, and it is no defence that there has been an usage to bathe at that place time out of mind. R. v. Reed, 12 Cox, 1, per Cockburn, C. J. Exhibiting an offensive and disgusting picture, although there be nothing immoral in it, and although the motive of the exhibitor may be innocent and even laudable, is a nuisance. R. v. Grey, 4 F. & F. 73. So keeping a booth for the purpose of showing an indecent exhibition to which people were invited to enter on payment and witness an indecent exhibition, renders a person indictable at common law for indecency in a public place. R. v. Saunders, 1 Q. B. I). 15; 45 L. J., M. C. 11. As to obscene prints, see 14 & 15 Vict. c. 100, s. 29, and 20 & 21 Vict, c. 83 ; and as to obscene books, see R. v. Kidding, 37 L. J., M. C. 89. Proof of particular nuisance — disorderly inns.'] Every one, at common law, is entitled to keep a public inn, but if he sells ale, wine, or spirits, he comes within the licensing statutes ; and may be indicted and fined, as guilty of a public nuisance, if he usually harbour thieves, or suffer frequent disorders in his house, or take exorbitant prices, or refuse to receive a traveller as a guest into his house, or to find him in victuals, upon the tender of a reasonable price. Hawk. P. C. b. 1, c. 78, ss. 1, 2; R. v. Iven, 7 C. & P. 213 ; Hawthorn v. Hammond, 1 C. & K. 404. Refusing to supply necessary food and lodging to a bond fide traveller is an indictable offence (1 Russ. Cri. 739, 6th cd.), but a refreshment bar, though attached to the inn, is not an inn within the common law rule, and therefore no indictment will lie for refusing to supply refreshments from such place. R. v. Rhymer, 2 Q. B. J). 136 ; 46 L. J., M. C. 108. By the 22 & 23 Vict. c. 17 (Vexatious Indictments Act), supra, p. 166, no indictment is to be preferred for keeping a gambling-house, or a dis- orderly house without previous authorization. See also 30 & 31 Vict. c. 35, s. 1, in Appendix. The quarter sessions for a borough have jurisdiction to try an indict- ment for keeping a disorderly house, and the jirovisions of the 25 Geo. 2, c. 36, s. 5, do not confine it to the assizes or the quarter sessions for the county. R. v. Charles, 10 W. R. 62; 31 L. J., M. C. 69. Proof of particular nuisances — gaming-houses.'] In R. v. Dixon, 10 Mod. 336, it was held that the keeping of a gaming-house was an offence at common law, as a nuisance. The keeping a common gaming-house is an indictable offence, for it not only is an encouragement to idleness, cheating, and other corrupt practices, but it tends to produce public disorder by congregating numbers of people. Hawk. P. C. b. 1, c. 75, s. 6. A feme covert may be convicted of this offence^ Hawk. P. C. b. 1, c. 92, s. 30. Keeping a common gaming-house, and for lucre and hire unlawfully causing and procuring divers ill-disposed persons to frequent and come to play together a certain game called rovge et noir, and permit- ting the said idle and evil-disposed persons to remain, playing at the said game, for divers large and excessive sums of money, is a sufficient statement of an offence indictable at common law ; R. v. Rogier, 1 B. & C. 272 ; and per Holroyd, J., it would have been sufficient merely to have Nuisance. 703 alleged that the defendant kept a common gaming-house. Ibid. So in R. v. Mason. 1 Leach, 548, Grose, J., seemed to be of opinion that the keeping of a common gaming-house might be described generally. See also It. v. Taylor, 3 />'. & < '. .302. It seems that the keeping of a cockpit is not only an indictable offence at common law, but such places are considered gaming-houses within the statute 33 Hen. S, c. 9. Hawk. /'. C. b. 1, c. 92, s. 92. The S & 9 Vict. c. 109, s. 2, enacts that, "in default of other evidence proving any house or place to be a common gaming-house, it shall be sufficient, in support of the allegation in any indictment or information, that any house or place is a common gaming-house, to prove that such house or place is kept or used for playing therein at any unlawful game, and that a bank is kept there by oue or more of the players exclusively of the others, or that the chances of any game played therein 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 other players stake, play, or bet ; and every such house or place shall be deemed a common gaming-house, such as is contrary to law and forbidden to be kept by the said Act of King Henry the Eighth, and by all other Acts containing any provision against unlawful games in gaming-houses." The Act also contains provisions for searching gaming-houses, and for the summary conviction of the owners. By the 16 & 17 Vict. c. 119, no house, room, or place is to be kept for the purpose of betting or receiving money for bets, and such places are made gaming-houses within the (S & 9 Vict. c. 109 ; amended by 37 & 38 Vict. c. 15. See cases cited ante, p. 518. Any person found in a betting-house and arrested on a warrant, may be bound over no more to play, &c. notwithstanding that the only evidence against him is the fact that he was found at such betting-house. Murphy v.' Arrow, (1897) 2 Q. J!. 527 ; 66 I. J., Q. B. 865. By the 17 & 18 Vict. c. 38, penalties are imposed upon persons obstruct- ing the entry of constables into suspected houses ; and by sect. 2, it is provided that, "where any constable or officer authorized as aforesaid to enter any house, room, or place, is wilfully prevented from or obstructed or delayed in entering the same or any part thereof, or where any external or internal door of or means of access to any such house, room, or place so authorized to be entered shall be found to be fitted or provided with any bolt, bar, chain, or any means or contrivance for the purpose of preventing, delaying, or obstructing the entry into the same or airy part thereof of any constable or officer authorized as aforesaid, or for giving an alarm in case of such entry, or if any such house, room, or place is found fitted or provided with any means or contrivance for concealing, remov- ing, or destroying any instrument of gaming, it shall be evidence until the contrary be made to appear that such room or place is used as a common gaming-house within the meaning of this Act, and of the former Acts relating to gaming, and that the persons found therein were unlaw- fully playing therein." The proceedings against persona keeping gaming-houses, bawdy-houses, or disorderly houses, are facilitated by the statute 25 Goo. 2, c. 30, by the eighth section of which it is enacted, that any person who shall appear, act, or behave as the master or mistress, or as the person having the care, government, or management of any bawdy-house, gaming-house, or other disorderly house, shall be deemed and taken to be the keeper thereof, and shall be liable to be prosecuted and punished as such, not- withstanding he or she shall not in fact be the real owner or keeper thereof. By section 10, no indictment shall be removed by certiorari. 704 Nuisance. This clause does not prevent the crown from removing the indictment. R. v. Davies, 5 T. R. 626. See also ante, p. 518. After an indictment has been preferred by a private prosecutor, the court will allow any other person to go on with it, even against the consent of the prosecutor. R. v. Wood, 3 B. & Ad. 657. No indictment for keeping a disorderly house can be removed by certiorari, whether the indictment be at the prosecution of the constable, or at the instance of a private individual. R. v. Sanders, 9 Q. B. 235 ; 15 L. J., M. C. 158. By the 10 & 11 Will. 3, c. 17, s. 1, and the 42 Geo. 3, c. 119, s. 1, all lotteries are declared to be a public nuisance. Seei?. v. Crawshaw, supra, p. 697. By the 9 & 10 Vict. c. 48, certain associations for the distribution of works of art are legalized. By 42 & 43 Vict. c. 18, unlicensed horse races within the metropolitan area are nuisances. See generally the 22 & 23 Vict. c. 17, ante, p. 166; post, Appendix. Proof of particular nuisances — bawdy-houses.^ The keeping of a bawdy- house is a common nuisance, both on the ground of its corrupting public morals, and of its endangering the public peace, by drawing together dissolute persons. Hawk. P. 0. b. 1, c. 74, s. 1 ; 5 Bac. Ab. Nuisances (A). A feme covert is punishable for this offence as if she were sole. Ibid.; R. v. Williams, 1 Salk. 383. And a lodger, who keeps only a single room for the use of bawdry, is indictable for keeping a bawdy-house ; see R. v. Pierson, 2 Ld. Ruym. 1197; but the bare solicitation of chastity is not indictable. Hawk. P. 0. b. 1, c. 74, s. 1. Though the charge in the indictment is general, yet evidence may be given of particular facts, and of the particular time of these facts; see Clarke v. Periam, 2 Atk. 339 ; it being, in fact, a cumulative offence. It 'is not necessary to prove who frequents the house, which in many cases it might be impossible to do, but if unknown persons are proved to have been there, conducting themselves in a disorderly manner, it will maintain the indictment. I' Anson v. Stuart, 1 T. R. 754. It is not necessary that the indecency or disorderly conduct should be perceptible from the exterior of the house. R. v. Rice, L. R., 1 C. 0. R. 21 ; 35 L. J., M. C. 93. The proceedings in prosecutions against bawdy-houses are facilitated by the statute 25 Geo. 2, c. 36, supra. Summary proceedings against brothel-keepers, &c, are extended by 48 & 49 Vict. c. 69, s. 13. A woman occupying a house alone, and receiving any number of men there, is not within the section. Singleton, v. Ellison, (1895) 1 Q. B. 607; 64 L. J., M. C. 123. See the 22 & 23 Vict. c. 17, ante, p. 166; and see 30 & 31 Vict. c. 35, s. 1, in Appendix. As to what amounts to a keeping.^ If a house be let to weekly tenants, and be used by them as a bawdy-house with the knowledge of the land- lord, who nevertheless does not get any additional rent by reason of the purposes to which the house is applied, the landlord is not guilty of keep- ing a bawdy-house, or of being accessory thereto. R. v. Barrett, 32 L. . 417; 46 L. J., M. C. 197; and cases collected in Chittifs Statutes, tit. Public Entertainment. Proof of particular nuisances — dangerous animah.~\ Suffering fierce and dangerous animals, as a fierce bull-dog, which is used to bite people, to go at large, is an indictable offence. 4 Burn's Justice, 578. But where the animal is not of such a description as, in general, from its ferocity, to endanger the persons of those it meets, in order to maintain an indict- ment, it must bo shown that the owner was aware of the ferocity of that particular animal. 2 /.~> Vict. c. 7(5, and 59 & (50 Vict. c. 19. It is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells. Ji. v. Dixon, 3 M. & S. 11. < >r to cause to be publicly exposed for sale, as sound and wholesome meat, meat known not to be sound and whole- some; R. v. Stevenson, 3 /'. eft F. 106; <>r knowingly to send such meal to market. R. v. Jarvis, ibid. 108; R. v. Crawley, ibid. 109. As to the inspection and seizure of unwholesome food, see 38 & 39 Vict. c. 55, ss. 116—119; 51 cV. :>;> Vict, c 7(5. s. 17; R. v. Dennis, (1894) 2 Q. II. 158. By 38 & 39 Vict. c. 63, s. 3. the adulteration of food in certain cases is made a misdemeanor, punishable by six months hard labour. Proof "/' particular nuisances— eaves-dropping, common scold. ~\ Eaves- droppers, or such as listen under walls or windows, or the eaves of houses, 1e hear discourses, and thereupon frame slanderous and mischievous tales, are common nuisances, and indictable, and may be punished by tine, and finding sureties of their good behaviour. 4 111. ('out. 1(57; Burn's Justice, Eaves-Droppers; 1 Russ. Cri. 752, 6th >■(/. So, a common scold is indictable as a common nuisance, and upon con- ic, •/■ ■/■ TOG Nuisance. viction rnay be fined or imprisoned, or put into the cucking-stool. Hawk. P. C. b. 1, e. 75, s. 14 ; 4 Bl. Com. 168. The particulars need not be set forth in the indictment ; Hawk. P. 0. b. 2, c. 25, s. 59 ; nor is it neces- sary to prove the particular expressions used ; it is sufficient to give in evidence generally that the defendant is alwavs scolding. Per Buller, J., P Anson v. Stuart, 1 T. R. 754. Proof of the liability of the defendant.'] A man may be guilty of a nuisance by the act of his agent or servant. Thus it has been ruled that the directors of a gas company are liable for an act done by their superin- tendent and engineer, under a general authority to manage their works, though they are personally ignorant of the particular plan adopted, and though such plan be a departure from the original and understood method, which the directors had no reason to suppose discontinued. R. v. Medley, 6 G. & P. 292 ; see this case, ante, p. 700. The owner of a slate quarry was indicted for a nuisance in obstructing a navigable river. He was unable through age and infirmity to superin- tend the working of the quarry, and the nuisance was caused by neglect of his general orders, but the judge directed the jury that it was his duty to take all proper precautions to prevent the rubbish from falling into the river, and that if a substantial part of the rubbish went into the river from having been improperly stacked, he was guilty of having caused a nuisance, although the act might have been committed without his know- ledge and against his general orders ; and this direction was upheld on a rule for a new trial. R. v. Stephens, L. P., 1 Q. B. 702. But where the defendant was summoned under 16 & 17 Vict. c. 128, for not consuming the smoke of his furnaces and it was proved that the defendant himself had been guilty of no negligence, but the emission of smoke had been caused by the carelessness of his servants, the court held that he was not criminallv responsible for his servants' negligence. Chisholm v. Doulton, 22 Q. B. D. 746; 58 L. J., M. C V33. (As to the criminal liability of a master for a false trade description by his servant under the Merchandise Marks Act, 1887, see Coppen v. Moore, (1898) 2 Q. B. 306.) The indictment charged the defendant with keeping certain enclosed lands near the king's highway, for the purpose of persons frequenting the same to practise rifle shooting, and to shoot at pigeons with fire-arms; and that he unlawfully and injuriously caused divers persons to meet there for that purpose, and suffered and caused a great number of idle and disorderly persons armed with fire-arms, to meet in the highways, &c, near the said enclosed grounds, discharging fire-arms, making a great noise, &c, by which the king's subjects were disturbed and put in peril. At the trial it was proved that the defendant had converted his premises, which were situate at Bayswater, near the public highway, into a shooting- ground, where persons came to shoot with rifles at a target, and also at pigeons ; and that as the pigeons which were fired at frequently escaped, persons collected outside of the ground, and in the neighbouring field to shoot at them as they strayed, causing a great noise and disturbance, and doing mischief by the shot. It was held, that the evidence supported the allegation that the defendant caused such persons to assemble, discharging fire-arms, &c, inasmuch as their so doing was a probable consequence of his keeping a ground for shooting pigeons in such a place. R. v. Moore, 3 B. & Ad. 184. If the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the land, he is liable to an indictment for such nuisance being continued or created during the term. So he is, if he let a building which requires particular Nuisance. 707 care to prevent the occupation from being a nuisance, and the nuisance occur for want of such care on the part of the tenant. If a party buy the reversion during a tenancy, and the tenant afterwards, during his term, erect a nuisance, the reversioner is not liable for it : but if such rever- sioner re-let, or having an opportunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continu- ance. Per Littledale, J. And such purchaser is liable to be indicted for the continuance of the nuisance, if the original reversioner would have been liable, though the purchaser has had no opportunity of putting an end to the tenant's interest, or abating the nuisance. R. v. Pedley, 1 Ad. & E. 822. The erection of a small-pox hospital was found by a jury to be a nui- sance; and the court held it was no answer to say that the defendant acted bond fide under the powers of an Act of parliament. Hill v. Met. Asylum Mamojers, 6 A p. Cas. 193; 50 /,. -/. (H. L.) 3,53. On an indictment for a nuisance in carrying on an offensive trade, a conviction of the defendant before justices for an offence against the 16 & 17 Vict. c. 128, s. 1 (now repealed), committed at the same place, and in the course of the same trade, but anterior to the period comprised in the indictment, is not admissible in evidence, as the offence in the two cases is not necessarily the same. And quaere, per Lord Campbell, C. J., and Coleridge, J., whether it would be admissible, even if the offence were the same. Semble, per Wightman, J., that it would. R. v. Faire, 8 E. & B. 486. Punishment and abatement of the nuisance.'] The punishment imposed by law on a person convicted of a nuisance is fine and imprisonment ; but as the removal of the nuisance is of course the object of the indictment, the court will adapt the judgment to the circumstances of the case. If the nuisance, therefore, is alleged in the indictment to be still continuing, the judgment of the court may be, that the defendant shall remove it at his own cost. 1 Hawk. c. 75, «. 14. But where the existence of the nui- sance is not averred in the indictment, then the judgment of abatement would not be proper ; for it would be absurd to give judgment to abate a thing which does not appear to exist. R. v. Stead, 8 T. R. 1-12 ; and see R. v. Justices of Yorkshire, 7 T. R. 468. And where the court are satisfied that the nuisance is effectually removed before judgment is prayed upon the indictment, they will in that case also refuse to give judgment to abate it. II. v. Incledon, 13 East, 127. When judgment of abatement is given, it is only to remove or pull down so much of the thing as actually causes the nuisance; as, if a house be built too high, the judgment is to pull down only so much of it as is too high. And the like where the defendant is convicted of a nuisance in carrying on an offensive trade, in which case the judgment is not to pull down the building where the trade is carried on, but only to prevent the defendant from using it again for the purpose of the offensive trade. //. v. Pappineau, 1 Str. 686; see 9 Co. 53; Co. Ent. 92 A. Where a defendant had entered into a recognizance to appear at the assizes and plead to an indictment for nuisance, and at the time of Hie assizes he was on the continent in ill-health; the nuisance having been abated, and the prosecutor being willing to consent to an acquittal, Patteson, J., after conferring with Ihskine, J., under these circum- stances, allowed a verdict of not guilty to be taken. R. v. Macmichael, 8 c. & P. :.-,:,. See further, tits. Bridges, Highioays. ■a A 2 rOS Oaths— Unlawful. OATHS— UNLAWFUL . Statutes.'] The offence of taking- or administering unlawful oaths is provided against by the 37 Geo. 3, c. 123, and the 52 Geo. 3, c. 104. By the former of these statutes (sect. 1), it is enacted, "that any person or persons who shall, in any manner or form whatsoever, ad- minister, or cause to be administered, or be aiding and assisting at, or present at, and consenting to the administering or taking of any oath or engagement, purporting or intending to bind the person taking the same, to engage in any mutinous or seditious purpose, or to disturb the public- peace, or to be of any association, society, or confederacy, formed for any such purpose ; or to obey the order or commands of any committee or body of men not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose; or not to inform or give evidence against any associated confederate or other person ; or not to reveal or discover any unlawful combination or con- federacy ; or not to reveal or discover any illegal act done, or to be done ; or not to reveal or discover any illegal oath or engagement, which may have been administered or tendered to, or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement, shall, on conviction, be adjudged guilty of felony, and be transported for any term not exceeding seven years, and every person who shall take such oath or engagement not being compelled thereto," is subject to the same punishment. See R. v. Marl-, 3 East. 157. By the 52 Geo. 3, c. 104, s. 1, " every person who shall in any manner or form whatsoever administer, or cause to be administered, or be aiding or assisting at the administering of, any oath or engagement, purporting or intending to bind the person taking the same to commit any treason, or murder, or any felony punishable by law with death, shall, on con- viction, be adjudged guilty of felony, and every person who shall take any such oath or engagement, not being compelled thereto, shall, on conviction, be adjudged guilty of felony, and be transported [now penal servitude] for life, or for such term of years as the court shall adjudge " (see ante, p. 203). Now by the 7 Will. 4 & 1 Vict. c. 91, it is enacted, "that persons administering oaths as in the last section mentioned shall be liable to be transported beyond the seas [now penal servitude] for the term of the natural life of such person" (see ante, p. 203). The statutes are not confined to oaths administered with a seditious or mutinous intent. R. v. Ball, (3 < '. & P. 563 ; R. v. Brodribb, Id. 578. And it is sufficient to aver that the oath was administered, not to give evidence against a person belonging to an association of persons associated to do a " certain illegal act." R. v. Brodribb, supra. Proof of the oath.'] With regard to what is to be considered an oath within these statutes, it is enacted by the 37 Geo. 3, c. 123, s. 5, that any engagement or obligation whatsoever, in the nature of an oath, and by 52 Geo. 3, c. 104, s. (!, that any engagement or obligation whatsoever in Oaths — Unlawful. 709 the nature of an oath., purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of those statutes, in whatever form or manner the same shall be administered or taken, and whether the same shall be actually adminis- tered by any person or persons to any other person or persons, or taken by any person or persons, without any administration thereof by any other person or persons. It is not necessary in the indictment to set forth the words of the oath or engagement, the purport of some material part thereof is sufficient. 37 Geo. 3, c. 123, s. 4 ; 52 Geo. 3, c. 104, s. 5 ; B. v. Moore, 6 East, 419(h). Parol evidence may be given of the oath, though the party administering it appeared to read it from a paper, to produce which no notice has been given. 11. v. Moore, supra. And where the terms of the oath are ambiguous, evidence of the declarations of the party adminis- tering it, made at the time, is admissible to show the meaning of those terms. /3. By .32 & 53 Vict. c. 63, s. 3, month means calendar month. Proof of malfeasance — illegal acts in general. ] It is a general rule that a public officer is indictable for misbehaviour in his office. Anon., (> Mod. !l(j. And where the act done is clearly illegal, it is not necessary, in order to support an indictment, to show that it was done with corrupt motives. Thus, where a licence having been refused by certain magistrates, another set of magistrates, having concurrent jurisdiction, appointed a subsequent day for a meeting, and granted the licence which had been refused before, it was held that this was an illegal act, and punishable by indictment, without the addition of corrupt motives. N. v. Sainsbury, 4 T. R. 451. Still more is such an offence punishable when it proceeds from malicious or corrupt motives. B. v. Williams, 3 Burr. 1317; R. v. Holland, 1 T.R. 692. A gaoler is punishable for barbarously misusing the prisoners. Hawk. I'. C. b. 1, c. G(i, s. 2. So overseers of the poor for misusing paupers, as by lodging them in unwholesome apartments. R. v. Wethi ril, < 'old. 432. Or by exacting labour from such as are unfit to work. R. v. Winshvp, Cald. 7(5. l'ublic officers are also indictable .for frauds com- mitted by them in the course of their employment. As where an overseer receives from the father of a bastard a sum of money as a compensation with the parish, and neglects to give credit for this sum in account, he is punishable, though the contract is illegal. R. v. Martin, 2 <'. 268. See also /«'. v. Bembridge, cited (> East, 136. Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his fault indictable. Per Cur., //. v. Wyat, 1 Sa/k. 380. But where an over- seer was indicted for breach of liis statutory duty by wilfully falsifying voters' lists, Charles, J., held that as the Parliamentary Registration Act, 1843, created special remedies for such breaches, the proceeding by indictment was impliedly excluded. //. v. Hull. (1S91) 1 Q. J!. 747; 6*0 L.J., M. C 124. Upon an indictment against a public officer for neglect of duty, it is sufficient to state that he was such officer without stating his appointment; neither is it necessary to aver that the defendant had notice of all the facts alleged in the indictment, if it was his official duty to have known them. So where a defendant is charged with disobedience of certain orders com- 712 Offices — Offences relating to. municated to him, it need not be alleged that such orders still continue in force, as they will be assumed to continue in force until they are revoked. And an indictment for neglect of duty under a particular statute need not state that the neglect was corrupt, if the statute makes a wilful neglect a misdemeanor. B. v. Holland, 5 T. 11. 607. Every malfeasance or culpable nonfeasance of an officer of justice, with relation to his office, is a misdemeanor, and punishable with fine or imprisonment, or both. As to the sale of offices, see B. v. Charretie, 13 'J. II. 147 ; and Hopkins v. Prescott, 4 C. B. 578. As to bribery and corruption of, and by members, officers, &c. of public bodies, see ante, p. 297, tit. Bribery. Proof of nonfeasance. ~] Upon a prosecution for not performing the duties of an office, the prosecutor must prove — 1, that the defendant holds the office ; 2, that it was his duty, and within his power to perform the particular act ; and 3, that he neglected so to do. "Where an officer is bound by virtue of his office to perform an act, the neglect to perform that act is an indictable offence. Thus a coroner, 2 Chitt. C. L. 255; a constable, 1 Buss. Cri. 419, 6th ed. ; B. v. Wyat, 1 Salk. 380; a sheriff, B. v. Antrobus, 6 C. <£• P 784; and an overseer of the poor, B. v. Tawney, 1 Bott. 333, are indictable for not performing their several duties. The majority of the judges were of opinion, that an overseer cannot be indicted for not relieving a pauper, unless there has been an order of justices for such relief, or unless in a case of immediate and urgent necessity. B. v. Meredith, Buss. & Ry. 46. But where the indictment stated that the defendant (an overseer) had under his care a poor woman belonging to his township, but neglected to provide for her necessary meat, &c, whereby she was reduced to a state of extreme weakness, and afterwards, through want, &c, died, the defendant was convicted, and sentenced to a year's imprisonment. B. v. Booth, Ibid. 47 (n). And in a case where an overseer was indicted for neglecting, when required, to supply medical assistance to a pauper labouring under dangerous illness, it was held that the offence was sufficiently charged and proved, though the pauper was not in the parish workhouse, nor had previously to his illness received or stood in need of parish relief. B. v. Warren, Uiid. 48 (n). Hy the 11 Geo. 1, c. 4, the chief officers of corporations, absenting themselves on the charter day for the election of officers, shall be imprisoned for six months. Such offence, however, is not indictable within the statute, unless their presence is necessary to constitute a legal corporate assembly. B. v. Corry, 5 East, 372. This statute is repealed as to boroughs within the Municipal Corporations Act, 1882. See 45 & 46 Vict. c. 50, Sched. I. part ii. Proof of extortion.'] One of the most serious offences committed by persons in office is that of extortion, which is defined to be the taking of money by an officer by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due. Hawk. P. C. h. 1, c. 68, s. 1. So the refusal by a public officer to perform the duties of his office, until his fees have been paid, is extortion. 3 Inst. 149; B. v. Heseot, 1 Salk. 330 ; Ilutt. 53. So it is extortion for a miller or a ferryman to take more toll than is due by custom. B. v. Burdett, infra. So where the farmer of a market erected such a number of stalls that the market people had not space to sell their wares, it was held that the taking money from them for the use of the stalls was extortion. 7?. v. Burdett, 1 Ld. Baym. 148. Offices — Offences relating to. 713 The prosecutor must be prepared to prove, first, that the defendant fills the office in question. For this purpose it will be sufficient to show that he has acted as such officer; and secondly, the fact of the extortion. This must be done by showing what are the usual fees of the office, and proving the extortion of more. Several persons may be indicted jointly, if all are •concerned ; for in this offence there are no accessories, but all are principals. It. v. Atkinson, 2 Ld. Raym. 124N; 1 Salk. 382; /«'. v. Loggen, 1 Str. To. The indictment must state the sum which the defendant received, but the exact sum need not be proved, as where he is indicted for extorting twenty shillings, it is sufficient to prove that he extorted one shilling. R. v. Burdett, 1 Ld. Raym. 148 ; R. v. G-illham, 6 T. 11. 267 : R. v. Higgins, 4 C. & /'. 247. The offence of extortion is punishable as a misdemeanor at common law, by fine and imprisonment, and by removal from office. Haxok. I'. C, b. 1, c. 68, s. o. Penalties are likewise added by the statute of Westminster 1, c. 26. It is also an indictable offence to persuade another to extort money from a person, whereby money actually was extorted from him. //. v. Tracey, 3 Salk. 192. Extortion by public officers in the East Indies.'} The 33 Geo. 3, c. .32, 8. 62, enacts, that the demanding or receiving any sum of money, or other valuable thing, as a gift or present, or under colour thereof, whether it be for the use of the party receiving the same, or for or pretended to be for the use of the East India Company, or of any other person whatsoever, by any British subject holding or exercising any office or employment under' his Majesty, or the company in the East Indies, shall be deemed to be extortion and a misdemeanor at law, and punished as such. The offender is also to forfeit to the king the present received, or its full value ; but the court may order such present to be restored to the party who gave it, or may order it or any part of it, or of any fine which they shall set upon the offender, to be paid to the prosecutor or informer. In /,'. v. Douglas, 13 Q. B. 74; 17 L. ■?., M. G. 176, Parke, B., in delivering the judgment of the Exchequer Chamber, confirming that of the Queen's Bench, said, "The object of the legislature was to prevent a person receiving any -il't. or present, or sum of money, in the East Indies (he being an officer of the government, or of the East India Company), absolutely, whatever the reason of that gift might be;" and added, "it was thought by the legislature, looking at the balance of convenience and inconvenience, that great advantages were obtained by putting an end to gifts altogether, though it might be at the expense of some occasional mischief to innocent persons." Proof on prosecutions for refusing to execute an office."] A refusal to execute an office' to which a party is duly chosen is an indictable offence, as that of constable; R. v. Lone, 2 Str. 920; /.'. v. Genge, Gowp. 13; or overseer; /,'. v. Jones, 2 Str. 111.'); 7 Mml. 410; 1 Russ. Gri. 429, 6th <. "The expression 'British possession' means any part of her Majesty's dominions not within the United Kingdom." 716 Offices — offences relating ti Sect. 6. — (1.) "This Act shall apply to all acts made offences by this Act when committed in any part of her Majesty's dominions, or when committed by British officers or subjects elsewhere. (2.) " An offence under this Act, if alleged to have been committed out of the United Kingdom, may be inquired of, heard, and determined, in any competent British court in the place where the offence was committed, or in her Majesty's High Court of Justice in England or the Central Criminal Court, and the 42 Geo. 3, c. 85 shall apply in like manner as if the offence were mentioned in that Act, and the Central Criminal Court as well as the High Court jjossessed the jurisdiction given b} r that Act to the Court of King's Bench. (3. ) " An offence under this Act shall not be tried by any court of general or quarter sessions, nor by any court out of the United Kingdom which has not jurisdiction to try crimes which involve the greatest punishment allowed by law." Sect. 7. —(1.) " A prosecution for an offence against this Act shall not be instituted except by or with the consent of the Attorney-General." Sect. 8. "In this Act, unless the context otherwise requires — " Any reference to a place belonging to her Majesty the Queen includes a place belonging to any department of the government of the United Kingdom or of any of her Majesty's possessions, whether the place is or is not actually vested in her Majesty; " Expressions referring to communications include any communication, whether in whole or in part, and whether the document, sketch, plan, model, or information itself or the substance or effect thereof, only be communicated ; • ' The expression ' document ' includes part of a document ; "The expression 'model' includes design, pattern, and specimen; ' ' The expression ' sketch ' includes any photograph or other mode of representation of any place or thing ; "The expression 'office under her Majesty the Queen.' includes any office or employment in or under any department of the government of the United Kingdom, and so far as regards any document, sketch, plan, model, or information relating to the naval or military affairs of her Majesty, includes any office or employment in or under any department of the government of any of her Majesty's possessions." Sect. 9. "This Act shall not exempt any person from any proceeding for an offence which is punishable at common law, or by military or naval law, or under any Act of parliament other than this Act, so, however, that no person be punished twice for the same offence." Perjury. PEEJUEY. The proofs required to support an indictment for perjury at common law will be first considered, and the statutes creating the offence of perjury in various cases will be subsequently stated. By the 22 & 23 Vict. c. 17, supra, p. Kill, no indictment for perjury is to be preferred without pi'evious authority as there mentioned. See also 30 & 31 Vict. c. ■')•"). s. 1, in Appendix. Perjury at common law."] Perjury at common law is defined to be a wilful false oath by one who, being lawfully required to depose to 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 bo believed or not. Haiok. I'. <'. I>. 1, c. (JO, s. 1. The proceedings, however, are not confined to courts of justice. Vide post, pp. 722 d seq. To support an indictment for perjury, the prosecutor must prove, 1, the authority to administer an oath ; 2, the occasion of administering it ; 3, the taking of the oath ; 4. the substance of the oath ; o, the materiality of the matter sworn ; 6, the introductory averments; 7, the falsity of the matter sworn ; and 8, the corrupt intention of the defendant. 2 Star/,-. Ev. 621, 2nd ed. Proof of the authority to administer o4. See also //. v. E>ri>tt/ton, 2 Moo. C. C. 22:;. Where a cause was referred by a judge's order, and it was directed that the witnesses should be sworn before a judge, " or before a commissioner duly authorized," and a witness was 3worn before a commissioner for taking affidavits (empowered by the repealed stat. 2!) Car. 2, c. 5), it was held that he was not indictable for perjury, the commissioner not being "duly authorized" by the statute to administer an oath for a viva voct 71'. & ('. 102. See also R. v. Berry, supra, p. 719. Where a feme sole obtained judgment and then married, and afterwards took out a judgment summons in her name when sole, the judge amended the summons, striking out the name of the plaintiff on the record, and substituting her husband's name and her name as wife. The defendant swore falsely upon the hearing of the summons. It was held, that the amendment being without jurisdiction, and there being no cause in the altered name, a conviction for perjury could not be supported. R. v. Pearce, 9 Cox, 258; 3 B. & S. 531. The offence of perjury consists in taking a false oath in a judicial proceeding, and whether the oath is before a court of common law or before a court acting under a statute it is equally an oath taken in a judicial proceeding and punishable with penal servitude. II. v. Castro, I.. II., 9 (J. II. 350; 43 L. J., Q. B. 105; 6 Ap. Cos. 229; 50 /,. -/. (//. L.) 497. It is not merely before courts of justice, even at common law, that persons taking false oaths are punishable for perjury. Any false oath is punishable as perjury which tends to mislead a court in any of its proceedings relating to a matter judicially before it, though it in no way affects the principal judgment which is to be given in the cause; as an oath made by a person offering himself as bail. And not only such oaths as are taken on judicial proceedings, but also such as any way tend to abuse the administration of justice are properly perjuries, as an oath before a justice to compel another to find sureties of the peace ; before commissioners appointed by the king to inquire into the forfeiture of his tenants' estates, or commissioners appointed by the king to inquire into defective titles. Hawk. I'. ('. I>. 1, c. 09, s. 3. A false oath in any court, whether of record or not, is indictable for perjury. 5 Mod. 348. And perjury may be assigned upon the oath against simony, taken by clergymen at the time of their institution. II. v. /.arts, 1 Str. 70. A person may be indicted for perjury who gives false evidence before a grand jury when examined as a witness before them upon a bill of indictment. R. v. Hughes, 1 0. & K. 519. Where the offence was stated to have been committed upon the trial of " a certain indictment for misdemeanor" at the quarter sessions for the county of Salop, but did not state what the misdemeanor was. nor thai the justices had jurisdiction, it was held that although it did not appear what the misdemeanor was upon the trial of which the perjury was com- mitted, yet that the substance of the offence upon the 1 rial for p< rjury suffi- ciently appeared, and further 1 hat the indictment need not contain an aver- ment of competent authority to administer the oath, though it seems such authority must be proved at the trial. R. v. Dunhiity, I.. II., ICC. //. 290. A man may be indicted for perjury in an oath taken by him in his own K. 3 A 722 Perjury. cause, as in an answer in chancery, or to interrogatories concerning a contempt, or in an affidavit, &c, as well as by an oath taken by him as a witness in the cause of another person. Hawk. P. C. b. 1, c. 69, s. 5. Perjury cannot be assigned upon a false verdict, for jurors are not sworn to depose the truth, but only to judge truly of the depositions of others. Id. Where the prisoner was indicted for taking a false oath before a surro- gate to procure a marriage licence, being convicted, the judges, on a case reserved, were of opinion that perjury could not be charged upon an oath taken before a surrogate. They were also of opinion that as the indictment in this case did not charge that the defendant took the oath to procure a licence, or that he did procure one, no punishment could be inflicted. R. v. Foster, Russ. & By. 459; and see R. v. Alexander, 1 Leach, 63; and see also 1 Vent. 370, and the observations, 2 Deac. Dig. C. L. 1001. But a surrogate has power to administer an oath, and a false oath taken before him for the purpose of obtaining a marriage licence is a misdemeanor. R. v. Chapman, 1 Den. C. C. R. 432; IS L. J., M. C. 152. And so is a false affidavit under the Bills of Sale Act, 1854. R. v. Hodgkiss, /.. 11., 1 C C. R. 212 ; 39 L. J., M. V. 14. The object with which the oath was taken need not be carried into effect, for the perjury is complete at the moment when the oath was taken, whatever be the subsequent proceedings. Thus where the defendant was indicted for perjury in an affidavit which could not, from certain defects in the jurat, be received in the court for which it was sworn, Littledale. J., was of opinion that nevertheless perjury might be assigned upon it. 11. v. Haileij, Ry. & Moo. N. P. C. 94 ; 1 C. .1-/. (>; 2 Burr, lis!); /,'. v. Benson, 2 Campb. 507. The making of an affidavit is proved in the same manner bv production 3 a 2 724 Perjury. and proof of the handwriting. The whole affidavit must be produced. B. v. Hudson, 1 F. '. & Ad. 21 ; R. v. M'Keron, 1 Russ. Gri. 354, 6th ed. An express averment that a question was material lets in evi- dence to prove that it was so. R. v. Burnett, 2 Den. G. G. R. 240; 20 L. '/., .1/. C. 217. Where, upon an indictment for perjury committed in an answer in chancery, the perjury was assigned in the defendant's denial, in the answer, of his having agreed, upon forming an insurance company, of which he was a director, &c, to advance 10,000/. for three years, to answer any immediate calls, and there was no averment that this was material, nor did it appear for what purpose the bill was filed nor what was prayed ; the judgment was arrested. R. v. Bignold, 1 Russ. < 'ri. 354, 6th ed. So perjury canm it be assigned on an answer in chancery, denying a promise absolutely void bvthe Statute of Frauds. R. v. Benesech, Peake's Add. Cases, 93. The materiality of the matter sworn to must depend upon the state of the causo, and the nature of the question in issue. If the oath is altogether foreign from the purpose, not tending to aggravate or ex- tenuate the damages, nor likely to induce the jury to give a readier credit to the substantial part of the evidence, it cannot amount to perjury. As if upon a trial in which the issue is, whether such a one is compos or not, a witness introduces his evidence by giving an account of a journey 128 Perjury. which lie took to see the party, and swears falsely in relation to some of the circumstances of the journey. So where a witness was asked by a judge, whether he brought a certain number of sheep from one town to- another altogether, and answered that he did so, whereas in truth he did not bring them altogether, but part at one time and part at another, yet he was not guilty of perjury, because the substance of the question was, whether he brought them all or not, and the manner of bringing was- only circumstance. (2 Bolle, 41, 369.) Upon the same ground it is said to have been adjudged, that where a witness being asked, whether such a sum of money was paid for two things in controversy between the parties, answered, it was, when in truth it was only paid for one of them by agreement, such witness ought not to be punished for perjury, because as the case was, it was no ways material whether it was for one or for both. (2 Rolle, 42.) Also it is said to have been resolved, that a witness- who swore that one drew his dagger, and beat and wounded J. S., when in truth he beat him with a staff, was not guilty of perjury, because the beating only was material. (Hetley, 95.) Hawk. P. C. b. 1, c. 69, s. 8. After stating these authorities. Hawkins observes, that perhaps in all these cases it ought to be intended that the question was put in such a manner that the witness might reasonably apprehend that the sole design of putting it was to be informed of the substantial part of it which might induce him, through inadvertency, to take no notice of the circumstantial part, and give a general answer to the substantial; for otherwise, if it appear plainly that the scope of the question was to sift him as to his knowledge of the substance, by examining him strictly as to the circum- stances, and he gave a particular and distinct account of all the circum- stances, which afterwards appears to be false, he cannot but be guilty of perjury, inasmuch as nothing can be more apt to incline a jury to give credit to the substantial part of a man's evidence, than his appearing to have an exact and particular knowledge of all the circumstances relating to it. Upon these grounds the opinion of the judges seems to be very reasonable (1 Rolle, 368 ; Palmer, 382), who held a witness to be guilty of perjury, who in an action of trespass for breaking the plaintiff's close, and spoiling it with sheep, deposed that he saw thirty or forty sheep in the close, and that he knew them to be the defendant's because they were marked with a mark which he knew to be the defendant's, whereas in truth tne defendant never used such a mark; for the giving such a special l at son for his remembrance could not but make his testimony the more credible than it would have been without it ; and though it signified nothing to the merits of the cause whether the sheep had any mark or not, yet inasmuch as the assigning such a circumstance, in a thing im- material had such a direct tendency to corroborate the evidence concerning what was most material, it was consequently equally prejudicial to the party, and equally criminal in its own nature, and equally tending to abuse the administration of justice, as if the matter sworn had been the verv point in issue. Hawk. P. C. b. 1, c. 69, s. 8. See also R. v. Tyson, L. R., 1 C. 0. R. 107; 37 L. J., M. C. 7. The vendor of goods having obtained a verdict in an action on a con- tract upon proof of the same by bought and sold notes, the purchasers filed a bill in chancery for a discovery of other parol terms, and for equitable relief from the contract. The answer to the bill denied _ the existence of the alleged parol terms. On an indictment assigning perjury upon the allegation which contained such denial, it was held by Cole- ridge, J., that the prayer of the bill being not to enforce the parol terms, but to obtain relief from the contract, the assignment of perjury was upon Perjury. 729 a matter material and relevant to the suit in chancery. R. v. Yates, Carr. . -/., M. 0. 98. See also R. v. Mullany, /.. & C. .YXi ; M L. J., M. C. 111. The degree of materiality is not, as it seems, to be measured. Thus it need not appear that the evidence was sufficient for the party to recover upon, for evidence may be very material, and yet not full enough to prove directly the issue in question. R, v. Rhodes, 2 Ld. Raym. 887. So if the evidence was circumstantially material, it is sufficient. //. v. Griepe, 1 Ld. Raym. 258 ; 12 Mod. 145. A few cases may be mentioned to illustrate the question of materiality. If in answer to a bill filed by A. for redemption of lands assigned to him by B., the defendant swears that he had no notice of the assignment, and insists upon taking another bond debt due from B. to his mortgage, tliis is a material fact on which perjury may be assigned. R. v. Pepy, Peake, X. I'. C. 138. In an answer to a bill filed against the defendant for the specific performance of an agreement relating to the purchase of land, the defendant had relied on the Statute of Frauds (the agreement not being in writing), and had also denied having entered into any such agreement, and upon this denial in his answer he was indicted for perjury; but Abbott, C. J., held that the denial of an agreement which by the statute was not binding upon the parties, was wholly immaterial, and the defendant was acquitted. II. v. Dunston, Ry. & Moo. X. P. C. 109; but see Bartlett \. Picleersgill, 4 Burr. 22.")."); -1 East, oil («•)•' ^ n indictment lor perjury stated that it became a material question, whether on the occasion of o certain alleged arrest L. touched K., &c. Tho defendant's evidence asset out was, "L. put his arms around him and embraced him"; innuendo, thai L. had on the occasion to which the said < vidi nee applied touched the person of Iv. It was held by the ( lour! i if King's Bench that the materiality of this evidence did not sufficiently appear. II. v. Nicholl,\ II. & Ad. 21. An indictment for perjury stated that II. L. stood charged by F. W. before T. S., clerk, a justice of the peace, with having committed 73(1 Perjury a trespass, by entering and being in tbe day-time on certain land in the pursuit of game, on the 12th August, 1843, and that T. S. proceeded to the hearing of the charge, and that upon the hearing of the charge the defen- dant C. B. falsely swore that he did not see H. L. during the whole of the said 12th August, meaning that he the said C. B. did not see the said H. L. at all on the said 12th day of August in the year aforesaid ; and that at the time he the said C. B. strove as aforesaid, it was material and necessary for the said T. S. so being such justice as aforesaid, to inquire of, and be informed by the said C. B., whether he the said C. B. did see the said H. L. at all during the said 1 2th day of August in the year aforesaid. It was held by Alderson, B. , that this averment of materiality was insufficient, because, consistently with the averment, it might have been material for T. S. in some other matter, and not in the matter stated to have been in issue before him, to have put this question and received this answer. B. v. Bartholomew, 1 ( '. & K. 366. An indictment for perjury on a charge of bestiality stated, that it was material ' ' to know the state of the said A. B.'s dress at the time the said offence was so charged to be committed as aforesaid " : this was held by the judges to be a sufficient averment of materiality, to allow the prosecutor to show that the flap of his trousers was not unbuttoned (as sworn by the defendant), and that his trousers had no flap. B. v. Gardner, 1 Moo. G. C. 95. A witness having sworn at a trial that he did not write certain words in the presence of D., it was held that the presence of D. might be a fact as material as the writing of the words, and therefore that an assignment of perjury, charging that the defendant did write the words in question in D.'s presence was good. B. v. Schlesinger, 10 Q. B. 670; 17 P. J., M. C. 29. Where a plaintiff in an action for goods sold swore falsely in cross-examination that she had never been tried at the Old Bailey, and had never been in custody at the Thames Police station, Campbell, C. J., held, on an indictment for perjury, that this evidence was material. B. v. Lavey, 3 G. &• K. 26. In order to show the materiality of the deposition or evidence of the defendant it is essential, where the perjury assigned is in an answer to a bill in equity, to produce and prove the bill, or if the perjury assigned is on an affidavit, to produce and prove the previous proceedings, such as the rule nisi of the court, in answer to which the affidavit in question has been made. If the assignment be on evidence on the trial of a cause, in addition to the production of the record, the previous evidence and state of the cause should be proved, or at least so much of it as shows that the matter sworn to was material. 2 Stark. Ev. 626, 2nd ed. In an indictment for perjury, Patteson, J., held that an averment that " it became and was material to ascertain the truth of the matter herein- after alleged to have been sworn to, and stated by the said J. Gr. upon his oath," was not a good averment of materiality. R. v. Goodfelloir, Carr. & M. 569. Proof of the introductory averments.'] Where, in order to show the materiality of the matter sworn to, introductory averments have been inserted in the indictment, those averments must be proved. 1 Buss. Cri. 353, 6th ed. B. v. Pluck, 1 Stark. N. P. G. 523. See, as to the power of amendment, 14 & 15 Vict. c. 100, s. 1, ante., p. 182. But where the introductory averment is not matter of description, it is sufficient to prove the substance of it, and a variance in other respects will be immaterial. Thus where the indictment averred the perjury to have been committed in the defendant's answer to a bill of discovery in the Exchequer, alleged to have been filed on a day specified, and it appeared that the bill was filed in a preceding term, Lord Ellenborough Perjury. 731 ruled that the variance was not material ; since the day was not alleged as part of the record, and that it was sufficient to prove the bill filed on any other day. II. v. Huck, supra. And where perjury was assigned on an answer to a bill alleged to have been filed in a particular terra, and a copy produced was of a bill amended in a subsequent term by order of the court, it was held to be no variance, the amended bill being part of the original bill. R. v. Waller, 2 Stark. Ev. 623. And again in a similar case, where the bill was stated to have been filed by A. against B. (the defendant in the indictment) and another, and in fact it was filed against B., C, and D., but the perjury was assigned on a part of the answer which was material between A. and B., Lord Ellenborough held the variance immaterial. R. v. Benson, 2 Campb. 507. See also R. v. Baity, 7 C. <(• /'. 264. The defendant was tried on an indictment for perjury committed in giving evidence, as the prosecutor of an indictment against A. for an assault ; and it appeared that the indictment for the assault charged, that the prosecutor had received an injury, " whereby his life was greatly despaired of." In the indictment for perjury, the indictment for the assault was introduced in these words, "which indictment was presented in manner and form following, that is to say," and set forth the indictment for the assault at length, and correctly, with the omission of the word " despaired" in the above passage. It was insisted that this was a fatal variance, but the learned judge who tried the case said, that the word tenor has so strict and technical a meaning as to make a literal recital necessary, but that by the words " in manner and form following, that is to say," nothing more was requisite than a substantial recital, and that the variance in the present case was only matter of form, and did not vitiate the indictment. R. v. May, 1 Russ. Cri. 338, 6th ed. Where the indictment stated that an issue came on to be tried, and it appeared that an information containing several counts, upon each ot' which issue was joined, came on to be tried, the variance was held im- material. R. v. Jones, Peake, X. /'. ( '. 37. The defendant was indicted for perjury in an answer to a bill in chancery, which had been amended after the answer put in. To prove the amendments a witness was called, who stated that the amendments were made by a clerk in the six clerks' office, whose handwriting he knew, and that the clerk wrote the word "amendment" against each alteration. Lord Tenterden was of opinion that this was sufficient proof of the amendments, but did not think it material to the case. //. v. Laycvck, I ('. & /'. 326. Upon an indictment for perjury committed on a trial at the London sittings, the indictment alleged the trial to have taken place before Sir J. Littledale, one of the justices, &c. On producing the record, it did not appear before whom the trial took place, but the postea stated it to have been before Sii' ( '. Abbott, C. J., &c. In point of fact it took place before Littledale, J. Lord Tenterden overruled the objection, that this was a variance, saying, "On a trial at the assizes, the postea states the trial to have taken place before both justices; it is considered in law as before both, though in fact it is before one only; and 1 am not aware that the pnstn/ j s ever made up here differently, when a judge of the court sits for the Chief Justice." II. v. Coppard, Moody & Math. 118. Where an indictment alleged that the defendant committed perjury on the trial of one B., and that B. was convicted, and it appeared by the record when produced that the judgment against B. had been reversed upon error after the bill of indictment against the defendant had been found; it was held by Williams, J., that this was no variance. II. v. Meek, U C. & /'. 513. Where an indictment alleged that "a certain action came on to be tried in due form of law," and was " duly tried by a jury 732 Perjury. of the country in that hehalf duly sworn," and it appeared by the record of the trial that the jury, having considered their verdict, returned, but did not give a verdict, the trial ending in a non-suit, it was held that the indictment was good. R. v. Bray, 9 Cox, 218. An indictment for perjury alleged the trial of an issue before E. S., esq., sheriff of D., by virtue of a writ directed to the sheriff, the writ of trial put in evidence was directed to the sheriff, and the return was of a trial before him ; but it was proved that in fact the trial took place before a deputy, not the under-sheriff. This was held to be no variance. B. v. Dunn, 2 Moo. C. C. B. 297. See also B. v. Schlesinger, 10 Q. B. 670. Where an indict- ment for perjury assigned on an affidavit made for the purpose of setting aside a judgment, alleged, that the judgment was entered up, " in or as of" Trinity term, 5 Will. 4, and the record of the judgment when pro- duced, was dated " June the 26, 5 Will, i ; " Patteson, J., held this to be a variance, and refused to amend. B. v. Cooke, 7 C. & P. 559. An allegation that judgment was "entered up" in an action, is proved by the production of the judgment book from the office in which the incipitur is entered. B. v. Gordon, Carr. cfc M. 410. On a charge of perjury, alleged to have been committed before commissioners to examine witnesses in a chancery suit, the indictment stated that the four com- missioners were commanded to examine the witnesses. Their commission was put in, and by it the commissioners, or any three or two of them, were commanded to examine witnesses ; this was held by Coleridge, J., to be a fatal variance, and he would not allow it to be amended. B. v. Hewins, 9 C. & P. 786. The prisoner was convicted of perjury alleged to have been committed in the course of an examination as a witness in a bankruptcy proceeding under sect. 27 of the Bankruptcy Act, 1883, under which "the court "' may examine on oath. The oath was administered to the prisoner in court by the registrar who remained in court while the examination of the prisoner was conducted in an adjoining room. It was held that there had been no examination by "the court," within sect. 27, in which the prisoner could be convicted of perjury. B. v. Lloyd, 19 Q. B. D. 213 ; 54 Z. J., M. C. 118. An allegation that the defendant made his warrant of attorney, directed to B. W. and F. B., "then and still being attornies " of the K. B., is proved by putting in the warrant. Ibid. Where in an indictment for per- jury against C. D. it is averred, that a cause was depending between A B. and C. D. ; Lord Denman, C. J., held that a notice of set-off intituled in a cause A. B. against C. D. was not sufficient evidence to support the allegation, B. v. Stoveld, 6 C. & P. 489. As to what is not a sufficient examined copy of a bill in chancery, see B. v. Christian, Carr. & M. 388. An indictment for perjury stated that "in the Whitechapel County Court of Middlesex, holden at, &c, in the County of Middlesex, before J. M., then and there being a judge of the court, a certain action of contract pending in the court between A. L. plaintiff and B. H. defendant, came on to be tried ; " upon which trial A. L. was then and there duly sworn, " before J. M., then and there being judge of the court, and then and there having sufficient and competent authority to administer the oath to A. L. in that behalf ; " it was held that it sufficiently appeared that the court in which the action was tried was held in pursuance of 9 & 10 Vict. c. 95. Lavey v. B., 2 Den. C. C. B. 504 ; 21 L. J., M. C. 10. In R. v. Rowland, 1 F. & F. 72, Bramwell, B., held, that on an indictment for perjury in order to prove the proceedings of the county court, it was necessary to produce either the clerk's minutes or a copy thereof bearing the seal of the court. See 51 & 52 Vict. c. 43, ss. 28, 180. Perjury. 733 An indictment for perjury committed by a bankrupt before the insolvent court, at an adjournment after his first examination, alleged that he was a trader owing debts less than 300/., and other matters. The petition upon which the prisoner had applied to the insolvent court alleged the very same matters as facts, upon which, with others, he rested his appli- cation. It was held by the Court of Criminal Appeal, that this was good prima facie evidence of the allegations in the indictment sufficient to throw the onus of proving the contrary on the prisoner. R. v. Westley, 29 L.J. , M. C. 35; Bell, CO. 193. In the same case the indictment alleged that notice of the petition was inserted in the "Gazette;" that a day was appointed for the first examination, and the sitting on that day was adjourned. No evidence was given in support of these allegations, but it was proved that the petition of the prisoner was filed in the insolvent court. An objection was taken at the trial that without proof of these allegations the juris- diction of the insolvent court was not shown. But it was held that, as upon filing the petition the court had jurisdiction to institute the examination, and as in a court of record omnia prcesumuntur rite esse acta. and as it was generally alleged in the indictment that the court had lawful power to administer the oath, the allegations of which no proof was offered might be rejected as immaterial. The indictment in this case alleged that the prisoner, after the passing and coming into operation of certain statutes, to wit, on the 20th May, 1859, presented his petition ; and then went on purporting to set out the titles of the statute in hcec verba. The years of her Majesty's reign, when two of the Acts were passed, were inaccurately stated, and there was another inaccuracy in setting out the title of one of them; the first two of these inaccuracies was amended at the trial, and the other not. It was held, first, that the judge had power to make the amendment; secondly, that as the statute was only referred to in order to show that the petition was presented after it had passed, and as that appeared sufficiently from the prior allegation of the date when the petition was faded, the reference to the statute might be rejected altogether as immaterial. In this case, Pollock, C. B., stated his opinion, generally, that where the title of an Act of Parliament is set out with sufficient accuracy to enable the court to know with certainty what Act is meant, any minor inaccuracy is immaterial. Proof of the falsity of the matter sworn.'] Evidence must be given to prove the falsity of the matter sworn to by the defendant; but it is not necessary to prove that all the matters assigned are false; for, if one dis- tinct assignment of perjury be proved, the defendant ought to be found guilty. R. v. Rhodes, .2 Lord Baym. 886; 2 IV. HI. 790; 2 Stark. Ev. (il'7, 2nd >■- to disprove the fact sworn to by the defendant; for, if any other material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale, and warrant a conviction. B. v. Lee, 1 Russ. Cri. 368, 6th ed. So it is said by Mr. Phillips, that it does not appear to have been laid down that two witnesses are necessaiy to disprove the fact sworn to by the defendant ; nordoes that seem to be absolutely requisite ; that at least one witness is- not sufficient ; and, in addition to his testimony, some other independent evidence ought to be produced. 1 Phill. Ev. 141, 6th ed. "There must be something in the corroboration which makes the fact sworn to not true, if that be true also." Per Alderson, B., in P. v. Boulter, infra. A distinction, however, appears to be taken between proving positive- allegations in the indictment, and disproving the truth of the matter sworn to by the defendant ; the latter, it is said, requiring the testimony ' of two witnesses. Thus, Mr. Sergeant Hawkins says that it seems to be agreed that two witnesses are required in proof of the crime of perjury; but the taking of the oath and the facts deposed may be proved by one witness only. Hawk. /'. C. b. 2. c. 4b\ s. 10. So it is said by Mr. Starkie (citing the above passage from Hawkins), that it seems the contradiction must be given by two direct witnesses : and that the negative, supported by one direct witness and by circumstantial evi dence, would not be snlli- cientTTnTados that he had"~brtTt4ttfettTted""that it had "been so held by Lord Tenterden. 2 Stark. Ev. ; 34 I.. ■/., .1/. C. 1<>9, Erie, C. J., said, "It is well- ascertained law that, upon an indictment for perjury, it is necessary to have more than the e\ idence of one witness alone, for that is but the oath of one against one, which leaves the matter even, and entitles the prisoner to an acquittal. The prosecution must do more than that. They must turn the scale by corroborating their witness. The degree of corroboration, however, which is necessary is not definable and any attempt to define it will prove illusory. It must be something which, in the opinion of the tribunal before which it is brought, is deserving of the name of corrobo- ration." Where there were iluee assignments of perjury upon evidence- relating to one and the same transaction, at one and the same time and place, it seems to have been considered that the jury ought not to convict on one of the assignments, although there were several witnesses who- corroborated the witness who spoke to such assignment, on the facts con- tained in the other assignments. R. v. Verrier, 12 Ad. & /•,'. 317; 1 Buss. Cri. 370, 6th ed. And it has since been held, by Tindal. ( '. J., that the rule which requires two witnesses, or one witness and some sufficient corroboration, applies to everv assignment of porjurv in an indictment. R. v. Parker, Carr. & M. 639; 1 Russ. Gri. 37.}, 6th ed. In //. v. Boulter, 2 Den. C. C. R. 396; 21 /.. ./., .1/. C. 57, perjury was assigned on a state- ment made by the prisoner, upon a trial at Nisi 1 Yius, that in June, 1851 , he owed no more than one quarter's rent to his landlord ; the prosecutor swore that the prisoner owed five quarters' rent at that date; and to corroborate the prosecutor's evidence a witness was called, and proved + 736 Perjury. that in August, 1850, the prisoner had admitted to him that he then owed his landlord three or four quarters' rent. This was held not to be sufficient corroborative evidence to warrant a conviction, for the money might have been paid intermediately. In a case of perjury on a charge of bestiality, the defendant swore that he saw the prosecutor committing the offence, and saw the flap of his trousers unbuttoned. To disprove this, the prosecutor deposed that he did not commit the offence, and that his trousers had no flap ; and to confirm him, his brother proved that at the time in question the prosecutor was not out of his presence more than three minutes, and his trousers had no flap. This was held by Patteson, J., to be sufficient corroborative evidence to go to the jury, who found the defendant guilty. R. v. Hardiner, 2 Moo. 0. C. 95. A., to prove an alibi for B., had sworn that B. was not out of his sight between •the hours of 8 a.m. and 9 a.m. on a certain day, and on this perjury was assigned; Patteson, J., held that evidence by one witness that between those hours A. was at one place on foot, and by another witness that between those hours B. was walking at another place six miles ■off, was sufficient proof of the assignment of perjury. R. v. Roberts, 2 G. & K. 207. Where a statement by the prisoner himself is given in evidence, con- tradicting the matter sworn to by him, it has been held not to be necessary to call two witnesses to prove the falsity ; one witness, with proof of the admission, being sufficient. The defendant made information, upon oath before a justice of the peace, that three women were concerned in a riot at his mill (which was dismantled by a mob, on account of the price of •corn) ; and afterwards, at the sessions, when the rioters were indicted, he was examined concerning those women, and having been tampered with in their favour, he then swore that they were not at the riot. There was no other evidence on the trial for perjury to prove that the women were in the riot (which was the perjury assigned), but the defendant's informa- tion, -which was read. The judge thought this evidence sufficient, and the defendant was convicted and transported. Anon.. 5 B. & A. 939, ■940 (h.) ; 1 Russ. Cri. 372, 6th ed. So in a case where the defendant had been convicted of perjury, charged in the indictment, to have been com- mitted in an examination before the House of Lords, and the only evidence was a contradictory examination of the defendant before a com- mittee of the House of Commons, application was made for a new trial, on the ground that in perjury, two witnesses were necessary, whereas, in that case, only one witness had been adduced to prove the corpus delicti, viz., the witness who deposed to the contradictory evidence given by the defendant, before the committee of the House of Commons, and further, it was insisted that the mere proof of a contradictory statement by the defendant on another occasion was not sufficient, without other circum- stances showing a corrupt motive, and negativing the probability of any mistake. But the court held, that the evidence was sufficient, the contra- diction being by the party himself; and that the jury might infer the motive from the circumstance, and the ride was refused. R. v. Knill, 5 B. & A. 929, note {a). So where upon an indictment for perjury, in an affidavit made by the defendant, a solicitor, to oppose a motion in the Court of Chancery to refer his bill of costs for taxation, only one witness was called, and in lieu of a second witness, it was proposed to put in the defendant's bill of costs, delivered by him to the prosecutor, upon which it was objected that this was not sufficient, the bill not having been •delivered on oath; Denman, C. J., was clearly of opinion, that the bill •delivered by the defendant was sufficient evidence, or that even a letter written by the defendant contradicting his statement on oath, would be Perjury. 737 sufficient to make it unnecessary to have a second witness. _ R. v. Mayhew, 6 C. & P. 315. There appears, however, to be an objection to this evidence, which is not easily removed, namely, that there is nothing to show which of the statements made by the defendant is the false one where no other evidence of the falsity is given. Upon this subject the following observations were made by Holroyd, J. : " Although you may believe that, on the one or the other occasion the prisoner swore what was not true, it is not a necessary consequence that he committed perjury; for there are cases in which a person might very honestly and conscien- tiously swear to a particular fact from the best of his recollection and belief, and from other circumstances, at a subsequent time, be convinced that he was wrong, and swear to the reverse, without meaning to swear falsely either time. Again, if a person swears one thing at one time, and another at another, you cannot convict where it is not possible to tell which is the true and' which is the false." R. v. Jackson, 1 Lewin, C. G. 270. See also ft. v. Hughes, ante, p. 734. -So in R. v. Harris, o B. & A. <)2<>, the Court of lung's Bench were of opinion (p. 937), that perjury could not be legally assigned by showing contradictory depositions with an averment that each of them was made knowingly and deliberately, but without averring or showing in which of the two depositions the falsehood consisted. So where the defendant was charged with perjury committed on a trial at the sessions, Gurney, B., held that a deposition made by the defendant before the magistrate, entirely different from what he swore at the trial, was not in itself sufficient proof that the evidence he gave at the sessions was false, but that other confirmatory proof must be adduced to satisfy the jury that he swore falsely at the trial. Strong confirmatory evidence having been given of the truth of the deposition, the defendant was found guilty. R. v. Wheatland, 8 C. ct* P. 238. See 1 Russ. Gri. 373 («.), 6th ed. On an indictment for perjury, the prisoner was charged with having falsely sworn that certain invoices, bearing certain dates, were produced by her to one C. C. was called, and swore that she had not produced the invoices which she had deposed to, but that she had produced others ; and he produced a memorandum he had made privately at the time of the dates of the invoices produced, which showed that they were not the same as those sworn to by the prisoner. Cockburn, C. J., held that the memo- randum was a sufficient corroboration. ft. v. Webster, 1 F. :> & 56 Vict. c. 23, s. 15). False evidence given on oath Indole a referee appointed under the Agricultural Holdings Act, 1883 (40 & 47 Vict. c. 61), is by s. 13 made the subject of perjury; also by parliamentary candidate or election agent, under 40 & 47 Vict, e. 51, s. 33 (7). So also before Public Works Loan Commissioners under 38 & 39 Vict. c. 89, s. 44. Also before inquiries held by direction of the Commissioners of Customs, 39 & 40 Vict. c. 36, s. 36. Falsely swearing under the Yorkshire Registries Act, 1884 17 & 48 Vict. c. 54), s. 47; or the Commissioners for Oaths Act, '>^ Vict. c. 10, s. 7. By 48 & l!» Vict. C. 69, s. 4. the evidence of a child received not upon oath, by virtue of that section, may be the subject of perjury, post, p. 768; and a similar provision is contained in the Prevention of Cruelty to Children Act, 57 & 58 Vict. c. 41, s. 15, which gives power to whip a boy under fourteen 3 B 2 740 Perjury. committing this offence (see the section, ante, p. 347). See also False Declarations, ante, p. 423. Punishment.'] Perjury is punishable at common law with fine and imprisonment at the discretion of the court. By the 2 Geo. 2, c. 25, s. 2, "the more effectually to deter persons from committing wilful and corrupt perjury or subornation of perjury," it is enacted, that ' ' besides the punishment already to be inflicted by law for so great crimes, it shall and may be lawful for the court or judge before whom any person shall be convicted of wilful and corrupt perjury, or subornation of perjury, according to the laws now in being, to order such person to be sent to some house of correction within the same county for a time not exceeding seven years, there to be kept to hard labour during all the said time, or otherwise to be transported to some of his Majesty's plantations beyond the seas, for a term not exceeding seven years, as the court shall think most proper; and thereupon judgment shall be given, that the person convicted shall be committed or transported accordingly, over and beside such punishment as shall be adjudged to be inflicted on such person agreeable to the laws now in being ; and if transportation be directed, the same shall be executed in such manner as is or shall be provided by law for the transportation of felons ; and if any person so committed or transported shall voluntarily escape or break jmson, or return from transportation, before the expiration of the time for which he shall be ordered to be transported as aforesaid, such person being thereof lawfully convicted shall suffer death as a felon without benefit of clergy, and shall be tried for such felony in the county where he so escaped, or where he shall be apprehended." By the 3 Geo. 4, c. 114, persons guilty of perjury or subornation of perjury, may be sentenced to hard labour. By the 7 Will. 4 & 1 Vict. c. 23, the punishment of the pillory is abolished. Postponing trials for 'perjury.'] It is the practice at the Central Criminal Court not to try an indictment for perjury arising out of a civil suit, while that suit is in any way undetermined, except in cases where the court in which it is pending postpone the decision of it, in order that the criminal charge may be first disposed of. B. v. Ashburn, 8 C. & P. 50. SUBORNATION OF PERJURY. Subornation of perjury, at common law, is the procuring a man to take a false oath amounting to perjury, the man actually taking such oath ; but if he do not actually take it, the person by whom he was incited is not guilty of subornation of perjury ; yet he may be punished by fine and corporal punishment. Hawk. P. C. b. 1, c, 69, s. 10. Upon an indictment for subornation of perjury, the prosecutor must prove, (1) the inciting by the defendant, and that he knew that the evidence to be given was false ; and (2) the taking of the false oath by the witness, &c. See now 14 & 15 Vict. c. 100, s. 21, ante, p. 739, and see the Statutes in Appendix. Proof of the incitement.] The incitement may be proved by calling the party who was suborned. The knowledge of the defendant that the evidence about to be given would be false will probably appear from the evidence of the indictment, or it may be collected from other circumstances. Perjury. 741 Proof of the taking of the false oathJ] In general, the proof of the perjury will be the same as upon an indictment for perjury, against the witness who perjured himself; and even if the latter has been convicted, it will not, as it seems, be sufficient against the party who had suborned him to prove merely the record of the conviction ; but the whole evidence must be gone into as upon the former trial. The defendant was indicted for procuring one John Macdaniel to take a false oath. To prove the taking of the oath by Macdaniel, the record of his conviction for perjury was produced. But it was insisted for the defendant, that the record was not of itself sufficient evidence of the fact ; that the jury had a right to be satisfied that such conviction was correct; that the defendant had a right to controvert the guilt of Macdaniel, and that the evidence given on the trial of the latter ought to be submitted to the consideration of the present jury. The recorder obliged the counsel for the crown to go through the whole case in the same manner as if the jury had been charged to try Macdaniel. P. v. Reilly, 1 Leach, 455. Upon this case, Mr. Starkie has made the following observations : — This authority seems at first sight to be inconsistent with that class of cases in which it has been held that as against an accessory before the fact to a felony, the record of the conviction of the principal is evidence of the fact. If the prisoner, instead of being indicted as a principal, in procuring, &c, had been indicted as acces- sory before the fact, in procuring, &c, the record would clearly have been good prima facie evidence of the guilt of the principal. It is, how- ever, to be recollected that this doctrine rests rather upon technical and artificial grounds than on any clear and satisfactory principle of evidence. 2 Stark. Ev. 627, 2nd ed. It may also be observed that the indictment for subornation of perjury does not set forth the conviction of the pai*ty who took the false oath, but only the preliminary circumstances and the taking of the oath ; forming an allegation of the guilt of the party, and not of his conviction; and in 7?. v. Turner, 1 Moo. C. C. 347, ante, p. 46, the judges expressed a doubt whether, if an indictment against a receiver stated, not the conviction, but the guilt of the principal felon, the record of the conviction of the principal would be sufficient evidence of the guilt. PERSONATION. See False Personation. 742 Pigeons. PIGEONS. It has been seen (ante, p. 453) that larceny may be committed of tame pigeons, even although unconfined ; and by the 24 & 25 Vict. c. 96, s. 23, it is provided, that " whosoever shall unlawfully and wilfully kill, wound, or take any house dove or pigeon, under such circumstances as shall not amount to larceny at common law, shall, on conviction before a justice of the peace, forfeit and pay over and above the value of the bird any sum not exceeding two pounds." Where A. gave notice to B. that if B.'s pigeons continued to come on to his land he would shoot them, and he afterwards did shoot one and left it on the ground, it was held that this was not an unlawful killing within the meaning of the statute, for the section applies only to such acts as would be of the nature of larceny, supposing pigeons could be the subject of larceny. Taylor v. Newman, 4 B. & S. 89 ; 32 L. J,, M. C, 186. (See this case approved of in Hudson v. Macrae. 4 B. & S. 592.) Piracy. 743 PIEACY. Offence at common law.'] The offence of piracy at common law consists in committing- those acts of robbery and depredation upon the high seas, which, if committed on land, would have amounted to felony there ; though it was no felony at common law. 2 East, P. G. 790; 1 Bl. Cum. 72; Hawk. P. G. c. 37, s. 4. Before the 28 Hen. 8, c. 15, the offence was only punishable by the civil law, and that statute does not render it a felony. By other statutes, however, which will be presently noticed, the offence is made felony, and the nature of the offence which shall constitute piracy is specifically described. ' ' The offence of piracy at common law is nothing more than robbery upon the high seas ; but by statutes passed at various times, and still in force, many artificial offences have been created, which are to be deemed to amount to piracy." Report of ' 'mum. of ('rim. Laiv. 11 & 12 117//. 3, c 7.] By the 11 & 12 Will. 3, c. 7, s. 8, " if any of his Majesty's natural-born subjects or denizens of this kingdom shall commit any piracy or robbery, or any act of hostility against others, his Majesty's subjects upon the sea, under colour of any commission from any foreign prince or state, or pretence of authority from any person whatsoever, such offender or offenders shall be deemed, adjudged, and taken to be pirates, felons, and robbers, &c." By s. 9, "if any commander, or master of any ship, or any seaman or mariner, shall in any place where the admiral has jurisdiction betray his trust, and turn pirate, enemy, or rebel, and piratically and feloniously run away with his or their ship or ships, or any barge, boat, ordnance, ammu- nition, goods, or merchandise, or yield them up voluntarily to any pirate; or shall bringany seducing message from any pirate, enemy, or rebel; or consult, combine, or confederate with, or attempt, or endeavour to corrupt any commander, master, otlicer, or mariner, to yield up or run away with any ship, goods, or merchandise, or turn pirates ; or go over to pirates; or if any person shall lay violent hands on his commander, whereby to hinder him from fighting in defence of his ship and goods committed to his trust, or shall confine his master, or make, or endeavour to make, a revolt in his ship, he shall lie adjudged, deemed, and taken to he a pirate, felon, and robber [and suffer death," &c.]. Upon the above section (9) of the 11 & 12 Will. 3, c. 7, it has been decided by a courl of twelve judges, that the making, or endeavouring to make, a revoll on hoard a ship with a view to procure a redress of what the prisoners may think grievances, and without any intent to run away with the ship, or to commit any act of piracy, is an offence within the statute. /,'. v. Easting, 1 Moo. C. C. 82. 8 Geo. 1, c. 2-1.] By the 8 Geo. 1, c. 24, s. 1, "in case any person or persons belonging to any ship or vessel, whatsoever, upon meeting any merchant ship or vessel on the high seas, or in any port, haven, or creek whatsoever, shall forcibly board or enter into such ship or vessel, and, 744 Piracy. 'though they do not seize or carry off such ship, or vessel, shall throw overboard or destroy any part of the goods or merchandise belonging to such ship or vessel, the person or persons guilty thereof shall in all respects l>e deemed and punished as pirates as aforesaid." And by the same section, " if any commander or master of any ship or vessel, or any other person or persons, shall anywise trade with any pirate, by truck, barter, exchange, or in any other manner, or shall furnish any pirate, felon, or robber upon the seas, with any ammunition, provision, or stores of any kind ; or shall fit out any ship or vessel knowingly, and with a design to trade with any pirate, felon, or robber upon the seas ; or if any person or persons shall anyways consult, combine, or confederate or correspond with any pirate, felon, or robber on the seas, knowing him to be guilty of such piracy, felony, or robbery, — every such offender shall be deemed and adjudged guilty of piracy, felony, and robbery." 18 Geo. 2, c. 30.] By the 18 Geo. 2, c. 30, all persons being natural- born subjects or denizens of his Majesty, who, during any war, shall commit any hostilities upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, against his Majesty's subjects by virtue or under colour of any com- mission from any of his Majesty's enemies, or shall be any other ways adherent, or giving aid or comfort to his Majesty's enemies upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, &c, may be tried as pirates, felons, and robbers in the Court of Admiralty, in the same manner as pirates, &c. are by the said Act (11 & 12 Wi'll. 3) directed to be tried. Under this statute it has been held, that persons adhering to the king's enemies, by cruising in their ships, may be tried as pirates under the usual commission granted by virtue of the statute 28 Hen. 8. R. v. Evans, 2 East, P. C. 798. 5 Geo. 4, c. 113 — dealing in slaves.'] By the 5 Geo. 4, c. 113, s. 9, the carrying away, conveying, or removing of any person upon the high seas for the purpose of his being imported or brought into any place as a slave, or being sold or dealt with as such, or the embarking or receiving on board any person for such purpose, is made piracy, felony, and robbery, punishable with death. By sect. 10, the dealing in slaves, and other offences connected therewith, are made felony. Now by the 7 Will. 4 & 1 Vict. c. 91, the punishment of death, imposed by the ninth section of the above statute, is abolished, and transportation [now penal servitude] for life, &c, substituted. The provisions of the statute 5 Geo. 4, c. 113, are not confined to acts done by British subjects in furtherance of the slave trade in England or the British colonies, but apply to acts done by British subjects in furtherance of that trade in places which do not form part of the British dominions. Per Maule and Wightman, JJ., li. v. Zulueta, 1 C. & K. 215. In order to convict a party who is charged with having employed a ve.-sel for the purpose of slave trading, it is not necessary to show that the vessel which carried out the goods was intended to be used for bringing back slaves in return ; but it will be sufficient if there was a slave adven- ture, and the vessel was in any way engaged in the advancement of that adventure. Ibid. On the 26th February, 1S45, the Felicidade, a Brazilian schooner, fitted up as a slaver, surrendered to the armed boats of her Majesty's ship Wasp.- She had no slaves on board. The captain and all his crew, except Majaval and three others, were taken out of her and put on board the Wasp. On the 27th February, the three others were taken out and Piracy. 745 put on board the Wasp also. Cerqueira, the captain, was sent back to the Felicidade, which was then manned with sixteen British seamen, and placed under the command of Lieutenant Stupart. The lieutenant was directed to steer in pursuit of a vessel seen from the Wasp, which eventu- ally turned out to be the Echo, a Brazilian brigantine, having slaves on board, and commanded by Serva, one of the prisoners. After a chase of two days and nights, the Echo surrendered, and was then taken posses- sion of by Mr. Palmer, a midshipman, who went on board her, and sent Serva and eleven of the crew of the Echo to the Felicidade. The next morning Lieutenant Stupart took command of the Echo, and placed Mr. Palmer and nine British seamen on board the Felicidade, in charge of her and the prisoners. The prisoners shortly after rose on Mr. Palmer and his crew, killed them all, and ran away with the vessel. She was recaptured by a British vessel, and the prisoners were brought to this country, and tried at Exeter for murder. The jury found them guilty. The foundation of the conviction pursuant to the summing up of Piatt, B., who tried the case, was that the Felicidade was in the lawful custody of her Majesty's officers, that all on board that vessel were within her Majesty's admiralty jurisdiction; and that the jury should find the prisoners guilty of murder, if satisfied by the evidence that they plotted together to slay all the English on board, and run away with the vessel ; that, in carrying their design into execution, Majaval slew Mr. Palmer, by stabbing him aud throwing him overboard, and that the other prisoners were present, aiding and assisting Majaval in the commission of the murder. On a case reserved for the opinion of the judges, objec- tions to these points were argued by the counsel for the prisoners, and the conviction was held to be wrong. R. v. Serva and others, 1 Dm. ('. ('. 11. 104. Proof of tin piracy.'] The prosecutor must give evidence of facts which, had the transaction occurred within the body of a county, would have rendered the offender guilty of larceny or robbery at common law. He must therefore show a "taking animo furandi and lucri causa. It is said that if a ship is attacked by a pirate, and the master, for her redemption, gives his oath to pay a certain sum, though there is no taking, yet it is piracy by the law marine, but by the common law there must be an actual taking, though but to the value of a penny, as in robbery. 1 Beawes, Lex Merc. 25, citing 44 Edw. 3, 14; 4 Hen. 4. If a ship is riding at anchor, with part of the marines in her boat, and the rest on shore, so that none remain in the ship, if she be attacked and robbed, it is piracy. 1 Beawes, Lex Merc. 253, citing 11 Edw. 3, 115. Proof with regard i<> the persons guilty of piracy.^} The subject of a foreign power in amity with tins country may be punished for piracy committed upon Mudfish property. 1 Beawes, Lex .1/ rr. 251. A person having a special trust of goods will not be guilty of piracy by converting them to his own use ; as where the master of a vessel with goods on board, ran the goods on shore in Kngland, and burnt the ship with intent to defraud the owners and insurers ; on an indictment for piracy and stealing the goods, it was held to be only a breach of trust and no felony, and that it could not be piracy to convert the goods in a fraudulent manner until the special trust was determined. JR. v. Mason, 2 East, P. C. 796; Mod. 71. But it is otherwise with regard to the mariners. Thus where several seamen on board a ship seized the captain, he not agreeing with them, and, after putting him ashore, carried away the ship and subsequently committed several piracies, it was held that this force 746 Piracy. upon the captain, and carrying away the ship, was piracy. R. v. May, 2 East, P. C. 796. The prisoners were convicted upon a count charging them with feloniously and piratically stealing sixty-five fathoms of cable, &c, upon the high seas, within the jurisdiction of the admiralty. It appeared that they were Deal pilots, who, having been applied to by the master to take the vessel into Ramsgate, had, in collusion with him, cut away the cable and part of the anchor, which had before been broken, for the purpose of causing an average loss to the underwriters. It was objected that the offence of the prisoners was not larceny, having been committed by them jointly with the master of the vessel, not for the purpose of defrauding the owners, but for the purpose of defrauding the underwriters for the benefit of the owners. A. majority of the judges, however, held the conviction right. R. v. Curling, Pass. & By. 123. Proof with regard to accessories.'] Accessories to piracy were triable only by the civil law, and, if their offence was committed on land, they were not punishable at all before the 11 & 12 Will. 3, c. 7, s. 10. And now by the 8 Geo. 1, c. 24, s. 3, all persons whatsoever who, by the 11 & 12 Will. 3, c. 7, are declared to be accessory or accessories to any piracy or robbery therein mentioned, are declared to be principal pirates, felons, and robbers, and shall be inquired of, heard, determined, and adjudged in the same manner as persons guilty of piracy and robbery may, according to that statute, and shall suffer death in like manner as pirates, &c. The knowingly abetting a pirate within the body of a county is not triable at common law. Admiralty case, 6 Coir Rep. jrt. 13, p. 51. Venue and trial.'] The decisions with respect to the venue for offences committed on the high seas have been stated ante, p. 220. By the 46 Geo. 3, c. 54, all treasons, piracies, felonies, robberies, murders, conspiracies, and other offences, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place, where the admiral or admirals have power, authority, or jurisdiction, may be inquired of, tried, &c, according to the common course of the laws of this realm ; and for offences committed upon the land within this realm, and not otherwise, in any of his Majesty's islands, plantations, colonies, dominions, forts, or factories, under and by virtue of the king's commis- sion or commissions, under the Great Seal of Great Britain, to be directed to any such four or more discreet persons as the lord chancellor, &c, shall from time to time think fit to appoint. The commissioners are to have the same powers as commissioners under the 28 Hen. 8. Punishment under the 7 Will. 4 & 1 Vict. c. 88.] By the 7 Will. 4 & 1 Vict. c. 88, so much of the former Acts as relate to the punishment of the crime of piracy, or of any offence, by any of the said Acts declared to be piracy, or of accessories thereto respectively, are repealed. By s. 2, "whosoever with intent to commit, or at the time of or immediately before, or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony, and being convicted thereof shall suffer death as a felon." By s. 3, " whosoever shall be convicted of any offence which by any of the Acts hereinbefore referred to amounts to the crime of piracy, and is thereby made punishable with death, shall be liable to be transported Piracy. 7-47 beyond the seas [now penal servitude] for the term of the natural life of such offender " (see ante, p. 203). By s. 4, "in the case of every felony punishable under this Act, every principal in the second degree, and every accessory before the fact, shail be punishable with death or otherwise in the same manner as the prin- cipal in the first degree is by this Act punishable, and every accessory after the fact to any felony punishable under this Act shall, on conviction, be liable to be imprisoned for any term not exceeding two years." 74<>st letter, such letter not having been put in the post in the ordinary way, but was rightly convicted of larceny of the sovereign, laid as the property of the postmaster-general. /'. v. Rathbone, 2 Moo. C. C, 242. To make a man liable under this section, the letter must have come into his hands in the ordinary course of the post-office. R. v. Shepherd, 25 L. J., M. C 52. See also R. v. Gardner, 1 C. & K. 628. The presi- dent of a department in the post-office put a half-sovereign into a letter, on which he wrote a fictitious address and dropped the letter with the money in it into the letter-box of a post-office receiving-house where the prisoner was employed in the service of the post-office. It was held that this was a post-letter containing money within the statute, and that it was not the less a "post letter" within that enactment, because it had a fictitious address. R. v. Young, 1 Den. C. C. R. 194. "Where a person took a money letter to the post-office, which was at an inn, and did not put it into the letter-box, but laid the letter and the money to prepay it upon a table in the passage of the inn, in which passage the letter-box was, telling the prisoner, a female servant, who was not authorized to receive letters, who said she would "give it to them," but who, instead of doing so, stole the letter and its contents : Patteson, J., held that this \v;is not a " post letter" within the meaning •of the statute. R. v. Harley, 1 < '. & K. 89. See the interpretation clause, supra, p. 753. A telegraphic message is a post letter. See 32 & 33 Vict. c. 73, s. 23, post, tit. Telegraphs. Proof of being employed by or undt r the post-office."] The employment of the offender "by or under the post-office" must be proved. It is not necessary in these cases to produce the actual appointment of the prisoner, it is sufficient to show that he acted in the capacity imputed to him. R, v. Borrett, 6C. & P. 124 ; R. v. Rees, Id. 606 ; //. v. Shaw, 2 East, I 1 . < '. 580; 2 II", Bl. 789; 1 Leach, 7!) ; //. v. Ellins, Hum. & Ry. 188. A person employed at a receiving-house of the general post-office to clean boots, &c, and who occasionally assisted in tying up the letter-bags, was held not to bo a person employed by the post-ollice within the 52 Geo. 3, c. 143, s. 2 (repealed). R. v. Pearson, 4 ( . & P. 572. S. delivered two bl. notes to Mrs. 1)., the wife of the postmaster of C, at which post-ollice money •orders were not -ranted, and asked her to send them by Of., the letter- carrier from C. to W., in order that he might get two ol. money orders for them at the W. post-office. Mrs. D. gave these instructions to G., and put the notes by his desire into his bag. (J. afterwards took the notes out of the bag, and pretended, -when he got to the W. post-office, that lie had lost them. It was found by the jury that ( r. had no intention to steal the notes when they were given to him by Mrs. D. It was held 3 C l" 7-">(; Post Office — Offences relating to the. that the notes were not in G.'s possession in the course of his duty as a post-office servant. P. v. Glass, 1 Den. C. C. R. 21-3. The prisoner was employed to carry letters from C. A. to F., such employment being com- plete upon the delivery of the letters at F. Upon one occasion, at the request of the postmaster at F., the prisoner assisted in sorting the letters at that place, and whilst so engaged stole one of the letters containing nioney. It was held by the Court of Criminal Appeal that the prisoner was a person " emploved under the post-office," within the 7 Will. 4 & 1 Yict. c. 36, s. 2G. R. V. Reason, 1 Dears. C. C. 236. Coleridge, J., dis- tinguished P. v. Glass, which had been relied on by the prisoner's counsel, observing that in that case, ' ' it was not the business of the postmaster to get money orders." S., the postmistress of G., received from A. a letter unsealed, but addressed to B., and with it 1/. for a post-office order, 3'/. for the poundage on the order, Id. for the postage, and Id. for the person who got the order. S. gave the letter unsealed and the money to- the prisoner, who was the letter-carrier from G. to L., telling him to get the order at L., and enclose it in the letter, and post the letter at L. The prisoner destroyed the letter, never procured the order, and kept the money. Cresswell, J., held that he was indictable under s. 26 of the 7 Will. 4 & 1 Vict. c. 36, he being at the time in the employment of the post-office. P. v. Bickerstaff, 2 C. & K. 761. Where the prisoner was employed by a postmistress to carry letters from D. to B., at a weekly salary paid him by the postmistress, which was repaid to her by the post-office, it was held that he was a person employed by the post-office within the 52 Geo. 3, c. 143, s. 2 (repealed). 11. v. Salisbury, o O. & P. loo. The prisoner was a letter-carrier employed by the post-office to deliver letters about Gloucester, and had been in the habit of calling at the lodge of the Gloucester infirmary, and receiving letters there, and a penny upon each to prepay the postage, and his practice was to deliver these letters at the Gloucester post-office ; but he sometimes omitted to call at the lodge, and then the letters were taken by some person and put into the post- office ; during a time when the prisoner had been ill another person who performed these duties had called at the lodge, and received the letters and the pennies and delivered them at the post-office in the same way as the prisoner. Evidence was given to show that the prisoner had embezzled pence received at the lodge to prepay letters. It was urged that where the charge was of embezzling money received by virtue of his employment, it must be shown that it was the duty of the prisoner to receive the money, and in this case it was his mere voluntary act, and he- was neither bound to go to the lodge nor to receive the letters ; but it was- held by Coleridge, J., that there was evidence to go to the jury, that the pence were received by virtue of the prisoner's employment. P. v. Toivnsend, Can: A M. 178. Proof of stealing, embezzling, secreting, or destroying.^ Prove a larceny of a letter, or of a letter containing money, &c, as the case may be. The ownership of the property need not be proved, but may be laid in the- postmaster-general ; neither need it be shown to be of any value. Where the charge is for embezzling, &c, the prosecutor must prove- that the prisoner either embezzled, secreted, or destroyed the letter described. Where the prisoner secreted half a bank-note on one day, and the other half on another day, it was held to be a secreting of the note within the 7 Geo. 3, c. 50 (repealed). The doubt was, whether secreting in the statute did not mean the original secreting, as taking does; but the judges distinguished between taking and secreting, for Post Office — Offences relating to the. 757 after the prisoner had got possession of the second letter he secreted both. B. v. Moore-, 2 East, P. 0. 582. The secreting will be proved in general by circumstantial evidence. A person employed in the post-office committed a mistake in the sorting of two letters containing money, and he threw the letters un- opened, and the money, down a water-closet in order to avoid a penalty attached to such mistake. It was held that this was a larceny of the letters and money, and also a secretin"; of the letters within 7 Will. 4 & 1 Vict. c. ml s. 26. It. v. Wynn, 1 Den. C. <'. B. 305 ; 18 L. J.. M. 0. .31. Where such is the charge, it must appear that the letter contained some . chattel, money, or valuable security. Where the letter embezzled was desciibed as containing several notes, it was held sufficient to prove that it contained any one of them, the allegation not being descriptive of the letter, but of the offence, It. v. EUins, Buss. & II. 188. It is not neces- sary to prove the execution of the instruments which the letter is proved to contain. Ibid. Country bank-notes paid in London, and not reissued, were held within the Act. P. v. Ransom, Russ. of such court, to be imprisoned, with or without hard labour, for any term not exceeding two years." Setting fire to railway stations.] See 24 & 25 Vict. c. 97, s. 4, supra, p. 248. ' Doing certain nets with intent to endanger the safety of passengers."] By the 24 & 25 Vict. c. 100, s. 32, "whosoever shall unlawfully and mali- ciously put or throw upon or across any railway any wood, stone, or other matter or thing, or shall unlawfully and maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belonging to any railway, or shall unlawfully and maliciously turn, move, or divert any points 'or other machinery belonging to any railway, or shall unlawfully and maUciously make or show, hide or remove any signal or light upon or near to a railway, or shall unlawfully and maliciously do or cause to he done any other matter or thing, with intent, in any of the cases aforesaid, to endanger the safety of any person travelling or being upon such railway, shall be guilty of felony, and being convicted thereof shall he liable to' be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." By s. 33, " whosoever shall unlawfully and maliciously throw, or cause to fall or strike at, against, into, or upon any engine, tender, carriage, or truck used upon any railway, any wood, stone, or other matter or thing with intent to injure or endanger the safety of any person being in or upon such engine, 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 shall form part, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life" (see ante, p. 203). Endangering the safety of passengers.'] By s. .'34, "whosoever, by any unlawful act, or by any wilful omission or neglect, shall endanger or cause to be endangered the safety of any person conveyed or being in or upon a railway, or shall aid or assist therein, shall be guilty of a misde- meanor, and being convicted thereof shall be liable to he imprisoned for any term not exceeding two years, with or without hard labour." Doing certain acts with intent to obstruct or injure engines or carriages.] By the 24 & 2."> Vict. c. 97, s. ."5.5, -'whosoever shall unlawfully and mali- ciously put, place, cast, or throw upon or across any railway, any wood, stone,' or other matter or thing, or shall unlawfully or maliciously take up, remove, or displace any rail, sleeper, or other matter or thing belong- ing to any railway, or shall unlawfully or maliciously turn, move, or divert any points or other machinery belonging to any railway, or shall unlawfully and maliciously make or show, hide or remove, any signal or light upon or near to any railway, or shall unlawfully and maliciously do or cause to be done any other matter or thing, with intent, in any of the eases aforesaid, to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck, usine; such railway, shall he guilty of felonv, and being convicted thereof shall he liable to he kept in penal servitude for life, or 1" he imprisoned (see ante, p. 203), and, if a male under the age of sixteen, with or without whipping." Obstructing engines or carriages.] By s. .*><>, "whosoever, byany unlaw- ful act, or by any wilful omission or neglect, shall obstruct or cause to be obstructed any engine or carriage using any railway, or shall aid or assist therein, shall he guilty of a misdemeanor, and being convicted 766 Railways — Offences relating to. thereof, shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour." Proof of intent. ~] A party designedly placing on a railway substances which would be likely to produce an obstruction of the carriages, though he might not have done the act expressly with that object, was held to be indictable under the 3 & 4 Vict. c. 97, s. 15, which corresponds to the 24 & 25 Vict. c. 100, s. 33. It. v. Holroyd, 2 Moody & R. 339. The prisoner was indicted under s. 7 of the 14 & 15 Vict. c. 19, which is similar to the 24 & 25 Vict. c. 100, s. 33, for wilfully and maliciously throwing a stone into a railway carnage, with intent to endanger the safety of a person in it. It appeared that there had been considerable popular excitement against a person who was about to travel by the train, and there was a crowd assembled at the time of his departure, and that the prisoner threw a stone at this person whilst he was in the carnage. Erie, J., after consulting Williams, J., said, " Looking at the preamble of the sections of this statute relating to this class of offences, which recites that it is ' expedient to make further provision for the punishment of aggravated assaults,' and looking also to the provision of these clauses as indicated by the terms of the sixth section immediately preceding the section upon which this indictment is framed, I consider that the intent to endanger the safety of any person travelling on the railway, spoken of in both sections, must appear to have been an intent to inflict some grievous bodily harm, and such as would sustain an indictment for assaulting or wounding a person with intent to do some grievous bodily harm." And the learned judge accordingly took the opinion of the jury whether such was the intent of the prisoner. R. v. Rooke, 1 F. & F. 107. Where the prisoner, while standing on a bridge, threw a stone over the parapet wall, which fell upon the tender of a passing engine, and there was no one on the tender at the time, it was held that the prisoner could not be convicted under sect. 7 of 14 & 15 Vict. c. 19, as the words of that section were limited to the case of anything thrown upon an engine or carriage con- taining persons therein. R. v. Court, 6 Cox, 202. See, however, 3 Ritss. Cri. 340 («.), 6th ed. Proof of place being a railway.'] A railway intended for the conveyance of passengers, and completely constructed and used for conveying work- men and materials, but not open to the public, is within the provisions of the 3 & 4 Vict. c. 97, s. 15. R. v. Bradford, 29 L. J., M. C. 171. See, as to the interpretation of the word "railway," s. 21 of this statute. Proof of obstruction. ~\ The defendant altered the arms of a signal and the colour of two distant lights, and the consequence was that the driver of a train slackened speed, and nearly brought the train to a standstill, causing delay. It was held that this was an obstruction of an engine within section 36, sujjra. R. v. Hadfield, L. R., 1 C. <'. R. 253; 39 L. J., M. C. 131. So also where a man caused a train to slacken speed by holding up his hands, it was held to be an obstruction. R. v. Hardy, L. R., 1 C. C. R. 278. Distinction between felonies and misdemeanors under the sections.] The 24 & 25 Vict. c. 97, s. 35, and the 24 & 25 Vict. c. 100, s. 32, make it a felony to do certain acts with certain intents. Sect. 36 of the former, and s. 34 of the latter make the same acts done without intent a misdemeanor ; and it has been held that an acquittal for a felony under the first mentioned sections is no bar to a trial under the latter for misdemeanor. R. v. Gilmore, 15 Cox, 85. See the case, ante, p. 177. Rape and Defilement. tut RAPE AND DEFILEMENT. Rape.'] By the 24 & 2d Vict. c. 100, s. 48, "whosoever shall be convicted of the crime of rape shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life" (see ante, p. 203). Indecent assault.'] See supra, pp. 262, 268. Abduction.] See supra, p. 232. Definition of car mil knowledge.] By 24 & 25 Vict. c. 100, s. 63, " when- ever, upon the trial of any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only." This definition applies to offences under 48 & 49 Vict. c. 69, s. 4. Jl. v. Marsden, (1891) 2 Q. B. 149; 60 L. J., M. C. 171. Protection of women and girls — procuration.] By 48 & 49 Vict. c. 69, s. 2, "Any person who — "(1.) 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 connexion, either within or without the Queen's dominions, with any other person or persons ; or " (2.) Procures or attempts to procure any woman or girl to become, either within or without the Queen's dominions, a common prosti- tute ; or " (3.) Procures or attempts to procure any woman or girl to leave the United Kingdom, with intent that she may become an inmate of a brothel elsewhere ; or " (4.) Procures or attempts to procure any woman or girl to leave her usual place of abode in the United Kingdom (such place not being a brothel), with intent that she may, for the purposes of prostitu- tion, become an inmate of a brothel within or without the Queen's dominions, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour. '• Provided that no person shall be convicted of any offence under this section upon the evidence of one witness, unless such witness be corroborated in some material particular by evidence implicating the accused." Procuring defilement of woman by threats or fraud, or administering drugs.] By s. 3, "Any person who— "(1.) By threats or intimidation procures or attempts to procure any 768 Rape and Defilement. woman or girl to have any unlawful carnal connexion, either within or without the Queen's dominions ; or "(2) By false pretences or false representations procures any woman or girl, not heing a common prostitute or of known immoral character, to have any unlawful carnal connexion, either within or without the Queen's dominions ; or " (3.) Applies, administers to, or causes to he taken hy any woman or girl any drug, matter, or thing, with intent to stupefy or over- power so as thereby to enable any person to have unlawful carnal connexion with such woman or girl, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour. "Provided that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused." Defilement of girl under thirteen years of age. ,] By s. 4, "Any person who — "unlawfully and carnally knows any girl under the age of thirteen years shall be guilty of felony, and being convicted thereof shall be liable, at the discretion* of the court, to be kept in penal servitude for life (see ante, p, 203). "Any person who attempts to have unlawful carnal knowledge of any girl under the age of thirteen years shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour. ' ' Provided that in the case of an offender whose age does not exceed sixteen years, the court may, instead of sentencing him to any term of imprisonment, order him to be whipped, as prescribed by 2.3 & 26 Vict. c. 18, and the said Act shall apply, so far as circumstances admit, as if the offender had been convicted in manner in that Act mentioned; and if, having regard to his age and all the circumstances of the case, it should appear expedient, the court may, in addition to the sentence of whipping, order him to be sent to a certified reformatory school, and to be there detained for a period of not less than two years, and not more than five years. " The court may also order the offender to be detained in custody for a period of not more than seven days before he is sent to such reformatory school. "Where, upon the hearing of a charge under this section, the girl in respect of 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 court or justices, understand the nature of an oath, the evidence of such girl or 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 reception of the evidence, and under- stands the duty of speaking the truth : provided that 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 _ shall be corroborated by some other material evidence in support thereof implicat- ing the accused : provided also, that any witness whose evidence has been Rape <(ud Defilement. 769 admitted under this section shall be liable to indictment and punishment for perjury in all respects as if he or she had been sworn." Rape by personating husband.'} By s. 4, "Whereas doubts have been entertained whether a man who induces a married woman to permit him to have connexion with her by personating her husband is or is not guilty of rape, it is hereby enacted and declared that every such offender shail be deemed to be guilty of rape." Defilement of girl bet/ran thirteen and sixteen years of a. s. 324, ante, p. 546. In A', v. Fletcher, Hell. < '. < '. 0:i ; 28 A. J., -1/. C. 85, the prisoner had carnal knowledge of a girl thirteen years of age, who, from defect of under- standing, was incapable of giving consent, or of exercising any judgment in the matter, and the prisoner was held to be guilty of rape. The attention of the couri was called to this last case in that of B. v. <'h'. 1>. 134 ; ;>:> /.. ./., M. C. 63. '78 Receiving Stolen (roods. RECEIVING STOLEN GOODS. Receiving where the principal is guilty of felony. ] By the 24 & 25 Vict. c. 96, s. 91, " whosoever shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, extorting, obtaining, embezzling, or otherwise disposing whereof shall amount to a felony, either at common law or by virtue of this Act, knowing the same to have been feloniously stolen, taken, extorted, obtained, embezzled, or disposed of, shall be guilty of felony, and may be indicted and convicted, either as an accessory after the fact, or for a substantive felony ; and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice ; and every such receiver, howsoever convicted, shall be liable to be kept in penal servitude for any term not exceeding fourteen years, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Separate receivers, how triable.'] By s. 93, "whenever any property whatsoever shall have been stolen, taken, extorted, obtained, embezzled, or otherwise disposed of in such a manner as to amount to a felony, either at common law or by virtue of this Act, any number of receivers at different times of such property, or of any part or parts thereof, may be charged with substantive felonies in the same indictment, and may be tried together, notwithstanding that the principal felon shall not be included in the same indictment, or shall not be in custody or amenable to justice." Persons indicted jointly may be convicted separately. ] By s. 94, "if upon the trial of any two or more persons indicted for jointly receiving any property it shall be proved that one or more of such persons separately received any part or parts of such property, it shall be lawful for the jury to convict, upon such indictment, such of the said persons as shall be proved to have received any part or parts of such property." Receiving where the principal is guilty of a misdemeanor.] By s. 9.3, " whosoever shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, obtaining, converting, or disposing whereof, is made a misdemeanor by this Act, knowing the same to have been unlawfully stolen, taken, obtained, converted, or disposed of, shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver, being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and if a male under the age of sixteen years, with or without whipping." Prevention of Crimes Act, LS71 — guilty knowledge.] By the 34 & 35 Vict. c. 112, s. 19, "where proceedings are taken against any person for Receiving Stolen Goods. 779 having received goods knowing thorn to be stolen, or for having in his possession stolen property, evidence may be given at any stage of the proceedings that there was found in the 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 to be stolen which forms the subject of the proceedings taken against him. Where 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 been 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 sta^e of the proceedings, and may be taken into considera- tion for the purpose of proving that the accused knew the property which was proved to be in his possession to have been stolen ; provided that not less than seven days' notice in writing shall have been given to the person 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." Venue.'] By the 24 & 2") Yict. c. 96, s. 96, "whosoever shall receive any chattel, money, valuable security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, converted, or disposed of, may, whether charged as an accessory after the fact to the felony, or with a substantive felony, or with a misdemeanor only, be dealt with, indicted, tried and punished in any county or place in which he shall have or shall have had any such property in his possession, or in any county or place in which the party guilty of the principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried and punished in the county or place where he actually received such property." Joining <-urt for Crown Cases Eeserved thought that upon this finding the husband could not be convicted, as it did not show that he had taken any active part in the matter, or did anything more than barely consent to what his wife had done. R. v. Bring, Dears. & B. C. 0. 329. But where the thief delivered goods to the prisoner's wife, who paid him sixpence on account, and afterwards the prisoner met the thief, and with a guilty knowledge agreed with him for the price, and paid the balance; it was held, distinguishing R. v. Bring, that there was no com- plete receipt by the wife, hut that the prisoner actively approved of and ratified her partial receipt, and was. therefore, rightly convicted. R. v. Woodward, L. & C. 122 ; 31 I.. •/., M. C. 91. Where a husband and wife are indicted for jointly receiving, it is proper that the jury should be asked whether the wife received the g Is either from, or in presence of, her husband. And where the counsel for the defence suggested thai these questions should be put, and they we]*- not put, the court, under these circumstances, quashed the conviction as against the wife. It appeared in that case that the g Ls were received in the husband's house; it was probable, therefore, that the husband was present, from which it would be presumed that the wife was acting under his control. It does not seem necessary that these questions should bo 3 E 2 788 Receiving Stolen Goods. put in every case in which the husband and wife are both indicted for receiving, but only where the circumstances of the case do not negative the presence of the husband. R. v. Wardroper, Bell, C. C. 249 ; 29 L. J., M. C. 118. An indictment in one count charged A. and B. with a burglary and with stealing, and C. with receiving part of the stolen property, and D. with receiving other part of the stolen property ; another count charged C. and D. with the substantive felony of jointly receiving the whole of the stolen property, and there were two other counts charging C. and D. separately with the substantive felony of each receiving part of the stolen property. It was proved that A. and B. had committed the burglary, and stolen the property, but the evidence as to the receiving showed that C. and D. had received the stolen property on different occasions, and quite un connectedly with each other. It was objected that as distinct felonies had been committed by C. and D., they ought to have been tried sepa- rately. Per Littledale, J., "There is certainly some inconsistency in this indictment ; but the practice in cases of receivers is to plead in this manner." The prisoners were all convicted. li. v. Hartall, 7 G. & P. 475. Where two receivers are charged in the same indictment with sepa- rate and distinct acts of receiving, it is too late after verdict to object that they should have been indicted separately. R. v. Hayes, 2 Moo. Rob. 156. An indictment in the first count charged W. and B. C. with killing a sheep, " with intent to steal one of the hind legs of the said sheep " ; and in another count charged J. C. with receiving nine pounds weight of mutton " of a certain evil-disposed person," he then knowing that the mutton had been stolen. Coleridge, J., said, "This count is for receiving stolen goods, and it is joined not with another count against other persons for stealing anything, but with a count for killing with intent to steal, which appears to me an offence quite distinct in its nature from that imputed to the prisoner (J. C). I shall not stop the case, but I will take care that the prisoner has any advantage that can arise from the objec- tion, if, upon consideration, I should think it well founded." The prisoners were all convicted. R. v. Wheeler, 7 C. & P. 170. Proof of guilty knowledge and intention.'] Evidence must be given of the prisoner's guilty knowledge, that he received the goods in question, knowing them to have been stolen. The usual evidence is, that the goods were bought at an undervalue by the receiver, or that he concealed the goods. So evidence may be given that the prisoner pledged or otherwise disposed of other articles of stolen property (part of the same transaction) besides those in the indictment, in order to show the guilty knowledge, R. v. Dunn, 1 Moo.G. G. 14(5 ; and of the possession of other stolen articles, and of a previous conviction. See this question discussed ante, p. 84 ; 34 & 35 Vict. c. 112, s. 19, supra, p. 778; R. v. Jones, 14 Cox, 3; R. v. Drage, 14 Cox, 85; R. v. Carter, 12 Q. B. I). 522; 53 L. J., M. C. 96, where it was held that evidence could not be given of other similar stolen property which the prisoner had disposed of before the date of the stealing charged. The intention of the party in receiving the goods is not material, provided he knew them to be stolen. Where it was objected that there was no evidence of a conversion by the receiver, Gumey, B. , said, if the receiver takes without any profit or advantage, or whether it be for the purpose of profit or not, or merely to assist the thief, it is precisely the same. R. v. Davis, 6 C. & J'. 177. If a receiver of stolen goods receive them for the mere purpose of concealment, without deriving any profit at Receiving Stolen Goods. 789 all, he is just as mixch a receiver as if lie had purchased them. Per Taunton, J., R. v. Richardson, 6 0. & P. 335. Election.] A person may be legally charged in different counts of the same indictment, both as the principal felon and as the receiver of the same goods. R. v. Galloway, 1 Moo. 0. (J. 234. 24 & 25 Vict. c. 96, s. 92; supra, p. 179. There may be as many counts charging a felonious receiv- ing of the same goods as there are counts charging the stealing of those goods, and the prosecutor cannot be put to his election on what count or counts he will proceed. /*'. v. Beeton, 1 Den. C. C. R. 414; 18 L. J., M. C. 117. So, also, where three acts of larceny are charged there may be three counts for receiving. See R. v. Heywood, L. ti C. 451 ; 33 L. J., M. C. 133, ante, p. 179. Venue.] One half of a note issued by a bank at S. in Wiltshire was stolen in its transit through the post, and the prisoner was proved to have received it with guilty knowledge, but it was not proved to have been in his possession in Wiltshire. He posted it in Somersetshire in a letter, addressed it to the bank at S., requesting payment, which letter was duly delivered. It was held that, upon an indictment for receiving, where the venue was laid in Wiltshire, the prisoner might be convicted, for the possession of the post-office servants, who were the agents of the prisoner to present the note at the bank at S., might be treated as the possession of the prisoner; and that, therefore, the prisoner might be tried in Wiltshire. R. v. Cryer, 26 L. J., M. C. 192. See R. v. Kay, supra, p. 758, tit. Post-office. The prisoners were indicted in the county of Dorset, on an indictment which charged them in several counts with stealing and receiving. J. M. , one of the prisoners, was convicted on a count which charged him with feloniously receiving "at M. in the county of Somerset." It was held that upon this indictment he could not be convicted, though by other counts it appeared that the goods were stolen in the county of Dorset. R. v. Martin, 1 Den. C. C. 398; 18 L. J., M. C. 137. Where goods are stolen abroad (e.g. in Guernsey) the prisoner cannot be con- victed of receiving those goods in England. R. v. Debruiel, 11 Cox, 207. See s. 96, ante, p. 779; see also supra, tit. Larceny. 790 Beanie. EESCUE. Nature of the offence.~\ The offence of rescue nearly resembles that of prison-breach, which has already been treated of ante, p. 759. Where the party rescued is imprisoned on a charge of felony, the rescuing is felony also. 1 Hale, P. C. 606. Where the offence of the former is a misdemeanor, that of the latter will be a misdemeanor also. Hawk. P. C. I. 2, c. 21, s. 6. If the party rescued was imprisoned for felony, and was rescued before indictment, the indictment for the rescue must sunnise a felony done, as well as an imprisonment for felony, or on suspicion of felony, but if the party was indicted and taken upon a capias, and then rescued, there needs only a recital that he was indicted prout, &c, and taken and rescued. 1 Hale, P. C. 607. Though the party rescued may be indicted before the principal be con- victed and attainted, yet he shall not be arraigned or tried before the principal is attainted. Id. In such case, however, he may, as it seems, be indicted and tried for a misdemeanor, though not for a felony. 1 Hale, P. C. 399. Proof of the custody of the party rescued.'] To make the offence of rescuing a party felony, it must appear that he was in custody for felony, or suspicion of felony, but it is immaterial whether he was in the custody of a private person, or of an officer, or under a warrant of a justice of the peace, for where the arrest of a felon is lawful, the rescue of him is felony. But it seems necessary that the party rescuing should have knowledge that the other is under arrest for felony, if he be in the custody of a private person, though if he be in the custody of a constable or sheriff, or in prison, he is bound to take notice of it. 1 Hale, P. 0. 606. If the imprisonment be so far irregular that the party imprisoned would not be guilty of prison-breach by making his escape, a person rescuing hirn will not subject himself to the punishment of rescue. Hawk. P. C. b. 2, c. 21, ss. 1,2; 1 Buss. Cri. 905, 6th ed. In B. v. Almey, 3 Jivr. N. S. 750, Erie, J., is said to have held that the forcible rescue of a person in illegal custody is an indictable offence. A warrant of a justice to apprehend a party, founded on a certificate of the clerk of the peace, that an indictment for a misdemeanor had been found against such a party, is good ; and, therefore, if upon such warrant the party be arrested, and afterwards rescued, those who are guilty of the rescue may be convicted of a misdemeanor. B. v. Stokes (Seoke), 5 C. & P. 148. Proof of the rescue.] The word rescue, or some word equivalent thereto, must appear in the indictment, and the allegation must be proved by showing that the act was done forcibly, and against the will of the officer who had the party rescued in custody. B. v. Burridge, 3 P. Wins. 483. In order to render the offence of rescue complete, the prisoner must actually get out of the prison. Hawk. P. C. I. 2, c. 18, s. 12. Rescue. 791 Punishment.'] The offence of rescuing a person in custody for felony was formerly punishable as a felony within clergy at common law. R. v. Stanley, Russ. & Ry. 432. But now by the 1 & 2 Geo. 4, c. 88, s. 1, "if any person shall rescue, or aid and assist in rescuing, from the lawful custody of any constable, officer, headborough, or other person whom- soever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then, if the person or persons so offending shall be convicted of felony, and entitled to the benefit of clergy, and be liable to be imprisoned for any term not exceeding one year, it shall be lawful for the court by or before whom any such person or persons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of being so fined and imprisoned as aforesaid, shall be transported beyond the seas [now penal servitude] for seven years, or be imprisoned only, or be imprisoned and kept to hard labour in the common gaol, house of correction, or penitentiary house, for any term not less than one and not exceeding three years." Aiding a prisoner to escape.] Under the head of rescue may be classed the analogous offence of aiding a prisoner to escape. This, as an obstruc- tion of the course of justice, was an offence at common law, being a felony where the prisoner was in custody on a charge of felony, and a misde- meanor in other cases, whether the charge was criminal or not. See R. v. Burridge, 3 P. Wms. 439; R. v. Allan, Carr. & M . 295. . I idi ng a prisoner to escape — offence under various statutes.] The offence of assisting a prisoner to escape has, by various statutes, been subjected to different degrees of punishment. By the 25 Geo. 2, c. 37, s. 9, if any person or persons whatsoever shall by force set at liberty, or rescue, or attempt to rescue or set at liberty, any person out of prison who shall be committed for or found guilty of murder, or rescue, or attempt to rescue any person convicted of murder, going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony. By the 7 Will. 4 & 1 Vict. c. 91, parties guilty of the offences men- tioned in the above section are liable to be transported [now penal servitude] for life (see ante, p. 203). As to aiding prisoners to escape, see now 28 & 29 Vict. c. 126, s. 37, ante, p. 761. Upon the partly repealed statute 16 Geo. 2, c. 31, it has been held that that Act is confined to cases of prisoners committed for felony expressed in the warrant of commitment or detainer, and therefore a commitment on suspicion only is not within the Act. R. v. Walker, 1 Leach, 97 ; R. v. Oreeniff, 1 Leach, 363. It was likewise held on the construction of that statute, that it did not extend to a case where the escape had been actually effected, but only to the attempt. R. v. Tilley, 2 Leach, 662. The delivering the instrument is an offence within the Act, though the prisoner has been pardoned for the offence of which he was convicted, on condition of transportation ; and a party may be convicted, though there is no evidence that he knew of the specific offence of which the prisoner he assisted had been convicted. It. v. Shaw, Russ. & Ry. 526. See as to the above statute, 1 Russ. Cri. 908 in.), 6th ed. Where the record of the conviction of the person aided is set forth and is produced by the proper officer, no evidence is admissible to contradict that record. It. v. Shaw, Russ. <>st, p. 79(5. An unlawful assembling must be proved, and therefore, if a number of persons meet together at a fair, and suddenly quarrel, it is an affray, and not a riot, ante, p. 241 ; but if, being so assembled, on a dispute occurring, they form into parties, with promises of mutual assistance, and then make an affray, it will be a riot ; and, in this manner, any lawful assembly may be converted into a riot; so a person joining rioters is- equally guilty as if he had joined them while assembling. Ha wh . I'. 0. b. 1, c. 65, s. 3. Evidence must be given of some circumstances of such actual force or violence, or, at least, of such apparent tendency thereto, as are calculated to strike terror into the public ; as a show of arms, threatening speeches, or turbulent gestures. Hawk. P. C. b. 1, c. 65, s. 5. But it is not necessary that personal violence shoidd be done or offered. Thus, if a number of persons come to a theatre, and make a great noise and disturb- ance, with the predetermined purpose of preventing the performance, it will be a riot, though no personal violence is done to any individual, and no injury done to the house. Clifford v. Brandon, 2 Campb. 358. But the unlawfulness of the object of an assembly, even though they actually carry their unlawful object into execution, does not constitute a riot, unless accompanied by circumstances of force or violence ; and in the same manner, three or more persons assembling together peaceably, to do an unlawful act, is not a riot. Hawk. P. C. b. 1, c. 65, s. 5. In some cases in which the law authorizes force, the use of such force will not constitute a riot, as where a sheriff or constable, or perhaps even a private person, assembles a competent number of persons, in order with force to suppress rebels, or enemies, or rioters. Hawk. J'. C. b. 1, c. 65, 8. 2. So a private individual may assemble a number of others to suppress a common nuisance, or a nuisance to his own land. Thus where a weir had been erected across a common navigable river, and a number of persons assembled, with spades and other necessary instruments, for removing it, and did remove it, it was held to be neither a forcible entry nor a riot. Daft. c. 137. So an assembly of a man's friends at his own house, for the defence of his person, or the possession of his house, against such as threaten to beat him, or to make an unlawful entry, is excusable. 5 Hunt. 278. It must appear that the injury or grievance complained of relates to some private quarrel only, as the inclosing of lands in which the inhabi- tants of a certain town claim a right of common; for where the inten- tion of the assembly is to redress public grievances, as to pull down all inclosivres in general, an attempt with force to execute such intention will amount to high treason. Haivk. I'. C. b. 1, c. 65, s. (>. Where the object of an insurrection, says Mr, East, is a matter of a private or local nature, affecting, or supposed to affect, only the parties assembled, or confined to particular persons or districts, it will not amount to high treason, although attended with the circumstances of military parade usually alleged in the indictments Oil this branch of treason. As if the rising be only against a particular market, or to destroy particular inclosures (see B. x. Jin-/, 5 ('. & /'. 154), to remove a local nuisance, to release a particular prisoner (unless imprisoned for high treason), or even to oppose the execution of an Act of parliament, if it only affect the district of the insurgents, as in the case of a Turnpike Act. 1 luizt, /'. ('. 75. As to prize tights, see ante, p. 241. 790 Riots, &c. The act for the purpose of executing which the rioters are assembled must be proved, otherwise the defendants must be acquitted. Where persons assembled together for the purpose of doing an act, and the assembly is such as hereinbefore described, if they do not proceed to execute their purpose, it is but an unlawful assembly, not a riot ; if, after •so assembling, they proceed to execute the act for which they assembled, but do not execute it, it is termed a rout ; but if they not only so assemble but proceed to execute their design, and actually execute it, it is then a riot. 1 Hawk. c. 65, s. 1 ; Bait. c. 136; R. v. Birt, 5 C. & P. 154 ; R. v. Graham, 16 Cox, 420. Proof of refusing to aid constable in quelling a riot.'] To support an indictment against a person for refusing to aid and assist a constable in the execution of his duty in quelling a riot, it is necessary to prove, 1st, that the constable saw a breach of the peace committed ; 2nd, that there was a reasonable necessity for calling on the defendant for his assistance ; and 3rd, that when duly called upon to assist the constable, the defendant, without any physical infirmity or lawful excuse, refused to do so. R. v. Brown, Car. & M. 314 ; per Alderson, B. It is not a valid ground of defence to such an indictment that from the number of rioters the single aid of the defendant would not have been of any use. Id. A person charged to aid a constable, and who does so, is protected eundo, morando, et redeundo. R. v. Phelps, Carr. & M. 180 ; per Colt- man, J. Proof upon prosecutions under the Riot Act.] The second section of the Biot Act gives the form of the proclamation, concluding with the words " God save the King." Where, in the reading of the proclamation, these words were omitted, it was held that the persons continuing together did not incur the penalties of the statute. R. v. Child, 4 C. & P. 442. Upon an indictment under the Biot Act, it was not proved that the prisoner was among the mob during the whole of the hour, but he was proved to have been there at various times during the hour ; it was held by Batteson, J., that it was a question for the jury upon all the circum- stances, whether he did substantially continue making part of the assembly for the hour ; for, although he might have occasion to separate himself for a minute or two, yet, if in substance he was there during the hour, he would not be thereby excused. R. v. James, 1 Russ. Cri. 574, 6th ed. The second or subsequent reading of the Act does not do away with the effect of the first reading, and the hour is to be computed from the time of the first reading. Per Batteson, J., R. v. Woolcock, 5 C. & P. 517. If there be such an assembly that there would have been a riot if the parties had carried their pru-pose into effect, the case is within the Act, and whether there was a cessation or not is a question for the j ury. Ibid. An indictment under the Biot Act for remaining assembled one hour after proclamation made, need not charge the original riot to have been in terrorem populi : it is sufficient if it pursue the words of the Act. Per Batteson, J., R. v. James, 5 C. & P. 153. Proof of riotously demolishing buildings.] The true meaning of the words ' ' riotously assemble," as under the 24 & 25 Vict. c. 97, not being explained by the Act, the common law definition of a riot must be resorted to, and in such case, if any one of her Majesty's subjects be terafied, this is sufficient terror and alarm to substantiate that part of the charge of riot. Per Batteson, J., R. v. Langford, Carr. & M. 002. Although, the pull down, &e Rioh, •'!.'}. But it must appear in such cases, that the goods were taken in the presence of the prosecutor. Thus where thieves struck money out of the owner's hand, and by menaces ■drove him away to prevent his taking it up again, and then took it up themselves; these facts being stated in a special verdict, the court said that they could not intend that the thieves took up the money in the sight or presence of the owner, and that, as the striking the money out of the hand was without putting the "\\ ner in tear, there was no robbery. R. v. Francis, 2 Sir. 1015; Com. Rep. 478; 2 East, I'. C. 708. And the same was resolved in another case, with the concurrence of all the judges. R. v. '.';■'//, •_' East, I'. C. 708. Where robbers, by putting in fear, made a wii^^oner drive his waggon from the highway in the daytime, but did not take the goods till night; some held it to be a robbery from the first force, but others considered that the waggoner's possession continued till the goods were actually taken, unless the waggon were driven away by the thieves themselves." 2 East, /'. C. 707; 2 Russ. Cri. 86, 6th "I. :j v 2 804 Robbery. But it is otherwise where they are in the personal custody of a third person. The two prisoners were indicted for assaulting the prosecutor, and robbing- him of a bundle. It appeared that the prosecutor had the bundle in his own personal custody, in a beer-shop, and when he came out, gave it to his brother, who was with him, to carry it for him. While on the road the prisoners assaulted the prosecutor ; upon which, his brother laid down the bundle in the road, and ran to his assistance. One of the prisoners then took up the bundle and made off with it. Vaughan, B., intimated an opinion that the indictment was not maintainable, as the bundle was in the possession of another person at the time of the assault committed. Highway robbery was the felonious taking of the property of another, by violence, against his will, either from his person or in his presence. The bundle, in that case, was not in the prosecutor's possession. If the prisoners intended to take the bundle, why did they assault the prosecutor, and not the person who had it ? The prisoners were convicted of simple larceny. R. v. Fallows, 5 C. & P. 508. Proof of t/f taking — against the will of the owner."] It must appear that the taking was against the will of the owner. Several persons conspired to obtain for themselves the rewards given by statute for apprehending robbers on the highway. The robbery was to be effected upon Salmon, one of the confederates, by Blee, another of the confederates, and two strangers procured by Blee. It was expressly found, that Salmon consented to part with his goods under pretence of a robbery, and that for that purpose he went to a highway at Deptford, where the colourable robbery took place. The judges were of opinion that this did not amount to robbery in any of the prisoners, because Salmon's property was not taken from him against his will. R. v. M'Daniel, Post. 121, 122. But it is otherwise where the party robbed delivers money to the thief, though at the same time, with the intent and power of immediately apprehending them. One Norden, having been informed of several robberies by a high- wayman, resolved to apprehend him. For this purpose he put a little money and a pistol in his pocket, and took a chaise. The robber stopped the chaise, and demanded money. Norden gave him what money he had, jumped out of the chaise with the pistol in his hand, and with some assistance apprehended the prisoner. The prisoner was convicted of this robbery, and the conviction was approved of by Foster, J., who dis- tinguishes it from the former case, on the ground that there was no> concert or connection between Norden and the highwayman. Anon., Foster, 129. Proof of the violence.'] It must be proved that the goods were taken either by violence or that the owner was put in fear ; but either of these facts will be sufficient to render the felonious taking a robbery. 2 Fast, P. 0. 708 ; 2 Russ. Cri. 87, 6th ed. Where violence is used it is not necessary to prove actual fear. "I am very clear," says Foster, J., ' ' that the circumstances of actual fear at the time of the robbery need not be strictly proved. Suppose the man is knocked down, without any previous warning to awaken his fears, and lies totally insensible, while the thief rifles his pockets, is not this a robbery ? " Foster, 128. And if fear be a necessary ingredient, the law in odium spoliatoris will presume it, where there appears to be so just a ground for it. Id., 2 Fast, P. C. 711. With regard to the degrees of violence necessary, it has been seen, ante, p. 801, that the sudden taking of a thing unawares from the person, as by snatching anything from the hand or head, is not sufficient to constitute robbery, unless some injiuy be done to the person, or unless there be- Robbery. 805 some previous struggling for the possession of the property. In R. v. Laptev, ante, p. 55~, it was held robbery, because an injury was done to the person. 2 East, P. 0. 551, 70S. A boy was carrying a bundle along the street, when the prisoner ran past him, and snatched it suddenly away, but being pursued, let it fall. Being indicted for robbery, the •court said the evidence in this case does not amount to a robbery ; for though he snatched the bundle, it was not with that degree of force and terror that is necessary to constitute this offence. R. v. Maca uley, 1 Leach, 217. And the same has been resolved in several other cases, in which it has appeared that there was no struggle for the property. R. v. /laker, 1 Leach, 290 ; R. v. Robins, Id. (n); R. v. Davies, Id. (??) ; II. v. Homer, Id. 191 (n). In R. v. Hughes, 2 0. & K. 214, where the prisoner having asked the prosecutor to tell him the time, and the prosecutor having taken out his watch in order to answer the prisoner, holding it loosely in both hands, the prisoner caught hold of the ribbon and snatched the watch away, and made off with it; Patteson, J., held that this was not a robbery, but stealing from the person. But where a degree of violence is used sufficient to cause a personal injury, it is robbery ; as where, in snatching a diamond pin fastened in a lady's hair, part of the hair was torn away at the same time. R. v. Moore, 1 Leach, 33o, and see R. v. Lapier, Id. 320, ante, p. 551. A case is said to have been mentioned by Holroyd, J., which occurred at Kendal, and in which the evidence was that a person ran up against another, for the purpose of diverting his attention while he picked his pocket; and the judges held, that the force was sufficient to make it robbery, it having been used with that intent. Anon., 1 Lewin, ('. C. 300. It appeared in evidence that the prisoner and others, in the streets of Manchester, Imng around the prosecutor's person, and rifled him of his watch and money. It did not appear that any actual force or menace was used, but they surrounded him so as to render any attempt at resistance hazardous, if not in vain. Bayley, J., on the trial of these parties for robbery, said, in order to constitute robbery, there must be either force or menaces. If several persons surround another so as to take away his power of resist- ance, this is robbery. R. v. Hughes, 1 Lewin, C. ('. 301. So if there be a struggle between the offender and the owner, for the possession of the property, it will be held to be such a violence as to render the taking robbery. Thus where a gentleman perceived that the prisoner had laid hold of his sword, and he himself laid hold of it at the same time and struggled for it, this was adjudged a robbery. R. v. Davies, 2 East, /'. C. 709. The prisoner coming up to the prosecutor in the street, laid violent hold of the seals and chains of his watch, and succeeded in pulling it out of his fob. The watch was fastened with a steel chain, which went round his neck, and which prevented the prisoner from immediately taking the watch; but, by pulling, and two or three jerks, he broke the steel chain, and made off with the watch. The judges, on a case reserved, w r ere unanimously of opinion that the conviction was right, for that the prisoner could not obtain the watch at once, but had to overcome the resistance the steel chain made, and actual force was used for that purpose. R. v. Mason, Russ. & Ry. 419. In order to constitute the offence of robbery, not only force must be employed by the party charged therewith, but it is necessary to show that such force was used with the intent to accomplish the robbery. "Where, therefore, it appeared that a wound had been accidentally indicted in the hand of the prosecutrix, it was held by Alderson, B., that an indict- ment for robbing could not be sustained. /,'. v. Edwards, 1 Cox, 32. 806 Robbery. An indictment for robbery which charges the prisoner with having- assaulted G. P. and H. P., and stolen 2s. from G. P., and Is. from H. P., is correct, if the robbery of G. P. and H. P. was all one act ; and if it were so, the counsel for tbe prosecution will not be put to elect. P. v. Giddins, Carr. & M. 634. Proof of violence — under pretence of legal or rightful proceedings."] Violence may be committed as well by actual unlawful force, as under pretence of legal and rightful proceedings. Merriman, carrying his cheeses along the highway in a cart, was stopped by one Hall, who insisted on seizing them for want of a permit (which was found by the jury to be a mere pretence for the purpose of defrauding Merriman, no permit being necessary). On an altercation, they agreed to go before a magistrate and determine the matter. In the meantime other persons riotously assembled on account of the dearness of provisions, and in con- federacy with Hall for the purpose, carried off the goods in Merriman's absence. It was objected that this was no robbery, there being no force used; but Hewitt, J., overruled the objection, and left it to the jury, who found it robbery, and brought in a verdict for the plaintiff ; and, upon a motion for a new trial, the court held the verdict right. Merriman v. Hundred of ChippenJiam, 2 East, P. C. 709. The prosecutrix was brought before a magistrate by the prisoner, into whose custody she had been delivered by a headborough, on a charge of assault. The magistrate recommended the case to be made up. The prisoner (who was not a peace officer) then took her to a public-house, treated her very ill, and finally handcuffed and forced her into a coach. He then put a handkerchief into her mouth, and forcibly took from her a shilling, which she had previously offered him, if he would wait till her husband came. The prisoner then put his hand in her pocket, and took out three shillings. Having been indicted for this as a robbery, Nares, J., said, that, in order to commit the crime of robbery, it was not necessary the violence used to obtain the property should be by the common modes of putting a pistol to the head, or a dagger to the breast ; that a violence, though used under a colourable and specious pretence of law or of doing justice, was sufficient, if the real intention was to rob ; and he left the case to the jury, that if they thought the prisoner had, when he forced the prosecutrix into the coach, a felonious intent of taking her money, and that he made use of the handcuffs as a means to prevent her making a resistance, and took the money with a felonious intent, they should find him guilty. The jury having found accordingly, the judges, upon a case reserved, were of opinion that, since the prisoner had an original intention to take the money, and had made use of violence, though under the sanction and pretence of law, for the purpose of obtaining it, the offence was robbery. P. v. Gascoigne, 1 Leach, 280; 2 East, P. (J. 709. Proof of putting in fear. ,] If there has not been such violence used as to raise the offence from that of simple larceny to that of robbery, the prosecutor must show that he was put in fear — a fear of injury either to his person, his property, or his reputation. In order to show a putting in fear, it is not necessary to prove that menaces or threats of violence were made use of by the offender. For instance, under pretence of begging, the prisoner may put the prosecutor in fear. The law (says Willes, J.) will not suffer its object to be evaded by an ambiguity of expression ; for, if a man, animo furandi ', says, " Give me your money;" "lend me your money;" "make me a present of your money ; " or words of the like import, they are equivalent to the Bobbery. 807 most positive order or demand ; and if anything be obtained in conse- quence, it will form the first ingredient in the crime of robbery. B. v. Donnally, 1 Leach, 193, at p. 196. During the riots in London in 1780, a boy with a cockade in his hat knocked violently at the prosecutor's door, and, on his opening it, said, " God bless your honour, remember the poor mob." The prosecutor told him to go along ; upon which he said he would go and fetch his captain. He went, and soon after the mob came, to the number of 100, armed with sticks, and headed by the prisoner on horseback, his horse led by the boy. The bystanders said, l, You must give them money." The boy said, " Now I have brought my captain ; " and some of the mob said, " God bless this gentleman, he is always generous." The prosecutor asked the prisoner "how much;" and he answered, " half-a-crown ; " on which the prosecutor, who had before intended to give only a shilling, gave the prisoner half-a-crown, and the mob, giving three cheers, went to the next house. This was held to be robbery, by Nares and Buller, JJ., at the Old Bailev. 11. v. Taplin, 2 East, P. C 712. There may bo a putting in fear where the property is taken under colour of regular or legal proceedings, as well as in cases where it is taken by actual violence. See B. v. Gascoigne, ante, p. 806, and B. v. Kneivland, post, p. 810. So there may be a putting in fear where the robbery is effected under cohmr of a purchase. Thus, if a person, by force or threats, compel another to give him goods, and by way of colour oblige him to take less than the value, this is robbery. As where the prisoner took a bushel and a half of wheat worth 8s., and forced the owner to take I'M. for it, threatening to kill her if she refused, it was clearly held by all the judges to be a robbery. JR. v. Si mini, 2 East, P. C. 712. Again, where the prisoner and a greal mob came to the prosecutor, who had some corn, and one of them said if he would not sell, they were going to take it away; and the prisoner said they would give him 30s. a load, and if he would not accept that they would take the corn away; upon which the prose- cutor sold it for 30s., though it was worth 38s. ; this was held to be robbery. I!, v. Spencer, 2 East, I'. <'. 712. In these cases, the aim unit of the money may raise a question for the jury, whether or not the taking was felonious ; for though there may be a putting in fear, yet if, in fact, the party had not the animus furandi, it is no felony. A traveller met a fisherman with fish, who refused to sell him any ; and he, by force and putting in fear, took away some of the fish, and threw him money much above the value of it. Being convicted of robbery, judgment was respited, because of the doubt whether the intent was felonious. The Fisherman's Case, 2 East, /'. C. 661. It has been observed that this was properly a question for the jury to say whether, from the circumstance of the party's offering the full value, his intention was nut fraudulent, and consequently not felonious. 2 East, P. C. <><>2. If the original taking was felonious, the payment would make no distinction. It is a question for the jury, whether the circumstances accompanying the commission of the offence were such as reasonably to create fear in the breast of the party assaulted ; and it can seldom happen that such a presumption may not properly be made. It is not, says Willes, J., necessary that there should be actual danger, for a robbery may lie com- mitted without using an offensive weapon, and by using a tinder-box or candlestick instead of a pistol. A reasonable fear of danger caused by the exercise of a constructive violence is sufficient, and where such a terror is impressed upon the mind, as does not leave the party a free 808 Bobbery. agent, and in order to get rid of that terror he delivers his money, he may clearly be said to part with it against his will. Nor need the degree of constructive violence be such as in its effects necessarily imports a prob- able injury; for when a villain comes and demands money, no one knows how far he will go. R. v. Donnally, 1 Leach, 193, at pp. 196, 197 ; 2 East, P. C. 715, at p. 727. The rule, as deduced from the last cited case, is thus laid down by Mr. East. 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 experience is likely to induce a person to part with his property against his will, and to put him, as it were, under a temporary 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 ; Ibid. 727. In R. v. Jackson, 1 East, Preface, Add. xxi.,it seems to have been con- sidered that the fear must be of that description which will operate in constantem rirum. That case, however, was one of a peculiar nature, and it certainly cannot be required, in order to constitute a robbery, in every case, that the terror impressed should be that of which a man of con- stancy and courage would be sensible. See also R. v. Walton, L. & C. 298; "post, tit. Threats, and per Wills, J., R. v. Tomlinson, (1895) 1 Q. II. at p. 710. Proof of such circumstances as may reasonably induce a fear of per- sonal injury will be sufficient to support the charge of robbery. It would not be sufficient to show in answer that there was no real danger, as that the supposed pistol was in fact a candlestick; see supra ; in short, danger to the person may be apprehended from every assault with intent to rob, and a jury would be justified in presuming that the party assaulted was under the influence of fear with regard to his personal safety. It seems, also, that fear of violence to the person of the child of the party whose property is demanded, is regarded in the same light as fear of violence to his own person. Hotham, B., in R. v. Donnally, 2 East, P. C. 718, stated that with regard to the case put in argument of a man walking with his child, and delivering his money to another, upon a threat that, unless he did so, he would destroy the child, he had no doubt but that it was sufficient to constitute a robbery. So in JL v. Reane, 2 East, P. C. 735, Eyre, C. J., observed, that he saw no sensible distinction between a personal violence to the party himself, and the case put by one of the judges, of a man holding another's child over a river, and threatening to throw it in unless he gave him money. It is sufficient to prove that the conduct of the prisoner put the prose- cutor in fear for the safety of his property. During certain riots, the prisoners, with a mob, came to the prosecutor's house, and said they must have from him the same they had had from his neighboiu - s, which was a guinea, else they would tear down his mow of corn and level his house. The prosecutor gave them os., but they demanded and received 5s. more, he being terrified. They then opened a cask of cider and drank part of it, ate some bread and cheese, and carried away a piece of meat. The prisoners were indicted and convicted of robbing the prosecutor of 10s. There was also another count for putting the prosecutor in fear, and taking from him, in his dwelling-house, a quantity of cider, &c, and it was held robbery in the dwelling-house. R. v. Simons, 2 East, P. C. 731. During the Birmingham riots the mob entered the house, and the prisoner, who was one of them, demanded money, and said, that if the prosecutor did not give his men something handsome for them to drink, his house Bobbery. 809 must come down. The jury found that the prosecutor did not deliver his money from any apprehension of danger to his life or person, but from an apprehension, that if he refused, his house would at some future time be pulled down in the same manner as other houses in Birmingham. On a case reserved, a majority of the judges held this to be robbery. II. v. Astley, 2 East, P. G. 729 ; see also R. v. Brown, 2 East, P. C. T.'il ; It. v. Spencer, 2 East, P. C. 712, ante, p. 807. The prosecutrix, a servant maid, was inveigled into a mock-auction, and the door was shut. There were about twenty persons present. Refusing to bid, she was told, "You must bid before you obtain your liberty again." She, however, again refused, and at length, alarmed by their importunities, she attempted to leave the shop. Being prevented, and conceiving that she could not gain her liberty without complying, she did bid, and the lot was knocked down to her. She again attempted to go ; but the prisoner, who acted as master of the place, stopped her, and told her, if she had not the money, she must pay half a guinea in part, and leave a bundle she had with her. The prisoner, finding she would not comply, said, ' ' Then you shall go to Bow Street, and from thence to Newgate, and be there imprisoned until you can raise the money." And he ordered the door to be guarded, and a constable to be sent for. A pretended constable coming in, the prisoner, who had kept his hand on the girl's shoulder, said "take her, constable, take her to Bow Street, and thence to Newgate." The pretended constable said, "Unless you give me a shilling, you must go with me." During this conversation, the prisoner again laid one hand on the girl's shoulder, and the other on her bundle, and while he thus held her, she put her hand into her pocket, took out a shilling, and gave it to the pretended constable, who said, " If Kuewland (the prisoner) has a mind to release you, it is well; for I have nothing more to do with you : " and she was then suffered to make her escape. She stated upon oath that she was in bodily fear of going to prison, and that under that fear she parted with the shilling to the con- stable, as a means of obtaining her liberty ; but that she was not impressed by any fear by the prisoner Knewland laying hold of her shoulder with one hand, and her bundle with the other ; for that she had only parted with her money to avoid being carried to Bow Street, and thence to New- gate, and not out of fear or apprehension of any other personal force or violence. Upon a case reserved, the judges were of opinion that the circumstances of this case did not amount to robbery. After adverting to the case of threats to accuse persons of unnatural offences, Ashhurst, J., delivering the resolution of the judges, thus proceeds: "In the present case the threat which the prisoners made was to take the prosecutrix to Bow Street, and from thence to Newgate; a species of threat which, in the opinion of the judges, is not sufficient to raise such a degree of terror in the mind as to constitute the crime of robbery, for it was only a threat to put her in the hands pf the law, and an innocent person need not in such circumstances be apprehensive <>f any danger. She might have known, that having done no wrong, the law, if she had been carried to prison, would have taken her under its protection, and set her free. The terror arising from such a source cannot, therefore, be considered of a degree sufficienl to induce a person to part with his money. It is the case of a simple duress, for which tho party injured may have a civil remedy by action, which could not be, if the fact amounted to felony. As to the circumstances affecting the oilier prisoner (Wood, the pretended constable), it appears that the force which he used against the prosecutrix was merely that of pushing her into the sale-room, and detaining her until she gave the shilling; but as terror is, no less than force, a component part of the 810 lit hi, eni. complex idea annexed to the term robbery, the crime cannot be complete without it. The judges, therefore, were all of opinion, that however the prisoners might have been guilty of a conspiracy or other misdemeanor, they could not in any way be considered guiltv of the crime of robbery." R. v. Knewlund, 2 Leach, 721 ; 2 East, P. (J. 732. Although this decision, so far as the question of putting in fear is concerned, may perhaps be rightly decided upon the express declara- tion of the prosecutrix, that she parted with the money merely to avoid being carried to Bow Street, and thence to Newgate, yet there are some portions of the opinion of the judges which appear to be at variance with the rules of law respecting robbery. The statement that terror, no less than force, is a component part of the complex idea annexed to the term robbery, is not in conformity with the various deci- sions already cited, from which it appears that either violence or putting- in fear is sufficient to constitute a robbery. There seems also to be a fallacy in the reasoning of the court with regard to threats of imprison- ment held out to the prosecutrix. The impression made by such threats upon any person of common experience and knowledge of the world (and such the prosecutrix must be taken to have been) would be, not that the prisoner had in fact any intention of carrying the injured party before a magistrate, or of affording any such opportunity of redress, but that other artifices (as in the instance of the pretended constable) would probably be resorted to, in order to extort money. It is difficult to imagine any case in which a party might with more reason apprehend violence and injury, both to the person and to the property, than that in which the prosecutrix was placed, and it is still more difficult to say, that there was not such violence resorted to, as, independently of the question of putting in fear, rendered the act of the prisoners (supposing it to have been done auiuw furaudi, of which there could be little doubt), an act of robbery. In R. v. Gascoigne, 1 Leach, 280; 2 East, P. C. 709, ante, p. 806, the prisoner not only threatened to carry the prosecutrix to prison, but actually did carry her thither, whence she was in due course discharged, and yet the nature of the threat did not prevent the offence from being considered a robbery. In that case, indeed, some greater degree of personal violence was used, and the money was taken from the prosecutrix's pocket by the prisoner himself; but it is clearly immaterial whether the offender takes the money with his own hand, or whether the- party injured delivers it to him, in consequence of his menaces. Proof of the putting in fear — by threaten ing to accuse of un natural crimes.} The species of terror, says Ashhurst, J., which leads a man to apprehend an injury to his character, has never been deemed sufficient, unless, in the particular case of exciting it by means of insinuations against, or threats to destroy, the character of the party pillaged, by accusing him of sodomitical practices. 11. v. Knewland, 2 Leach, 730. The rule is laid down in the same case, in rather larger terms, by Heath, J., who says, " The cases alluded to [P. v. Donnally and R. v. Hickman, infra) only go thus far — that to obtain money from a person by accusing him of that which, if proved, would carry with it an infamous punishment, is sufficient to support an indictment for robbery ; but it has never been decided that a mere charge of imprisonment and extortion is sufficient. 2 I^each, 729. Obtaining money from a man by threatening to accuse him of unnatural practices amounts to a robbery. The prisoner, drinking with the prosecutor at a public-house, asked him what he meant by the liberties he had taken with his person at the play-house. The prosecutor replied that he knew of no liberties having been taken, upon which the prisoner Robbery. 811 said, "Damn you, sir, but you did, and there were several reputable merchants in the house who will take their oath of it." The prosecutor, being alarmed, left the house ; but the prisoner following him, cried out, "Damn you, sir, stop, for if you offer to run, I will raise a mob about you" ; and, seizing him by the collar, continued, " Damn you, sir, this is not to be borne ; you have offered an indignity to me, and nothing can satisfy it." The prosecutor said, "For God's sake, what would you have ? " To which the prisoner answered, " A present ; you must make me a present." And the prosecutor gave him three guineas and twelve shillings. The prisoner, during the whole conversation, held the prose- cutor by the arm. The prosecutor swore that at the time he parted with the money, he understood the threatened charge to be an imputation of sodomy ; that he was so alarmed at the idea, that he had neither courage nor strength to call for assistance, and that the violence with which the prisoner had detained him in the street had put him in fear for the safety of his person. Upon a case reserved, the judges were of opinion, that although the money had been obtained in a fraudulent way, and under a false pretence, yet that it was a pretence of a very alarming nature, and that a sufficient degree of force had been made use of in effecting it to constitute the offence of robbery. According to the report of the same case by Mr. East, their lordships said, that to constitute robbery there was no occasion to use weapons or real violence, but that taking money from a man in such a situation as rendered him not a free man, as if a person so robbed was in fear of a conspiracy against his life or character, was such a putting in fear as would make the taking of his money under that terror, robberv ; and thev referred to R. v. Brown, <>. B. 1763. I!, v. .Jones, 1 Leach, 139; 2 East, P. C. 714. In the above case it does not clearly appear whether the judges held it to be robbery on the ground of the actual violence offered to the prose- cutor in detaining him in the street by the arm, or upon the prosecutor being put in fear of an injury to his reputation by the menaces employed. However, in subsequent cases it has been held that it is no less robbery where no personal violence whatever has been used. The prosecutor, passing along the street, was accosted by the prisoner, who desired he would give him a present. The prosecutor asking for what? the prisoner said, "You had better comply, or I will take you before a magistrate, and accuse you of attempting to commit an lumatural crime." The prosecutor then gave him half a guinea. Two days after- wards, the prisoner obtained a further sum of money from the prosecutor by similar threats. The prosecutor swore that he was exceedingly alarmed upon both occasions, and under that alarm gave the money ; that he was not aware what were the consequences of such a charge ; but apprehended that it might cost him his life. The jury found the prisoner guilty of the robbery, and that the prosecutor delivered his money through fear, and under an apprehension that his life was in danger. The case being reserved for the opinion of the judges, they gave their opinion seriatim (see 2 East, I'. C. 716) and afterward the result of their deliberations was delivered by Willes, J. They unanimously resolved that the prisoner was rightly convicted of robbery. This, says Willes, J., is a threat of personal violence; for the prosecutor had every reason to believe that he should be dragged through the streets as a culprit, charged with an unnatural crime. The threat must necessarily and unavoidably create intimidation. It is equivalent to actual violence, for no violence that can be offered could excite a greater terror in the mind, or make a man sooner part with his money. ' //. v. Donnally, 1 Leach, 192; 2 East, I'. C. 713. It will be observed that in the foregoing case the jury found that the 812 Robbery. prosecutor delivered the money under an apprehension that his life was in danger, but this circumstance was wanting in the following case, where the only fear was that of an injury to the party's reputation : The prosecutor was employed in St. James's Palace, and the prisoner was sentinel on guard there. One night the prosecutor treated the prisoner with something to eat in his room. About a fortnight afterwards the prisoner followed the prosecutor upstairs, and said, " I have come for satisfaction ; you know what passed the other night. You are a sodomite ; and if you do not give me satisfaction, I will go and fetch a sergeant and a file of men, and take you before a justice, for I have been in the black hole ever since I was here last, and I do not value my life." The prosecutor asked him what money he must have, and he said three or four guineas, and the prosecutor gave him two guineas. The prisoner took them, saying, li Mind, I don't demand anything of you." The pro- secutor swore that he was very much alarmed when he gave the two guineas, and that he did not very well know what he did, but that he parted with the money under an idea of preserving his character from reproach, and not from the fear of personal violence. The jury found the prisoner guilty of the robbery, and they also found that the prosecutor parted with the money against his will, through a fear that his character might receive an injury from the prisoner's accusation. The case was reserved for the opinion of the judges. Their resolution was delivered by Ashhurst, J., who said that the case did not materially differ from that of It. v. Donnally, for that the true definition of robbery is the stealing or taking from the person, or in the presence of another, property to any amount, with such a degree of force or terror as to induce the party unwillingly to part with his property ; and whether the terror arises from real or expected violence to the person, or from a sense of injury to the character, the law makes no kind of difference ; for to most men the idea of losing their fame and reputation is equally (if not more) terrific with the dread of personal injury. The principal ingredient in robbery is the being forced to part with property ; and the judges were unanimously of opinion that upon the principles of law, and the authority of former decisions, a threat to accuse a man of having committed the greatest of all ciimes, was a sufficient force to constitute the crime of robbery by putting in fear. 11. v. Hid- man, 1 Leach, 278 ; 2 East, P. < '. 72S. This decision has since been followed. The prisoner came up to the prosecutor, a gentleman's servant, at his master's door, and demanded 5/. On being told by the prosecutor that he had not so much money, he demanded 1/., and said, that if the prosecutor did not instantly give it to him, he would go to his master, and accuse him of wanting to take diabolical liberties with him. The prosecutor gave him what money he had, and the prisoner demanded his watch, or some of his master's plate. This the prosecutor refused ; but went and fetched one of his coats, which the prisoner took away. He was indicted for robbing the prosecutor of his coat. The prosecutor swore that he gave the prisoner his property under the idea of his being charged with a detestable crime, and for fear of losing both his character and his place. He stated that he was not afraid of being taken into custody, nor had he any dread of punishment. He stated, also, that he was absent, fetching the coat, for five minutes ; that the servants were in the kitchen, but he did not consult them, on account of his agitation, and because he had not a minute to spare, expecting the company to dinner immediately. The judges upheld the conviction. R. v. JEgerton, Bass. <(~ Ry. 375. Upon a threat of accusing the prosecutor of unnatural practices, he promised to provide a sum of money for the prisoners, which he failed to Bobbery. 813 do, upon which they said they were come from Bow Street, and would take him into custody. They accordingly called a coach, and while on their road to Bow Street, one of the prisoners stopped the coach, and said that if the prosecutor would behave like a gentleman, and procure the money, they would not prefer the charge. The prosecutor then went to the house of a friend, where he was absent about five minutes, when he returned with 10?., which he gave to the prisoners. He stated that he parted with his money in the fear and dread of being placed in the situation of a criminal of that nature, had they persisted in preferring the charge against him ; that he did not conceive they were Bow Street officers, though they held out the threat ; that he was extremely agitated and thought that they would have taken him to the watch-house, and under that idea, and the impulse of the moment, he parted with the money. He stated, also, that he could not say that he gave his money under any apprehension of danger to his person. Ten of the judges were of opinion that the calling of the coach, and getting in with the prose- cutor, was a forcible constraint upon him, and sufficient to constitute a robbery, though the prosecutor had no apprehension of further injury to' his person. R. v. Cannon, Russ. & Ry. 146. The threat in these cases must, of course, be a threat to accuse the party robbed ; it is not sufficient to constitute a robbery that the threat is to' accuse another person, however nearly connected with the party from whom the property is obtained. The prisoner was indicted for robbing the wife of P. Abraham. It appeared that under a threat of accusing Abraham of an indecent assault, the money had been obtained by the prisoner, from Abraham's wife. Littledale, J., said, "I think this is not such a personal fear in the wife, as is necessary to constitute the crime of robbery," and directed an acquittal. R. v. Edward, 1 Moo. & Jt. 257; •") C. & P. 518. The prisoner went twice to the house where the prosecutor lived in service, and called him a sodomite. The prosecutor took him each time before a magistrate, who discharged him. On being discharged, the prisoner followed the prosecutor, repeating the expressions, and asked him to make him a present, saying he would never leave him till he had pulled the house down ; but if he did make him a handsome present, he woidd trouble him. no more. He mentioned four guineas, and the prosecutor, being frightened for his reputation, and in fear of losing his situation, gave him the money. He gave the money from the great apprehension and fear he had of losing his situation. The prisoner was convicted ; but on some doubts of the judges the prisoner received a pardon. R. v. fflmstead, 2 Russ. Cri. 106, 6th ed. In these, as in other cases of robbery, it was always held that it must appear that the property was delivered, or the money extorted, while the party was under the influence of the fear arising from the threats or violence of the prisoner. The prosecutor had been several times solicited for money by the prisoner, under threats of accusing him of unnatural practices. At one of those inten 'ews the prisoner said he must have 20/. in cash, and a bond for .">(>/. a year; upon which the prosecutor, in pur- suance of a plan he had previously conceited with a friend, told him that he could not give them to him then, but that if he would wait a few days he would bring him the money and bond. At their next interview the prosecutor offered the prisoner 201., but he refused to take it without the bond, upon which the prosecutor fetched it, and gave it with nineteen guineas and a shilling to the prisoner, who took them awaj . saying, he would not e/i\ e the prosecutor any further trouble. The prosecutor deposed, that when the charge was first made his mind was extremely alarmed,. 814 Bobbery. and that he apprehended injury to his person and character, but that his fear soon subsided, and that he sought the several interviews with the prisoner for the purpose of parting with his property to him, in order to fix him with the crime of robbery, and to substantiate the fact of his having extorted money from him by means of the charge ; but that at the time the prisoner demanded from him the money and the bond, he parted with them without being under any apprehension, either of violence to his per-son or injury to his character, although he could not say that he parted with his property voluntarily. The j udges having met to consider this case, were inclined to be of opinion that it was no robbery, there being no violence nor fear at the time when the prosecutor parted with his money. Eyre, C. J., observed, that the principle of robbery was violence ; where the money was delivered through fear, that was con- structive violence. That the principle he had acted upon in such cases was to leave the question to the jury whether the defendant had, by certain circumstances, impressed such a terror on the prosecutor as to render him incapable of resisting the demand. Therefore, where the prosecutor swore that he was under no apprehension at the time, but gave his money only to convict the prisoner, he negatived the robbery. That this was different from B. v. Norden, Foster, 129, where there was actual violence; but here there was neither actual nor constructive violence. At a subsequent meeting of the judges the conviction was held wrong. //. v. Beane, 2 Leach, 616; 2 East, P. C. 734. The same point was ruled in R. v. Fuller, Bass. & By. 408, where the prosecutor made an appointment to meet the prisoner, and in the meantime procured a constable to attend, who, as soon as the prisoner received the money, apprehended him. The prosecutor stated that he parted with the money in order that he might prosecute the prisoner. Under the circumstances of the following case, it appears to have been held that the fear was not continuing at the time of the delivery of the money, and that therefore it was no robbery : In consequence of a charge similar to that in the above cases having been made, the prosecutor pro- cured a sum of money to comply with the demand, and prevailed upon a friend to accompany him when he went to pay it. His friend (Shelton) advised him not to pay it, but he did pay it. He swore that he was scared at the charge, and that was the reason why he parted with his money. It appeared that after the charge was first made, the prosecutor and one of the prisoners continued eating and drinking together. Shelton confirmed the prosecutor's account, and said he appeared quite scared out of his wits. The judges having met to consider this case, a majority held that it was not robbery, though the money was taken in the presence of the pro- secutor, and the fear of losing his character was upon him at the time. Most of the majority thought that, in order to constitute robbery, the money must be parted with from an immediate apprehension of present danger upon the charge being made, and not, as in this case, after the parties had separated, and the prosecutor had time to deliberate upon it, and apply for assistance, and had applied to a friend, by whom he was advised not to pay it ; and who was actually present at the very time when it was paid ; all which carried the appearance more of a composi- tion of a prosecution than it did of a robbery, and seemed more like a calculation whether it were better to lose his money or risk his character. One of the judges, who agreed that it was not robbery, went upon the ground that there was not a continuing fear, such as could operate in con- stantem drum, from the time when the money was demanded till it was paid ; for in the interval he could have procured assistance, and had taken advice. The minority, who held the case to be robbery, thought the ques- Robbery. 815 tion concluded by the finding of the jury that the prosecutor had parted with his money through fear continuing at the time, which fell in with the definition of robbery long ago adopted and acted upon, and they said it would be difficult to draw any other line ; and that this sort of fear so far differed from cases of mere bodily fear, that it was not likely to be dispelled, as in those cases, by having the opportunity of applying to magistrates or others for their assistance, for the money was given to prevent the public disclosure of the charge. B. v. Jackson, 1 East, 1\ 0. Addenda xxi. ; 2 Buss. Cri. 104—106, 6th ed. So much doubt was entertained as to the law on this subject, that a statutory provision was made on the subject, which makes it an offence to extort money by such means. The statute in force is the 24 & 25 Yict. c. 96, ss. 46 and 47, infra, tit. Threats. Semble that now, where money is obtained by any of the threats to accuse specified in that section, the indictment must be on the statute. See B. v. Henry, 2 Moo. C. C. It. 118. But where the money is obtained by threats to accuse other than those specified in the Act, the indictment may be for robbery, if the party was put in fear and parted with his property in consequence. B. v. Norton, 8 C. & P. 671. In a note to this case the recorder is stated to have mentioned it to Parke, B., who conciu-red in the above opinion. 2 Bass. Cri. 112 {>/), 6th ed. It has been decided, that assaulting and threatening to charge with an infamous crime (but in terms not within the section), with intent thereby to extort money, was an assault with intent to rob. B. v. Stringer, 2 Moo. C. 0. 361 ; 1 0. & K. 188. In this latter case the judges doubted whether /'. v. Henry, 2 Moo. 0. C. 118 : 9 0. & P. 109, was rightly decided. It is no defence to a charge of robbery by threatening to accuse a man of an unnatural crime, that he has in fact been guilty of such crime. Where the prisoner set up that defence, and stated that the prosecutor had voluntarily given him the money not to prosecute him for it ; Little- dale, J., said, that it was equally a robbery to obtain a man's money by a threat to accuse him of an infamous crime, whether the prosecutor was really guilty or not; as if he was guilty, the prisoner ought to have prosecuted him for it, and not to have extorted money from him ; but if the money was given voluntarily, without any previous threat, the indict- ment could not be supported. The jury acquitted the prisoner. II. v. Gardner, 1 C. & I'. 479. See also post, tit. Threats. Proof of the putting in fear — must be before the taking.^ It must appear that the property was taken while the party was under the influence of the fear ; for if the property be taken first, and the menaces or threats inducing the fear be used afterwards, it is not robbery. The prisoner desired the prosecutor to open a gate for him. While he was so doing, the prisoner took his purse. The prosecutor seeing it in the prisoner's hand demanded it, when the prisoner answered, " Villain, if thou speakest of this purse, 1 will pluck thy house over thy cars," &c, and then went away ; and because ho did not take it with violence, or put the prosecutor in fear, it was ruled to be larceny only, and no robbery, for the words of menace were used after the taking of the purse. II. v. Harman, 1 Hale, /'. C. 534 ; 1 Leach, I98(n). 816 Sacrilege SACKILEGE. Breaking and entering place of worship and committing a felony.'] — By the 24 & 25 Vict. c. 96, s. 50, "whosoever shall break and enter any church, chapel, meeting-house, or other place of divine worship, and commit any felony therein, or being in any church, chapel, meeting- house, or other place of divine worship shall commit any felony therein and break out of the same, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life" (see ante, p. 203). Breaking and entering a place of worship with intent to commit felony.] See 24 & 25 Vict. c. 96, s. 57, supra, p. 392. Riotously demolishing or injuring place of worship.] See 24 & 25 Vict, c. 97, ss. 11 and 12, svpra, pp. 793, 794. Proof that the building is a church or chapel.] It must appear that the building in which the offence was committed was a church or chapel. Where the goods stolen had been deposited in the church-tower, which had a separate roof, but no outer door, the only way of going to it being through the body of the church, from which the tower was not separated by a door or partition of any kind ; Park, J\, was of opinion, that this tower was to be taken as a part of the church. R. v. Wheeler, 3 C. & J'. 585. The vestry of a parish church was broken open and robbed. It was formed out of what before had been the church porch ; but had a door opening into the churchyard, which could only be unlocked from the inside. It was held by Coleridge, J., that this vestry was part of the fabric of the church, and within the Act. R. v. Evans, Carr. & M. 298. Property how laid in the indictment.] In R. v. Worthy, 1 Den. C. C. Jl. 162, the prisoner was indicted for breaking into a church and stealing a box and money. The box was a very ancient box, firmly fixed by two screws at the back to the outside of a pew in the centre aisle of the church, and by a third screw at the bottom, to a supporter beneath, and over the box was an ancient board, with the inscription painted thereon, " Eemember the poor." The court " thought that the box might be pre- sumed, in the absence of any contrary evidence, to have been placed in the church pursuant to the canon; Bum's Eccl. Law, 369, tit. Church; and that the money therein placed was constructively in the possession of the vicar raid churchwardens." Frequently the property is laid in the parishioners ; sometimes in the rector alone, and sometimes in the churchwardens alone. See 1 Hale, P. ('. 51, 81 ; 2 East, P. C. 681. In a private chapel the property ought perhaps to be laid in the private owner. Sea and River Banks, Ponds, Mill-Dams, &c. 817 SEA AND RIVER BANKS, PONDS, MILL-DAMS, &c. Damaging sea and river banks and works belonging to j»orts, harbours, ifcc] By the 24 & 2o Vict. c. 97, s. 30, " whosoever shall unlawfully and mali- ciously break down, or cut down, or otherwise damage or destroy any sea bank or sea wall, or the bank, dam, or wall of or belonging to any river, canal, drain, reservoir, pool, or marsh, whereby any land or building shall be, or shall be in danger of being, overflowed or damaged, or shall unlawfully and maliciously throw, break, or cut down, level, undermine, or otherwise destroy any quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing-path, drain, watercourse, or other work belonging to any port, harbour, dock, or reservoir, or on or belonging to any navigable river or canal, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." By s. 31, "whosoever shall unlawfully and maliciously cut off, draw up, or remove any piles, chalk, or other materials fixed in the ground, and used for securing any sea bank or sea wall, or the bank, dam, or wall of any river, canal, drain, aqueduct, marsh, reservoir, pool, port, harbour, dock, quay, wharf, jetty, or lock, or shall unlawfully and maliciously open or draw up any floodgate or sluice, or do any other injury or mischief to any navigable river or canal, with intent and so as thereby to obstruct or prevent the carrying on, completing, or maintaining the navigation thereof, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Injuries to fish-ponds, mill-dams, (fee] By s. 32, " V/hosoever shall unlawfully and maliciously cut through, breakdown, or otherwise destroy the dam, floodgate, or sluice of any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish, or shall unlawfully or maliciously put any lime or other noxious material in any such pond or water with intent thereby to destroy any of the fish that may then be or that may thereafter be put therein, or shall unlawfully and maliciously cut through, break down , < >r otherwise destroy the dam or flood- gate of any millpond, reservoir, or pool, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see mite, p. 203), and, if a male under the age of sixteen years, with or without whipping." By the Salmon Fishery Act. '■>>'> A- 37 Viet. c. 71. s. 13, the provisions of the 32nd section, supra, so tar as they relate to poisoning any water with intent to kill or destroy fish, shall lie extended and apply to salmon rivers, as if the words " or in any salmon river" wore inserted in the said section in lieu of the words "private rights of fishery" after the words " noxious material in any such pond or water." R. 3 G S18 Seamen, Offences relating to. SEAMEN, OFFENCES RELATING TO. Forcing seamen on shore.'] By the 57 & 58 Vict. c. 60, s. 187, "the master of or any other person belonging to any British ship shall not wrongfully force on shore and leave behind, or otherwise wilfully and wrongfully leave behind in any place on shore or at sea in or out of her Majesty's dominions, a seaman or apprentice to the sea service before the completion of the voyage for which he was engaged, or the return of the ship to the United Kingdom, and if he does so he shall in respect of each offence, be guilty of a misdemeanor." Wrongfully discharging or leaving behind seamen.'} By s. 1S8, " tin master of a British ship shall not discharge a seaman or apprentice to the sea service abroad, or leave him behind abroad, ashore or at sea, unless he previously obtains endorsed on the agreement with the crew the sanction or in the case of leaving behind the certificate" of certain officials therein specified, and "if the master acts in contravention of this section he shall be guilty of a misdemeanor, and in any legal proceeding for tbe offence, it shall lie on the master to prove that the sanction or certificate was obtained or could not be obtained." Punishment.] By s. 680, every offence declared by the Act to be a misdemeanor shall be punishable by fine or imprisonment, with or without hard labour. By s. 684, every offence is deemed to have been committed either where it actually was committed, or where the offender may be. Ships and Vessels. 819 SHIPS AND VESSELS. Stealing from ships, docks, wharves, &c] By the 24 & 25 Vict. c. 96, s. 63, "whosoever shall steal 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 shall steal any goods or merchandise from any dock, wharf, or quay adjacent to any such haven, port, river, canal, creek or basin, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding fourteen years" (see aide, p. 203). Stealing from ship in distress or wrecked.'] By s. 64, "whosoever shall plunder or steal any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). Setting fire to, casting ((mug, or destroying ship.] See 24 & 25 Vict. c. 97, s. 42, supra, p. 249. Silling fire f<>, castimi away, or destroying ship, with intent to murder.] See 24 & 25 Vict, c. 100, s. 13, supra, p. 692. Setting fire to or casting away ship with intent to prejudice owner or underwriter.] See 21 »£ 25 Vict. c. 97, s. 43, supra, p. 250. Attempting to set fire to, cast away, or destroy ship.] See 24 & 25 Vict. c. 97, s. 44, supra, p. 250. Blowing or attempting to blow up ships.] See 24 & 25 Vict. c. 97, s. 45, and c. 100, s. 30, supra, p. 418. Otherwise damaging ships.] By the 24 & 25 Vict. c. 97, s. 46, " whoso- ever shall unlawfully and maliciously damage, otherwise than by fire, gunpowder, or other explosive substance, any ship or vessel, whether complete or in an unfinished state, with intent to destroy the same, or render the same useless, shall b< guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and if a male under the age of sixteen years, with or without whipping." Exhibiting false signals or otherwise endangering ships.] By s. 47, "whosoever shall unlawfully mask, alter or remove any litrht or signal, or unlawfully exhibit any false light or signal, with intenl to bring any ship, vessel, or boat into danger, or shall unlawiullv and maliciously do 3 a 2 820 Ships and Vessels. anything tending to the immediate loss or destruction of any ship, vessel, or boat, and for which no punishment is hereinbefore provided, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203) and, if a male under the age of sixteen years, with or without whipping." Removing or concealing buoys and other sea-marks.~] By s. 48, "whoso- ever shall unlawfully and maliciously cut away, cast adrift, remove, alter, deface, sink, or destroy, or shall unlawfully and maliciously do any act with intent to cut away, cast adrift, remove, alter, deface, sink, or destroy, or shall in any other manner unlawfully and maliciously injure or con- ceal any boat, buoy, buoy rope, perch, or mark used or intended for the guidance of seamen, or for the purpose of navigation, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and if a male under the age of sixteen years, with or without whipping." Injuries to wrecks and articles belonging thereto.'] By the 24 & 25 Vict, c. 97, s. 49, " whosoever shall unlawfully and maliciously destroy any part of any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to such ship or vessel, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years" (see ante, p. 203). Misconduct endangering ship or safety of persons on board.] By the 57 & 58 Vict. c. 60, s. 220, if a master, seaman, or apprentice belonging to a British ship, by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, does any act tending to the immediate loss, destruction, or serious damage of the ship, or tending immediately to endanger the life or limb of a person belonging to or on board of the ship, or refuses or omits to do any lawful act proper and requisite to be done by him for preserving the ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board of the ship from immediate danger to life or limb, he shall in respect of each offence be guilty of a misdemeanor." By s. 607, the same provision is made with respect to pilots, " when in charge of any ship." By s. 680, "every offence by this Act declared to be a misdemeanor shall be piuiishable by fine or imprisonment, with or without hard labour." Sending to sea an unseaworthy ship.~\ By the 57 & 58 Vict. c. 60, s. 457, every person who sends a ship to sea in such unseaworthy state that the life of any person would be likely to be endangered, is guilty of a misde- meanor, unless he prove that he vised all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in such unseaworthy state was, under the circumstances, reasonable and justifi- able ; and for the purpose of giving such proof, such person may give evidence in the same manner as any other witness, and every master who knowingly takes such a ship to sea is guilty of a misdemeanor. No pro- secution under the section shall be instituted except by or with the consent of the Board of Trade or of the governor of the British possession in which the prosecution takes place. No misdemeanor under this section shall be piuiishable upon summary conviction. Ships and Vessels. 821 Neglecting to render assistance in collision.'] By the 57 & 58 Vict. c. 60, s. 422, the neglect of the master of a vessel to render assistance in the case of collision, or to give to the other vessel the name, port of registry, &c, of his own vessel, is a misdemeanor. Other offences under the Merchant Shipping Act.'] By the Merchant Shipping Act, 1894 (57 & 58 Vict. c. (50), s. 15, the master or owner of a ship using or attempting to use for her navigation a certificate of registry not legally granted shall be guilty of a misdemeanor. By s. 70, carrying papers and documents with intent to conceal the British character of the ship is made a misdemeanor. By s. 147 a superintendent or officer grant- ing or issuing a seaman's money order with a fraudulent intent shall be guilty of felony, and liable to penal servitude for a term not exceeding five years. Wilfully destroying, or altering, or making false entries in an official log-book is a misdemeanor by s. 241 (3). By s. 398, the receiving any payment from the person to whom an apprentice or sea-fishing boy is bound, or from the apprentice or boy in consideration of his being so bound and the making of such payment is made a misdemeanor. By s. 535, any person taking wreck found in British waters into a foreign port and selling it there is guilty of a mis- demeanor, and liable to five years penal servitude. As to forgery of dociunents under the Act, see ante, p. 483. Venue.'] By the 24 & 25 Vict. c. 96, s. 64 {supra), in offences under that section, "the offender may be indicted and tried either in the county or place in which the offence shall have been committed, or in any county or place next adjoining." By the 57 & 58 Vict. c. 60, s. 684, " for the purpose of giving jurisdiction under this Act, every offence shall be deemed to have been committed, and every cause of complaint to have arisen, either in the place in which the same actually was committed or arose, or in any place in which the offender or person complained against may be." Other offences relating to vessels and articles belonging thereto.] As to destroying, &c, cordage on the Thames, see 2 & 3 Vict. c. 47, ss. 27, 28; destroying ships in the port of London, 39 Geo. 3, c. 69, s. 10, ante, p. 250 ; destroying ships of war, 12 Geo. 3, c. 24, ante, p. 250; as to receiving anchors or goods in the Cinque Ports, 1 & 2 Geo. 4, c. 76 ; obtaining documents, sketches, plans, &c, for the purpose of wrongfully obtaining information, 52 & 53 Vict. c. 52, ante, p. 714. 822 Shooting. SHOOTING. Shooting or attempting to shoot with intent to murder.'] See 24 & 25 Vict. c. 100, s. 14, supra, p. 692. Shooting or attempting to shoot with intent to do grievous bodily harm.] See 24 & 25 Yict. c. 100, s. 18, supra, pp. 260, 521. What shall constitute loaded arms.] By the 24 & 25 Vict. c. 100, s. 19, " any gun, pistol, or other arms which shall be loaded in the barrel with gunpowder or any other explosive substance, and ball, shot, slug or other destructive material, shall be deemed to be loaded arms within the mean- ing of this Act, although the attempt to discharge the same may fail from want of proper priming or from any other cause." Proof of arms being loaded.] It makes no difference what the gun or other arm is loaded with, if it is capable of effecting the intent with which the prisoner is charged. Per Le Blanc, J., B. v. Kitchen, Russ. & By. 95. Where the prisoner, by snapping a percussion-cap, discharged a gun- barrel detached from the stock; Patteson, J., held this to be shooting with "loaded arms," within the 9 Geo. 4, c. 31, and, after consulting several of the judges, refused to reserve the point. R. v. Coates, 6 C. & P. 394. Proof of shooting.] Where the prisoner fired into a room in which he supposed the prosecutor to be, but in point of fact he was in another part of the house where he could not by possibility be reached by the shot, Gurney, B., held that the indictment could not be supported. R. v. Lovell, 2 Moo. & R. 30. An indictment for maliciously shooting at A. B. is supported if he be struck by the shot, though the gun be aimed at a different person. R. v. Jarvis, 2 Moo. & R. 40, and see ante, p. 522. Some act must be done to constitute an attempt to discharge firearms. But where a man pointed a loaded pistol at another and was only pre- vented from firing by its being taken from him, that was held to be an attempt to shoot. R. v. Duckworth, (1892) 2 Q. B. 83. Whether it would be an indictable offence for a man to attempt to discharge a firearm which could not be discharged seems doubtful (see ante, Attempts), but where the prisoner pointed at the prosecutor a revolver which was loaded only in some of its chambers and pulled the trigger, but the hammer fell upon an empty chamber, Charles, J., held that this was an attempt to discharge a loaded firearm. R. v. Jackson, 17 Cox, 104. Sending a tin box, filled with gunpowder and peas, to the prosecutor, so contrived that the prosecutor should set fire to tbe powder by opening the box, was held by the judges not to be an attempt to discharge loaded arms within the repealed statute 9 Geo. 4, c. 31, s. 11. R. v. Mountford, 1 Moo. C. C. 441. Shop. 823 SHOP. Breaking in or out of, and committing any felony in a shop, warehouse, or counting-house.'] This offence is provided for by the 24 & 25 Vict. c. 9G, s. 56, supra, p. 392. The general law on the subject will be found under the heads Burglary and Dwelling-house. What buildings arc within the section.'] It was held by Alderson, B., that a workshop, such as a carpenter's or blacksmith's shop, was not within a similar Act to that now in force. R. v. Sanders, 9 Carr. <£• P. 79. But it was subsequently held by Lord Denman, C. J., in R. v. Carter, 1 C. & K. 173, that a person who breaks into an ordinary blacksmith's shop containing a forge, and used as a workshop only, not being inhabited, nor attached to any dwelling-house, and who steals goods therein, may be convicted of breaking into a shop and stealing goods, under the fore- going section. A building formed part of premises employed as chemical works; it was commonly called "The Machine House," a weighing- machine being there, where all the goods sent out were weighed, and a book being kept there, in which entries of the goods so weighed were made. It appeared that the account of the time of the workmen employed in the works was kept in this place ; that the wages of the men were paid there ; that the books in which the entries of time and the payment of wages were entered, were brought to the building for the purpose of making entries and paying wages, but that at other times they were kept in what is called "the office," where the general books and accounts of the concern were kept. It was held that this building was a counting- house within the section. R. v. Potter, 2 Ben. C. C. R. 235; 23 L. J., M. C. 170. A cellar used merely for the deposit of goods intended for removal and sale is a warehouse within this section. Per Eolfe, B., in R. v. Hill, 2 Moo. & R. 458. S24 Smuggling. SMUGGLING AND OTHER OFFENCES CONNECTED WITH THE CUSTOMS. The 39 & 40 Yict. c. 36, contains various regulations with regard to prosecutions by the customs in general. Assembling to assist in smuggling.^ By the 42 & 43 Vict. c. 21, s. 10, all persons to the number of three or more who shall assemble for the purpose of unshipping, landing, running, carrying, concealing, or having so assembled shall unship, land, run, carry, convey, or conceal any spirits, tobacco, or any prohibited, restricted, or uncustomed goods, shall each forfeit a penalty not exceeding 500/., nor less than 100/. By s. 189 of the 39 & 40 Vict. c. 36, every person who shall by any means procure or hire any person or persons to assemble for the purpose of being concerned in the landing, or unshipping, or carrying, conveying, or concealing any goods which are prohibited to be imported, or the duties for which have not been paid or secured, shall be imprisoned for any term not exceeding twelve months ; and if any person engaged in the commis- sion of any of the above offences be armed with firearms or other offensive weapons, or whether so armed or not be disguised in any way,-or being so armed or disguised shall be found with any goods liable to forfeiture under the Customs Acts within five miles of the sea coast or of any tidal river, shall be imprisoned, with or without hard labour, for any term not exceeding three years. Under the former statute, it was made a felony for persons to the number of three or more to assemble armed in order to aid, or in fact aiding, in smuggling, &c. ; but it is difficult to say what is meant by the above sections. See note to Stephen's Digest, p. 44. The meaning of the sections, if the grammatical construction is adhered to, seems to be that all persons assembling to the number of three, whether armed or not, shall forfeit a penalty ; every person who shall procure other persons to assemble, whether armed or not, shall be imprisoned for twelve months, and if such persons assembling shall be armed, the person procuring them to assemble shall be imprisoned for three years. But the intention of the sections probably is that persons assembling to the number of three are to incur a penalty, and persons procuring them to assemble are to be imprisoned for twelve months ; but if persons assemble or procure others to assemble, and are armed, they are to be imprisoned for three years. Proof of being assembled together.^ It was held under the former statute that it must be proved that the prisoners, to the number of three or more, were assembled together, and as it seems, deliberately, for the purpose of aiding and assisting in the commission of the illegal act. Where a number of drunken men came from an ale-house, and hastily set them- selves to carry away some Geneva which had been seized, it was considered very doubtful whether the case came within the statute 19 Geo. 2, c. 34 (now repealed), the words of which manifestly allude to the circumstance Smuggling. 825 of great multitudes of people coining down upon the beach, of the sea for the purpose of escorting uncustomed goods. R. v. Hutchinson, 1 Leach, 343. Seasonable proof must be given from which the jury may infer that the goods were uncustomed. See 11. v. Shelley, 1 Leach, 340 (».). Proof of being armed with offensive weapons.] Although it may be difficult to define what is to be called an offensive weapon, yet it would be going too far to say that nothing but guns, pistols, daggers, and instruments of war are to be so considered ; bludgeons, properly so called, and clubs, and anything not in common use for any other purpose than a weapon, being clearly offensive weapons within the meaning of the Act. R. v. Cosan, 1 Lead*, 342, 343 (//.). Large sticks, in one case, were held not to be offensive weapons ; the preamble of the statute showing that they must be what the law calls dangerous. 11. v. Luce, 1 Leach, 342 hi.). But on an indictment with intent to rob, a common walking-stick has been held to be an offensive weapon. 11. v. Johnson, Buss. & Ry. 492, and B. v. Fry, 2 Moo. & It. 42, ante, p. ,314. See also R. v. Sharwin, 1 East, P. C. 421. A whip was held not to be an offensive w r eapon. R. v. Fletcher, 1 /.inch, 23. And, bats, which are poles used by smugglers to carry tubs, were held not to be offensive weapons. R. v. Noake, o C. smuggling vessels.'] By s. 190 of the 39 & 40 Vict. c. 36, " no person shall after sunset and before sunrise between the 21st day of September and the 1st day of April, or after the hour of eight in the evening and before the hour of six in the morning at any other time of the year, make, aid, or assist in making any signal in or on board, or from any ship or boat, or on, or from any part of the coast or shore of the United Kingdom, or within six miles of any part of such coast or shore, for the purpose of giving notice to any person on board any smuggling ship or boat, whether any person on board of any such ship or boat be or not within distance to notice any such signal; and if any person, contrary to the Customs Act, shall make, or cause to be made, or aid or assist in making any such signal, he shall be guilty of a misdemeanor; and may be stopped, arrested, detained, and conveyed before any justice, who, if he see cause, shall commit the offender to the next county gaol, there to remain until delivered by due course of law ; and it shall not be necessary to prove on any indictment or information'in such case that any ship or boat was actually on the coast ; and the offender, being duly convicted, shall, by order of the court before whom he shall be convicted, either forfeit the penalty of one hundred pounds, or, at the discretion of such court, be committed to a gaol or house of correction, there to be kept to hard labour for any term not exceeding one year." By s. 191, "if any person be charged with having made, or for aiding or assisting in making any such signal as aforesaid, tli. burden of proof that such signal. 80 charged as having been made with intent and for the purpose of giving such notice as aforesaid, was not made with such intent and for such purpose, shall be upon the defendanl against whom such charge is made, or such indictment found." By s. 1!)2, any person may prevent such signals being made, and may enter lands for that purpose. Shooting at a vessel belonging to the nun/, ,tv.] By s. 193, "if any person shall maliciously shoot at any vessel or boat belonging to her 826 Smuggling. Majesty's navy, or in the service of the revenue, or shall maliciously shoot at, maim, or wound any officer of the army, navy, or marines being duly employed in the prevention of smuggling and on full pay, or any officer of customs or excise, or any person acting in his aid or assistance, or duly employed for the prevention of smuggling, in the execution of his office or duty (see s. 261, post), every person so offending, and every person aiding, abetting, or assisting therein, shall, upon conviction, be adjudged guilty of felony, and shall be liable, at the discretion of the court, to penal servitude for any term not less than five years, or to be imprisoned for any term not exceeding three years." Upon an indictment under the first part of this section, the prosecutor must prove — 1, the shooting; 2, the malice; 3, that the vessel shot at was belonging to the navy, or in the service of the revenue. It was held, that if a custom house vessel chased a smuggler, and fired into her without hoisting such a pendant and ensign as the statute required, the returning of the fire by the smuggler was not malicious within the Act B. v. Reynolds, Bass. & By. 465. Assaults upon revenue officers.] Assaults upon revenue officers in the execution of their duty are included in the general provisions of the 24 & 25 Yict. c. 100, s. 38, supra, p. 261 ; and see the 44 Vict. c. 12, s. 12. ( Compensations and rewards.'] See as to compensations and rewards to officers and others employed in preventing smuggling, 39 & 40 Yict. c. 36, ss. 210—216. Indictments — how preferred and found.] By the 39 & 40 Yict. c. 36, s. 255, " all indictments or suits for any offences or the recovery of any penalties or forfeitures under the Customs Acts, shall, except in the cases where summary jurisdiction is given to justices, be preferred or com- menced in the name of her Majesty's Attorney-General for England, or of some officer of customs or inland revenue." By s. 256, the Attorney- General may enter a nolle prosequi. Limitation of prosecution.] By s. 257, "all suits, indictments, or informations brought, or exhibited for any offence against the Customs Acts in any court or before any justice, shall be brought or exhibited within three years next after the date of the offence committed." Venue.] By s. 258, "any indictment, prosecution, or information which may be instituted or brought under the direction of the commis- sioners of customs for offences against the Customs Acts, shall and may be inquired of, examined, tried, and determined in any county of England, when the offence is committed in England, . . . in such manner and form as if the offence had been committed in the said county, where the said indictment or information shall be tried." Presumptions.] By s. 260, "the averment that the commissioners of customs or inland revenue have directed or elected that any information or proceedings imder the Customs Acts shall be imtituted, or that any ship or boat is foreign, or belonging wholly or in part to her Majesty's subjects, or that any person detained or found on board any ship or boat liable to seizure, is or is not a subject of her Majesty ... or that any person is an officer of customs or excise, or that any person was employed for the prevention of smuggling, or that the offence was committed within the limits of any port, or where the offence is committed in any Smuggling, 827 port of the United Kingdom, the naming of such in any information or proceeding shall be deemed to be sufficient, unless the defendant in any such case shall prove to the contrary." By s. 261, "if upon any trial a question shall arise whether any person is an officer of the army, navy, marines, or coastguard, duly employed for the prevention of smuggling, and on full pay, or an officer of customs or excise, his own evidence thereof, or other evidence of his having acted as such, shall be deemed sufficient, and such person shall not be required to produce his com- mission or deputation." By s. 262, " the order, or any letter or instruc- tions referring thereto, shall be sufficient evidence of any order issued by the commissioners of the treasury, or by the commissioners of customs or inland revenue." Obstructing officers of inland revenue.^ By 53 & 54 Vict. c. 21, s. 11, ''If any person by himself, or by any person in his employ, obstructs, molests, or hinders " any officer or person employed in relation to inland revenue in the execution of bis duty, he shall incur a fine of \00l. Sections 21 & 22 prescribe how this fine may be recovered in the High Court. 828 Sodomy. SODOMY. By the 24 & 25 Vict. c. 100, s. 61, " whosoever shall be convicted of the abominable crime of buggery committed either with mankind or with any animal shall be hable to be kept in penal servitude for life " (see ante, p. 203). If the offence be committed on a boy under fourteen years of age, it is felony in the agent only. 1 Hale, 670 ; 3 Inst. 59. In R. v. Allen, 1 Den. C. C. R. 364, the prisoner induced a boy of twelve years of age to have carnal knowledge of his person, the prisoner having been the pathic in the crime ; and the court were unanimously of opinion that the conviction was right. In one case a majority of the judges were of opinion that the commis- sion of the crime with a woman was indictable. R. v. Wiseman, Fortescue, 91 ; and see R. v. Jellyman, 8 0. & P. 604, where Patteson, J., held that a married woman who consents to her husband committing an unnatural offence with her, is an accomplice in the felony, and as such that her evidence requires confirmation, though consent or non-consent is not material to the offence. The act committed with a fowl constitutes the offence : R. v. Brown, 24 Q. B. I). 357 ; but the act in a child's mouth does not. R. v. Jacob, Buss. & Ry. 331. The offence would be complete on proof of penetration only : see 24 & 25 Vict. c. 100, s. 63, ante, tit. Rape. The attempt to commit the offence is a misdemeanor. Sect. 62, ante, p. 262. Outrages on decency.'] The commission of an act of indecency by a male person with another male person is a misdemeanor. By 48 & 49 Vict. c. 69, s. 11, " Any male person who, in public or private, commits, oris a party to the commission of, or procures or attempts to procure the com- mission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for any term not exceeding two years, with or without hard labour." Where the prisoner procured the commission of an act of gross indecency with the prisoner himself, it was held that the offence was complete. R. v. Jones and Bowerbank, (1896) 1 Q. B.-i; 65 L. J., M. C. 28. The wife or husband of a person charged under this section may be called as a witness either for the prosecution or defence and without the consent of the person charged. See Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), s. 4 and Schedule, in Appendix of Statutes. Spring-guns. 829 SPRING-GUNS. By the 24 & 25 Vict. c. 100, s. 31, " whosoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, 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 grievous bodily harm upon a trespasser or other person coming in contact there- with, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude (see ante, p. 203) ; and whosoever shall knowingly and wilfully permit any such spring-gun, man-trap, or other engine which may have been set or placed in any place then being in or afterwards coming into his possession or occupation by some other person to continue so set or placed, shall be deemed to have set and placed such gun, trap, or engine with such intent as aforesaid : provided that nothing in this section contained shall extend to make it illegal to set or place any gin or trap such as may have been or may be usually set or placed with the intent of destroying vermin : 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." 830 Stamps, Offences relating to. STAMPS, OFFENCES EELATING TO. By 54 & 55 Vict. c. 38, s. 13, "Every person who does or causes or procures to be done, or knowingly aids, abets, or assists in doing any of the acts following, that is to say : "Forges a die or stamp. ' ' Prints or makes an impression upon any material with a forged die. " Fraudulently prints or makes an impression upon any material from a genuine die. ' ' Fraudulently cuts, tears, or in any way removes from any material any stamp with intent that any use should be made of such stamj) or of any part thereof. " Fraudulently mutilates any stamp with intent that any use should be made of any part of such stamp. " Fraudulently fixes or places upon any material or upon any stamp any stamp or part of a stamp which, whether fraudulently or not, has been cut, torn, or in any way removed from any other material, or out of or from any other stamp. " Fraudulently erases, or otherwise either really or apparently removes from any stamped material, any name, sum, date, or other matter or thing whatsoever thereon written with the intent that any use should be made of the stamp upon such material. ' ' Knowingly sells or exposes for sale, or utters or uses any forged stamp or any stamp which has been fraudulently printed or impressed from a genuine die. ' ' Knowingly and without lawful excuse (the proof whereof shall lie on the person accused) has in his possession any forged die or stamp or any stamp which has been fraudulently printed or impressed from a genuine die or any stamp or part of a stamp which has been fraudulently cut, torn, or otherwise removed from any material, or any stamp which has been fraudulently mutilated, or any stamped material out of which any name sum, date, or other matter or thing has been fraudulently erased or other- wise either really or apparently removed, shall be guilty of felony, and shall on conviction be liable to be kept in penal servitude for any term not exceeding fourteen years " (see ante, p. 203). By s. 14, " Every person who without lawful authority or excuse (the proof whereof shall lie on the person accused) makes, or causes or procures to be made, or aids or assists in making, or knowingly has in his custody or possession, any paper, in the substance of which shall appear any words, letters, figures, marks, lines, threads, or other devices peculiar to and appearing in the substance of any paper provided or used by or under the direction of the commissioners for receiving the impression of any die, or any part of such words, letters, marks, lines, threads, or other devices, and intended to imitate or pass for the same, or causes or assists in causing any such words, letters, figures, marks, lines, threads, or devices as afore- said, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate or pass for the same to appear in the substance of any paper whatever, shall be guilty of felony, and shall on Stamps, Offences relati/it/ to. 831 conviction be liable to be kept in penal servitude for any term not exceeding seven years " (see ante, p. 203). By s. 15, " Every person who, without lawfid authority or excuse (the proof whereof shall lie on the person accused) purchases or receives, or knowingly has in his custody or possession any paper manufactured or provided by or under the direction of the commissioners, for the purpose of being used for receiving the impression of any die before such paper shall have been duly stamped and issued for public use ; or any plate, die, dandy, roller, mould, or other implement peculiarly used in the manu- facture of any such paper, shall be guilty of a misdemeanor, and shall on conviction be liable to be imprisoned with or without hard labour for any term not exceeding two years." By s. 18, "If any forged stamps are found in tho possession of any person appointed to sell and distribute stamps, or being or having been licensed to deal in stamps, that person shall be deemed and taken, unless the contrary is satisfactorily proved to have had the same in his possession knowing them to be forged, and with intent to sell, use, or utter them, and shall be liable to the punishment imposed by law upon a person selling, using, uttering, or having in possession forged stamps, knowing the same to be forged." By s. 27, the expression "commissioners" means commissioners of inland revenue ; the expression " material" includes every sort of material upon which words or figures can be expressed; the expression "die" includes any plate, type, tool, or implement whatever used under the direction of the commissioners for expressing or denoting any duty or rate of duty, or the fact that any duty or rate of duty or penalty has been paid, or that an instrument is duly stamped, or is not chargeable with any duty, or for denoting any fee, and also any part of any such plate, type, tool, or implement; the expression "forge" and "forged" includes counterfeit and counterfeited; the expi'ession "stamp" means as well a stamp impressed by means of a die as an adhesive stamp for denoting any duty or fee. Upon an indictment lor vending counterfeit stamps, it appeared that the stamps in all respects resembled a genuine stamp, excepting only the centre part, for which, in the forged stamp, the words " Jones, Bristol," were substituted. The fabrication was likely to deceive the eye of a common observer. The judges, on a case reserved, held that the prisoner was rightly convicted of forgery. R. v. Collicott, '1 Lea. <'. <'. 1048; ■i Taunt. 300; Russ. & A'//. 212. As to what amounts to "lawful excuse" see Dickins v. Gill, (1896) 2 Q. II. .'ill, 65 L. -I., M. C. 1ST. where it was held that the possession by a newspaper proprietor of a die for illustrating in black and white a supple- ment to his paper, which circulated among stamp collectors, was, however innocent the use he intended to make of it, a possession without lawful excuse. 832 Telegraphs, Injuries to. TELEGRAPHS, INJURIES TO. By the 24 & 25 Vict. c. 97, s. 37, "whosoever shall unlawfully and maliciously cut, break, throw down, destroy, injure, or remove any battery, machinery, wire, cable, post, or other matter or thing whatso- ever, being part of or being used or employed in or about any electric or magnetic telegraph, or in the working thereof, or shall unlawfully and maliciously prevent or obstruct in any manner whatsoever the sending, conveyance, or delivery of any communication by any such telegraph, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour : provided that if it shall appear to any justice, on the examination of any person charged with any offence against this section, that it is not expedient to the ends of justice that the same should be prosecuted by indictment, the justice may proceed summarily to hear and determine the same, and the offender shall on conviction thereof, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding three months, or else shall forfeit and pay such sum of money not exceeding ten pounds, as to the justices shall seem meet." By s. 38, attempts to commit any of the offences mentioned in the above section may be dealt with summarily. The 48 & 49 Vict. c. 49, s. 3, deals with submarine cables, and makes it a misdemeanor to wilfully or by culpable negligence injure a cable. Telegraph Messages. 833 TELEGRAPH MESSAGES. By the 31 & 32 Vict. c. 110, s. 20, "any person having official duties connected with the Post Office, or acting on behalf of the Postmaster- General, who shall, contrary to his duty, disclose, or in any way make known or intercept the contents or any part of the contents of any telegraph messages, or any message intrusted to the Postmaster-General for the purpose of transmission, shall be guilty of a misdemeanor, and shall, upon conviction, be subject to imprisonment for a term not exceeding twelve calendar months; and the Postmaster- General shall make regulations to carry out the intentions of this section, and to prevent the improper use, by any person in his employment or acting on his behalf, of any knowledge he may acquire of the contents of any telegraphic message." By sect. 21, "In every case where an offence shall be committed in respect of a telegraphic message sent by or intrusted to the Postmaster- General, it shall be lawful and sufficient, in the indictment or criminal letters to be preferred against the offender, to lay the property of such telegraphic message in her Majesty's Postmaster-Genei'al, without specifying any further or other name, addition, or description whatsoever, and it shall not be necessary in the indictment or criminal letters to allege or to prove upon the trial or otherwise that the telegraphic message was of any value ; and in any indictment or in any criminal letters to be preferred against any person employed under the Post Office for any offence committed under this Act, it shall be lawful and sufficient to state and allege that such offender was employed under the Post Office at the time of the committing of such offence, without stating further the nature or particulars of his employment." By the 32 & 33 Vict. c. 73, s. 23, " every written or printed message or communication delivered at a Post Office for the purpose of being trans- nutted by a postal telegraph, and every transcript thereof made by any person acting in pursuance of the orders of the Postmaster-General, shall be a post-letter within the meaning of an Act passed in the first year of the reign of her present Majesty, c. 36 ; provided always that nothing in this Act contained shall have the effect of relieving any officer of the Post Office from any liability which would but for the passing of this Act have attached to a telegraph company, or to any other company or person, to produce in any court of law, when duly required so to do, any Mich written or printed message or communication." By sect. 24, " 'The Telegraph Act, 1868 ' (31 & 32 Vict, c 110, supra), and this Act shall be ' Posl Office Acts,' and the provisions contained therein respectively shall be 'Post Office Laws' within the meaning of the 1 Vict. c. 36." ' See ante, tit. Post Office. Proof of telegraph message."] In order to give in evidence the contents of a telegram sent by the prisoner, it is necessary that the original message handed to the Post Office should be produced, and some evidence given that the message is in the handwriting of the prisoner or sent by R. 3 n 834 Telegraph Messages. his authority, and the copy received by a witness cannot be given in evidence until it is proved that the original cannot be produced. R. v. Regan, 16 Cox, 203. In order to prove a telegram sent to a prisoner and not produced after notice to produce has been given, it is usual to prove the handing in of the form and its receipt at the office and that it was taken to the prisoner's place of abode and left there. That is sufficient— on proof of the serving of the notice to produce — to allow the original form to be put in evidence. Forgery and improper disclosure of telegrams.'] By 47 & 48 Vict. c. 76, s. 11, " every person who forges or wilfully and witbout due authority alters a telegram, or utters a telegram knowing the same to be forged, or wilfully and without due authority altered, or who transmits by telegraph as a telegram, or utters as a telegram any message or communication which he knows to be not a telegram, shall, whether he had or had not an intent to defraud, be guilty of a misdemeanor, and shall be liable on summary conviction to a fine not exceeding ten pounds, and, on convic- tion, on indictment, to imprisonment, with or without hard labour, for a period not exceeding twelve months. If any person, being in the employ- ment of a telegraph company as defined by this section, improperly divulges to any person the purport of any telegram, such person shall be guilty of a misdemeanor, and be liable, on summary conviction, to a fine not exceeding twenty pounds, and, on conviction, on indictment, to imprisonment, with or without hard labour, for a term not exceeding one year, or to a fine not exceeding 200/. " For the purposes of this section the expression ' telegram ' means a written or printed message, or communication, sent to or delivered at a post office, or the office of a telegraph company for transmission by telegraph, or delivered by the post office or a telegraph company as a message or communication transmitted by telegraph. ' ' The expression ' telegraph company ' means any company, corpora- tion, or persons carrying on the business of sending telegrams for the public under whatever authority, or in whatever manner such company, corporation, or persons may act or be constituted. ' ' The expression ' telegraph ' has the same meaning as in the Telegraph Act, 1869, and the Acts amending the same." It has been held that where a man sent a telegram announcing his own death and signed it with his surname an offence against this section bad been committed. E.r parte Wickham, 10 Times L. R. 266. A forged telegram is a forged instrument within the meaning of 24 & 25 Vict. c. 98, s. 38, see R. v. Riley, ante, p. 498. Tenants and Lodgers. 835 TENANTS AND LODGERS. Injuries committed by tenants or lodgers."] By the 24 & 25 Vict. c. 97, s. 13, " whosoever, being possessed of any dwelling-house or other build- ing, or part of any dwelling-house or other building, held for any term of years or other less term, or at will, or held over after the termination of any tenancy, shall unlawfully and maliciously pull down or demolish, or begin to pull down or demolish, the same or part thereof, or shall unlawfully and maliciously pull down or sever from the freehold any fixture being fixed in or to such dwelling-house or building, or part of such dwelling-house or building, shall be guilty of a misdemeanor." Larceny by tenant or lodger.'] By the 24 & 25 Vict. c. 96, s. 74, " who- soever shall steal any chattel or fixture let to be used by him or her in or with any house or lodging, whether the contract shall have been entered into by him or her or by her husband, or by any person on behalf of him or her or her husband, shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for any term not exceeding two years, with or without hard labour, and, if a male under the age of six- teen years, with or without whipping; and in case the value of such chattel or fixture shall exceed the sum of five pounds, shall be liable to be kept in penal servitude for any term not exceeding seven years, or to be imprisoned (see ante, p. 203), and. if a male under the age of sixteen years, with or without whipping ; and in every case of stealing any chattel in this section mentioned, it shall be lawful to prefer an indict- ment in the common form as for larceny ; and in every case of stealing any fixture in this section mentioned to prefer an indictment in the same form as if the offender were not a tenant or lodger ; and in either case to lay the property in the owner or person letting to hire." 3 ii 2 836 Threats. THREATS. Sending letters threatening to murder.'] By the 21 & 25 Vict. c. 100, s. 16, " whosoever shall maliciously send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing threatening to kill or murder any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding ten years, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Sending letters demanding property with menaces.] By the 24 & 25 Vict. c. 96, s. 44, "whosoever shall send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable and probable claim, any property, chattel, money, valuable security, or other valuable thing, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Demanding property with menaces with intent to steal.] By s. 45,. "whosoever shall with menaces or by force demand any property, chattel, money, valuable security, or other valuable thing of any per- son, with intent to steal the same, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude " (see ante, p. 203). Sending letters threatening to accuse of crime with intent to extort money.] By s. 46, ' ' whosoever shall send, deliver, or utter, or directly or indirectly cause to be received, knowing the contents thereof, any letter or writing accusing, or threatening to accuse, any other person of any crime punishable by law with death or penal servitude for not less than seven years, or of any assaidt with intent to commit any rape, or of any attempt or endeavour to commit any rape, or of any infamous crime as hereinafter defined, with a view or intent in any of such cases to extort or gain by means of such letter or writing any property, chattel, money, valuable security, or other valuable thing, from any person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping ; and the abominable crime of buggery, committed either with mankind or with beast, and every assault with intent to commit the said abominable crime, and every attempt or endeavour to commit the said abominable crime, and every solicitation, persuasion, promise, or threat offered or made to any person whereby to move or induce such person to commit or permit the said abominable crime, shall be deemed to be an infamous crime within the meaning of this Act." Threats. 837 Accusing or threatening to accuse with intent to extort.~\ By s. 47, "who- soever shall accuse or threaten to accuse, either the person to whom such accusation or threat shall be made or any other person, of any of the infamous or other crimes lastly hereinbefore mentioned, with the view or intent in any of the cases last aforesaid to extort or gain from such person so accused or threatened to be accused, or from any other person any property, chattel, money, valuable security, or other valuable thing, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Inducing a person by threats to execute deed, cfcc] By s. 48, "whosoever with intent to defraud or injure any other person, shall by any unlawful violence to, or restraint of, or threat of violence to or restraint of the person of another, or by accusing or threatening to accuse any person of any treason, felony, or infamous crime, as hereinbefore defined, compel or induce any person to execute, make, accept, indorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix his name or the name of any other person or of any company, firm, or co-partnership, or the seal of any body corporate, company, or society, upon or to any paper or parchment, in order that the same may be after- wards made or converted into, or used or dealt with as a valuable security, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life" (see ante, p. 203). I in natter ial from whom menaces /'. 305. It was held, that the threatening to accuse need not have been a threat to accuse before a judicial tribunal, a threat to charge before any third person being enough. R. v. Rohinxon, 2 Moo. d II. 14. It must be shown that the accusation, made or threatened, was of the nature of those specified in the statute. Where the meaning is ambiguous, it is for the jury to say whether it amounts to the accusation or threat imputed. 1 k'clarations subsequently made by the prisoner are also admissible to explain the meaning of a threatening letter. The prisoner was indicted for sending a letter threatening to accuse the prosecutor of an infamous crime. The prosecutor, meeting the prisoner, asked him what he meant by sending that letter, and what he meant by "transaction* five nights, following" (a passage in the letter). The prisoner said that the prosecutor knew what lie meant. The prosecutor denied it, and the prisoner after- wards said, " I mean by taking indecent liberties with my person." This evidence having been received, and the point having been reserved for the opinion of the judges, they unanimously resolved that the evidence had been rightly received. R. v. Tucker, 1 Moo. ('. C. 134. And see, as to the necessity of particularising in the indictment the specific charge to 842 Threats. which the accusation or threat refers, and as to the evidence necessary to support such indictment, R. v. Middleditch, 1 Den. C. C. R. 92. Matter of defence.'] It is immaterial whether the accusation is true or not, and evidence of its truth will not be admitted, though the prosecutor's credit may he tested by asking him in cross-examination questions suggesting his guilt. R. v. Crachnell (Willes, J.), 10 Cox, 408 ; R. v. Menage, 3 F. & F. 310. See also R. v. Richards, 11 Cox, 43 ; but in this last case the facts were that the prisoner went to the prosecutor, whom he accused of having given a disease to his son, his son in fact having sucli a disease, and having informed the prisoner of it. The prisoner at that time only demanded payment of the doctor's bill, amounting to 25s. ; but some time afterwards the prisoner went again to the prosecutor and threatened to give him into custody unless he would compromise it by payment of 100/. Blackburn, J., left evidence of the truth of the accusation to the jury, saying, that it was material in considering with what intent the prisoner made the accusation. If he made the accusation at first without any intent to extort money he would not be guilty, and if afterwards believing in the truth of the accusation he endeavoured to compromise the matter by payment of money (sic), that would not render him guilty of the offence charged, though he might be guilty of compounding a felony. The report of the above case is very short, and it is submitted that the additional intent of compounding a felony did not prevent the existence of an intent to extort money. The intent to extort money seems to have been amply proved by a threat of giving the prosecutor into custody if he would not pay 100/. It seems (if the report is correct) that the learned judge thought that the demand for the 100/. might be wholly unconnected with the accusation which had preceded it ; but it is difficult to see how that could possibly be the case, as the demand was coupled with a threat to give the prosecutor into custody, which must have been practically a renewal of the accusation. Transportation — Returning from. 348 TEANSPOETATION— EETUENTNG FROM. By the 5 Geo. 4, c. 84, s. 22, "if any offender who shall have been, or shall be so sentenced or ordered to be transported or banished, or who shall have agreed, or shall agree, to transport or banish himself or herself on certain conditions, either for life or any number of years, under the provisions of this or any former Act, shall be afterwards at large within any part of his Majesty's dominions, without some lawful cause, before the expiration of the term for which such offender shall have been sentenced or ordered to be transported or banished, or shall have so agreed to transport or banish himself or herself, every such offender, so being at large, being thereof lawfully convicted [shall suffer death as in cases of felony, without the benefit of clergy] ; and such offender may be tried either in the county or place where he or she shall be apprehended, or in that from whence he or she was ordered to be transported or banished ; and if any person shall rescue, or attempt to rescue, or assist in rescuing, or in attempting to rescue, any such offender from the custody of such superintendent or overseer, or of any sheriff, or gaoler, or other person conveying, removing, transporting, or reconveying him or her, or shall convey, or cause to be conveyed, any disguise, instrument for effecting escape, or arms, to such offender, every such offender shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted; and whoever shall discover and prosecute to conviction any such offender so being at large within this kingdom, shall be entitled to a reward of 20/. for every such offender so convicted." By s. 23, in any indictment against any offender for being found at large, contrary to that or any other Act now or thereafter to be made, it shall be sufficient to charge and allege the order made for the transporta- tion or banishment of such offender, without charging or alleging any indictment, trial, conviction, judgment, sentence, or any pardon or intention of mercy, or signification thereof, of or against or in any manner relating to such offender. By s. 24, "the clerk of the court or other officer having the custody of the records of the court where such sentence or order of transportation or banishment shall have been passed or made, shall at the request of any person on his Majesty's behalf, make out and give a certificate in writing, signed by him, containing the effect and substance only (omitting the formal part) of every indictment and conviction of such offender, and of the sentence or order for his or her transportation or banishment (not taking for the same more than 6s. 8d,), which certificate shall be sufficient evidence of the con\ id ion and sentence, or order for the transportation or banishment of such offender; and every such certificate, if made by the clerk or officer of any court in Great Britain, shall be received in evidence, upon proof of the signature and official character of the person signing the same; and every such certificate, if made by the clerk or officer of any court out of Great Britain, shall be received in evidence, if 844 Transportation — Returning from. verified by the seal of the court, or by the signature of the judge, or one of the judges of the court, without further proof." The above provisions now apply to sentences for penal servitude. See 16 & 17 Vict. c. 99, s. 6 ; and 20 *& 21 "Vict. c. 3. Upon a prosecution for this offence, the prosecutor must prove, 1, the conviction of the offender, by producing a certificate according to the above section of the statute ; 2, the sentence or order of transportation in like manner. The signature and official character of the person signing the certificate must be proved. If the certificate is made by the clerk or officer of a court out of Great Britain, it is admissible when verified by the seal of the court or the signature of the judge. The " effect and substance "of the former conviction must be stated in the certificate; merely stating that the prisoner was convicted "of felony" is not suffi- cient. B. v. Sutcliffe, Buss. & By. 469 (n) ; B. v. Watson, Id. 468. 3, Proof must then be given of the prisoner's identity ; and 4, that he was at large before the expiration of his term. On the trial of an indictment against a person for being at large with- out lawful cause before the expiration of his term of transportation, a certificate of his former conviction and sentence was put in : it purported to be that of J. G., "deputy clerk of the peace" for the county of L., 11 and clerk of the courts of general quarter sessions of the peace holden in and for the said county, and having the custody of the records of the courts of general quarter sessions of the peace, holden in and for the said county." It was proved that Mr. H. was clerk of the peace at L., and that he had three deputy partners, of whom J. G., who had signed the certificate, was one, and that each of them acted as clerk of the peace; and that for forty years they had kept the sessions' records at their office. Under the circumstances, 'Coltman, J., held that the conviction and sentence were sufficientlv proved. B. v. Jones, 2 C. & K. 524 ; see also B. v. Parsons, L. B., 1 C. C. B. 24. In B. v. Finney, 2 C. & K. 774, Alderson, B., held, that the fact of the former sentence being in force at the time the prisoner was found at large, was sufficiently proved by the certificate of his conviction and sentence, the judgment not having been reversed, although on the face of such certificate it appeared that the sen- tence, viz., transportation for fourteen years, was one which could not have been inflicted on him, for the offence of which, according to the certificate, he had been convicted, viz., larceny. Punishment.] By the 4 & 5 Will. 4, c. 67, reciting the 22nd section of the 5 Geo. 4, c. 84, it is enacted, "that every person convicted of any offence above specified in the said Act, or of aiding or abetting, counsell- ing, or procuring the commission thereof, shall be liable to be transported beyond the seas [now penal servitude] for his or her natural life " (see ante, p. 203). Beivard to prosecutor.'] The judge before whom a prisoner is tried for returning from transportation has power to order the county treasurer to pay the prosecutor the reward under the Act. B. v. Emmons, 2 Moo. & B. 279. Trees and other Vegetable Productions. 845 TREES AND OTHER VEGETABLE PRODUCTIONS. Stealing or destroying with it doit to steal trees, shrubs, ifcc, in a pleasure ground of the value of 11., or elsewhere of the value of ol.~\ By the 24 & 25 Vict. c. 96, s. 32, •' whosoever shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling or shrub, or any underwood, respectively growing in any park, pleasure ground, garden, orchard or avenue, or in any ground adjoining or belonging to any dwelling-house, shall (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of one pound) be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of simple larceny ; and whosoever shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, respectively growing elsewhere than in any of the situations in this section before mentioned, shall (in case the value of the article or articles stolen, or the amount of the injury done, shall exceed the sum of five pounds) be guilty of felony, and being convicted thereof shall be liable to be punished as in the case of simple larceny." As to the meaning of the words " adjoining" or ''belonging to," see R. v. Hodges, ante, p. 457. Stealing or destroying with intent to steal trees, shrubs, &c, ivherever growing to the value of Is.] By s. 33, "whosoever shall steal, or shall cut, break, root up, or otherwise destroy or damage with intent to steal, the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be respectively growing, the stealing of such article or articles, or the injury done, being to the amount of a shilling at the least, shall, on conviction thereof before a justice of the peace, forfeit and pay, over and above the value of the article or articles stolen, or the amount of the injury done, such sum of money not exceeding five pounds, as to the justice shall seem meet; and whosoever, having been convicted of any such offence, either against this or any former Act of parliament, shall afterwards commit any of the said offences in this section before mentioned, and shall be convicted thereof in like manner, shall for such second offence be committed to the common gaol or house of correction, there to be kept to hard labour for such term not exceeding twelve months as the convicting justice shall think fit; and whosoever, having been twice convicted of any such offence (whether both or either of such convictions shall have taken place before or after the passing of this Act), shall afterwards commit any of the offences in this section before mentioned, shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny." Stealing or destroying any plant, rout, or vegetable production. By s. 30, " whosoever shall steal, or shall destroy or damage with intent to steal, any plant, root, fruit, or vegetable production growing in any garden. 846 Trees and other Vegetable Productions. orchard, pleasure ground, nursery ground, hothouse, greenhouse, or conservatory, shall, on conviction thereof hefore a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour for any term not exceeding six months, or else shall forfeit and pay, over and above the value of the article or articles so stolen, or the amount of the injury done, such sum of money not exceed- ing 20/. as to the justice shall seem meet ; and whosoever having been convicted of any such offence, either against this or any former Act of parliament, shall afterwards commit any of the offences in this section before mentioned, shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny." Setting fire to trees and. other vegetable produce.'] See 24 & 25 Vict. c. 97, s. 16, supra, p. 249. Sitting fire to stacks of corn, wood, &c.~\ See 24 & 25 Vict. c. 97, s. 17, supra, p. 249. Injuring hopbiuds.] By the 24 & 25 Vict. c. 97, s. 19, "whosoever shall unlawfully and maliciously cut or otherwise destroy any hopbinds growing on poles in any plantation of hops shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding fourteen years, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Injuring trees in a pleasure grim ml to the value of 11. and, ■upwards.'] By s. 20, " whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, growing in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house (in case the amount of the injury done shall exceed the sum of one pound), shall be guilty of felony, and being convicted thereof shall be liable to be kejit in penal servitude, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." By s. 21, "whosoever shall unlawfully and maliciously cut, break, bark, root up. or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood growing elsewhere than in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining to or belonging to any dwelling-house (in case the amount of injury done shall exceed the sum of five pounds), shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude, or to be imprisoned (see ante. p. 203), and, if a male under the age of sixteen years, with or without whipping." Injuring trees, &c, ivheresoever growing, to the amount of Is.] By s. 22, " whosoever shall unlawfully and maliciously cut, break, bark, root up, or otherwise destroy or damage the whole or any part of any tree, sapling, or shrub, or any underwood, wheresoever the same may be growing, the injury done being to the amount of one shilling at the least, " is for the first and second offence made liable to conviction before a justice of the peace ; " and whosoever having been twice convicted of any such offence (whether both or either of such convictions shall have taken Trees and other Vegetable Productions, 847 place before or after the passing of this Act) shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." Injuring vegetable productions in gardens. .] By s. 23, "whosoever shall unlawfully and maliciously destroy, or damage with intent to destroy, any plant, root, fruit or vegetable production, growing in any garden, orchard, nursery ground, hothouse, greenhouse, or conservatory, shall, on conviction thereof before a justice of the peace, at the discretion of the justice, either be committed to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour, for any term not exceeding six months, or else shall forfeit and pay, over and above the amount of the injury done, such sum of money not exceed- ing twenty pounds as to the j ustice shall seem meet ; and whosoever, having been convicted of such offence, either against this or any former Act of parliament, shall afterwards commit any of the said offences in this section before mentioned, shall be guilty of felony, and being con- victed thereof shall be liable, at the discretion of the court, to be kept in penal servitude, or to be imprisoned (see ante, p. 203), and, if a male under the age of sixteen years, with or without whipping." The actual injury to the trees themselves must exceed the value mentioned in the section. Where, therefore, the prisoner was indicted for having done damage to trees in a hedge amounting to ol., and it appeared that the injury to the trees amounted to 1/. only, but that it would be necessary to stub up the old hedge and replace it, the expense of which would be 4/. 14s. more, the conviction was held to be wrong. It. v. Whiteman, Dears. C. C. 353; 23 L. J., M. C. 120. It is sufficient to prove that the aggregate value of the trees cut at one time exceeds the value laid in the indictment. It. v. Shepherd, L. It., 1 C. C. It. 118; 37 L. J., M. C. 4,1. 848 Trustees — Frauds by. Turnpike Gates — Injuries to. TRUSTEES— FRAUDS BY. Definition of term trustee.'] By the 24 & 25 Vict. c. 96, s. 1, "the term ' trustee ' shall mean a trustee on some express trust created by some deed, will, or instrument in writing, and shall include the heir, or personal representative of any such trustee, and any other person upon or to whom the duty of such trust shall have devolved or come, and also an executor and administrator, and an official manager, assignee, liqui- dator, or any other like officer acting under any_ present or future Act relating to joint stock companies, bankruptcy, or insolvency." Trustees fraudulently disposing of property.'] By s. 80, "whosoever, being a trustee of any property for the use or benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert, or appropriate the same or any part thereof to or for his own use or benefit, or the use or benefit of any person other than such person as aforesaid, or for any purpose other than such public or charitable purpose as aforesaid, or otherwise dispose of or destroy such property, or any part thereof, shall be guilty of a misde- meanor, and being convicted thereof shall be liable, at the discretion of the court, to any of the punishments which the court may award _ as hereinbefore last mentioned." A proviso follows, "that no prosecution shall be commenced without the sanction of some judge or the Attorney- General. The punishment is penal servitude not exceeding seven years (see ante, p. 203). See s. 75, supra, p. 242. As to the meaning of the word "property," see 24 & 25 Vict. c. 96, s. 1, supra, p. 548. As to what persons are within the section, see R. v. Fletcher, 31 L. J., M. 0. 206. TURNPIKE GATES— INJURIES TO. Destroying turnpike gates, toll houses, ifcc] By the 24 & 25 Vict. c. 97, s. 34, " whosoever shall unlawfully and maliciously throw down, level, or otherwise destroy, in whole or in part, any turnpike gate or toll bar,_ or any wall, chain, rail, post, bar, or other fence belonging to any turnpike gate or toll bar, or set up or erected to prevent passengers passing by without paying any toll directed to be paid by any Act _ of parliament relating thereto, or any house, building or weighing engine erected for the better collection, ascertainment, or security of any such toll, shall be guilty of a misdemeanor." Works of Art. 849 WOEKS OF AET. Injuring works of art."] By the 24 & 25 Vict. c. 97, s. 39, "whosoever shall unlawfully and maliciously destroy or damage any book, manuscript, picture, print, statue, bust, or vase, or any other article or thing kept lor the purposes of art, science, or literature, or as an object of curiosity in any museum, gallery, cabinet, library, or other repository, which museum, gallery, cabinet, library, or other repository is either at all times or from time to time open for the admission of the public or of any considerable number of persons to view the same, either by the permis- sion of the proprietor thereof, or by the payment of money before entering the same, or any picture, statue, monument, or other memorial of the dead, painted glass, or other monument or work of art, in any church, chapel, meeting-house, or other place of divine worship, or in any build- ing belonging to the Queen, or to any county, riding, division, city, borough, poor-law union, parish or place, or to any university, or college, or hall of any university, or to any inn of court, or in any street, square, churchyard, burial-ground, public garden or ground, or any statue or monument exposed to public view, or any ornament, railing, or fence surrounding such statue or monument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be imprisoned for any term not exceeding six months, with or without hard labour, and, if a male iinder the age of sixteen years, with or without whipping." R. 3 I 850 Wounding. WOUNDING. Wounding with intent to murder. ,] See 24 & 25 Vict. c. 100, s. 11, supra, tit. Murder, Attempts to commit. Wounding with intent to do grievous bodily harm.] See 24 & 25 Vict. c. 100, s. 18, supra, p. 521. Unlawfully wounding.'] By the 24 & 25 Vict. c. 100, s. 20, " whosoever shall unlawfully and maliciously wound, or inflict any grievous bodily harm upon any other person, either with or without any . weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude " (see ante, p. 203). Poicer to convict of unlawfully wounding on indictment for felony.'] By the 14 & 15 Vict. c. 19, s. 5, "if upon the trial of any indictment for any felony, except murder, or manslaughter, where the indictment shall allege that the defendant did cut, stab, or wound any person, the jury shall be satisfied that the defendant is guilty of the cutting, stabbing, or wound- ing, charged in such indictment, but are not satisfied that the defendant is guilty of the felony charged in such indictment, then, and in every such case, the jury may acquit the defendant of such felony, and find him guilty of unlawfully cutting, stabbing or wounding, and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanor of cutting, stabbing, or wounding." Wounding cattle.] See 24 & 25 Vict. c. 97, s. 40, supra, p. 337. Proof of wounding.] "Where the prisoner is indicted for wounding, it must appear that the skin was broken ; a mere contusion is not sufficient. Where the prisoner had struck the prosecutor with a bludgeon, and the skin was broken, and blood flowed, Patteson, J., said that it was not material what the instrument used was, and held the case to be within the statute. R. v. Payne, 4 (J. & P. 558. In a case which occurred before Littledale, J., on the Oxford circuit, he directed a prisoner to be acquitted, it not appearing that the skin was broken or incised. Anon. , cited 1 Moo. C. O. 280. See Mori arty v. Brooks, 6 O. & P. 684. In a case before Parke, J., where there was no proof of an incised wound, the learned judge told the jury that he was clearly of opinion that it need not be an incised wound. The prisoner being found guilty, the case was reserved for the decision of the judges. Prom the continuity of the skin not being broken, it was thought by all, except Bayley, B., and Parke, J., that there was no wound, and that the conviction was wrong. R. v. Wood, 1 Moo. C. C. 278 ; 4 C. & P. 381. So a scratch is not a wound within the statute ; there must at least be a division of the external surface of the body. Per Parke, B., R. v. Beckett, 1 Moo. & R. 526. So it was held by Bosanquet, Coleridge, and Coltman, JJ., that to constitute a wound it is Wounding. 851 necessary that there should be a separation of the whole skin, and a separation of the cuticle is not sufficient. P. v. M'Loughlin, 8 O. & P. 635. But where a blow given with a hammer broke the lower jaw in two places, and the skin was broken internally, but not externally, and there was not much blood, Lord Denman, C. J., and Parke, J., held this a wounding within the Act. P. v. Smith, 8 <". & P. 173. Where the prisoner was indicted for cutting and wounding the prosecutor with intent, &c, and it appeared that he threw a hammer at him, which struck him on the face, and broke the skin for an inch and a half, the prisoner being convicted, a case was reserved, and the judges held that the convic- tion was right. 11. v. Withers, 1 Moo. G. C. 294; 4 C. & /'. 44(5. Where the prisoner struck the prosecutor on the outside of his hat with an air- gun, and the hard rim of the hat wounded the prosecutor, but the gun did not come directly in contact with his head, the judges held this to be a wounding within the statute. P. v. Sheard, 7 C. & P. 846; 2 Moo. C. C. 13. Throwing vitriol in the face of the prosecutor was held not to be a wounding within the repealed statute. P. v. Murrow, 1 Moo. G. G. 456. In.fi. v. Gray, Dear*. & P. C. G. 303; 26 L. J., M. C. 203, the court ■of criminal appeal thought that the exposure of a child in an open field, thereby causing congestion of the lungs and heart, there being no lesion of any part of the child's body, was not a wounding. Where the intent is not proved, the defendant may be found guilty of unlawfully wounding under 14 & 15 Vict. c. 19, s. 5, supra, and where the indictment is for unlawfully wounding, he may be found guilty of a common assault, ante, p. 266. Where, however^ the indictment merely charged a "felonious shooting," it was held by Bowen, J., that it was not competent to the jury to convict of unlawfully wounding, it not being alleged in the indictment that the prisoner did "cut, stab, or wound." P. v. Miller, 14 Cox, 356. This point does not seem to have been noticed in P. v. Waudby, (1895) 2 Q. B. 482; 64 L. J., M. 0. 251, where the Court for Crown Cases Reserved held, that on the trial of an indict- ment against two prisoners, charging one with feloniously shooting with intent to do grievous bodily harm, and the other with aiding and abetting in the commission of the felony, if the principal be convicted of the misdemeanor under s. 5 of unlawfully wounding, the other prisoner may be convicted of aiding and abetting him. Proof of malice.'] If while unlawfully and maliciously attempting to injure one person another is wounded, the law presumes that the offender i> actuated by malice against the person injiu-ed. P. v. Latimer, 17 Q. 11. />. 359 j ■')') L. ■/., M. C. 135; and see the cases cited, ante, pp. 20, 650 ,l seq. Although the 14 & 15 Vict. c. 19, s. 5, cited supra, stales in (■■t't'iM'i that if tlu> jury think bhal the prisoner had no felonious intent. they may find him guilty of " unlawful wounding" merely, yet it has been decided that such unlawful wounding must be a malicious wounding within the terms of 24 & 25 Vict. c. 100, s. 20, supra. A', v. Ward, L. P., 1 G. G. 11. 356; 41 L. J., M. G. 69. v As to the form of indictment, see supra, tit. Murder, Attt mpts to commit. ■> i 852 Written Instruments. WRITTEN INSTRUMENTS. Larceny or destruction of valuable securities and documents of title.'] By the 24 & 25 Vict. c. 96, s. 27, " whosoever shall steal, or shall for any fraudulent purpose destroy, cancel, or obliterate the whole or any part of any valuable security, other than a document of title to lands, shall be guilty of felony, of the same nature and in the same degree and punish- able in the same manner as if he had stolen any chattel of like value with the share, interest, or deposit to which the security so stolen may relate, or with the money due on the security so stolen, or secured thereby and remaining unsatisfied, or with the value of the goods or other valuable thing represented, mentioned, or referred to in or by the security." By s. 28, "whosoever shall steal, or shall for any fraudulent purpose destroy, cancel, obliterate, or conceal the whole or any part of any docu- ment of title to lands, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude " (see ante, p. 203). See also, as to the fraudulent concealment of documents of title, supra, p. 366, and the suppression of documents or facts with intent to conceal the title of any person, or to substantiate a false claim under the Land Titles and Transfer of Land in England Act (38 & 39 Vict. c. 87). Form of indictment.'] By the same section, " in any indictment for any such offence relating to any document of title to lands, it shall be sufficient to allege such documents to be or to contain evidence of the title or of part of the title of the person or of some one of the persons having an interest, whether vested or contingent, legal or equitable, in the real estate to which the same relates, and to mention such real estate or some part thereof ." Stealing, injuring, or concealing wills.] By s. 29, "whosoever shall, either during the life of the testator or after his death, steal, or for any fraudulent purpose destroy, cancel, obliterate, or conceal the whole or any part of any will, codicil, or other testamentary instrument, whether the same shall relate to real or personal estate, or to both, shall be guilty of felony, and being convicted thereof, shall be liable to be kept in penal servitude for life (see ante, p. 203) ; and it shall not in any indictment for such offence be necessary to allege that such will, codicil, or other instrument, is the property of any person." Effect of disclosure.] By the same section, " no person shall be liable to be convicted of any of the felonies in this and the last preceding section mentioned by any evidence whatever in respect of any act done by him, if he shall at any time previously to his being charged with such offence have first disclosed such act on oath in consequence of any compulsory process of any court of law or equity in any action, suit, or proceeding which shall have been bona fide instituted by any party aggrieved, or if he shall have first disclosed the same in any compulsory examination, or Written Instruments. 853 deposition before any court upon the hearing of any matter in bankruptcy or insolvency." Stealing records or other legal documents.'] By s. 30, " whosoever shall steal, or shall for any fraudulent purpose take from its place of deposit for the time being, or from any person having the lawful custody thereof, or shall unlawfully and maliciously cancel, obliterate, injure, or destroy the whole or any part of any record, writ, return, panel, process, interro- gatory, deposition, affidavit, rule, order, or warrant of attorney, or of any original document whatsoever of or belonging to any court of record, or relating to any matter, civil or criminal, begun, depending, or terminated in any such court, or of any bill, petition, answer, interrogatory, deposi- tion, affidavit, order, or decree, or of any original document whatsoever of or belonging to any court of equity, or relating to any cause or matter begun, depending, or terminated in any such court, or of any original document in anywise relating to the business of any office or employment under her Majesty, and being or remaining in any office appertaining to any court of justice, or in any of her Majesty's castles, palaces, or houses, or in any government or public office, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude (see ante, p. 203) ; and it shall not in any indictment for such offence be necessary to allege that the article in respect of which the offence is committed is the property of any person." What instruments arc within tin statute.] At common law, larceny could not be committed of deeds or other instruments concerning land. 1 Hale, 1'. (J. .310. Thus it was held that stealing a commission, directed to commissioners to ascertain boundaries, was not a felony, the commis- sion concerning the realty. 11. v. Westbeer, 1 Leach, 12; 2 East, P. C. 596 ; 2 Str. 1134. But the parchment upon which the records of a court of justice are inscribed, if it do not relate to the realty, may be the subject of larceny. R. v. Walker, 1 Moo. C. C. 155. Bonds, bills, and notes, which concern mere choses in action, were also at common law held not to be such goods whereof felony might be committed, being of no intrinsic value, and not importing any property in possession of the party from whom they are taken. 4 III. Com. 234 ; 2 East, P. C. 597. It was even held, that larceny could not be committed of the box in which charters concerning the land were held. 3 Inst. 109 ; 1 Hale, P. C. 510. Mortgage deeds, being subsisting securities for the payment of money, are " choses in action," and not " goods and chattels." Where, therefore, the prisoner was indicted for a burglary, in breaking into a house at night, with intent to steal the "goods and chattels" therein and the jury found that he broke into the house with intent to steal mortgage deeds only, the conviction was quashed. A', v. Powell, 2 Den. <'. C. R. 403. Whether a policy of insurance is a chattel, see P. v. Tatlock, ante, p. 244. It was held that a pawnbroker's ticket was a '-warrant for the delivery of goods " which a prisoner may be convicted of stealing. II. v. Morrison, 1 Bell, C. O. 158. Whether the paid re-issuable notes of a hanker can be properly described as valuable securities, does not appear to he well settled; the -ale mode of describing them is to treat them as goods and chattels. The prisoner was indicted in several counts for stealing a number of promissory notes, and in others for stealing so many pieces of paper, stamped with a stamp, &c. It appeared that the notes consisted of country hank notes, which, after beingpaid in London, were sent down to the country to he re-issued, and were stolen on tic road. It was objected that these were no longer 854 Written Instruments. promissory notes, the sums of money mentioned in them having been paid and satisfied, and that the privilege of re-issuing them, possessed by the bankers, could not be considered the subject of larceny. The judges, however, held that the conviction on the counts for stealing the paper and stamps was good, the paper and stamps, and particularly the latter, being valuable to the owners. R. v. Clark, Muss. & Ry. 181 ; 2 Leach, 1036; 1 Moo. G. C. 222. In a later similar case, where re-issuable bankers' notes (paid in London) had been stolen from one of the partners on a journey, the prisoner having been convicted upon an indictment charging him in different counts with stealing valuable securities called promissory notes, and also with stealing so many pieces of paper stamped with a stamp, &c, the judges held the conviction right. Some of them doubted whether the notes could properly be called " valuable securities : " but if not, they all thought they were goods and chattels. R. v. Vyse, 1 Moo. C. C. 218. " In B. v. Vyse," said Jervis, C. J., in passing judgment in R. v. Powell, 2 Den. C. C. R. 403, "the notes had been paid, and though re-issuable, were not at the time of the larceny securities for the- payment of money. The paper and stamp on which they were written were, therefore, properly described as goods and chattels." If the halves of promissory notes are stolen, they should be described as goods and chattels. R. v. Mead, 4 C. & P. 535. An incomplete bill of exchange or promissory note is not as such a valuable security so as to be the subject of larceny. In consequence of seeing an advertisement, A. applied to the prisoner to raise money for him. The latter promised to procure 5,000/., and producing ten blank 10s. stamps, induced A. to write an acceptance across them. The prisoner then took them, without saying anything, and afterwards filled them up as bills of exchange for 500/. each, and put them into circvdation. It was held, that these were neither "bills of exchange," "orders for the pay- ment of money," nor "securities for money;" and that a charge of larceny for stealing the paper and stamps could not be sustained, the stamps and paper not being the property of A., or in his possession. R. v. Minter Hart, 6 C. & P. 106; see also 7,'. v. Phipoe, 2 Leach, 673; 2 East, P. C. 599, ante, p. 801. Where the defendants were indicted for having by threats induced the prosecutor to sign the following document, "I hereby agree to pav you 100/. to prevent any action against me," it was held that, although not negotiable, yet that it was a valuable- security, because, if the transaction had been genuine, it would have been a valid agreement upon which the prosecutor might have been sued. R. v. John, 13 Cox, 100. A cheque upon a banker, not stamped, has been held not to be a bill or draft, within the repealed statute, being of no value, nor in any way avail- able. R. v. Pooley, Russ. & By. 12 ; R. v. Yates, 1 Moo. C. C. 170. But where A. was indicted in one count for stealing a cheque, and m another count for stealing a piece of paper ; and it was proved that the Great Western Eailway Company drew in London a cheque on their London bankers, and sent it to one of their officers at Taunton to pay a poor-rate there, who, at Taunton, gave it to the prisoner, a clerk of the company, to take to the overseer, but instead of doing so, he converted it to his own use ; it was held that even if the cheque was void, the prisoner might be properly convicted on the count for stealing a piece of paper. //. v. Perry, 1 Den. C. C. 69 ; 1 C. & K. 725; see also the same case reserved for the consideration of the judges, and similarly decided, 1 Cox, 222; and the cases of R. v. Walsh, and R. v. Metcalfe, ante, p. 587; also R. v. Heath, 2 Moo. C. C. 33 ; see cases on Forgery, aide, p. 466. An indictment under s. 27 must particularize the kind of valuable Written Instruments. 855 security stolen, and any material variance between such description and the evidence, if not amended, will be fatal. R. v. Lowrie, L. R., 1 0. C. R. 61 ; 36 L. J., M. C. 24. See now as to the meaning of the term "valuable security" supra f p. 548. Taking with a fraudulent purpose.'] Two actions had been brought against the prisoner and warrants of execution had issued, and a levy had been made by the high bailiff, who tben handed the warrants to his deputy, who remained in possession. The prisoner forcibly took the warrants out of the deputy bailiff's hands and kept them. He then forcibly turned the bailiff out. It was held he was not guilty of larceny, but of taking with a fraudulent purpose. ' ' He had acted as he did in order to take possession of the goods and turn the bailiff out. That would be in fraud of the execution and in fraud of the law, and would constitute a fraudulent purpose within the meaning of the statute." Per Cockburn, C. J., R. v. Bailey, L. R., 1 C. C. R. 347; 41 L. J., M. 0. 61. 856 Infancy. GENEEAL MATTERS OF DEFENCE. Theke are certain general matters of defence, the evidence with regard to which it will be convenient to comprise under the three following heads : — Infancy, Insanity, and Coercion by Husband. INFANCY. An infant is, in certain cases, and under a certain age, privileged from punishment, by reason of a presumed want of criminal design. In cases of misdemeanors.'] In certain misdemeanors an infant is privi- leged under the age of twenty-one, as in cases of nonfeasance only, for laches shall not be imputed to him, ] Hale, P. 0. 20 ; and for not repair- ing a bridge or highway, or other similar offences, unless in the case of repair when he may be perhaps bound to do so by reason of his tenure, though even then it seems he would not be liable to fine or imprisonment. B. v. Sutton, 3 A. & E. 597. But he is liable for misdemeanors accom- panied with force and violence, as a riot or battery. 1 Hale, P. C. 20. So for perjury. Sid. 253. So he may be convicted of a forcible entry, 4 Bac. Ah. 591 ; or cheating, or the like ; Bac. Ah. Infancy, II. In cases of felony.'] Under the age of seven years, an infant cannot be punished for a capital offence, not having a mind doli ca/pax; 1 Hale, P. C. 19 ; nor for any other felony, for the same reason. Id. 27. But on attaining the age of fourteen he is obnoxious to capital (and of course to any minor) punishment, for offences committed bv him at any time after that age. 1 Hale, P. C. 25. With regard to the responsibility of infants, between the ages of seven and fourteen, it is now quite clear, that where the circumstances of the case show that the offender was capable of distinguishing between right and wrong, and that he acted with malice and an evil intention, he may be convicted even of a capital offence ; and accordingly there are many cases, in which infants, under the age of fourteen, have been convicted and executed. Thus in 1629, an infant between eight and nine years of age was convicted of burning two barns, and it appearing that he had nialice, revenge, craft, and cunning, he was executed. B. v. Dean, 1 Hah, P. C. 25 (».). So Lord Hale mentions two instances to the same effect, one of a girl of thirteen, executed for killing her mistress, and another of a boy of ten for the murder of his companion. 1 Hale, P. C. 26; Fitz. Ah. Corone, 118. In the year 1748 a boy of ten years of age was convicted of murder, and the judges, on a reference to them, were unanimously of opinion that the conviction was right. II. v. York, Foster, 70. Infancy. 857 An infant under the age of fourteen years is presumed by law unable to commit a rape, and though in other felonies, mah'tia supplet cetatem, yet, as to this fact, the law presumes the want of ability, as well as the want of discretion. But he may be a principal in the second degree, as aiding and assisting, though under fourteen years, if it appears that he had a mischievous intention. 1 Hale, P. C. 630; R. v. Eldershaw, 3 C. & P. 396 ; see further, ante, tit. Rape. He cannot be convicted under 48 & 49 Vict. c. 69, s. 4, of carnally knowing a girl under thirteen : R. v. Waite, (1892) 2 Q. B. 600 ; but may on such a charge be convicted of an indecent assault under s. 9. R. v. Williams, (1893) 1 Q. B. 320. "Whether he can be convicted of an attempt to commit a rape or an offence under s. 4 seems doubtful. It is necessary, says Lord Hale, speaking of convictions of infants between the years of seven and twelve, that very strong and pregnant evidence should be given to convict one of that age. 1 Hale, P. C. 27 ; 4 Bl. Com. 23. 80S Insanity. INSANITY. The inability of insane persons to plead has been dealt with ante, p. 172. By the 46 & 47 Vict. c. 158, s. 2, the jury may return a special verdict that ' ' the accused was guilty of the act or omission charged against him, but was insane at the time when he did the act or made the omission." The defence of insanity is one involving great difficulties of various kinds, and the rules which have occasionally been laid down by the judges with regard to the nature and degree of aberration of mind which will excuse a person from punishment, are by no means consistent with each other, or, as it should seem, with correct principle. The onus of proving the defence of insanity, or, in the case of lunacy, of showing that the offence was committed when the prisoner was in a state of lunacy, lies upon the prisoner ; and for this purpose the opinion of a person possessing medical skill is admissible. R. v. Wright, Russ. & Ry. 456, ante, p. 127. The insanity may also be inferred from the behaviour of the accused and other facts in the evidence. R. v. Dart, 14 Cox, 143. If the jury are of opinion that the prisoner did not in fact do all that the law requires to constitute the offence charged, supposing the prisoner had been sane, they must find him not guilty generally and the court has no power to order his detention, although the jury should find that he was in fact insane. Where therefore on an indictment for treason, which stated as an overt act, that the prisoner discharged a pistol loaded with powder and a bullet at her Majesty, the jury found that the prisoner was insane at the time when he discharged the pistol ; but whether the pistol was loaded with ball or not, there was no satisfactory evidence ; the court expressed a strong opinion that the case was not within the statute. Lord Denman, C. J., Patteson, J., and Alderson, B., R. v. Oxford, 9 C. & P. 525. A man was indicted for shooting at his wife with intent to murder her, &c, and was defended by counsel, who set up for him the defence of insanity. The prisoner, however, objected to such a defence, asserting that he was not insane; and he was allowed by Bosanquet, J., to suggest questions, to be put by the learned judge to the witnesses for the prosecu- tion, to negative the supposition that he was insane ; and the judge also, at the request of the prisoner, allowed additional witnesses to be called on his behalf for the same purpose. They, however, failed in showing that the defence was an incorrect one ; on the contrary, their evidence tended to establish it more clearly ; and the prisoner was acquitted on the ground of insanity. R. v. Pearce, 9 C. & P. 667. ( 'uses in which the prisoner has been, held not to be insane.'] In the following cases the defence nf insanity was set up, but without effect, and the prisoners were convicted. The prisoner was indicted for shooting at Lord Onslow. It appeared that he was to a certain extent deranged, and had misconceived the conduct of Lord Onslow, but he had formed a Insanity. S59 regular design to shoot him, and prepared the means of effecting it. Tracy, J. , observed that the defence of insanity must be clearly made out ; that it is not every idle or frantic humour of a man, or something unac- countable in his actions, which will show him to be such a madman as to exempt him from punishment ; but that where a man is totally deprived of understanding and memory, and does not know what he is doing any- more than an infant, a brute, or a wild beast, he will be properly exempted from punishment. I!, v. Arnold, Gollinson on Lunacy, 47<5 ; 16 How. St. Tr. 7(54, 76.3. The doctrine of the learned judge in this case may, per- haps, be thought to be carried too far ; for if the prisoner, in committing the act, is deprived of the power of distinguishing between right and wrong with relation to that act, it does not appear to be necessary that he should not know what he is doing. Vide post. Lord Ferrers was tried before the House of Lords for the murder of his steward. It was proved that he was occasionally insane, and fancied his steward to be in the interest of certained supposed enemies. The steward being in the parlour with him, he ordered him to go down on his knees, and shot him with a pistol, and then directed his servants to put him to bed. He afterwards sent for a surgeon, but declared he was not sorry; and that it was a premeditated act ; and he would have dragged the steward out of the bed, had he not confessed himself a villain. Many witnesses stated that they considered him insane, and it appeared that several of his relations had been confined as lunatics. It was con- tended for the prosecution, that the complete possession of reason was not necessary in order to lender a man answerable for his acts; it was sufficient if lie could discriminate between good and evil. The peers unanimouslv found his lordship guilty. 11. v. Earl Ferrers, 19 How. St. Tr. 886. The prisoner was indicted for shooting at and wounding "W. B., and the defence was insanity arising from epilepsy. He had been attacked with a fit on the 9th July, 1811, and was brought home apparently lifeless. A great alteration had been produced in his conduct, and it was necessary to watch him, lest he should destroy himself. Mr. War- burton, the keeper of a lunatic asylum, said that in insanity caused by epilepsy, the patient often imbibed violent antipathies against his dearest friends, for causes wholly imaginary, which no persuasion could remove, though rational on other topics. He had no doubt of the insanity of the prisoner. A commission of lunacy was produced, dated 17th June, 1812, with a finding that the prisoner had been insane from the .'30th of March. [The date of the offence committed does not appear in the report.] Le Blanc, J., concluded his summing up by observing that it was for the jury to determine whether the prisoner, when he committed the offence with which he stood charged, was capable of distinguishing between right and wrong, or under the influence of any illusion in respect of the prose- cutor, which rendered his mind at the moment insensible of the nature of the act which he was about to commit, since in that case he would not bo Legally responsible for his conduct. On the other hand, provided they should bo of opinion that when he committed the offence he was capable of distinguishing right from wrong, and not under the influence of such an illusion ;is disabled him from discovering that he was doing a wrong- act, he would lie answerable to the justice of the country, and guilty in the eye of the law. The jury, after considerable deliberation, pronounced the prisoner guilty. II. v. Boivler, < 'ollinson on Lunacy, 673 (/*.). The prisoner was indicted for adhering to the king's enemies. His defence was insanity. He had been accounted from a child a person of weak intellect, so that it surprised many that he had been accepted as a 860 Insanity, soldier. Considerable deliberation and reason, however, were displayed by him in entering the French service, and he stated to a comrade that it was much more agreeable to be at liberty, and have plenty of money, than to remain confined in a dungeon. The attorney-general in reply, said, that before the defence could have any weight in rebutting a charge so clearly made out, the jury must be satisfied that at the time the offence was committed the prisoner did not really know right from wrong. He was convicted. 11. v. Parker, Collinson on Lunacy, 477. The direction of Mansfield, C. J., to the jury in R. v. Bellingham, seems not altogether in accordance with the correct rules on the subject of a prisoner's insanity. He said that, in order to support such a defence, it ought to be proved by the most distinct and unquestionable evidence, that the prisoner was incapable of judging between right and wrong; that in fact it must be proved beyond all doubt, that, at the time he committed the act, he did not consider that murder -was a crime against the laws of God and. nature, and that there was no other proof of insanity which would excuse murder or any other crime. That in the species of madness called lunacy, where persons are subject to temporary paroxysms, in which they are guilty of acts of extravagance, such persons committing crimes when they are not affected by the malady, would be answerable to justice, and that so long as they could distinguish good from evil, they would be answer- able for their conduct ; and that in the species of insanity in which the patient fancies the existence of injury, and seeks an opportunity of grati- fying revenge by some hostile act, if such person be capable, in other respects, of distinguishing between right and wrong, there would be no excuse for any act of atrocity which he might commit under this descrip- tion of derangement. The prisoner was found guilty and executed. R. v. Bellingham, Collinson on Lunacy, 036 ; Shelford on Lunacy, 462; see Offord's case, 5 C. & P. 1(58. The above direction does not appear to make a sufficient allowance for the incapacity of judging between right and wrong upon the very matter in question, as in all cases of monomania. See as to delusions, R. v. Townley, 3 F. A: F. 839. and R. v. Burton, 3 F. & F. 772. Cases in which the prisoner has been held to be insane.~] James Hadfield was tried in the Court of K. B. in the year 1800, on an indictment for high treason, in shooting at the king in Drury Lane Theatre, and the defence made for the prisoner was insanity. It was proved that he had been a private soldier in a dragoon regiment, and in the year 1793 received many severe wounds in battle near Lisle, which had caused partial derangement of mind, and he had been dismissed from the army on account of insanity. Since his return to this country, he had been annually out of his mind from the beginning of spring to the end of the dog-days, and had been under confinement as a lunatic. When affected by his disorder he imagined himself to hold intercourse with God : some- times called himself God, or Jesus Christ, and used other expressions of the most irreligious and blasphemous kind, and also committed acts of the greatest extravagance ; but at other times he appeared to be rational, and discovered no symptom of mental incapacity or disorder. On the 14th May preceding the commission of the act in question his mind was very much disordered, and he used many blasphemous expressions. At one or two o'clock on the following morning he suddenly jumped out of bed, and, alluding to his child, a boy of eight months old, of whom he was usually remarkably fond, said he was about to dash his brains out against the bedpost, and that God had ordered him to do so; and, upon his wife screaming and his friends coming in. he ran into a cupboard, Insanity. 861 and declared he would lie there, it should be his bed, and God had said so ; and when doing this, having overset some water, he said he had lost a great deal of blood. On the same and the following day, he used many incoherent and blasphemous expressions. On the morning of the loth May he seemed worse, said that he had seen God in the night, that the coach was waiting, and that he had been to dine with the king. He spoke very highly of the king, the royal family, and particularly of the Duke of York. He then went to his master's workshop, whence he returned to dinner at two, but said that he stood in no need of meat, and could live without it. He asked for tea between three and four o'clock, and talked of being made a member of the Society of Odd Fellows ; and after repeating his irreligious expressions, went out and repaired to the theatre. On the part of the crown it was proved that he had sat in his place in the theatre nearly three-quarters of an hour before the kin^ entered : that at the moment when the audience rose on his Majesty's entering his box, he got up above the rest, and presenting a pistol loaded with slugs, fired it at the king's person, and then let it drop ; that when he tired, his situation appeared favourable for taking aim, for he was stand- ing upon the second seat from the orchestra, in the pit ; and he took a deliberate aim, by looking down the barrel as a man usually does when taking aim. On his apprehension, amongst other expressions, he said he knew perfectly well his life was forfeited ; that he was tired of life, and regretted nothing but the fate of a woman who was his wife, and would be his wife a few days longer he supposed. These words he spoke calmly, and without any apparent derangement ; and with equal calm- ness repeated that he was tired of life, and said that his plan was to get rid of it by any means, that he did not intend anything against the life of the king, for he knew the attempt only would answer his purpose. The counsel for the prisoner put the case as one of a species of insanity in the nature of a morbid (Illusion of the intellect, and admitted that it was necessary for the jiuy to be satisfied that the act in question was the immediate unqualified offspring of the disease. Lord Kenyon, C. J., held, that as the prisoner was deranged immediately before the offence was committed, it was improbable that he had recovered his senses in the interim ; and although, were they to run into nicety, proof might be demanded of his insanity at the precise moment when the act was com- mitted, yet, there being no reason for believing the prisoner to have been at that period a rational and accountable being, he ought to be acquitted, and was acquitted accordingly. I!, v. Hadfield, Collinson <»t Lunacy, 480. The prisoner was indicted for setting fire to the cathedral church of York. The defence was that he was insane. It was proved that he was much under the influence of dreams, and in court he gave an incoherent account of a dream that had induced him to commit the act, a voice com- manding him to destroy the cathedral on account of the misconduct of the clergy. Several medical witnesses stated their opinions that he was insane, and that, when labouring under his delusion, he could not distinguish right from wrong. One surgeon said that such persons, though incapable on a particular subject of distinguishing right from wrong, seek to avoid the danger consequent upon their actions, and that they frequently run away and display great cunning in escaping punish- ment. The jury acquitted the prisoner on the ground of insanity. R. v. Mar/in, Shelford on Lunacy, W>"> ; Annual Register, vol. 71, pp. 71, 301. In Ii. v. Oxford, Lord Deninan, Q. J., made the following observations to the jury: "Persons must be taken to be of sound mind till the contrary is shown. But a person may commit a criminal act and not be 862 Insanity. responsible. If some controlling disease was in truth the acting power within him, which he could not resist, then he will not be responsible. It is not more important than difficult to lay down the rule. . . . On the part of the defence it is contended that the prisoner was non compos 'mentis, that is (as it has been said), unable to distinguish right from wrong, or in other words, that from the effect of a diseased mind he did not know at the time that the act he did was wrong. . . . Something has been said about the power to contract and to make a will. But I think that those things do not supply any test. The question is, whether the prisoner was labouring under that species of insanity which satisfies you that he was quite unaware of the nature, character, and consequence of the act he was committing, or, in other words, whether he was under the influence of a diseased mind, and was really unconscious, at the time he was committing the act, that it was a crime." 9 C. & /'. 525. Opinions of the judges on questions propounded by the House of Lords.~\ In consequence of the acquittal on the ground of insanity of Daniel M'Naughten for shooting Mr. Drummond, the following questions of law were propounded by the House of Lords to the judges. (See 8 Scott's N. B. 595; 1 C. & K. 130.) " 1. What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons ; as, for instance, where, at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit ? " 2. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence ? " 3. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when the act was committed? "4. If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused ? " 5. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the com- mission of the alleged crime ; or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring imder any and what delusion at the time ? " Maule, J. — I feel great difficulty in answering the questions put by your lordships on this occasion : — First, because they do not appear to ■arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions ; and this difficulty is the greater, from the practical experience both of the bar and the court being confined to questions arising out of the facts of particular cases ; secondly, because I have heard no argument at your lordships' bar or elsewhere on the subject of these questions, the want of which I feel the more, the greater is the number and extent of questions which might be raised in argument : and, thirdly, from a fear, of which I cannot divest myself, that, as these questions relate to matters of criminal law of great importance and frequent occurrence, the answers to Insanity. 863 them by the judges may embarrass the administration of justice when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your lord- ships to excuse us from answering these questions : but, as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned, fearing that my answers may be as little satisfactory to others as they are to myself. The first question, as I understand it, is, in effect, What is the law respecting alleged crime, when, at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit!' If I were to understand this question according to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for their solution. I am quite unable to do so, and, indeed, doubt whether it be possible to be done ; and therefore request to be permitted to answer the question only so far as it comprehends the question whether a person, circumstanced as stated in the question, is for that reason only to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding ; and I am of opinion that he is not. There is no law that I am awaiv of that makes persons in the state described in the question not responsible for their criminal acts. To render a person irresponsible for crime on account of unsoundness of mind, the unsound- ness should, according to the law as it has long been understood and held, be such as to render him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of unsoundness of mind. If the state described in the question be one which involves or is necessarily connected with such an unsoundness, this is not a matter of law, but of physiology, and not of that obvious and familiar kind as to be inferred without proof. Secondly, the questions necessarily to be submitted to the jury are those questions of fact which are raised on the record. In a criminal trial the question commonly is, whether the accused be guilty or not guilty; but, in order to assist the jury in coming to aright conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinat< or intermediate questions as the course which the trial has taken may have made it convenient to direct their attention to. "What those questions are, and the manner of submitting them, is a matter of discretion for the judge — a discretion to be guided by a con- sideration of all the circumstances attending the inquiry. In performing this duty, it is sometimes necessary or convenient to inform the jury as to the law ; and if, on a trial such as is suggested in the question, he should have occasion Co state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in 11 iv answer to the first question, as being, in my opinion, the law on this subject. Thirdly, there are no terms which the judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the judge, are proper to assist the jury in coming: to a right conclusion as to the guilt of the accused. 864 Insanity. Fourthly, the answer which I have given to the first question is applicable to this. Fifthly, whether a question can be asked, depends, not merely on the questions of fact raised on the record, but on the course of the cause at the time it is proposed to ask it ; and the state of an inquiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such that such a queston as either of those suggested is proper to be asked and answered, though the witness has never seen the person before the trial, and though he has been present and heard the witnesses ; these circumstances, of his never having seen the person before, and of his having been present at the trial, not being necessarily sufficient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful, though I will not say that an inquiry might not be in such a state as that these circumstances should have such an effect. Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence, it is to be considered whether that is enough to sustain the question. In principle, it is open to this objection, that, as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts as makes it irrelevant to the inquiry. But such questions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evidence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of R. v. M'Na/ii/ltte,, ; and I think the course and practice of receiving such evidence, ought to be held to warrant its reception, notwithstanding the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of parliament. Tindal, C. J.— My lords, her Majesty's judges, with the exception of Maule, J., who has stated his opinion to your lordships, in answering the questions proposed to them by your lordships' house, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case ; and, as it their duty to declare the law upon each particular case, on facts proved before them, and after hearing arguments of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your lordships' questions. They have, therefore, confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your lordships. Insanity. 865 The first question proposed by your lordships is this: — " What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons; as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit ? " In answer to which question, assuming that your lordships' inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, not- withstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting con- trary to law — by which expression we understand your lordships to mean the law of the land. Your lordships are pleased to inquire of us, secondly, "What are the proper questions to be submitted to a jury when the person, alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with a crime (murder, for example), and insanity is set up as a defence ?" And, thirdly, " In what terms ought the ques- tion to be left to the jury as to the prisoner's state of mind at the time when the act was committed?" And, as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be, that the jury ought to be told in all cases that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfac- tion ; and that, to establish a defence on the ground of insanity, it must be clearly proved, that at the time of the committing of the act, the party accused was labouring under such a defect of reason from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused, at the time of doing the act, knew the difference between right and wrong; which mode, though rarely, it ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused, solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction; whereas the lawis administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. if the accused was conscious that the act was one which he ought not to do, and if that act was at the same time con- trary to the law of the land, he is punishable ; and the usual course there- fore has been, to leave the question to the jury, whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong ; and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. The fourth question which your lordships have proposed to us is this : — "If a person under an insane delusion as to existing facts commits an R. 3 K 866 Insanity. offence in consequence thereof, is he thereby excused ?" To which ques- tion the answer must of course depend on the nature of the delusion ; but, making the same assumption as we did before, viz., that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion, he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. The question lastly proposed by your lordships is: — "Can a medical man, conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial, and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime ; or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time ?" In answer thereto, we state to your lordships that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the deter- mination of the truth of the facts deposed to, which it is for the jury to decide ; and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted, or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right. Cases of insanity caused by intoxication.^ Intoxication is no excuse for the commission of crime. The prisoner after a paroxysm of drunkenness, rose in the middle of the night, and cut the throats of his father and mother, ravished the servant-maid in her sleep, and afterwards murdered her. Notwithstanding the fact of his drunkenness, he was tried and executed for these offences. 11. v. bey, 3 Paris & Foribl. M. J. 140 (n). There are many men, it is said in an able work on medical jurisprudence, soldiers who have been severely wounded in the head especially, who well know that excess makes them mad ; but if such persons wilfully deprive themselves of reason, they ought not to be excused one crime by the voluntary perpetration of another. 3 Paris & Foribl. M. J. 140. But if, by the long practice of intoxication, an habitual or fixed insanity is caused, although this madness was contracted voluntarily, yet the party is in the same situation with regard to crimes, as if it had been contracted involuntarily at first, and is not punishable. 1 Hale, P. C. 32. A disease of the mind caused by drunkenness — such as delirium tremens — relieves from criminal responsibility. Per Stephen, J., H. v. Davis, 14 Cox, 563. Though voluntary drunkenness cannot excuse from the commission of crime, yet where, as upon a charge of murder, the question is, whether an act was premeditated, or done only from sudden heat and impulse, the fact of the party being intoxicated has been held to be a circumstance proper to be taken into consideration. Per Holroyd, J., R. v. Orindley, 1 Puss. Cri. 144, 6th ed. And where the prisoner was tried for attempting to commit suicide, and it appeared that at the time of the alleged offence she was so drunk that she did not know what she did, Jervis, C. J., held Insanity. 867 that negatived the attempt to commit suicide. R. v. Moore, 3 0. & K. 319, and the cases cited ante, p. 669. As to the disposal of persons found to be insane at the time of the offence committed, see ante, p. 201. The mode of arrangement and trial of such persons has also been stated ante, p. 172. As to how far a state of drunkenness affects the question of malice, see Murder, ante, p. 669. 3 K 2 868 Coercion by Hush nxl. COEECION BY HUSBAND. In certain cases a married woman is privileged from punishment, upon the ground of the actual or presumed command and coercion of her hus- band compelling her to the commission of the offence. But this is only a presumption of law, and if it appears upon the evidence that she did not in fact commit the offence under compulsion, but was herself a principal actor and inciter in it, she must be found guilty. 1 Hale, P. C. 516. Brown v. A.-Q. of New Zealand, (1898) A. C. 234. In one case it appears to have been held by all the judges, upon an indictment against a married woman for falsely swearing herself to be next of kin, and procuring administration, that she was guilty of the offence, though her husband was with her when she took the oath. R. v. Dick, 1 Buss. Cri. 147, 6th ed. Upon an indictment against a man and his wife for putting off forged notes, where it appeared that they went together to a public-house to meet the person to whom the notes were to be put off, and that the woman had some of them in her pocket, she was held entitled to an acquittal. R. v. Atkinson, 1 Buss. Cri. 159, 6th ed. Evidence of reputation and cohabitation is in these cases sufficient evidence of marriage. Ibid. But where the woman is not described in the indictment as the wife of the man, the onus of proving that she is so rests upon her. R. v. Jones, Kel. 37; 1 Russ. Cri. 159, 6th ey Husband. Bosanquet, and Coltman, JJ.), held that she was entitled to an acquittal. R. v. Price, 8 C. & P. 19 ; and see R. v. Conolly, code, p. SG9, which was also a case of misdemeanor; see also 8 C. & P. 21, n. (S). However, in R. v. Cruse, ante, p. 869, where the jury convicted a husband and wife of an assault, the judges, on a case reserved, affirmed the convic- tion, being unanimously of opinion that the point with respect to the coercion of the wife did not arise, as the ultimate result of the case was a conviction for misdemeanor. The contrary has, however, been ruled by Eussell Gurney, Eecorder, after consulting Bramwell, B. R. v. Torpey, 12 Cox, 45. Where the wife is to be considered as merely the servant of her husband, she will not be answerable for the consequences of his breach of duty, however fatal, though she may be privy to his conduct. Thus where the husband and wife were indicted for the murder of an apprentice of the husband, who had died for want of proper nourishment, Lawrence, J., held that the wife could not be convicted ; for though equally guilty in foro conscientice, yet, in point of law, she could not be guilty of not pro- viding the apprentice with sufficient food. R. v. Squire, 1 Ritss. Cri. 151, 6t7i ed. ; see further, ante, p. 653. A woman cannot be indicted as an accessory by rescuing her husband. 1 Hale, P. C. 47. Nor could she be guilty of larceny in stealing her husband's goods. 1 Hah-, P. C. 514, ante, p. 584. But if she and a stranger stole the goods, the stranger was liable. R. v. Tolfree, 1 Moo. C. C. 243 ; see further, ante, p. 584. So it has been held that she was not guilty of arson by setting her husband's house on fire. R. v. Marsh, 1 Moo. C. C. 182, ante, p. 258. But, as has been already seen, a wife can now (see s. 16 of the Married Women's Property Act, 1882, 45 & 46 Vict. c. 75) be convicted of stealing her husband's property ; but it seems that she could not be convicted of arson, forgery, and other offences with respect to his property. APPENDIX. 14 & 15 VICT. C. 100. AJN ACT FOR FURTHER IMPROVING THE ADMINISTRATION OF CRIMINAL JUSTICE. AVhereas offenders frequently escape conviction on their trials by reason of the technical strictness of criminal proceedings in matters not material to the merits of the case ; and .whereas such technical strictness may safely be relaxed in many instances, so as to insure the punishment of the guilty, without depriving the accused of any just means of defence ; and whereas a failure of justice often takes place on the trial of persons charged with felony and misdemeanor, by reason of variances between the statement in the indictment on which the trial is had and the proof of names, dates, matters, and circumstances therein men- tioned, not material to the merits of the case, and by the misstatement whereof the person on trial cannot have been prejudiced in his defence: Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. From and after the coming of this Act into operation, whenever on the trial of any indictment for any felony or misdemeanor, there shall appear to be any variance between the statement in such indictment and the evidence offered in proof thereof, in the name of any county, riding, division, city, borough, town corporate, parish, township, or place mentioned or described iii any such indictment, or in the name or description of any person or persons, or body politic or corporate, therein stated or alleged to be the owner or owners of any property, real or personal, which shall form the subject of any offence charged therein, or in the nai r description of any person or persons, body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged, by the commission of such offence, or Sn the christian name or surname, or both christian name and surname, or other description what- soever, of any person or persons whomsoever therein named or described, or in the Dame or description of any matter or thing whatsoever therein named or described, or in the ownership of any property named or described therein, it shall and may be lawful for the court before which the trial shall be had, if it shall consider Midi variance not material to the merits of the case, and that the di fendant cannot be prejudiced thereby in Iris ["th Auuust, 1S51.] The court may amend certain variances ii i it material to tlinmerits of the case, and by which the defendant cannot be prejudiced in his de- fence, and may either proceed « ith or postpone the trial to be had be- fore i he same or another jury. 872 Appendix. Verdicts and judgments valid after amend- ments. Records to be drawn up in amended form, with- out noticing the amend- ment- Forms of indictment in cases of forgery and uttering, stealing, and embezzling, or obtaining by false pretences. defence on such merits, to order such indictment to be amended according to the proof, by some officer of the court or other person, both in that part of the indictment where such variance occurs and in every other part of the indictment which it may become necessary to amend, on such terms as to postponing the trial to be had before the same or another jury, as such court shall think reasonable ; and after any such amendment the trial shall proceed, whenever the same shall be proceeded with, in the same manner in all respects, and with the same consequences, both with respect to the liability of witnesses to be indicted for perjury and otherwise, as if no such variance had occurred; and in case such trial shall be had at Nisi Prius the order for the amendment shall be endorsed on the postea, and returned together with the record, and thereupon such papers, rolls, or other records of the court from which such record issued as it may be necessary to amend shall be amended accordingly by the proper officer, and in all other cases the order for the amendment shall either be endorsed on the indictment or shall be engrossed on parchment, and filed, together with the indictment, among the records of the court : Provided that, in all such cases where the trial shall be postponed as aforesaid, it shall be lawful for such court to respite the recognizances of the prosecutor and witnesses, and of the defendant, and his surety or sureties, if any, accordingly, in which case the prosecutor and witnesses shall be bound to attend to prosecute and give evidence respec- tively, and the defendant shall be bound to attend to be tried, at the time and place to which such trial shall be postponed, with- out entering into any fresh recognizances for that purpose, in such and the same manner as if they were originally bound by their recognizances to appear and prosecute or give evidence at the time and place to which such trial shall have been so post- poned : Provided also, that where any such trial shall be to be had before another jury, the crown and the defendant shall respectively be entitled to the same challenges as they were respectively entitled to before the first jury was sworn. II. Every verdict and judgment which shall be given after the making of any amendment under the provisions of this Act shall be of the same force and effect in all respects as if the indictment had originally been in the same form in which it was after such amendment was made. III. If it shall become necessary at any time for any purpose whatsoever to draw up a formal record in any case where any amendment shall have been made under the provisions of this Act, such record shall be drawn up in the form in which the indictment was after such amendment was made, without taking any notice of the fact of such amendment having been made. IV. Eepealed by the 24 & 25 Vict. c. 95. V. In any indictment for [forging, uttering], stealing, embezzling, destroying, or concealing, or for obtaining by false pretences any instrument, it shall be sufficient to describe such instrument by any -name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy or fac-simile thereof, or otherwise describing the same or the value thereof. This section is repealed as to forging and uttering by the 24 & 25 Vict. c. 95. 14 & 15 Vict. c. 100. 873 VI. Repealed by the 24 & 25 Vict, c, 95. VII. In all other cases wherever it shall be necessary to make any averment in any indictment as to any instrument, whether the same consists wholly or in part in writing, print, or figures, it shall be sufficient to describe such instrument by any name or designation by which the same may be usually known, or by the purport thereof, without setting out any copy of fac-simile of the whole or any part thereof. VIII. Repealed by the 24 & 25 Vict. c. 95. IX. This section is set out p. 70, ante, and relates to convic- tions for attempts, upon indictments for felony or misdemeanor. X. Section 10 merely repeals the 11th section of 7 Will, -i & 1 Vict. c. 85, and is eliminated in the new edition. See p. 177. XL Repealed by the 24 & 25 Vict, c. 95. XII. By this section, which is set out p. 71, persons tried for misdemeanor are not to be acquitted if the offence turn out to be felony. XIII.", XIV., XV., XVI., XVII., repealed by the 24 & 25 Vict, c. 95. XVIII. In every indictment in which it shall be necessary to make any averment as to any money or any note of the Bank of England, or any other bank, it shall be sufficient to describe such money or bank-note simply as money, without specifying any particular coin or hank-note ; and such allegation, so far as regards the description of the property, shall be sustained by proof of any amount of coin, or of any bank-note, although the particular species of coin of which such amount was composed, or the particular nature of the bank-note, shall not be proved, and in cases of embezzlement and obtaining money or bank- notes by false pretences, by proof that the offender embezzled or obtained any piece of coin or any bank-note, or any portion of the value thereof, although such piece of coin or bank-note may have been delivered to him in order that some part of the value thereof should be returned to the party delivering the same, or to any other person, and such part shall have been returned accordingly. XIX. Whereas by an Act of Parliament passed in England in the twenty- third year of the reign of his late Majesty King George the Second, intituled " An Aet to render Prosecutions for Perjury and Subornation of Perjury more easy and effectual" ; and by a certain other Aet of Parliament made in Ireland in the thirty-first year of the reign of his late Majesty King George the Third, intituled "An Act to render Prosecutions for Perjury and Subornation of Perjury more easy and effectual, and for affirming the -Jurisdiction of the Quarter Sessions in cases of Perjury," certain provisions were made to prevent persons guilty of perjury and subornation of perjury from escaping punishment by reason of the difficulties attending such prosecutions; and whereas it is expedient to amend and extend the same ; Be it enacted, thai it shall and may he lawful tor the judges or judge of any of the superior courts of common law or equity, or for any of her Majesty's justices or commissioner's of assize, nisi prius, oyer and terminer, or gaol delivery, or for any justices of the peace, recorder or deputy-recorder, chairman, or other judge holding any general or quarter sessions of the peace, or for any commissioner of bankruptcy or insolvency, or In other cases. Coin and bank-notes may be de- scribed simply as money. ( iertain pro- viso 'lis (if 23 Geo. -2, C. II, and HI Geo. 3, (I.) ex- tended. Any court, I, jus- tire, &c. may direct a person guilty of perjury hi any evi- dence, &c. to !"■ prose- cuted, 874 Appendix. and commit the party, unless he enter into recogniz- ance to ap- pear and take his trial, and bind persons to give evidence ; and give certificate of prosecution being di- rected, which shall be sufficient evidence of the same. Extending the23Geo.2, c. 11, s. 1, to other offences, and simplifying indictments for perjury, and other like offence. Extending the 23 Geo. 2, c. 11, s. 2, as to form of indictments for any judge or deputy- judge of any county court or any court of record, or for any justices of the peace in special or petty sessions, or for any sheriff or his lawful deputy before whom any writ of inquiiy or writ of trial from any of the superior courts shall be executed, in case it shall appear to him or them that any person has been guilty of wilful and corrupt perjury in any evidence given, or in any affidavit, deposition, examination, answer, or other proceeding made or taken before him or them, to direct such person to be prosecuted for such perjury, in case there shall appear to him or them a reasonable cause for such prosecution, and to commit such person so directed to be prosecuted until the next session of oyer and terminer or gaol delivery for the county or other district within which such perjury was committed, unless such person shall enter into a recognizance, with one or more sufficient surety or sureties, conditioned for the appearance of such person at such next session of oyer and terminer or gaol delivery, and that he will then surrender and take his trial, and not depart the court without leave, and to require any person he or they may think fit to enter into a recognizance, conditioned to prosecute or give evidence against such person so directed to be prosecuted as aforesaid, and to give to the party so bound to proseeuto a certificate of the same being directed, which certificate shall be given without any fee or charge, and shall be deemed sufficient proof of such prosecution having been directed as aforesaid ; and upon the production thereof the costs of such prosecution shall, and are hereby required to be allowed by the court before which any person shall be prosecuted or tried in pursuance of such direction as aforesaid, unless such last-mentioned court shall specially otherwise direct ; and when allowed by any such court in Ireland such sum as shall be so allowed, shall be ordered by the said court to be paid to the prosecutor by the treasurer of the county in which such offence shall be alleged to have been committed, and the same shall be presented for, raised, and levied in the same manner as the expenses of prosecutions for felonies are now presented for, raised and levied in Ireland : Provided always, that no such direction or certificate shall be given in evidence upon any trial to be had against any person upon a prosecution so directed as aforesaid. XX. In every indictment for perjury, or for unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, or cor- ruptly taking, making, signing, or subscribing any oath, affir- mation, declaration, affidavit, de]iosition, bill, answer, notice, certificate, or other writing, it shall be sufficient to set forth the substance of the offence charged upon the defendant, and by what court or before whom the oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other wiiting, was taken, made, signed, or subscribed, without setting- forth the bill, answer, information, indictment, declaration, or any part of any proceeding either in law or in equity, and with- out setting forth the commission or authority of the court or person before whom such offence was committed. XXI. In every indictment for subornation of perjury, or for corrupt bargaining or contracting with any person to commit wilful and corrupt perjury, or for inciting, causing, or pro- curing any person unlawfully, wilfully, falsely, fraudulently, 14 & 15 Vict. c. 100. 875 deceitfully, maliciously, or corruptly, to take, make, sign, or subscribe any oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, certificate, or other writing, it shall be sufficient, wherever such perjury or other offence aforesaid shall have been actually committed, to allege the offence of the person who actually committed such perjury or other offence in the manner hereinbefore mentioned, and then to allege that the defendant unlawfully, wilfully, and corruptly did cause and procure the said person the said offence, in manner and form aforesaid, to do and commit ; and wherever such perjury or other offence aforesaid shall not have been actually committed, it shall be sufficient to set forth the substance of the offence charged upon the defendant, without setting forth or averring any of the matters or things hereinbefore rendered unnecessary to be set forth or averred in the case of wilful and corrupt perjury. XXII. This section, which provides that a certificate of trial shall be evidence of such trial, is set out ante, p. 739. XXIII. This section, which is set out p. 217, provides for the laying of the venue. XXIY. Xo indictment for any offence shall be held insuffi- cient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words "as appears by the record," or of the words " with force and arms," or of the words " against the peace," nor for the insertion of the words " against the form of the statute," instead of "against the form of the statutes," or vice versa, nor for that any person mentioned in the indictment is designated by a name of office or other descrip- tive appellation, instead of his proper name, nor for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the finding of the indictment, or on an imjjossible day, or on a day that never happened, nor for want of a proper or perfect venue, nor for want of a proper or formal conclusion, nor for want of or imperfection in the addition of any defendant, nor for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil, in any case where the value or price, or the amount of damage, injury, or spoil, is not of the essence of the offence. XXV. This section, which is set out p. 181, provides for the taking of objections before the jury are sworn, and the amending of formal detects in indictments. XXVI. So much of a certain Act of Parliament passed in the sixtieth year of the reign of his late Majesty King George the Third, intituled, " An Act toprevenl delay in the Administration of Justice in cases of Misdemeanor," as provides that "where any person shall be prosecuted for any misdemeanor by indict- ment, at any session of the peace, session of oyer and terminer. great session, or session of gaol delivery, within that part of Great Britain called England, or in Ireland, having been com- mitted to custody or held to bail to appear to answer for such offence twenty days ai the least before the session at which such indictment shall be found, he or she shall plead to such indict- ment, and trial shall proceed thereupon, at such same session of the peace, session of oyer and terminer, great session, or session for suborna- tion ,), 879 and that injustice is thereby occasioned to them; and it is expedient to remove, as far as practicable, all just ground for such complaint : Therefore, in all cases where any person shall appear or be brought before any justice or justices of the peace charged with any indictable offence, whether committed within this realm or upon the high seas, or upon land beyond the sea, and whether such person appear voluntarily upon summons, or has been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit such accused person for trial or admit him to bail, shall, immediately after obeying the direc- tions of the 18th section of the Act 11 & 12 Vict. c. 42, demand and require of the accused person whether he desires to call any witness; and if the accused person shall, in answer to such demand, call or desire to call any witness or witnesses, such justice or justices shall, in the presence of such accused person, take the statement on oath or affirmation, both examination and cross examination, of those who shall be so called as wit- nesses by such accused person, and who shall know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of such accused person, and shall put the same into writing; and such depositions of such wit- nesses shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the justice or justices taking the same, and transmitted in due course of law with the depositions, and such witnesses, not being witnesses merely to the character of the accused, as shall in the opinion of the justice or justices give evidence in any way material to the case or tending to prove the innocence of the accused person snail be bound by recognizance to appear and give evidence at the said trial; and afterwards upon the trial of such accused person all the laws now in force relating to the depositions of witnesses for the prosecution shall extend and be applicable to the depositions of witnesses hereby directed to be taken. IV. All the provisions of the said Act 11 & 12 Vict. c. 42, relating to the summoning and enforcing the attendance and committal of witnesses, and binding them by recognizance and committal in default, and for giving the accused persons copies of the examinations, and giving jurisdiction to certain persons to act alone, shall be read, and shall have operation as part of this Act. V. The court before which any accused person shall be prose- cuted or tried, or tor trial, before which he may be committed or bailed to appear for any felony or misdemeanor, is hereby authorized and empowered, in its discretion, at the request of any person who shall appear before such court on recognizance to give evidence on behalf of the person accused, to order pay- ment unto such witness so appearing, such sum of money as to the court shall seem reasonable and sufficient to compensate such witness for the expenses, trouble and loss of time he shall have incurred or sustained in attending before the examining magistrate, and at or before such court; and the amount of such expenses of attending before the examining magistrate, and compensation for trouble and loss of time therein, shall be ascertained by the certificate of such magistrate, granted before desire to call wit- nesses. Their depo- sitions to be taken and returned to court of trial if accused person call any. Provisions of 11 & 12 Vict. c. 42, extended to this Act. 1 f u ii nessea for accused, bound by ii gniz- ance, appear at the trial, court may allow ex- panses. 880 Appendix. Power to take depo- sition of person dangerously ill, and not likely to recover, and to make same evi- dence in cer- tain events after death of such person. the attendance in court; and the amount of all other expenses and compensation shall be ascertained by the proper officer of the court, who shall, upon receipt of the sum of sixpence for each witness, make out, and deliver to the person entitled thereto an order for such expenses and compensation, together with the said fee of sixpence, upon such and the same treasurers and officers as would now by law be liable to payment of an order for the expenses of the prosecutor or witnesses against such accused person ; and if the accusation be of such kind that the court shall have no power to order the expenses of the prosecutor, then upon the treasurer or other officer in the capacity of a treasurer of the county, riding, division, city, borough or place where the offence of such accused person may be alleged to have been committed, which treasurer or other officer is hereby required to pay the same orders upon sight thereof, and shall be allowed the same in his accounts : Provided always, that in no case shall any such allowances or compensation exceed the amount now by law permitted to be made to prosecutors and witnesses for the prosecution; and provided always that such allowances and compensation shall be allowed and paid as part of the expenses of the prosecution. VI. And whereas by the 17th section of the Act 11 & 12 Vict, c. 42, it is permitted under certain circumstances to read in evidence on the trial of an accused person the deposition taken in accordance with the provisions of the said Act of a witness who is dead, or so ill as to be unable to travel ; and whereas it may happen that a person dangerously ill, and unable to travel, may be able to give material and important information relating to an indictable offence, or to a person accused thereof, and it may not be practicable or permissible to take, in accordance with the provisions of the said Act, the examination or deposition of the person so being ill, so as to make the same available as evidence in the event of his or her death before the trial of the accused person, and it is desirable in the interests of truth and justice that means shoidd be provided for perpetuating such testimony, and for rendering the same available in the event of the death of the person giving the same : Therefore, whenever it shall be made to appear to the satisfaction of any justice of the peace that any person dangerously ill, and in the opinion of some registered medical practitioner not likely to recover from such illness, is able and willing to give material information relating to any indictable offence, or relating to any person accused of any such offence, and it shall not be practicable for any justice or justices of the peace to take an examination or deposition, in accordance with the provisions of the said Act, of the person so being ill, it shall be lawful for the said justice to take in writing the statement on oath or affirmation of such person so being ill, and such justice shall thereupon subscribe the same, and shall add thereto by way of caption a statement of his reason for taking the same, and of the day and place when and where the same was taken, and of the names of the persons (if any) present at the taking thereof, and, if the same shall relate 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 to the proper officer of the court for trial at which such accused person shall have been 30 & 31 Via. c. 35. 881 so committed or bailed ; and in all other cases he shall transmit the same to the clerk of the peace of the county, division, city, or borough in which he shall have taken the same, who is hereby required to preserve the same, and file it of record ; and if after- wards, upon the trial of any offender or offence to which the same may relate, the person who made the same statement shall be proved to be dead, or if it shall be proved that there is no reasonable probability that such person will ever be able to travel or to give evidence, it shall be lawful to read such state- ment in evidence, either for or against the accused, without further proof thereof, if the same purports to be signed by the justice by or before whom it purports to be taken, and provided it be proved to the satisfaction of the court that reasonable notice of the intention to take such statement has been served upon the person (whether prosecutor or accused) against whom it is proposed to be read in evidence, and that such person, or his council or attorney, had or might have had, if he had chosen to be present, full opportunity of cross-examining the deceased person who made the same. VII. Whenever a prisoner in actual custody shall have served or shall have received notice of an intention to take such state- ment as hereinbefore mentioned, the judge or justice of the peace by whom the prisoner was committed, or the visiting justices of the prison in which he is confined, may, by an order in writing, direct the gaoler having the custody of the prisoner to convey him to the place mentioned in the said notice for the purpose of being jiresent at the taking of the statement. [The remainder of the section is repealed by the Statute Law Revision Act, 1893 (2).] [VIII. is repealed by 51 & -32 Vict. c. 40, s. 6.] IX. Where any prisoner shall be convicted, either summarily or otherwise, of larceny or other offence, which includes the stealing of any property, and it shall appear to the court by the evidence that the prisoner has sold the stolen property to any person, and that such person has had no knowledge that the same was stolen, and that any monies have been taken from the prisoner on his apprehension, it shall be lawful for the court, on the application of such purchaser, and on the restitution of the stolen property to the prosecutor, to order that out of such monies a sum nol exceeding the amount of the proceeds of the said sale be delivered to the said purchaser. X. Where recognizances shall have been entered into for the appearance of any person to take his trial for any offence at any court of criminal jurisdiction, and a bill of indictment shall be found against him, and such person shall be then in the prison belonging to the jurisdiction of such court, under warrant of commitment, or under sentence for some other offence, it shall be lawful for the court, by order in writing, to direct the governor of the said prison to bring up the body of such person in order that he may be arraigned upon such indictment without writ of habeas corpus, and the said governor shall thereupon obey such order. XI. This Act shall not extend to Ireland. Provision for the prisoner being pre- sent at taking of statement. Money found on prisoner to be given to purchaser of property not known to be stolen, on restitution of property. Governor of prison to bring up the body ni any person in- dicted with- out writ of habeas corpus, ler order of court. Extent of Act, R. 3 K* 882 Appendix, 61 & 62 VICT. c. 36. [12th AN ACT TO AMEND THE LAW OF EVIDENCE. August, 1898.] j3 E it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — Competency I. Every person charged with an offence, and the wife or °n crimfnfr husband, as the case may be, of the person so charged, shall be cases. a competent witness for the defence at every stage of the pro- ceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows : — _ (a.) A person so charged shall not be called as a witness in pursuance of this Act except upon his own application : (b.) The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged, to give evidence shall not be made the subject of any comment by the prosecution : (c.) The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged : (d.) Nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage : (e.) A person charged and being a witness in pursuance of this Act may be asked any question in cross-examination notwithstanding that it woidd tend to criminate him as to the offence charged : (/.) A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless — (i) the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged; or (ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution ; or (hi) he has given evidence against any other person charged with the same offence. (ts Amendment (Scot- land) Act, 1862 (25 & 26 Yict. c. 35), s. 19. Refreshment Houses (Ireland) Act, 1860 (23 & 24 Vict, c. 107), s. 42. Dublin Police Act, 1842 (5 & 6 Vict. e. 24), s. 15. Licensing (Ireland) Act, 1836 (6 & 7 Will. IV. c. 38), s. 12. 3 I. 2 INDEX. ABANDONMENT of children by parents, 344. See Child. ABATEMENT of nuisance, 707 ABDUCTION, whether an offence at common law, 232 by statute, 232 of a woman from motives of lucre, 232 of woman under 21 years against the will of her guardian, 232 offender incapable of taking property, 232 taking away a woman by force, with intent, &c, 233 of girl under sixteen, 233 of girl under eighteen, with intent, &c, 233 of children under fourteen, 233 what constitutes, 234 meaning of word " taking," 234, 235 meaning of word " possession," 235 proof of want of consent of guardian, 236 of age, 237 bona fide belief of over age, 237 of intent, 237 of the woman being an heiress, 237 evidence of prisoner and of husband or wife admissible, 111, 233 ABETTOES. See Accessory. ABOMINABLE CRIME. See Infamous Crime. ABORTION, procuring, at common law, 239 by statute, 239 administering poison to procure, 239 proof of administering, 239 proof of the nature of the thing administered, 239 woman need not be quick with child, 240 proof of the intent, 240. See Poison. ABROAD, offences committed, 223 marriages, 287, 289 ACCEPTANCE, obtaining by false pretences, 429 ACCEPTING bill of exchange, &c, without authority, 475, 478, 490 890 Index. ACCESSORY, confession of principal no evidence, 46 indictable as pi-incipal in felony, 71 what offences admit of, 157 aiding and abetting in felony, 157 whether there can be in manslaughter, 157 before the fact in felony, 158 bare permission, 158 countermand, 158 by the intervention of a third person, 159 degree of incitement, 159 principal varying from orders, 159 how they are to be indicted, tried, and punished, 161 after the fact in felony, 162 husband and wife, 162 how indicted, tried, and punished, 163 aiders and abettors in misdemeanor, 163 accessories in misdemeanor, 164 venue and jurisdiction, 164 accessories under the Explosive Substances Act, 164 aiding under the Corrupt Practices Act, 298 in coining, 358 in escape, 417 in false pretences, 450 proceedings against ; for forgery and offences connected therewith, 481 who is, in forgery and uttering, 506 after the fact to murder, how punished, 642 to murder, 691 to administration of unlawful oaths, 709 to piracy, 746 to offences relating to post office, 751 to rape, 769, 772, 775 in attempt. 272 ACCIDENT, death caused by, 622. See Manslaughter and Murder. ACCOMPLICE always admissible as a witness, 113 leave of court must be obtained, 113 how obtained where he is to be taken befoi'e grand jury, 113 when he will be acquitted in order that he may give evidence, 113 competent witness for prisoner, 114 not inadmissible because he has a promise of pardon, 114 corroboration of, 114 conviction on testimony of, uncorroborated, is legal, 1 14 but not usual, 1 14 anomalous state of the law, 115 nature of corroboration which it is usual to require, 115, 116 situation of when called as a witness, 117 what claim he has to pardon, 117 evidence, given by, may be used against him as a confession, 118 ACCOUNTANT-GENERAL, forgeries of name of, or documents issued by, 483 ACQUIESCENCE. See Consent. whether it will excuse a nuisance, 699 Index. 891 ACTION, existence of, how proved, 145 ACTS OF PARLIAMENT, how proved, 142, 144 all public except otherwise declared, 144 ACTUAL BODILY HARM, assault occasioning, 262 conviction for common assault under indictment for, 267 ADDITION to name, how described in indictment, 77 ADJOURNMENT of trial, 192. See Postponement of Trial. ADMINISTERING, proof of, 23!) drugs not an assault, 263, 748 oaths, 708, 710. See Oaths. ADMINISTRATION, obtaining property by means of false letters of, 477 proof of letters of, 149 ADMINISTRATOR, when property may belaid in, 589 ADMIRALTY, jurisdiction of Court of, 220, 222 ADMISSIBILITY OP EVIDENCE. See Evidence, Hearsay, Dying Declaration. ADMISSION. See Confessions, Evidence. in criminal cases, 0, 285 in the course of legal proceedings, 44 of first marriage, 285 by agents, not generally evidence against principal, 46 by prosecutor, not generally evidence for prisoner, 47 of publication of libel, 605 ADULTERATION of food, 340, 7< i 1 ADULTERER, larceny of goods of husband by, in conjunction with wife, 584 killing of, by husband, 664 ADVANCE, unlawfully obtaining by agent, banker, factor, &c, 243 ADVERSE WITNESS, examination of, in chief. 91, 12] contradicting, 121 ADVERTISEMENT of rewards for discovery of stolen property, 365 false pretences by, 452 AFFIDAVITS, proof of, 1 17, 723 in mil igal ion, L99 in aggravation, I'.''.' perjury in. Sec Perjury. 892 Index. AFFINITY, when it justifies maintenance, 617 AFFIRMATION, in lieu of oath, 105 in lieu of oath, perjury may be assigned on, 106, 724 AFFRAY. See Riot. what constitutes, 211 whether parties present at a prize fight are guilty of, 241 AGE. See Infancy. proof of, 237, 347, 776 AGENT, admissions by, not generally evidence against principal, 46 embezzlement by, 242, 402 fraudulently selling property, 242 under power of attorney, 243 obtaining advances on property, 243 exception, 243. definition of terms, 244 persons accused not protected from answering, 140, 244 when not liable to prosecution, 245 nature of disclosure, 245 cases under statute, 246 direction in writing, 246 barratry by, 283 occupation by, 327 publication of libel by, 606 liability for nuisance caused by, 706 receiving stolen goods by, 786 AGGRAVATED ASSAULT. See Assault. AGISTER, larceny of cattle in possession of, 589 AGREEMENT, how proved, 3 AGRICULTURAL PRODUCE, setting fire to, 249, 255 AIDING AND ABETTING. See Accessory. ALIEN, trial of, 184 ALTERATION of document is forgery, 484. ALTERING. See Forgery. AMENDMENT, 871 effect of. in enlarging issue, 74 power of, 182 after verdict, 184, 195 of judgment, 198 AMICABLE CONTEST. See Sports. ANATOMY ACT. See Dead Bodies. Index. 893 ANCIENT DOCUMENTS. See Documents. ANCIENT POSSESSION, hearsay evidence to prove, 24 ANGLING, in the daytime, 456 ANIMALS, what, included in term cattle, 337 stealing certain kinds of, 337 killing with intent to steal, 337 killing, maiming, or wounding, 337 cruelty to, 338 drugging, 338 ferae naturae, larceny of, 453 what are ferae naturae, 453 larceny may be committed of them when dead, 454 or when tamed, 454 not if kept for pleasure, 454 keeping dangerous animals, 647, 704 unnatural offence, 828 ANIMO FURANDI, meaning of term, 554 ANSWER IN CHANCERY, how proved, 148 APOTHECARY'S CERTIFICATE, how proved, 142 APPEAL. See Error, Bill of Exceptions, New Trial, Court of Criminal Appeal, 204 APPOINTMENT OF OFFICERS, how proved, 5 when presumed, 16 APPREHENSION OF OFFENDERS, rewards for, 214 power of, generally, 228 by private persons at common law, 228 on suspicion of felony, 228 to prevent breach of the peace, 228 of night walkers, 228 by private persons by statute, 228 of persons committing offences against Coinage Acts, 228 of persons found committing offences by night, 229 by owner of property, 229 of persons committin"- offences against game laws, 229, 510, 514 by peace officer without warrant, 229 at common law, 229 on suspicion of felony, 229 difference between peace officers and private persons, 229 after breach of the peace, 229 by statute, 230 under Metropolitan Police Act, 230 under Riu - al Police Act, 231 of convict or ticket-of -leave, 231 under Prevention of Crimes Act, 231 894 Index. APPREHENSION OF OFFENDERS— confirmed. by peace officer without warrant — continued. under Prevention of Cruelty to Children Act, 231, 344 under Indecent Advertisements Act, 231 lunatics wandering, 231 assault to prevent, 261 killing by officer and others in course of. See Murder. APPRENTICES, ill-treating, 544 master bound to provide medical attendance tor, 544 chastising, 265 embezzlement by, 400 APPROVER. See Accomplice. ARMS. See Shooting. what are, in offence of smuggling, 825 what are, in offences against Game Acts, 513, 514 what are loaded, 260, 822 ARRAIGNMENT, in general, 171 where the prisoner stands mute, 171 where he appears to be insane, 171, 172 for previous conviction, 196 ARRAY. See Challenge of Jurymen. ARREST. See Apprehension, Constable. protection of witnesses from, 98 of bankrupt, 282 proof of, 415 ARREST OF JUDGMENT, proceedings in, 197 ARSON, evidence to explain motives and intentions, 8S at common law, 248, 252 meaning of term " setting fire," 248 by statute, 248 churches and chapels, 248 dwelling-house, 248 house, out-house, manufactory, farm, &c, 248 railway station, ports, docks, &c, 248 public buildings, 248 other buildings, 249 goods in buildings, 249 attempts to commit, 249, 250 crops of corn, and other vegetable produce, 249 stacks of corn, wood, and coals, 249 coal mines, 249 ships or vessels, 249, 250 malice against owner unnecessary, 251 person in possession of property may be convicted of, 251_ intent to defraud particular person need not be stated, 251 proof of setting fire, 251 of property set fire to, 252 hidex. 895 ARSON — continued. meaning of term " house," 252 out-house, 253 shed, 254 stacks, 254 wood, 255 ships and vessels, 255 setting fire to goods in a man's own house, 255 to goods in house of another, 252, 255 to house when persons are therein, 256 possession, how described, 25G proof of malice, 257 proof of intent, 258 proof of attempt to commit, 259 threatening to burn property, 837 ART, injuries to works of, 849 ASPORTAVIT, what is sufficient in larceny, 550 ASSAULT, with intent to rob, conviction for, on indictment for robbery, 71, 800 to prevent escape from shipwreck, 200 shooting or wounding, 260 what constitutes loaded arms, 260 inflicting bodily injury, 260 attempting to choke, 200 on clergyman, 2G1 on persons endeavouring to save shipwrecked property, 201 with intent to commit felony, 261 to prevent apprehension, 21 i 1 on peace officer, 230, 261, 267 arising from combination. See Conspiracies in restraint of Trade. bar to further proceedings, 261, 267 occasioning bodily harm, 262 punishment for common, 262 indecent, on females, 262, 267, 268 indecent, on males, 262 outrages on decency, 262 prosecution for. I>y guardians and overseers, 262 under Children's Performances Act, 262 costs of prosecution for. See Costs. with intent to rob. See Robbery. judicial separation for, 263 what amounts to, 263 pointing loaded arms at a person, 263 striking at, or threatening to strike at, 263 exposing a child. 2(>:'. administering poison, 20:; mere omission of duty does not amount to, 263 communicating infectious disease, 264 won Is do not amount to, 264 consent puts an end to, 26 l mere submission does not, 26 I in cases of rape, 26 !• reasonable chastisement does no1 amount to, 265 in self-defence, 265 S96 Index. ASSAULT— continued. in defence of other persons, 266 to prevent an unlawful act, 266 to prevent breach of peace, 266 proof of aggravating circumstances, 266 conviction for common assault on indictment for unlawful wound- ing, &c, 267 subsequent proceeding's after complaint before justice for, 1 on deer-keepers, 388 causing death, 658 with intent to commit rape, 776 with intent to rob, 800 on revenue officers, 826 ASSEMBLY, UNLAWFUL. See Unlawful Assembly, Riot. ATTACHMENT of witness for not obeying subpoena, how applied for, 97 by whom granted, 97 power of quarter sessions to grant, 97 expenses of witness need not be tendered before applying for, 98 but sometimes safer to do so, 98 ATTEMPT, conviction for, on indictment for principal offence, 71, 269 to commit arson, 249, 250 to commit offences, 269 how punishable at common law, 269 statutes relating to, 269 attempting to choke, 260 what amounts to, 270 to shoot, what amounts to, 270, 693, 822 to commit arson, what amounts to, 255, 270 to coin, what amounts to, 271 to steal, what amounts to, 271 infant attempting rape, 271 aiding in attempt, 272 to bribe officers of justice, 297 to murder, 692 ATTENDANCE OF WITNESSES. See Witnesses. ATTESTING WITNESS, when necessary to be called, 153 when dispensed with, 153 ATTOENEY, privilege of, not to disclose communications, 133 to what cases it extends, 133, 134 embezzlement by, 243, 246 misappropriation by, 243 barratry by, 283 when not liable for maintenance, 617 ATTOENEY, POWEE OF, fraudulently selling under, 243. See Agent. ATTOENEY-GENEEAL, right of, to reply, 193 fiat of, necessary, on writ of error, 204 for bribery prosecution, 303 Index. 897 AUTHOEITY, person in, 39 forgery of, 474 drawing, indorsing, &c, documents without, 475 notice of, 681 to administer oath, proof of, 717 AUTREFOIS ACQUIT, plea of, 175 how tried, 175 how proved, 175 difficiilties of proving, 176 proof of plea of, in burglary, 335 AUTREFOIS CONVICT, plea of, 175. See Autrefois Acquit. AVERMENTS, divisible, 72 — 74. See Indictments. which need not be proved, 74 in libel. See Libel. AVOWTERER, larceny of goods of husband by, in conjunction with wife, 584 killing of, by husband, 664 BAIL, false personation of, 426 BAILEES, larceny by, 549, 571 larceny of goods in possession of, property how described, 588 BALLOT, offences relating to, 395, 427. See Elections. BANK OF ENGLAND OR IRELAND, proof of books, 150, 151 forgery of documents issued by officers of, 477 embezzlement by officers of, 398, 414 making false entries in books of, 469 personating owner of stock in, 469, 488 clerks of, making out false warrants, 469 forging notes of, 471, 488 making or having materials for forging notes of, 472, 473, 489 BANK NOTES, proof of, 150 false pretences by, 438 forgery of, 471, t88 purchasing or receiving forged, 471, 488 making or having materials for forging, 472, 489 proof of forgery of, 488 engraving, 489 larceny of, 853 BANKER, books, proof of, 151 embezzlement by, 242. See Agent. forgery of securities issued by. See Forgery. obliterating name of, in crossed cheque, 475 S98 Index. BANKING COMPANY. larceny by members of, 551, 583 BANKKUPT, examination of, may be given in evidence against, 245 offences by, 273— 2S2 punishment of fraudulent, 273 failure to make full discovery, 273, 278 to deliver up property, 273 to deliver up books, 273 to inform trustee of false debts, 273 concealment of property or debts, 273, 278 removal of property, 274 omissions in statement of affairs, 274 preventing production of books, 274 concealment or mutilation of books, 274 false entries, 274 fraudulently parting with or altering books, 274 fictitious losses, 274 pledging property obtained on credit, 275 obtaining consent of creditors by fraud, 275 absconding with property, 275 prosecution of, on report of trustee, 276 costs, 276 application of Vexatious Indictments Act, 276 form of indictment, 276, 281 quarter sessions have jurisdiction, 276 punishment cumulative, 276 undischarged, obtaining credit, 276 power of court to commit for trial, 277 public prosecutor, when to act, 277 liability after discharge, 277 intent to defraud, 277, 280 proof of value of goods, 281 venue, 281 arrest, 282 who may be made, 278 proof of proceedings, 277 obtaining credit by false pretences, 274, 275, 279 by pretending to carry on business, 275 BANKRUPTCY, false claim by creditor in, 276 BANNERS, secondary evidence of inscriptions on, 11 BANNS, proof of publication of, 290, 291 BAPTISM, destroying, uttei'ing, or forging register of, 477, 498 giving false certificate of, 477 transmitting false copy of register of, to registrar, 477 BARRATRY, what evidence admissible in, 80 nature of offence, 283 particulars must be delivered in, 168, 283 BARRISTER. See Counsel. Lulr.,; 899 BASTARD, how to be described in indictment;, 75 BATTERY. See Assault. BAWDY-HOUSE, keeping, 704 what is evidence of, 80, 701 detention in, 770 BEES, stealing, 453 BELIEF, examination of witnesses as to religions, 104 as to belief in facts deposed to, 126 false swearing to, is perjury, 127, 725 bowl fide as to age in abduction, 237 as to death in bigamy, 295 BEST EVIDENCE, must always be produced, 1. See Evidence. BETTING. See Gaming. BICYCLE, furious riding, 508 BIGAMY, presumption against, 15 presumption of duration of life in, 16 husband and wife, how far competent witnesses in, 108, 111 offence of, 284 proof of valid marriage, 284 second marriage, 284 first marriage not presumed, 285 prisoner's admission of, 285 second wife a competent witness, 285 proof that valid ceremony was performed, 285 marriages in England, 285 by certificate of registrar, 287 amongst Jews and Quakers, 287 in Wales, 287 abroad, 287 in colonies, 288 in Scotland, 2SS in Ireland, 288 between Roman Catholics, 288, 308 of British subjects abroad, 289 preliminary ceremonies, 289 will be presumed, 289 what marriages are voidable, 289 by an idiot, 289 by a lunatic, 289 what marriages are void, 2'. M I by banns, 21 ti I by minors, 291 by licence, 2'. 12 in an assumed name, 292 abroad, 292 foreign law how proved, 292 900 Index. BIGAMY — continued. proof of identity of persons, 293 proof that first wife is alive, 294 proof after absence of seven years, 294 venue, 294 proof in defence under the exceptions in the statute, 295 English, not subject, 295 seven years' absence, 295. bona fide belief of death, 295 divorce, 295 former marriage declared void, 295 on whom onus probandi lies, 295 BILL IN CHANCEEY, how proved, 148 BILL OF EXCEPTIONS, none in criminal case, 205 BILL OF EXCHANGE, inducing person by false pretences to accept, sign, &c, 429 drawing, indorsing, &c, without authority, 474, 475 forging a, 474, 475, 478, 490 proof of forging, 490 larceny of, 853 BIRDS, stealing tame, 454 BIETH, certificate of, proving, 151, 237 concealing, 350 false declaration touching, 424 destroying, altering, or forging register of, 477, 498 giving false certificate of, 477 transmitting false copy of register of, to registrar, 477 BLASPHEMOUS LIBEL. See Libel. BODILY FEAR, stealing in dwelling-house and putting person in, 393 BODILY HARM. See Grievous Bodily Harm, Actual Bodily Harm. BONDS, forgery of, 474 larceny of, 853 BOUND ARIES of counties, offences committed on, 217 BOUNTY MONEY, obtaining by false pretences, 452 BOXING MATCH. See Prize Fights. BRAWLING, proceedings for, 390 BREAD, selling unwholesome, 340 Index. 901 BREACH OF PEACE, assault to prevent, 266 apprehension to prevent, 228 apprehension after, 229, 230 BREAKING, proof of, in burglary, &c, 314 in prison breach, 760 constructive, not sufficient, 760 BREAKING BULK, not necessary to prove, in indictment against bailee, 548 BREAKING OUT, burglary by, 313 of dwelling-house, proof of, 392 of prison. See Prison Breach. BRIBERY, at common law, 297 nature of the offence, 297 at parliamentary elections, 297 treating, 297 undue influence, 297 corrupt practice, 297 receiving bribes, 298 when triable at quarter sessions, 298 paying voter's expenses, 298 legal proceedings in respect of, 300 limitation, 300 conviction for illegal practice, 300 for corrupt practice, 300 accused and husband and wife competent witnesses, 300 duty of public prosecutor, 301 costs, 301 summary conviction for, 301 at municipal elections, 301 in other cases, 302 punishment, 302 disqualification, 302 attorney-general to consent to prosecution, 303 of officers of justice, 303 indictment, 303 BRIDGES, indictment for not repairing, 305 what are public, 305 highway at each end, 307 dedication of, 307 proof of being out of repair, 308 liability of county to repair, 308 at common law, 308 liability of county to repair new, 309 liability of public companies to repair, 310 liability of individuals to repair, 310 evidence of repair by individuals, 310 liability to repair, ratione tenures, 311 proof in defence on indictment for not repairing, 311 by counties, 311 by individuals, 311 by corporations, 311 k. :j m 902 Index. BRIDGES— continued. venue and trial, 312 who may be jurors on trial of liability to repair, 312 maliciously pulling down, 312 new trial on indictment for not repairing, 312. BROKER. See Agent. BROTHEL. See Bawdy-house. BUILDING, meaning of term, 249, 252, 25 1 setting fire to, 248, 249 setting fire to goods in, 249 attempting to set fire to, 249 within ciu-tilage, 313, 392 blowing up, 418 adjoining a dwelling-house in burglary, 321 stealing fixtures from a, 459 riotously demolishing, 793 BUILDING SOCIETIES, larceny of property of, 553 BUOYS, injuries to, 820 BURDEN OF PROOF. See Onus Probandi. BURGLARY, offence of, at common law, 313 by statute, 313 by breaking out, 313 punishment of, 313 what building to be deemed part of dwelling-house, 313 entering dwelling-house with intent to commit felony, 313 being found armed with intent to commit, 313 after a previous conviction, 314 proof of breaking, 314 when not necessary, 314 doors, 314 windows, 315 chimneys, 316 fixtures, cupboards, &c, 310 walls, 317 gates, 317 constructive breaking by fraud, 317 constructive breaking by conspiracy, 318 constructive breaking by menaces, 318 constnictive breaking by one of several, 319 proof of entry, 319 introduction of fire-arms or instruments, 319 by firing arms into the house, 320 constructive entry by one of several, 320 proof that the premises are a dwelling-house, 320 buildings adjoining a dwelling-house, 321 before the 7 & 8 Geo. 4, c. 29, s. 13, 321 cases decided on that statute, 322 occupation, how to be described, 323 — 326 temporary absence, 324 when house occupied by several, 325. 32(5 lodgers, 320 I ii ilex. 903 BURGLARY — continued. proof that the premises are a dwelling-house — continued. wife and family, 327 clerks, 327 public companies, 327 servants, 329, 330 tenants, 330 guests, 331 partners, 331 proof of offence having been committed by night, 331 proof of intent to commit felony, 332 variance in statement of intent, 333 conviction for larceny, 72, 334 proof of breaking out, 335 proof upon plea of autrefois acquit, 335 proof of being found by night armed, with intent, 336 proof of having possession of implements of housebreaking, 330 what are implements of housebreaking, 336 BURIAL, of person executed, 199 obstructing, a misdemeanor, 386 destroying, altering, or forging register of, 477, 498 giving false certificate of, 477 transmitting false copy of register of, to registrar, 47 7 riotous behaviour at, 794 BYE-LAWS, proof of, 151 forging, 1SS1 CANALS, injuries to, 817 setting fire to vessels in, 250 stealing goods from vessels on, 819 offences on boats, 218 CAPTION, 61 CARDS, offence of cheating at, 341, 518 CARNAL KNOWLEDGE. See Rape. CARRIERS, larceny by, 571 larceny of goods in the possession of, property how described, 539 CATS, not subject of larceny, 155 CATTLE, stealing, 337 killing with intent to steal, 337 killing, maiming, or wounding, 337 what animals included under the term, 337 proof of injury to, 337 administering poison to, not a felony, 338 proof of malice ami intent, 338 3 M 2 904 Index. CATTLE — continued. vivisection, 338 drugging, 338 straying, 558. See Larceny. CAUTION, to prisoner on examination, 50, 51. See Examination of Prisoners. to prisoner on apprehension, 44 CENTRAL CRIMINAL COURT, costs in, 213 jurisdiction of, 225 removing indictments into, 227 CERTIFICATE. See also Birth, Marriage, Death. of birth, marriage, &c, proof of, 151, 237 CERTIORARI, removing indictment by, 170, 226 costs on removal of indictment by, 170 CHALLENGE OF JURYMEN, different kinds of, 184 time and mode of taking, 184 to the array, 185 to the polls, 186 effect of improperly allowing or disallowing, 188 CHALLENGE TO FIGHT, indictment for, 339 what amounts to, 339 proof of the intent, 339 venue, 339 CHAMPERTY, 617 CHANCE-MEDLEY, 543 CHANCERY, forgery of documents issued by officers of Court of, 476 CHANCERY PROCEEDINGS, proof of, 142, 148 forgery of, 475, 499 CHANGING VENUE, 227 CHAPEL, setting fire to, 248 marriages in, 286 breaking and entering, 392, 816 riotously demolishing, 793 sacrilege in, 816 CHARACTER, evidence of, of prisoner, 88 of witness, 89 contradicting, 90 particulars cannot be proved, 88, 89 right to reply, 192 Index. 905 CHASTISEMENT, when lawful, 265, 348 excessive, causing death, 632, 658 CHASTITY, impeachment of, in charges of indecent assault, 268 in rape, 775 CHATTEL, evidence of, 2 proof of inscription on, 8 embezzlement of, 399, 400 whether a policy of insurance is, 244 deeds are not at common law, 853 obtaining by false pretences, 429 CHEATING. See also False Pretences. offence of, at common law, 340 affecting public justice, 340 selling unwholesome provisions, 340 false accounting, by public officers, 341 false weights and measures, 341 at cards, dice, &c, 341 using false tokens, 341 what cheats are not indictable, 342 CHEQUES, obliteration of crossing on, 475 giving, without effects, 438, 439 larceny of, 587, 85 I CHILD. See Infant, Children. infant witness, 100 in charge of carnally knowing, 101, 768 chastisement of, 265, 348, 632, 658 consent to assault, 264 having carnal knowledge of, 264 ill-treatment, neglect or abandonment of, by parents, 344, 348, 349 prosecutions by guardians and overseers, 262, 347, 544 employment of, in dangerous performances, 262 abduction of. See Abduction. concealing birth of, 350 murder, i'> II, (i 1-3 manslaughter by neglect of, 632 murder by neglect of, 653 rape of, 768 larceny of goods in possession of, property how described, 588 name of, how described, 644 infancy, defence of. See Infancy. CHILD MUEDEE, cannot be committed of child in the womb, 643. how child to be described in the indictment, 64 I conviction for concealing birth on indictment for, 71, 350, 352, 641 CHILD STEALING, 233 CHILDEEN. cruelty to, 344, 345, .",1 I husband and wife competent witnesses, 112, 346 906 Index. CHILDEEN— continued. ill-treatment, 344 death of child, 344 child insured, 344 apprehension without warrant for, 344 power of court to make order as to custody, 345 parents to contribute to maintenance, 345 inebriate parents, 345 deposition of child, 346 unsworn evidence of child, 347 must be corroborated, 347 perjury assigned on, 347 child may be whipped for, 347 proceeding without child's evidence, 347 age of child how proved, 347 guardians may pay costs, 347 definition of term "parent," 347, 348 offences to which Act applies, 348 exposure, 348 neglect, 349 apprehension without warrant, 231 costs of prosecution, 214, 347 proof of age, 237 dangerous performances by, 262, 348, 545 property of, how described, 388 CHIMNEYS, proof of breaking, in burglary, 316 CHLOEOFOEM. See Poison. CHOKE, attempt to, 260 CHUECH, setting fire to, 248 larceny of goods from, property how described, 592 breaking and entering, 392, 816 riotously demolishing, 793 sacrilege in, 816 CHUECHYAED, larceny of fixtures in, 459 CIECUMSTANTIAL EVIDENCE, value of, 14 CLEEGYMAN, confessions to, not privileged, 133 assaults on, 261 bound to bury dead bodies, 386 brawling, 390 CLEEK, occupation of dwelling-house by, in burglary, 327 embezzlement by, 397 who is a, 400 assisting in obtaining fraudulent advances, 243 COACH-BUILDEE, larceny of goods in possession of, 589 fticlex. 907 COACH-HOUSE, setting fire to, 2 18 , riotously demolishing, 793 COAL, setting fire to, 249 COEKCION BY HUSBAND, 868 COIN, evidence of intent in uttering counterfeit, 83 what amounts to attempt to, 271 interpretation of terms in offences relating to, 353 counterfeiting gold or silver, 353 colouring with intent, 353 impairing or diminishing, 354 possessing filings of gold or silver, 354 buying or selling counterfeit gold or silver, 354 importing counterfeit gold or silver, 354 exporting counterfeit, 355 uttering counterfeit gold or silver, 355 uttering, having possession of counterfeit coin, 355 littering twice within ten days, 355 possessing counterfeit gold or silver, 355 uttering or having after a previous conviction, 355 uttering foreign as current, 356 counterfeiting copper or bronze coin, 356 uttering base copper or bronze, 356 defacing, 356 counterfeiting foreign gold or silver, 356 importing foreign counterfeit gold or silver, 357 uttering ton inn counterfeit gold or silver, 357 second offence, 357 third offence, 357 counterfeiting foreign, other than gold or silver, 357 coining tools, 357, 362 conveying ou1 of mint, 358 venue in offences relating to, 358 how proved to be counterfeit, 358 when counterfeiting complete, 358 punishi i n 'nt of principals in second degree and accossories in offences relating to, 358 counterfeit medals, 359 proof of counterfeU Lng, 359 uttering, 360 possession, 361 proceedings for second and third offences, 361 after previous conviction, 36] COINING TOOLS, making, mending, or having, 357, 362 conveying out of mint, 357 COLLISION, ship neglecting to assist, 821 COLONIES. proof of proclamations, treaties of, 142 proof of marriages in, 2S7 908 Udex. COMMON ASSAULT, punishment of, 262 conviction on indictment for actual bodily harm, 267 for unlawfully wounding, 267 for rape, 777 COMMON DESIGN, generally, 158 in murder, 645 in forgery, 506 COMPANIES. See Public Companies, Corporations. COMPENSATION, to person aggrieved, in felony, 199 to widows and families of persons killed in endeavouring to apprehend offenders, 216 for preventing smuggling, 825 COMPETENCY OP WITNESSES. See Witnesses. COMPLAINT, evidence of, in cases of rape, 22, 775 in other cases of violence, 23 COMPOUNDING- OFFENCES, 361 felonies, 364 misdemeanors, 364 informations, 364 misprision of felony, 365 rewards for discovering stolen property, 365 COMPULSOEY DISCLOSURE, whether admissible as a confession, 245. See Confession. CONCEALING BIRTH, offence of, 350 secret disposition of body, 350 conviction for, on indictment for child murder, 71, 350, 352, 641 CONCEALMENT, of deeds and incumbrances, 366 of property by bankrupt, 273 of books by bankrupt, 274 CONCLUSION OF INDICTMENT, 74 CONDUCT, presumption of guilt from, 16, 48 CONFESSIONS, to magistrate in course of examination of prisoner. See Exami- nation of Prisoner. ground of admissibility of, 34 nature and effect of, 34 plea of guilty, 35 extra-judicial, whether sufficient whereon to convict, 35 degree of credit to be given to, 35 on what grounds excluded, 35 threat or inducement, 35 what amounts to such, 35, 36, 37 whether it must have reference to the charge, 38 Index. 909 CONFESSIONS— continued. threat or inducement — continued. religious inducement, 38 held out with reference to another charge, 39 must be held out by person in authority, 39 who is a person in authority, 39 offer of pardon from the crown, 40 when held to have ceased, -41 when held not to have ceased, 42 when obtained by artifice or deception, 43 when obtained by questioning, 44 in the course of legal proceedings, 44 when the disclosure has been compulsory, 45, 131, 140. See Disclosure, Privilege. accompanying delivery of stolen property, 45 evidence only against the party making them, 45 in conspiracy, 45. See Conspiracy. whether names of other prisoners ought to be disclosed, 46 of principal not evidence against accessory, 4G of thief not evidence against receiver, 46 by agents, difference between civil and criminal cases, 46 when admissible against principal, 46 admissions by prosecutor, 47 whole must be taken together, 47 jury may reject a part, 17 prisoner may deny truth of, 48 admission not conclusive, 48 where false in fact, 48 where void in point of law, 48 inferred from silence or demeanour, 48 taken down in writing, how proved, 49 inducement must be negatived, 49 to legal adviser, 133 physician, 133 surgeons, 133 clergymen, 133. See Privilege. if privilege not claimed, answers of witnesses may be used as, 140 but not if privilege improperly refused, 140 if privilege removed by statute answers admissible, 44, 131, 140 whether they should be opened, 189 of marriage in bigamy, 285 CONFIDENCE, privilege on the ground of, 133. See Privilege. CONSENT, want of, how proved, 5, 236 when presumed, 15 depositions, when admissible by, 68 evidence taken by, 1l'<> puts an end to assault, 26 I difference between, and submission, 264 obtained by fraud, void, 236 effect of receiving evidence by, 120 in misdemeanor, 12() effect of, in rape, 265, 773 to marriage of minors, 291 to a nuisance, 699 910 Ltdex. CONSPIRACY, averments in indictment divisible, 73 evidence to explain motives, 81 hnsband and wife competent witnesses, 111, 385 particulars in indictments for, 168, 378 indictment, how to be preferred for, 367 nature of the crime of, 367 overt act, how far necessary, 369 proof of the existence of, 371 by declaration of others, 374 by acts of others, 375 proof of the means used, 375 cumulative instances, 377 proof of the object, 377 form of indictment for, 378 venue in, 378 to murder, 379 assault in pursuance of, 384. Post, Conspiracies in Restraint of Trade. in burglary, 318 CONSPIRACIES IN RESTRAINT OF TRADE, at common law, 380 by statute, 382, 385 effect of statute on common law, 383 husband and wife competent witnesses, 111, 385 accused a competent witness, 385 CONSTABLE. See Peace Officer, Police. threat or inducement by. See Confessions. apprehension by, 229 assault on, 261, 267 embezzlement by, 397 larceny by, 550 when liable for escape. See Escape. killing. See Murder. killing by. See Murder. when justified in breaking doors, 684 refusing to aid, 796 CONSTRUCTION, rules of, applicable to indictments, 70. See Indictments. CONSTRUCTIVE BREAKING, in burglary, proof of, 318 CONSTRUCTIVE ENTRY, 319 CONTAGIOUS DISEASE, spreading, 704 communicating to wife, 264 detaining body dead from, 387 CONTRADICTING WITNESS. See Wi'ness. CONTRIBUTORY NEGLIGENCE, cases of manslaughter, 627 CONVERSATIONS. whether they should be opened, 189 CONVICT, larceny of goods of, 588 Index. 911 CONVICTION. See Previous Conviction. date of, how proved, 3, 143 what is a, 196 of principal not conclusive in indictments for receiving-, 782 for felony is disqualification for office, 199 COPIES, when all equally originals, 3 all equally authentic, 12 copies of, 12 certified when admissible in evidence, 142, 144 et seq. of indictment, when prisoner entitled to, 168 of depositions, prisoners when entitled to, 66, 68 CORN, setting- fire to, 249 CORONER, depositions taken before, when admissible, 66 — 68. See Depositions. CORPORATION BOOKS, proof of, 141, 150 CORPORATIONS, proof of certificate of incorporation, 150 byelaws, 150 misappropriation of funds, 247 larceny of goods belonging to, property how described, 591 property how proved, 5'.»2 official dociiments. See Documents. CORPSE. See Dead Body. CORROBORATION, of accomplice, 115. See Accomplice. of evidence of children not upon oath, 101, 347 when sufficient in perjury, 118, 734 CORRUPT PRACTICES. See Bribery, Elections. definition, 297 legal proceedings, 300 limitation, 300 husband and wife competent witnesses, 112, 300 accused a competent witness, 300 privilege of witnesses, 131 "indictment" includes "information," 131 costs, 301 indictments triable at the Central Criminal Court, 300 offences at elections, 395, 426 withdrawing election petition, :'.!i6 false declarations at elections, 423 false personation at elections, 427 conviction for illegal practices, 71, 72 COSTS, on removal of indictment by certiorari, 170. See Highways. in court of criminal appeal, 209 in cases of felony, 210 what witnesses allowed their costs, 210 on postponement of trial, 21 1 in cases of misdemeanor, 212 under Criminal Law Amendment Act, L885...212, 771 in assault, defendant may be ordei-ed to pay, 213 912 Tiidex. COSTS — continued. in other cases, 213 in prosecutions removed into Central Criminal Court, 213 in offences committed on the high seas, 213 in Trade Union offences, 214 in cases under Debtors Act, 214 in conspiracy, 214 under Corrupt Practices Act, 214, 301 under Merchandise Marks Act, 214 under Prevention of Cruelty to Children Act, 214 under Bankruptcy Act, 276 in libel. See Libel. in cases within the Vexatious Indictments Acts, costs of the accused, 214 of witnesses, &c, for the prisoner, 214 rewards for apprehension, 214 allowance to widows and children, 216 of indictments relating to highways, 214, 541 COUNSEL, privileged witness, 1 33 statements of prisoner by, 190 when not liable for maintenance, 617 COUNTERFEIT COIN. See Coin, Uttering. COUNTING-HOUSE, breaking and entering, 392, 823 COUNTS, adding, to indictment, 166 for previous conviction, 167 joining, 178—182 COUNTY. See Venue. liability of, to repair bridges, 311 larceny of property of, 552 COUNTY COUET, proceedings in, how proved, 2, 149 forging process of, 475, 499 COUET, ordering witnesses out of, 119 of record, forgery of process or proceedings of, 476 not of record, forgery of process or proceedings of, 477 proof of proceedings, 149 forgery of documents issued by officers of, 477 COUET OF CEIMINAL APPEAL, practice in, 207 — 210 costs in, 209 what questions may be reserved for, 207 provisions of Judicature Act with respect to, 210 COUET EOLLS, forgery of, 476 COWS, stealing, 337 killing or maiming, 337 Index. 913 CREDIBILITY of witness, 89. See Witness. CREDIT, cross-examination as to, 124 bankrupt obtaining, by false pretence, 274, 27 5, 279 meaning of term, 279 CREDITOR, who is a, 275 false claim by, 270 CREMATION, whether legal, 387, 701 CRIMINAL EVIDENCE ACT, 1898... 882 does not affect 11 & 12 Vict. c. 42... 50 prisoner may give evidence at any stage, 51, 107 may not be cross-examined as to character, 88, 123 summing up by counsel, 190 right of reply, 190 no comment on failure to give evidence, 192 evidence in abduction, 233 indecent assault, 262 cruelty to children, 346 rape, &c, 771 CRIMINAL LAW AMENDMENT ACT, 767 et se 934 Index. HEALTH, proof of answers to inquiries as to, 26, 27 nuisance by injuries to. See Nuisance. HEARSAY, better called second-hand evidence, 22 not generally admissible, 22 explaining nature of transaction, 22 term often improperly applied, 22 complaint in cases of rape, 22 in other cases of violence, 23 exceptions to rule of inadmissibility, 24 evidence already given in judicial proceedings. See Deposi- tions. as to ancient possession, 24 on questions of pedigree, 24 as to reputation of public or general right, 25 statement of deceased persons against interest, 25 of statements of deceased persons made in the course of business, 26 statements relating to the health or sufferings of the persons who make them, 26 answers to medical inquiries, 26 limits of this exception, 27 dying declarations, 27 grounds of admissibility of dying declarations, 27 declarant must have been a competent witness, 28 but may have been particeps criminis, 28 confined to cases of homicide, 28 only admissible when made under impression of impending dissolution, 29 instances of that impression, 29 interval of time between declaration and death, 31 admissibility of dying declarations question for judge, 28 where declarations reduced into writings, 32 degree of credit to be given to dying declarations, 32 evidence in answer to proof of, 33 HEATH, setting fire to, 249 HEIR, personating, 428 HEIRESS, abduction of. See Abduction. proof of, 237 HIGH SEAS, trial of offences committed on, 220, 222, 746 offence of piracy on, 743 HIGHWAYS, husband and wife competent witnesses, 111, 541 destroying game on, 511 delivery of particulars as to obstructions to, 168 particulars of the highway, 168, 541 what are, 525 navigable rivers, 525 ways used by a portion of the public, 525 what is evidence of dedication of, 525, 526 Index. 935 HIGHWAYS— continued. how dedicated under 5 & 6 Will. 4, c. 50... 526 which are not thoroughfares, 527 stopped by justices, 527, 528 set out by inclosure commissioners, 528, 536 turning or diverting, 528 evidence of reputation as to, 528 proof of, as set forth, 529 proof of termini, 529 proof of changing, 529 proof of nuisance, 530 what are nuisances to, 530 placing carriages in, 530 whole must be kept clear, 530 ploughing up a footpath, 531 laying down gas and water pipes, 531 obstructing navigation, 531 insignificant obstructions, 531 obstructions by which public benefited, 531 when authorized by Acts of parliament, 532 obstructions by railways, 532 whether j ustifiable by necessity, 532 repair of houses, 533 judgment and sentence, 533 abatement of nuisances. See Nuisance. indictment for not repairing, 533 parishes primd facie liable, 533 what roads are so repairable, 533, 534 no adoption necessary, 534 inclosure by private person, 536 under Act of parliament, 536 evidence of reputation, 25, 535 evidence by map, 535 liability to repair ratione clausurw, 536 liability of highway authority, 536 liability of particular districts to repair by custom, 537 proof of former convictions, evidence in indictments relating to, 537, 592 extra-pan ichial places, 538 liability of corporation to repair, 538 liability of individuals to repair, 538 liability to repair ratione tenure, 538, 539 individuals only liable for consideration, 538 not by prescription, 538 proof of formal acquittal not evidence, 540 parish, how discharged from liability, 540 district or private person, how discharged, 541 costs, .J I I new trial, 5 l_ indictment by justices, 5*42 HOMICIDE. See Murder. justifiable, 543 excusable, 543 by misadventure, 543 evidence of dying declarations in, 28 HOPBINDS, injuries to, 846 3 2 936 Index. HORSE, stealing, 337 killing, maiming, or wounding, 337 HOSTILE WITNESS. See Adverse Witness. HOT-HOUSES, injuries to plants in, 84-7 HOUSE. See Divelling-house. setting fire to, 248 meaning of term in arson, 252 in burglary, 320 when it may be broken to execute process, 68-4 HOUSEBREAKING. See Dwelling-house, Burglary. possession of implements of, 336 HOUSEHOLDER, permitting defilement of girls, 769, 777 HUSBAND, larceny of goods of, by wife, 58 1 larceny of goods of wife by, 586 rape by personating, 769 killing adulterer, 664 cannot commit rape on wife, 772 but may be accessory to, 772 coercion by, 868 HUSBAND AND WIFE, incompetent witnesses against each other, 107 rule only applies when one or other is on trial, 107 but may give evidence for each other, 107 and against each other in certain cases, 108 abduction, 233 indecent assault, 262 cruelty to children, 346 explosives, 420 highways, 541 libel, 609 rape, 771 only extends to persons lawfully married, 108 persons indicted with, 108, 109 where implicated, 109 does not apply to cases of personal violence to each other. 109 how far it applies to bigamy, 111, 285 exceptions by statute, 111, 112 privilege of, as witnesses in questions affecting guilt of each other, 132 when liable as accessories, 162 as joint receivers, 787 evidence of being, 868 order for judicial separation in cases of aggravated assault, 199 communicating venereal disease, 264 assault in defence of each other, 266 IDEM SONANS, rule of, 74 IDENTITY OF PERSONS, proof of, in bigamy, 293 Index. 937 IDIOTS. See Insane Persons. how far competent as witnesses, 102 marriage by, 289 rape on, 769 ILLEGAL PRACTICES, 300, 301 conviction for, on indictment for corrupt practices, 71, 300 ILLEGAL SOCIETY, embezzlement by officers, 401 ILLNESS, nature of, to admit deposition, 60 of child, 347 ILL-TREATING, servants, 544 apprentices, 544 prosecution by guardians, 544 children, 545. See Children. lunatics, 545. See also Murder. IMMORALITY, presumption against, 15 IMPRISONMENT, in lieu of penal servitude, 203 limits of sentence, 203 INCITING, to mutiny. See Mutiny. to commit murder, 379 to commit other offences, 158, 159, 741. See Accessories. infants to bet, 520 INCLOSURE COMMISSIONERS, setting out highways by. See Highways. INCOMPETENCY. See Witnesses. difference between and privilege of witnesses, 12!) INCRIMINATING QUESTIONS, 130 INCUMBRANCES, fraudulent concealment of, 366 INDECENCY, 828 INDECENT ADVERTISEMENTS, apprehension for, 231 INDECENT ASSAULT, 262, 267, 208. See Assault. evidence of prisoner and husband or wife admissible, 111, 262 conviction of, on indictment for felony, 770 INDECENT EXHIBITIONS, 701 INDECENT EXPOSURE, 701 INDECENT LIBEL, 596 938 Index. INDECENT PUBLICATION. See Libel. sending by post, 754 INDIA, depositions taken in, 68 extortion by officers in, 713 INDICTMENT. See also Larceny. for offences punishable summarily, 70 how proved in subsequent trial, 145 rule as to issues raised, 70 statutes relating to, 70, 71 includes " information " in Corrupt Practices Act, 131 form of, under 14 & 15 Vict. c. 100... 70, 872, 873, 875 for felony or misdemeanor, prisoner may be convicted of attempt, 70, 269 for robbery, prisoner may be convicted of assault with intent to rob, 71 for misdemeanor, not to be acquitted if facts amount to felony, 71 for felony, no conviction for misdemeanor, 71 for embezzlement, prisoner may be convicted of larceny, 71 for larceny, prisoner may be convicted of embezzlement, 71 for jointly receiving, prisoners may be convicted separately, 71 accessory before fact indicted as principal, 71 for child murder and conviction of concealment of birth, 71 for false pretences, no acquittal if facts amount to felony, 71 for feloniously wounding, conviction for unlawful wounding, 71 for corrupt practices, conviction for illegal practices, 71 divisible averments, 72 — 74 of the offence, 72 for murder, prisoner may be convicted for manslaughter, 72 for burglary, prisoner may be committed of larceny, 72 for compound larceny, prisoner may be committed of simple larceny, 72 in misdemeanors, 73 libel, 73 perjury, 73 conspiracy, 73 with regard to the extent of the property, 73 sufficient if some articles of many be proved, 73 person employed in two capacities, 73 several persons charged, any may be convicted, 73 of intent, 73, 74 averments which need not be proved, 74 of time, 74, 77 of place, 74, 77 of value, 74, 78 need not now be made, 74 conclusion " contra formam statuti," unnecessary, 74 effect of amendment in, 74 amendment of, 74, 182. See Amendment. substance of issue raised by, must be proved, 75 descriptive averments, 75 of property, how proved, 75 of property of partners, companies, &c, how laid. See Partner, Corporation. of person, how proved, 75 mistake in name, 75, 76 bastard child, 75 married woman, 75 Index. 939 INDICTMENT— continued. descriptive averments — continued. father and son of same name, 75, 76 person unknown, 76 rule of idem sonans, 77 names of dignity, 77 what evidence of name sufficient, 77 mode of committing offence, 78 names of children, 706 evidence must be confined to issue raised by, 78. See Evidence. calling witnesses on back of, 119 prosecutor not bound to do so, 119 nor to give their addresses, 119 judge may order them to be called, 119 right to cross-examine in such cases, 120 of accessory before fact in felony, 161 after fact in felony, 163 of principals in second degree in misdemeanor, 163 how preferred and found, 165 when not to be preferred unless previously authorized, 166 count for previous conviction, 167 prisoner not entitled to copy of, in felony, 168 but he is so in misdemeanor, 168 particulars, 168 jurisdiction, 169 removal of, 170 arraignment, 171 special pleas to, 175 autrefois acquit, 175 autrefois convict, 175 pardon, 177 general issue, 178 pleading over, 178 joinder of offences in one, 178 election, 178 quashing, 180 form of, for corrupt practices, 303 for non-repair of bridge, 305 in conspiracy, 367, 378 in embezzlement, 397, 398 in explosives, 421 for larceny of fixtures, 460 for obtaining by false pretences, 429, 451 for forgery, 471, 504 for engraving, &c, 472 highways, 542 for larceny, 548 for libel, 600 for offences relating to mines, 640 in manslaughter, 6 1 1 means of death need not be stated, 641 for inui'ler, <'. | | how child to be described, 644 for perjury, 72<>, S74 for subornation of jjerjury, 741 for rape, 77»» for smuggling, S26 for offences relating to post office, 752 for receiving, 779, 789 for sacrilege, 816 940 Index. INDICTMENT— continued. form of, for corrupt practices — continued. for stealing written instruments, 852 for previous conviction, 167, 203 in fraudulent bankruptcy cases, 276, 282 under Criminal Law Amendment Act, 770 INDORSEMENT, forgery of, 474, 475 obtaining by false pretences, 429 INDOESING, bills of exchange, &c, without authority, 474, 475 INDUCEMENT, nature and effect of, to exclude confessions, 35. See Confessions. must be negatived in order to render confession admissible, 34, 49. INDUSTEIAL SOCIETIES, proof of documents, 151 embezzlement by officers, 401 property of, 553. See Larceny. INEBRIATES, 345. See Drunkenness. statute relating to, 885 INFAMOUS CEIME, attempt to commit, 262. threats to accuse of. See Threats. definition of, 836 INFANCY, plea of, 856 general evidence under, 856 INFANTS. See Child, Infancy. recognizance by, 93 competency of, as witnesses, 100, 101 degree of credit to be given to, 101 bankrupt, 278 forcible entry by, 464 under f ourteen years of age cannot commit rape, ' 72 nor assavdt with intent to commit rape, 777 marriages by, 291 inciting, to bet, 520 INFECTIOUS DISOEDEE. See Contagious Disease. INFEENAL MACHINE, 822. See Explosives. INFIDELS, competency of, as witnesses, 103 INFOEMATION, included in " indictment" in Corrupt Practices Act, 131 compounding, 364 proving, 721 INFOEMEES, disclosures by, privileged, 136 INNEEEPEE. See Nuisance. refusing to supply traveller, 702 Index. 941 INNOCENCE, presumption of, 15 innocent agent, false pretences made through, 450 larceny made through, 508 forgery through, 507 INNUENDOES, 60G INQUISITIONS, proof of, 146 INSANE PEISONEE, how dealt with, 172 judgment upon, 201 INSANE WITNESS, deposition of, whether admissible, 59 incompetency on the ground of, 102 INSANITY, plea of, 858 et seq. what question for jury, 862 et seq. what questions can be put to medical witness, 862 caused by intoxication, 866 INSCRIPTIONS, secondary evidence of, 11 INSOLVENCY. See Bankruptcij. INSPECTION OF DOCUMENTS, by prisoner, 96 INSTIGATING. See Inciting, Accessories. INSTRUMENTS. See Documents. INSURANCE OFFICE, intent to defraud in arson, how proved, 259 INTENT, averment as to, divisible, 73, 74 proof of, in abduction, 237 in abortion, 24( ) in arson, how proved, 258 to defraud a particular person need not be stated, 251 to commit felony, assault with, 261 to defraud, proof of, against bankrupt, 280 in burglary, 3:52, :w;5 to break into a particular house, 336 proof of, to injure cattle, 338 in challenging to fight, 339 in falsification of accounts, 100 to defraud in obtaining by false pretences, how proved, 443 proof of, in forgery, and <.ffenees connected therewith, 180, 501 to do grievous Oodily harm, proof of, 522 proof of, in Libel, 008 in larceny, 576 proof of, common in muider, 044 to commit murder, doing acts with, 0H2 how proved, 692 proof of, in perjury, 734 proof of, in indictments for administering poison, 7 19 proof of, in offences relating to railways, 700 42 Index. INTENT— continued. in receiving, 788 in robbery, 802 INTENT TO DEFRAUD. See Intent. presumption of, 21 not necessary in proceedings against undischarged bankrupt, 277 in false pretences, 429, 448 in forgery, 480, 501 INTENTION, when presumed, 15, 20 evidence to explain, 80. See Evidence. a ground of incompetency. See Witness. INTEREST, statements against, 25. See Hearsay. INTERPRETER, privilege as witness, 133 INTIMIDATION, 384 of witnesses, 711 INTOXICATION. See Drunkenness. IRELAND, proof of marriages in, 288 ISSUE, nature of, in criminal cases, 70 substance must be proved as laid, 75 evidence confined to, generally, 78 JEWS, oath by, 104 proof of marriages by, 287 JOINDER, of offences in one indictment, 178, 514 of persons, one may be convicted, 73 evidence of husband and wife, 108 separate trial, 189 JOINT-STOCK BANK, larceny by shareholder of, 551, 583 property of, how described, 591 falsification of accounts, 763 JOINT TENANTS, larceny by, 551, 583 JOINT WRONGDOERS. See Accessories. JOURNEY, offence committed on, where tried, 218 JUDGE, duty of, in determining questions as to admissibility of evidence, 12, 28, 100 warrant from, to bring up witness in custody, 96 whether a competent witness, 112, 136 may order witnesses to be called, 119 or ask questions, 120 right to cross-examine in such cases, 120 decides as to privilege claimed by witness, 131 Index. 943 JUDGE — continued. of court of law or equity, signature of, to be judicially noticed, 141 discretion of, as to election, 180 dying before stating case for court, 209 bribery of, 297, 303 duty of, on trial for libel, 613 power of, to commit witness for perjury, 739, 873 JUDGMENT, arrest of, 197 on record in the Queen's Bench, 197 how entered where several offences are charged, 197 may be amended by writ of error, 198 of death, 199 affidavits in aggravation or mitigation of punishment, 199 disqualification, 199 compensation, 199 separation order, 199 recording judgment of death, 200 on juvenile offenders, 200 first offenders, 200 insane persons, 201 fines and sureties, 201 discharge of prisoner, 201 property found on prisoner, 201 of foreign or colonial court, how proved, 142 of inferior court, how proved, 149 after previous conviction, 203 penal servitude and imprisonment, 203 JUDICIAL SEPAEATION, 199 JURISDICTION. See Venue. proof of, in perjury, 719 of criminal courts, 169 quarter sessions, 169, 170 objection to, how taken, 170 of Court of Admiralty, 220, 222 of Central Criminal Court, 225 to administer oath, proof of, 717 et seq. JUROR. See Jury. a competent witness, 112 who may serve as, in indictment for non-repair of bridges, 312 cannot be indicted for perjury for giving a false verdict, 722 JURY, de medietate linguce, 184 challenge of, ls-t. Sec Challenge. may be a witness. See Witness. whether tales can be prayed on defect of, 184 court may order sheriff to return, 184 who liable to serve on, 187 persons exempt, 188 unfit persons may be ordered to withdraw from, 188 miscalling, 188 giving prisoner in charge to, 188 discharge of, li)3 in what cases, L93 disagreement of, L95 944 Index. JURY — continued. right to separate, 194, 195 delivery of verdict by, 195 duty of, on trial for libel, 613 under influence, on, 618 giving false verdict no indictment for perjury, 722 JUSTICE, cheats affecting, 340 libel on administration, 597 JUSTICES. See Magistrate. forgery of order, 477 indictment by, in highways, 542 JUSTIFIABLE HOMICIDE, 543. See Manslaughter, Murder. JUSTIFICATION. See Libel. JUVENILE OFFENDERS, punishment of, 200. See also Whipping. KEYS, implements of housebreaking, 336 KIDNAPPING, 233 KILLING CATTLE, 337 KNOWLEDGE. See Guilty Knowledge. LAND TAX, proofs of books of commissioners of, 150 forgeries relating to, 483 LARCENY, distinction from embezzlement, 408 prisoner may be convicted for embezzlement on indictment for, 71, 550 prisoner may be convicted of, on indictment for embezzlement, 71, 398, 550 conviction for, on indictment for burglary, 72, 334 prisoner may be convicted of simple, on indictment for compound, 72 prisoner may be convicted for false pretences, though facts amount to, 71, 586 joining count for receiving, 179 but if indicted for larceny cannot be convicted of obtaining by false pretences, 429, 586 cannot be committed of dead bodies, 386 of cattle. See Cattle. in a dwelling-house, 392 of animals /eroe naturae, 453 of fish, 456 of fixtures, 459 interpretation of terms in Act relating to, 548 distinction between grand and petit, abolished, 548 punishment for simple, 548 by bailees, 548, 571 three offences of, within six months, may be charged in one indictment, 178, 548 Index. 945 LARCENY— continued. election, 179, 548' ;ifter previous conviction, 548 by servant, 550 by person in the Queen's service, or in the police, 550 venue in, 551, 592 of property of partners, 551, 583 by shareholders, 551 of property of counties, 552 of goods for the vise of the poor, 552 of property of trustees of turnpikes, 552 of commissioners of sewers, 553 of friendly societies, 553 of loan societies, 553 of building societies, 553 of industrial societies, 553 of trades unions, 553 of savings banks, 554 of her Majesty's customs, 554 summary jurisdiction, 554 definition of, by Bracton, 554 , derived from the civil law^.544 ^ other definitions, "544- S v M~ importance of the distinction between property and possession, 554 meaning of terms lucri causa and animo furandi, 554 what amounts to, generally, 555 giving master's corn to master's horses, 577 proof of taking, 555 what manual taking is required, 556 least removal sufficient, 556 stealing gas, 558 possession obtained by mistake, 558 cattle straying, 55s distinction between things taken and things delivered by mistake, 558, 559 possession obtained by fraud, 560 property not parted with, 560 property parted with, 562 larceny by trick, 562 et seq. possession obtained from servant by fraud, 569 possession obtained by threat, 571 possession obtained by false process of law, 571 by bailees, 571 by servants, 573 difference between, and embezzlement, 573, 586 difference between, and larceny by bailees, 560, 573 proof of intent to deprive owner of his property, 576 goods taken under a claim of right, 578 of goods found, 571) by the owner, 582 by part owner, 583 by wife, 584 by wife and adulterer, 584 by husband, 586 distinction between embezzlement, obtaining by false pretences and larceny. 586 proof of value, 587 question whether goods stolen must be of some value, 587 of cheque, 587 proof of ownership, 587 946 Index. LAECENY — continued. proof of ownership — continued. when unnecessary, 587 when the goods have already been tortiously taken, 587 goods in custodia legis, 588 goods of an adjudged felon, 588 goods in possession of children, 588 goods in possession of persons having a special property goods in possession of bailees, 588 goods in possession of carriers, 589 goods of deceased person, 589 goods of lodgers, 590 goods of married women, 590 goods of persons unknown, 590 goods in possession of servants, 591 goods of corporations, 591 goods in a church, 591, 816 of goods in process of manufacture, 638 from mine, 639 distinction between, and receiving, 783 from the person, 800. See Robbery. from ships, 819 by tenants and lodgers, 835 of written instruments, 852. See Written Instruments. LEAD, stealing from roof, 460 LEADING QUESTIONS, when admissible, 121, 122 LEGAL ADVISEE. See Attorney, Solicitor, Counsel. LEGITIMACY, always presumed, 15 LETTEE OF CEEDIT, forgery of, 493 LETTEES. See Threatening Letters. stealing or detaining. See Post Office. LETTEES OF ADMINISTEATION, proof of, 149 LIBEL, averments in indictment divisible, 73 blasphemous, 595, 596 indecent, 596 on the government, 597 on the administration of justice, 597 upon individuals, 598 indictable if action will lie without special damage, 599 no indictment for words spoken, 599 on persons deceased, 599 on foreigners, 599 on foreign powers, 599 upon public bodies, 599 indictment, 600 punishment of, 600 costs, 600 Index. 947 LIBEL — continued. proof of introductory averments, 600 proof of publication, 602, 605 printing pri/md facie proof, 602 by delivery at the post office, 602 repetition, 603 to the party libelled himself, 603 in foreign language, 603 in newspapers, 603. See Newspaper. Newspaper Libel Act, 604 proof of publication, 605 within Vexatious Indictments Act, 166, 604 proof of copies of newspapers, 604, 605 fiat of public prosecutor, 604 by admission of defendant, 605 liability of publishers, 605 by servants or agents, 605 constructive publication, 605 proof of innuendoes, 606 proof of malice, 607 proof of intent, 608 venue, 608 defendant indictable in every county where published, 608 unsealed letter sent by post, 608 post-mark evidence of letter having passed through office, 609 proof for the defendant, 609 of absence of malice, 609 justification by law, 609 privileged communication, 610 documents published by order of House of Commons, 610 fair comment, 610 proceedings in courts of justice, 610, 611 public comment, 610, 611 plea of justification giving truth of libel, 612 justification may be specially pleaded, 612 evidence under plea of not guilty, 613 duty of judge and jury respecting, as denned by statute, 613 libels to extort money, 837. See Threats. defendant and husband or wife competent witnesses, 112 LICENCE, to marry, forgery of, 477 proof of, 290, 2! 12 when presumed, 15 LIEN, persons having, may dispose of goods, 243 what to lie deemed, 2 1- 4 V LIFE, duration of, presumption as to, 16 LIMITATION, of time for proceedings under Corrupt Practices Act, 300 of time for prosecul ing offences under Game Acts, 510, 513 offences relating to offices, 711 under Criminal Law Amendment Act, 70!> of time for prosecution for smuggling, 826 948 f a dex. LOADED ARMS. See Arms, Shooting. •what are, 260, 822 LOAN, • by false pretences, 430 LOAN SOCIETIES, larceny of property, 553 LOCAL MAEINE BOARDS, embezzlement by officers, 399 perjury before, 722 LOCKS, injuries to, 817 LODGERS, occupation of dwelling'-house by, in burglary, 326 larceny of goods of, property how described, 590 injuries to property by, 835 larceny by, 835 LOST DOCUMENTS, proof of, 7 search for, 7 answers to inquiries respecting, 7 contents of, may be proved by secondary evidence, 8 LOST PROPERTY, larceny of, 579 LOTTERIES, keeping, 704 LUCRI CAUSA, meaning of term, 554 LUNATIC. See Insanity. marriage by, 289 ill-treatment of, 545, 546 writ of habeas corpus to bring up, as witness, 96 how far competent witness, 102 arraignment of. See Arraignment. apprehension of, 231 judgment on, 201 notice of death of, 387 MACHINERY, attempting to blow up, 614 riotoiisly destroying or damaging. See Riot. destroying or damaging, 614 proof of damaging, 614 what machinery is within the statute, 615 MAGISTRATES, duty of, on taking examination of prisoner, 50 duty of, on taking depositions, 62 signing depositions by, 64 assaults on, 261 false declarations before, 423 forgery of order of, 477 Index. 949 MAIMING cattle, 337 MAINTENANCE, when justifiable, 616 in respect of interest, 616 master and servant, 617 affinity, 617 poverty, 617 counsel and solicitors, 617 champerty, til 7 embracery, 618 MALFEASANCE, 711 MALICE, presumption of, 19 definition of, 19, 760 in arson, against owner of property injured need not be proved, 251 how proved, 257 proof of, in injuries to cattle, 338 in explosives, -1-19 in grievous bodily harm, 521 in libel, 607 averment of, unnecessary, 600 absence of, in libel, 609 in murder. See Murder. when presumed in murder, 650 proof of, in wounding, 851 MALICIOUS INJURIES, general provision as to, 619 See also the following titles : — Arson, Bridges, Cattle, Gunpowder, Machinery, Manufactures, Mines, Pigeons, Poison, Railways, Riots, Sacrilege, Sea and River Banks, Ships, Telegraphs, Tenants inn! Lodgers, Trees and other Vegetable Productions, Turnpike Gates, Works of Art, Written Instruments. i\l A X SLAUGHTER. See Murder. accessories in, 157, 620 prisoner may be convicted of, on indictment for murder, 72 abroad, 221 punishment, 620 form of indict ment, 620 distinction between, and murder, 620 provocut ion. ''2k mutual combat, 62] resistance to officers of justice, 621 killing in tin' performance of an unlawful act, (121 in the ease of lawful or unlawful sports, 623 prize fights. 62 I in the course of lawful employment, 625 negligent driving, 625 negligenl use of dangerous weapons, 626 contributory negligence, <'27 by persons practising medicine or surgery, 628 neglect of duty, 631 chastisement . 632 in defence of person or property, 632 MAN TRAP, 82! I r. :; p 950 Index. MANUFACTURE of explosives, 419 embezzlement of goods in process of, 400 destroying goods in process of, 638 stealing goods in process of, 038 MAPS, evidence of, 535 MARRIAGE. See Bigamy, Presumption. how proved, 3 proving certificate of, 151 false declaration touching, 424 licence, forgery of, 477, 498 destroying, altering, or forging register of, 477 giving false certificate of, 477 transmitting false copy of register of, to registrar, 477 MARRIED WOMAN. See Wife, Husband. described in indictment by maiden name, 75 recognizance by, 93 serving subpoena on, 95 bankrupt, 278 forcible entry by, 464 larceny of goods from, property how described, 590 coercion by husband, 868 MARRIED WOMEN'S PROPERTY ACT, recognizance by married woman, 93 husband and wife competent witnesses for and against each other, 111 MASTER, inducement to confess by, 37 assault by, in defence of servant, 266 ill-treatment of servant or apprentice by, 544 when not liable for maintenance for assisting servant, 617 correction administered by, 265 MATERIALITY, proof of, in perjury, 727 MEASURES. See Weights. MEAT, selling bad, 340 MEDALS, uttering foreign, 356 counterfeit medals resembling the Queen's current coin, 359 MEDICAL MEN. See Doctor. statements to, as to health or sufferings, 27, 28 confessions to, not privileged, 133 examination as to opinion, 127, 647 unskilful treatment by, 628 no difference between licensed and unlicensed practitioners, 629 MEDICAL WITNESS. See Skilled Witnesses. what qiiestion can be put to, as to sanity, 862 et seq. Index. 951 MEETING-HOUSE, setting fire to, 248 disturbing service, 390 breaking and entering, 392, 816 riotously demolishing, 7'.'3 sacrilege in, 81G MEMORY of witness, refreshing by memoranda, 126 MENACES. See Threats. stealing in dwelling-houses with, 393 MENS RE A. See Guilty Knowledge, Intent. MERCHANDISE MARKS ACT, 1887... 342 husband and wife competent witnesses, 112 MERCHANT. See Agent. embezzlement by, 242 fraudulent sale by, 242, 246 MERCHANT SHIPPING ACT. See Ships. depositions under, (is offences under, 819 et seq. MILITARY STORES. See Naval Stores. MILK, stealing from cows, 153 MILL DAMS, injuries to, 817 MINE of coal, setting fire to, 249 conveying water into, 639 damaging machinery or engines belonging to, 639, 793 larceny from, 639 removing ore from, 640 venue of offences relating to, 640 form of indictment for injuring, 640 proof of injury to, 640 MINERS, removing ore from mine, 640 MINORS, marriages by, 291 MISADVENTURE, death caused by, 543. See Manslatujlitrr, Murder. MISAPPROPRIATION. by agent, 242 MISDEMEANOR. See Felony. conviction for, though facts amount to felony, 71, 194 averments divisible. 73 joinder of counts in, L80 no accessories in, 157. Hi3 election, 180 compounding, 36 I 3 P 1_> 952 Index. MISDEMEANOR— continued. parties may be convicted of, in cases of indictment for felony by poisoning, 748 costs in, 212. See Costs. evidence by consent, 120 in railway offences, 766 MISPEISION of felony, 365 MISTAKE, larceny of goods delivered by, 558 detaining letters delivered by, 751 MISTRESS, indiicement to confess by, 37 MODE OF COMMITTING OFFENCE, must be proved as laid, 78 MOHAIE, embezzlement of, 400 MONEY OEDEES. See Post Office. MONUMENTS, secondary evidence of inscriptions on, 11 MOEALITY, presumption in favour of, 15 MORAVIANS, affirmation by, 105 MORTGAGEES, 242 MOTIVES, evidence to explain, 80 et seg. MUNICIPAL COEPOEATION. See Corporations. false declarations at elections of, 396, 423 misappropriation of funds of, 247 MUNICIPAL ELECTIONS. See Bribery, Elections. offences at, 301 false declarations at, 396, 423 false personation at, 427 MUEDER, evidence of similar murders, when relevant, 85, 86 all possible witnesses to be called, 120 prisoner may be convicted for manslaughter on indictment for, 72 abroad, where triable, 224 judgment of death for, 199, 703 judgment of death recorded in, 200 sentence for, 641 body, how to be disposed of, 641 means of death need not be stated, 641 petit treason abolished, 641 conspiracy to commit, 379 sending letters threatening to, 836 distinction between, and manslaughter, 620 of children, conviction for concealing birth on trial for, 641 Index. 953 MURDER — continued. punishment of accessoi'y after the fact to, 642 proof of, having been committed, 642 whether there should be conviction where body not found, 642 of child in the womb, 643 of child shortly after birth, 643 how child to be described in indictment, 644 proof that the prisoner was the party killing, 6 14 when person accused is principal in, 644 act done in prosecution of a felonious intent constituted, 644 persons acting with common intent, 645 proof of means of killing, 647 must be a corporal injury, 647 need not be direct, 647 compelling another by threats to kill himself, 647 by savage animals, 647 by poison, 6 17 by giving false evidence, 648 by wound not at first mortal, 649 proof of malice, 650 presumption of, 650 performance of an unlawful or wanton act, 650 person killed other than was intended, 651. See Grievous Bodily Harm. riding a dangerous hoi*se, 652 by wilful omission of duty, 653 neglect of infants and others, 653. See Children, Ill-treating. death caused by negligence, 655, 657 negligent driving, 657 misadventure, 6.">7 correction by masters and parents, 658 dangerous assaults, 658 provocation in general, 658 bad language, 651) insulting conduct, 659 assault, 660 instrument used, 662 dangerous weapon ought to be avoided if possible, 663 third parties, 66 1 provocation to justify must be recent, 665 drunkenness, 669 « provocation does not justify expi'ess malice, 670 death caused in mutual combat, 670 duelling, 67 I death ensuing on apprehension, 676. See also Apprehension. when a peace officer is protected, 676 who may execute warrant, 677 warrant how to !»• executed, 677 apprehension under defective process, 677 notice of authority must be given, 6S1 felony actually committed, 682 mode of executing, 682 suspicion of felony. 6s2 misdemeanor, 683 breach of the peace, 683 constable not bound to avoid a conflict, < 18! '■ when house may he broken, 684 resistance of illegal apprehension, 686 impressment of seamen, 687 killing in defence of person or property, 688 954 Index. M QEDEE— continued. cases oifelo de se, 690 persuading another to commit suicide, 690 accessories, 691 attempts to commit, 692 injuries to person, 692 by setting fire to or casting away ship, 692 by attempts to injure person, 692 by other means, 692 proof of intent to commit murder, 692 proof of the attempt, 693 MUSHEOOMS, taking, 619 MUSSELS, larceny of, 457 MUTE, prisoner standing, how dealt with, 171, 172 MUTINY, inciting to, 547, 743 MUTUAL COMBAT, killing in, 621, 671 et seq. NAME, effect of mistake in, 75 mis-spelt, rule of idem sonans, 77 what evidence sufficient proof of, 77 of children, in indictment for child murder, 644 need not always be stated, 644 marriage in assumed, 292 NAVAL AND MILITAEY STOEES, statute 38 & 39 Vict. c. 25... 694 provisions with respect to stores, 694 definition of her Majesty's mark, 694 marking with her Majesty's mark, 694 power of constable to detain vessel, 694 having possession of, 695 what amounts to guilty possession, 695 NAVIGABLE EIVEE, obstructing. See Highways. offences on boats, 218 injuries to, 817 NAVY, forgeries relating to, 482 mutiny in the, 547 shooting at vessel in, 825 NEGLECT of children, 349, 545 of duty, 631, 653 NEGLIGENCE, manslaughter by, 625. See Manslaughter. murder by, 653 — 658. See Murder. contributory, 627 Index. 955 NEGLIGENT DRIVING, death caused by, 625, 658 NEWSPAPERS, proof of publication of libel in, 151, 603 et seq. NEW TRIAL, none in felony, 205 in misdemeanor, 206 none when prisoner acquitted, 206 on indictment relating to highways, 312, 542 NIGHT, apprehension of offenders by, 229 proof of burglary being committed by, 331 what constitutes under Game Act, 510 meaning of term in Larceny Act, 548 NIGHT-WALKERS, apprehension of, 228 NITRO-GLYCERINE. See Dangerous Goods, Explosives. NOISE, nuisance by, 697 NOLLE PROSEQUI, 181 NONFEASANCE, 712 NOT GUILTY, plea of, 178 plea of, when to be entered, 172, 178 NOTES OF CONVERSATION, need not be produced, 3 NOTICE TO PRODUCE, 8. See Evidence. when dispensed with, 9 form of, 9 to whom and when, 10 consequences of, 11 NUISANCE, particulars in indictments for, 168 to highways. See Highways. proof of public nature of, <>!)7 degree of annoyance which constitutes, 697 no answer it is also a convenience, 697 in accustomed places, 698 neglecting improvements, 698 cannot be prescribed for, 699 offensive trades, (;*>•> keeping explosive or inflammable substances, 699. See Explosives. corrupl in-- si reams of water, 700 railways and steam-engines, 7<)0 indecent or disorderly exhibitions or conduct, 701 disorderly inns. 7"2 gaming-houses, 7<>2. See Gaming. lotteries, 7< ' I unlicensed horse races, 7 1 1 1 bawdy-houses. 7" I what amounts to a keeping, 704 956 Index. NUISANCE— continued. play-houses, 704 places of public entertainment, 705 dangerous animals, 705 spreading contagious diseases, 705 selling unwholesome provisions, 342, 705 eaves-dropping, &c, 705 caused by agents or servants, 706 owner of property liable for permitting property to be so used as to create, 706 punishment and abatement of, 707 OATH. See Perjury. depositions must be taken on, 61 exception in case of children, 61, 100, 347, 849 or affirmation by witness necessary in all cases, 103 king must take if a witness, 103 form of, 104 depends on religious belief of witness, 104 sufficient for purposes of perjury if declared by witness to be binding, 105 affirmation in lieu of, 105 administering unlawfxd, 708 proof of the oath, 708 aiding in administering an oath, 709 person not liable if he makes disclosure, 709 what amounts to a disclosure, 709 to join in unlawful combinations, 710 administering voluntary, 710 OBSTRUCTING. See Highway, Bridge, Railways. OBSCENE PUBLICATION. See Libel. obscene prints, 702 OBTAINING by false pretences, 430 OCCUPATION, proof of, in burglary, 323 — 331 in game offences, 512 OFFENDERS, apprehension of. See Apprehension. probation of first, 200 juvenile, 200 OFFICER of justice. See Policemen, Constables, Peace Officer, Public Officer. appointment of, when presumed, 6, 16 assaults on, 261 false accounting by, 341, 400 of Banks of England or Ireland, embezzlement by, 399, 414 of savings bank, embezzlement by, 399 of justice, disclosures by, privileged, 137 of public companies, offences by, 711, 762 misconduct of, 711 extortion by, 712 refusing to execute office, 713 of inland revenue trading, 714 Index. 957 OFFICE COPY, 145 OFFICES, offences relating to, 711 limitation of time for prosecution, 711 malfeasance, 711 nonfeasance, 712 extortion, 712 by officers in East Indies, 713 proof on refusal to execute office, 713 OFFICIAL COMMUNICATIONS, how far privileged, 137 OFFICIAL SECEETS ACT, offences under, 714 where tried, 227, 716 OMNIA RITE ESSE ACTA, presumption, 16 ONUS PROBANDI, in possession of stolen goods, 17 in importing foreign counterfeit coin, 357 in making, &c, coining tools, 363 under the Counterfeit Medal Act, 359 in conveying coining tools out of the mint, 357 under Explosive Substances Act, 420 in personating bail, 126 in making, &c, materials for forging bills and notes, 470 et seq. in offences against seamen, 818 in insanity, 858 OPENING CASE, 189 OPENING OR IMPEDING DELIVERY OF LETTERS, 754 OPINION, examination of witnesses as to, 127 whether subject to perjury, 725 ORDER, for payment of money, forgery of, 47 4 for delivery of goods, forgery of, 474, 492 ORE, removing by miners, 640 ORIGINALS, all equally authentic, 3 printed copies are all equally so, 3 OUT-HOUSE, setting tire to, 248, 253 meaning of term, in arson, 253 OUTRAGE ON DECENCY, 828 OVERSEER, prosecution for assault by, 262 larceny of goods of, 552 bribery at election of, 2U7 falsifying lists, 340 958 Index. OVERT ACT, how far necessary in conspiracy, 369 OWNER, larceny by, 393, 582 arrest by, 229 personating, 428 cannot be charged ratione tenurcr, with repair of highway, 539 OWNERSHIP, proof of, 449, 587. See Larceny. when not necessary to prove any, 587 OYSTERS, stealing or dredging for, 457 PARCHMENT, necessary for record, 145 PARDON, confessions after offer of, 40 promise of, does not render accomplice incompetent, 114 what claim accomplice has to, 117 removes claim to privilege, 130 plea of, 177 how proved, 178 PARENTS. See Children. possession of, 235 assaiilt by, in defence of children, 266 chastisement by, 265, 348, 632, 658 meaning of term, 347 PARISH, liability to repair highways. See Highways. PARLIAMENT, proceedings in, privileged, 138 public Acts of parliament, how proved, 144 private Acts, 142, 144 journals of, how proved, 142, 144 bribery at election of members of, 297 false declarations at election of members of, 395, 423 false personation of voters, 427 PAROL EVIDENCE. See Evidence. PABTICEPS CRIMINIS, admissibility of dying declaration by, 28 PARTICULARS, of charge, when prisoner entitled to, 168 how obtained, 168 consequences of delivering, 168 consequences of not delivering, 168 postponing trial for, 168 how enforced, 168 must be delivered in barratry, 168, 283 in conspiracy, 378 in embezzlement, 413 delivery of, as to obstructions to highways, 541 Index. 959 PARTNER, occupation of house by, in burglary, 33] embezzlement by, 404 larceny by, 551 property, how proved, 583 PART OWNER, larceny by, 583 PARTRIDGES, larceny of, 153, 454 PASSING SENTENCE, 197 PAUPER, conspiracy to marry, 371 PAWNBROKER, restitution of stolen property, 203 larceny of ticket, 853 PAYMENT, how proved, 3 PEACE, prevention of breach of, 228, 229 PEACE-OFFICER. See Constable, Police. apprehension of offenders, 229 difference between, and private persons, 229 assault on, 261, 2G7 killing. See Murder. killing by. See Murder. PEDIGREE, evidence to prove, 24 falsifying, 424 PENAL SERVITUDE, limits of sentence, 2< >3 imprisonment instead of, 203 fresh sentence when term unexpired, 204 apprehension of ticket-of-leave man, 231 PENALTIES, liability to, as a ground of privilege, 129 PERFORMANCES, by children, 2G2, 348, 545 PERJURY. See False Declarations, Oath. evidence given, how proved in, 3 form of oath immaterial in, 105 affirmation has same .lint as oath for purposes of, 105, 796 corroboration in, 118 evidence by consent in, 121 by child unsworn, 347 nature of offence of, 717 proof of authority to administer an oath, 717 not necessary to prove appointment of officer who administers oaths, 717 jurisdiction must he well founded, 719 form nt' iii PLAY-HOUSES, keeping, 704 PLEA, different kinds of, 175 PLEADING. See Indictment. over, 17 s PLEDGING GOODS, unlawfully, by agent, banker, factor, &c, 243 et seq. POACHERS, apprehension of, 510, 514 POACHING. See Game. POISON, evidence in charges of murder by, 86 administering, to procure abortion, 239 proof of administering, 239 administering, not an assault, 2ti3 giving to cattle, 338 killing by j 647 administering, with intent to murder, 692 attempting to, with intent to murder, 692 administering, with intent to commit indictable offence, 7 is administering, so as to inflict grievous bodily harm, 748 administering, with intent to injure, aggrieve, or annoy, 748 persons charged with felony may be convicted of misdemeanor, 7 is killing fish by, 748,817 proof of intent. 749 sale of poisoned grain, seed, or flesh, 749 POLICE. See Constable. privilege of, L37 assault on, 261, 267 threal or inducement by. See Confessions. 962 Index. POLICE — continued. metropolitan, apprehension by, 230 rural, apprehension by, 231 detention by, under Naval, &c, Stores Act, 694 embezzlement by, 397 larceny by, 550 POLICY OF INSUEANCE, when to be produced, 2, 9 a security for payment of money, 244 POLL. See Challenge of Jurymen. POOR, larceny of goods for the use of, 552 POOR-RATE, collector of, in whose service, for purposes of larceny, 552 PORTS. See Docks. POSSESSION. See Ancient Possession. presumptive evidence of property, 15 difference between, and property, 554 of stolen property, presumption from, 17, 783. See Receiving. of forged instruments, 83 what constitutes, in abduction, 235 evidence of intrusting agents, brokers, factors, &c, 244 person in, may be convicted of injuring property, 251 in arson, how described, 256 of housebreaking implements, 336 of counterfeit coin or coining tools, 355, 357, 361, 362 proof of, in cases of forcible entry, 463 of explosive materials, 420 of materials for forging securities issued by bankers, 471,472, 473 of materials for forging securities issued by exchequer, 471 of materials for forging foreign bills, 472, 473 meaning of term in 24 & 25 Vict. c. 98, s. 45... 480 of materials for forging stamps, 483 of naval and military stores, when punishable, 695 of letters on way through post-office, 758 POST-OFFICE, setting fire to, 248 publication of libel by delivery at, 602 offences relating to, 750 by officers of the post-office, 750 opening or detaining letters, 750 stealing, embezzling, secreting, or destroying letters, 750 by private persons, 750 stealing out of letters, 750 stealing letters from mail or post-office, 750 stealing from post-office packet, 751 fraudulently retaining letters, 751 .accessories, 751 receivers, 751 venue, 751 property, how laid in indictment for offences relating to, 752 punishment of offences relating to, 752 interpretation clause, 753 post-office money-orders, 75 1 Index. 963 POST-OFFICE— continued. injuring letter-box or letters, 754 sending injurious or indecent matter by post, 754 opening or impeding letters, 754 what is a post letter, 755 proof that person is employed by, 755 proof of stealing, embezzling, &c, 756 what is a post-office, 758 possession of letters on way through, 758 authority of servants to part with property, 75H forgeries relating to, 483 post-office order, forgery of, 493 POSTPONEMENT OP TEIAL, binding witnesses over on, 93 of criminal trial, 173 on what grounds, 173, 174 in order to instruct infant witness, 101 all pai"ties bound over, 174 application for, when to be made, 174 of trial for perjury, 740 for delivery of particulars, His in embezzlement, 414 POUND-BREACH, 792 POWER OF ATTORNEY, fraudulently selling under, 243 relating to stock or funds, forging, 468 forgery of attestation to, 469 PRACTICE, 165. See Indictment. PRESS, privilege of, 6( > 1 PRESSGANG, 687 PRESUMPTION of appointment of public officers, 6, 16 of stamp on document not produced, 11 general nature of, 13 of law, 1 3 of fact, 13 difference between, in criminal and civil cases, 13 general instances of, 14 of property where there is possession, 15 of consent, 1 5 of custom, 1 5 of intention, 15, 20 that date of instrument is correct, 15 of innocence and legality, 15 against immorality, 1") against bigamy, 15 omnia riti esse acta, 16, 1 60 from the course of nature, H'> period of gestal ion. 16 of continuance of life, lt'> of guilt from conduct of party, 1(1 from possession of stolen property, 17, 7>S3. See Receiving when it is to be made, 17 proof of loss, 17 u lien loss c. msnlereil recent , is 964 Index. PRESUMPTION— co ntinued. of guilt from conduct of party — contiyiued. disproving prisoner's account, 18 from possession of property in other cases, 19 of malice, 19 of intent to defraud, 21 from silence or demeanour, 48 of want of consent in abduction, 236 none, of valid marriage, 285 of preliminary ceremonies in bigamy, 289 conflicting, 294 in Cruelty to Children Act, 348 of malice, in murder, 650 in favour of proceedings in smuggling cases being duly taken and officers duly appointed, 826 PREVENTION OF CRIMES ACT, evidence of guilty knowledge, 778, 788 arrest without warrant, 231 PREVENTION OF CRUELTY TO CHILDREN ACT. See Children, Cruelty to. PREVIOUS CONVICTION, when prisoner may be cross-examined as to, 88 evidence of, to rebut good character of prisoner, 89 of witness, 132 how proved, 142, 143, 144 of witness, how proved, 143 indictment for, 167, 203 arraignment on, 196 giving in charge on, 196 effect of, on judgment, 203 under Game Act, how proved, 510 larceny after, 549 uttering false certificate of, 483 in cases with respect to false coin, 355, 361 PRIEST, confession to, not privileged, 133 PRINCIPAL. See Accessory. accessory indictable as if, in felony, 71 in the second degree in felony, 157 in misdemeanors an accessory is a, 163 who is, in forgery and uttering, 481, 506 who is, in murder, 646 guilt of, how proved in indictments for receiving, 782 PRINTED COPIES, are all equally originals, 3 PRINTS. See Obscene Prints. PRISON BREACH, 759 proof of nature of offence for which imprisoned, 759 imprisonment, 760 breaking, 760 punishment, 7G0 conveying tools to prisoners, 761 Index. 965 PRISONER, examination of. See Examination of Prisoner. entitled to copies of depositions before magistrate, 66 not entitled to copy of his own examination, G6 judge may order it to be given, 66 not ent itlcd to copies of depositions taken before a coroner, 68 evidence of character, 88 may not be cross-examined as to, 88 compelling attendance of witnesses for, 95 may give evidence on his own behalf, 107 no right to reply thereby given, 190 no comment on failure to give evidence, 192 husband or wife of, giving evidence for prisoner, jointly indicted 107 inspection of documents by, 96 not entitled to copy of indictment in felony, 163 l>i. judge may direct them to be given, 168 is entitled in misdemeanor, 168 may demand particulars, 168 entitled to subpoena to produce witnesses, 95 procuring attendance of, as witness, 96 may call accomplice as witness, 114 must be present at trial, 171 right of challenging jiu'y, 181 giving in charge, 188 statement when defended, 191 discharge of, 201 property found on, how to be disposed of, 201 when court may order restoration to owner, 202 costs of, 21 I aiding to escape, 761 PRISONER'S STATEMENT, 51. See Ex xminatio.i of Prisoner. PRISONERS' COUNSEL ACT, rules made after, 56 PRIVILEGE, proceedings in parliament, 138 of press, 604 of witnesses, 129 difference between and incompetency, 129 conviction not reversed if privilege improperly refused, 129 on what grounds it may be claimed, 1211 of forfeiture, 1l".i of ecclesiastical penalties, 130 of criminal penall Les, 130 whether removed by pardon, 130 exceptions by statute, 130 before election committees, 131 righl to, how decided, L31 bare oath of witness not always suilieient, 132 degrading questions may bo put, if material, 132 proof of previous conviction of witness, L32 of husband and wife, L32 of confidential adviser. L33 only legal adviser privileged, 133 not physicians, surgeons, or clergymen, 133 on the ground of public policy, 135 persons in a judicial capacity, 135 R. 3q 966 Index. PEIVILEGE— continued. of witnesses — continued. on disclosures by informers, 136 to officers of justice, 137 on official communication, 137 on correspondence between members of government, 137 on proceedings in parliament, 138 on state papers, 138 objection to answer, how taken, 139 may be waived, 139 may be claimed at any time, 139 effect of refusing to answer, 139 if privilege not claimed, answers may be used against him, 140 but not if claimed and improperly refused, 140 when removed by statute, 140 of bankrupts, 44, 140, 245 of agents, bankers, &c, 140, 245 PEIVILEGED COMMUNICATION, secondary evidence of, 11 defence of, in libel, 610 PEIZE FIGHT, whether an affray, 241, 264, 265 death caused by, 624 PEOBATE, proof of, 149 obtaining property by means of false, 477 PEOBATION, of first offences, 200 PEOCESS, forgery of, 475, 499 using false, 475, 571 robbery under pretence of, 806 PEOCLAMATIONS, how proved, 142 PEOCUEATION of women, 767 of offences, 158 et seq. PEOMISSOEY NOTE, inducing persons by false pretences to accept, sign, &c, 429 drawing, indorsing, &c, without authority, 474, 475, 478, 490 proof of forging, 478, 490 larceny of, 853 PEOPEETY, description of, in indictment, 75 found on prisoner, how to be disposed of, 201 when court may order restoration to owner, 202 presumption from possession of, 16. See Presumption. in goods stolen, 203 in arson, 252 in embezzlement, 398 in false pretences, 444 in receiving, 782 of corporations, 649 Index. 967 PEOPEETY— continued. meaning of term in Larceny Act, 548, 554 assault in defence of, 265, 266 killing in defence of, 632, 688 statement and proof of, in indictment. See Indictment, Larceny. of partner, 551 concealment and removal by bankrupt, 273, 278 PEOSECUTION, expenses of. See Costs. opening case for, 189 PEOSECUTOE. See also Director of Public Prosecutions. admissions by, not generally evidence for prisoner, 47 PEOTECTION of witnesses from arrest, 98 PEOVIDENT SOCIETIES. See Industrial Societies. proof of books of, 151 PEOVISIONS, selling unwholesome, 340, 705 PEO VOCATION. See Murder. killing on, 620, 658 PUBLICATION, proof of, in indictment for libel, 602. See Libel. of fraudulent accounts, &c, 762 PUBLIC BODIES, libel upon, 599 PUBLIC BUILDINGS. See Buildings. PUBLIC COMPANY. See Corporations. books of, proof, 150 liability of, to repair bridges, 310, 311 offences by officers of, 762 embezzlement of property, 762 keeping fraudulent accounts, 762 destroying or falsifying books, 762 publishing fraudulent statements, 762 protection of person accused, 762 falsification of books of joint-stock company, 763 declarations by railway officers, 763 occupation of house by, in burglary, 327 larceny by shareholders of, 551, 583 property, how laid, 591 how proved, 591 forgeries relating to stock of, 467, 487 See also Railway Companies. PUBLIC DOCUMENTS. See Documents. ondary e\ idem e of , L2 forging, 18] no difference between forgery of, and of private, 166 PUBLIC FUNDS. See Stock. PUBLIC HEALTH, injuries to, bv .-< llinii- unwholesome as, 340, 7 f 5 3 Q 2 968 Index. PUBLIC MEETINGS, proof of proceedings of, 4 PUBLIC OFFICERS. See Officers. appointment of, how proved, 5 presumed to be duly appointed, 16 privilege of, 137 false accounting by, 341 embezzlement by, 397, 407 larceny by, 550 misbehaviour of, 711 PUBLIC PLACE, affray in, 241 PUBLIC POLICY, privilege of witnesses on the ground of, 136 PUBLIC PROSECUTOR. See Director of Public Prosecutions. PUBLIC RIGHTS, hearsay evidence of, 25 PUBLIC ROAD, destroying game on, 511 PUBLIC USE, larceny of things set up in place for, 552 need not be alleged to be property of any person, 552 PUBLIC WORSHIP, disturbing, 390 PUBLISHER, liability of, for publication of libel, 602 PUNISHMENT. See Judgment. affidavits in aggravation or mitigation of, 199 death, 199 penal servitude, 203 imprisonment, 203 whipping. See Whip-ping. for fraudulent bankruptcy, 276 of nuisance, 707 of perjury, 740 of piracy, 746 of post office offences, 752 for prison breach, 760 for rescue, 791 QUAKERS. affirmation by, 105 proof of marriage by, 287 QUARTER SESSIONS, jurisdiction of court of, 169, 276, 299, 092, 702 whether suspended during assizes, 170 power to reserve case, 208 estreating recognizances of witnesses at, 94 can try attempted suicide, 692 disorderly houses, 702 QUASHING INDICTMENTS, 180 Index. 969 QUEEN'S BENCH, removal of proceedings into. See Certiorari. RABBITS, taking or killing, 509. See Game — Ferae Naiuroe. stealing, 454 RAILWAY COMPANIES, embezzlement by servants, 405 liability to repair bridges, 310 offences relating to, 7*34. See Railways. misconduct of servants of, 703, 704 RAILWAY STATIONS, setting fire to, 248 RAILWAY TICKET, obtaining by false pretences, 44 1 forgery of, 497 RAILWAYS, are highways, 525 obstruction to highway 1 y, 532 nuisances caused by, 700 offences relating to, 762 misconduct of servants of, 763, 764 endangering safety of passengers on, 705 obstructing engines or carriages on, 705 proof of intent, 766 what are, 766 proof of obstruction, 766 distinction between felonies and misdemeanors, 700 RAPE, 23, 767 crime of, 707 procural ion, 707 by threats, 767 by fraud, 767 by drugging, 707 carnally knowing a girl under thirteen years, 768 evidence of girl, 768 by fraudulently personating husband, 769, 773 between thirteen and sixteen, 7''''.) idiot or imbecile, 7(H) lunatic, 769, 771. See Lunatic. householder permitting, on his premises, 709, 777 abducl ioD of ^irl under eighteen. See Abduction. unlawful detent ion, 770 conviction for indecent assault, 770 custody of girl under sixteen, 770 procedure, 771 indictment, 771 costs, 771 e\ idence of complainl in cases of, 23, 775 particulars when admissible, 23 definition of, 771 infant under fourteen years of age incapable of committing, 772 husband cannot commit, on his own wife, 772 may be accessory to, 772 effect of consent, 772 consent obtained by fraud, 709, 773 970 Index. R A PE — continued. woman made drunk, 773 proof that the offence is completed, 774 proof against accessories, 775 credibility of witness making charge of, 775 woman's character for chastity impeached, 776 particular instances of unchastity cannot be proved, 776 defilement of children, 776 proof of age, 776 nature of the offence, 776 assault with intent, 776 evidence of prisoner and husband or wife admissible, 111, 776 RATIONE CLAUSTJRM, liability to repair highways, 536 RATIONE TENURE, liability to repair bridges, 310 highways, 538 REAL ESTATE, personating owners of, 428 RECALLING WITNESSES, 120 RECEIPT, where it need not be produced, 3 forgery of, 496 RECEIVING, stolen goods, evidence of guilty knowledge in, 84. See Pre- sumption. joining count to larceny, 179 forged bank securities, 473 stolen letters, 751 stolen goods, 778 where the principal is guilty of felony, 778 separate receivers, how triable, 778 persons indicted jointly may be convicted separately, 71, 778 where the principal is guilty of a misdemeanor, 778 Prevention of Crimes Act, guilty knowledge, 778, 788 venue, 779, 789 summary jurisdiction, 779 form of indictment, 779 proof of guilt of principal, 782 conviction not conclusive, 782 confession of principal not evidence, 46, 782 what is stolen property, 782 presumption arising from possession of stolen property, 783 distinction between receiving and stealing, 783 what amounts to a joint receipt, 786 husband and wife when liable as joint receivers, 787 election, 789 RECENT POSSESSION, 17, 783 RECOGNIZANCE, compelling attendance of witnesses by, 93 witness refusing to enter into, 93 of infants and married women, 93 estreating, 93, 94 forgery of, 476 Index. 971 EECOEDING JUDGMENT, 200 RECORD OF CONVICTION, how proved, 143 RECORDS, how proved, 144 of county courts, 149 forgery of, 475 property need not he laid in any person in indictment for stealing, 852 stealing, 853 RE-EXAMINATION, limits within which confined, 125 REFORMATORIES, power to send juvenile offenders to, 200 REFRESHING MEMORY, by informal return of examination of prisoner, 54 of witness by memoranda, 126 REFUSAL to execute office, 713 to supply bona fide traveller, 702 to aid constable, 796 REGISTERS, proof of, 151, 237 of newspapers, 150 making false declaration to be inserted in, 424 destroying, altering, or forging, 477, 498 giving false certificates of contents of, 177 transmitting false copy of register of, to registrar, 477 forgery of non-pai-ochial, 482 proof of destroying, defacing, or injuring - , 4S2, 498 REGISTRAR, marriage before, 287 REGISTRY of deeds, forgery connected with, 176 RELIGION, inducement of, in confession, 38 incompetency ti i want of, 103 questions as to. to ascertain competency, 103 infant witness, ignorance of, 100 REMUNERATION of witnesses, 98. See Witnesses. REPAIR of highways. See Highways. of bridges. Sic Bridges. REPLY, right to, L90, L92 no right w here prisoner only witness, 190 where evidence to character only, 192 of attorney-general, 193 972 Index. REPUTATION, evidence of, 25 evidence of, to repair bridge ratione tenures, 311 evidence of, as to liability of parish to repair highways, 583 REQUEST, for payment of money, forgery of, 474, 492 for delivery of goods, forgery of, 474, 496 EESCUE, nature of the offence, 790 proof of the custody, 790 proof of, 790 punishment, 791 aiding prisoner to escape, 417, 791. See Escape. RESERVOIRS, injuries to, 817 RES GESTM, evidence of, 22 RESOLUTIONS, how proved, 4 RESTITUTION, award of, on proof of forcible entry, 465 of stolen property, 202 by pawnbroker, 203 REVENUE, offences relating to. See Customs, Smuggling. REWARDS, for apprehension of offenders, 214 advertising, for return of stolen property, 365 keeping property in hope of reward, 579 to persons preventing smuggling, 825 RICKS. See Stacks. RINGING THE CHANGES, 564 RIOT, difference between affray and, 241 offences under the Riot Act, 793 riotously injuring or demolishing buildings, 793, 796 indictment for felony and conviction for misdemeanor, 794 seamen riotously preventing the unloading of vessels, 794 riotous behaviour at burials, 794 proof of, 794 refusing to aid constable to quell, 796 prosecutions under Riot Act, 796 proof of rout, 798 of unlawful assembly, 798 RIVER, presumption of navigable, 15 corrupting, 700 obstructing navigable. See Highways. Index. 973 EIVEE BANKS, injuries to, si 7 ROBBERY, 800 conviction for assault with intent to rob on indictment for, 71, 800 assault with intent to commit, 800 with violence, M '0 at common law, sou there m ust be a larceny, 800 proof of the taking, 801 proof of the felonious intent, 802 proof of the taking from the person, 803 in presence of the owner, 803 against the will of the owner, 804 proof of violence, 804 under pretence of legal proceedings, 806 proof of putting in fear, 806 threats to accuse of unnatural offence, 810. See Threat. putting in fear must be before taking, 815 SOMAN CATHOLIC PRIEST, confessions to, not privileged, 133 marriages by, 288, 308 ROOKS, no larceny of, 453 EOUT, proof of a, 798 SACRILEGE, 816 proof that the building is a church, chapel, &c, 816 property how laid in indictment, 816 SAILOR. See Seamen. SALMO N", 817. See Fish, Poison. poisoning water with intent to kill, 817 SALVATION ARMY, not an unlawful assembly, 799 SAVINGS BANK, appointment of clerk to, how proved, 6 larceny of goods belonging to, 554 embezzlement by officer of, 399 SCHOOL-HOUSE, breaking and entering, 392 SCHOOLMASTER, cha-t isement by, 265 SCIENTIFIC WITNESSES, examination of, as to opinion, 1-7 perjury by, 725 SCOLD, common, 705 974 Index. SCOTLAND, proof of marriages in, 288 SEA, offences at, 220—225 partly on land, 224 embankments, 817 SEALS, proof of, 152 when dispensed with, 141 her Majesty's, forging, 467 of register office of deeds, forging, 476 of register office of births, &c, -forging, 477, 498 to public documents, forging, 141, 481 to documents made evidence, forging, 141, 482 SEAMEN, conspiracy statutes do not relate to, 385 who are, 385 false personation of, 426 forgeries relating to, 482 impressment of, 687 riotously preventing the loading, &c, of vessels, 794 forcing on shore, 818 discharging or leaving behind, 818 burden of proof, 818 punishment, 818 venue, 818. SEARCH FOE, LOST DOCUMENTS, 7 SECONDARY EVIDENCE, when admissible, 2, 7. See Evidence. SECOND-HAND EVIDENCE. See Hearsay. SECRETARY OF STATE, warrant from, to bring up witness in custody, 96 SECRETS. See Official Secrets Act. SECURITIES. See Valuable Security. SELF-DEFENCE, 265, 688 killing in, 632 SENTENCE FOR MURDER, 199, 641. See Death, Judgment. persons under, incompetent witnesses, 106 SEPARATE, right of jury to, 194 SEPARATE TRIAL, of prisoners jointly charged, 189 of receiver, 778 SEPARATION of husband and wife by order of court, 199 SERVANT. See Master, Embezzlement. assault by, in defence of master, 266 occupation of house by, in burglary, 329, 330 ill-treating, 544 larceny by, 550, 573 Index. 975 SERVANT— continued. larceny of goods from, property how described, 591 by fraud, 5G9 publication of libel by, 603 correction of, by masters, 658 when not liable for maintenance for assisting master, 618 liability of master for nuisance caused by, 706 SETTING FIEE. See Arson. SEWERS, larceny of property of commissioners of, 553 SHAREHOLDERS, embezzlement by, 404 larceny by, 551, 583 SHARES. See Stock. SHED, setting fire to, 248 proof of, 254 SHEEP, killing with intent to steal, 337 killing, maiming, or wounding, 337 stealing, 337 SHERIFF, larceny of goods seized by, 588 SHIPS, setting fire to, 249, 250 meaning of term in arson, 255 impeding person endeavouring to escape from, 260 assaulting persons endeavouring to save goods belonging to, 261 placing gunpowder near, 118 setting fire to, or casting away, with intent to murder, 692 piracy, 743 mutiny, 743 riotously preventing loading, 794 stealing from, 819 in distress or wrecked, stealing from, 819 damaging, 819 by false signals or otherwise endangering, 819 removing or concealing buoys, &c, 820 injuries to wrecks, 820 by misconduct endangering safety of, 820 sending unseaworthy ships to sea, 820 neglecting i" render assistance in ease of collision, 821 venue in offences relat ing to, 821 other offences relating to, 82 1 SHOOT, attempting to, 260, 270 what aim. ii nls 1 . . ;it tempt to, 270 attempting to, with intent to murder, 692 SHOOTING, at any person, 260 into dwelling-house, an entry, 320 shooting at A., with intent to hit J!., &c, 523 gligent, 626 976 Index. SHOOTING— continued. attempting to, with intent to murder, 692 what shall constitute loaded arms, 822 proof of arms being loaded, 822 proof of shooting, 822 at vessels belonging to the navy, 825 SHOP, setting fire to, 248 riotously injuring, 796 breaking and entering, 823 what constitutes a, 823 SHRUBS, injuries to, 845, 846 SIGNALS, making false, 819 making, to vessels engaged in smuggling, 825 SIGNATURE, of prisoner to examination not absolutely necessary, 54 effect of it, 54 of witness to depositions, 64 of magistrates to depositions, 64 need not be proved, 64 to depositions before a coroner, 66 when need not be proved, 141 to public documents, forging, 141, 481 to documents made evidence, forgery of, 482 to picture, forging, 342, 466 SIGNING bill of exchange, &c, without authority, 474, 475 SILENCE, confession inferred from, 48 SILK, embezzlement of, 400 SKILLED WITNESSES, examination of, 127 perjury by, 725 SLANDEROUS "WORDS, not indictable, 599 SLAVES, offence of dealing in, 744 SMALL-POX, exposing, is an indictable offence, 705 hospital, 707 SMELL, nuisance front, 697 SMUGGLING, offence of, 824 assembling to assist in, 824 proof of assembling together, 825 proof of being armed with offensive weapons, 825 Index. 977 SM UGGLING— continued. making signals to smuggling vessels, 825 shooting at vessels belonging to navy, 825 assaulting revenue officers, 82G compensations and rewards to persons preventing, 826 indictments, how preferred and found, 826 limitation of time for prosecution for, 826 venue, 826 presumption in favour of proceedings being duly taken, and officers duly appointed, M'o' obstructing inland revenue officei-s, 827 SOCIETIES. See Industrial Societies. embezzlement by officers of, 401 larceny of property of, 553 SODOMY, at 1 1'in ] it to commit, 262 threats to accuse of, 810, 836, 811 offence of, 828 outrages on decency, 828 SOLDIERS, inciting to mutiny, 547, 743 false personation of, 426 SOLICITOR, confession to, 133 embezzlement by. See Attorney. darratry. See Barratry. SPORTS, death caused in lawful or unlawful, 623 SPRING GUNS, setting, 829 STABBING. See Wounding. STABLE, setting fire to, 2 18 msly demolishing, 793, 796 STACKS, se1 king fire to, 249 meaning of term, in arson, 254 STAGE COACHES, forgeries relating to, 183 larceny from, 218, 588 S'l AMI'S, presumption of, when doeumenl not produced, 11 proof of, when dispensed with, 141 proof of, in criminal cases, L56 on documents made e\ Ldence, forgery of, 143, 182 to public documents, forging, 48] forgery of, 483, 830 possessing materials for forging, 183 forgery Of instrument invalid for want of, I s " offences relating to, 830 eutt ing or mutilating, S30 978 Index, STAMPS— continued. selling forged, 830 possession of die, 830 possession of forged, 831 definitions, 831 lawful excuse, 831 STARVATION, no excuse for murder, 690 STATE, matters of, how far privileged, 137 STATEMENT OP PRISONER, under 11 & 12 Vict. c. 42. ..50. See Examination of Prisoner. by counsel, 191 by himself, 192 no right to reply, 192 STATIONERY OFFICE, proof of documents printed at, 141 forgery of, 481 STEALING. See Larceny. STEAM-ENGINES. See Machinery, Engines. used in mines, injuries to, 639 nuisances caused by, 700 STOCK, proofs of register, 150 forgeries relating to, in public ftmds, 467, 469 forgeries relating to, in piiblic company, 469 personating owner of, in public funds or company, 428, 469, 488 proof of forging transfer of, 487 proof of personating owner of, 48S STOLEN PROPERTY, receiving. See Receiving Stolen Goods. presumption from possession of, 17 proof of loss, 17 when loss considered recent, 18 disproving prisoner's account, 18 admissibility of declarations accompanying delivery of, 45 restitution of, to owner, 202 right to, 203 to proceeds of, 203 presumption of guilt from possession of, 17, 783 presumption arising from possession of, where owner unknown, 590 advertising rewards for recovery of, 365 taking reward for discovering, 365 STORES, 694. See Naval Stores. STRANGLE, attempts to, 260 SUBORNATION of perjury, 740. See Perjury. Index. 979 SUBPCENA, compelling attendance of witnesses by, 94 by whom issued, 94 from courts of limited jurisdiction, 94 duces tecum to produce documents, 94 four persons may be included in, 95 must be served personally, 95 when to be served, 95 not necessary where witness present, 95 for prisoner to witness for defence, 95 i 1 1 tachment of witness for not obeying, 97 SUFFEEINGS, declarations as to, 20 SUICIDE, offence of committing, 690 persuading another to commit, 690 attempted, 692 SUMMARY" CONVICTION, when offences are indictable, 70 form of indictment, 70 no prosecution for assault if case disposed of by, 261, 2 >7 in embezzlement, 398 in larceny, 554 in receiving, 779 SUMMING-UP BY COUNSEL, 189 where prisoner gives evidence, 190 SUMMONS, forgery of, 475, 499 SUNDAY, serving notice on, bad, 10 SUN DIAL, stealing, 460 SUPPRESSION of document or fact in transfer of land, 366 SURETIES, 201 whether witness can be compelled to find, 93 SURGEON. See Medical Men, Doctor. SWANS, whether subjects of larceny, 453 eggs, 453 TAKING, u bat constitutes, in abduci ion, 23 1 what constitutes, under Game Acts, 511 what constitutes, in larceny, 555 what constitutes, in robbery, 80] TALES, whet Inn' cm l.e prayed. IS I TAME ANIMALS, stealing, 154 980 Index. TELEGEAMS, 833 how proved, 3, 833 improper disclosure of, 831 forgery of, 834 TELEGEAPHS, injuries to, 832 TENANTS, occupation by, how proved, 3 occupation of house by, in burglary; 3 30 injuries to property by, 835 larceny by, 835 TENANTS IN COMMON, larceny by, 551 TEEEIEES, proof of, 152 TENDEE OP EXPENSES, 98. See Witness. THEEAT. See also Threatening Letters. effect of, to exclude confession, 35. See Confessions. burglary by, 318 larceny by, 571 robbery by, 810 stealing in dwelling-house with, 393 is evidence of malice, 650 procuration of women by, 767 demanding property with, with intent to steal, 836, 841 to accuse of crime with intent to extort, 837 inducing a person by, to execute deed, &c, 837 immaterial from whom they proceed, 837 to publish a libel with intent to extort, 837 proof of the demand, 839 proof of the threat, 840 to accuse of infamous crimes, 810, 836, 841 matter of defence, 842 THEEATENING LETTEES, sending, 836. See Threat. to murder, 336 demanding property with menaces, 836 to accuse of crime with intent to extort, 836 to burn or injure property, 837 proof of sending, 838 proof of the nature of, 840 question for the jury, 840 TICKET-OF-LEAVE MEN, effect of fresh sentence, 204 apprehension without warrant, 231 TIME, averments as to, when immaterial, 74 averment as to, when material, how proved, 77 TITLE. See Documents of Title. persons of, how described in indictment, 77 Index. 9S1 TITLE TO LANDS, fraudulent dealing with, 360 concealment, suppression, or falsification, 300 TOLL-BAES, injuries to, 848 TOLL-HOUSES, injuries to, 848 TOMB-STONE, stealing, 460 TOSSING FOR MONEY, 341 TRADE MARKS, cheating by use of false, 342 forgery of, 406, 482 TRADES, nuisance by carrying on offensive, 697, 706 TRADES UNIONS, larceny, 553. See Larceny. issiiing false copies of rules, 422 conspiracy in. See Conspiracy. TRANSFER OF STOCK, forgeries relating to, 467, 487 TRANSPORTATION, returning from, 843 punishment, 844 reward to prosecutor, 844 TREATIES. how proved, 142 TREATING, 297 TREES, setting fire t<>, 2 l-'.t, 255 stealing or destroying with intent to steal, 845 injuries to, 845, 846 TRIAL, separate, w hen granted, 189 conduct of the trial, L89. See Prosecution, Cross-Exa mint >l ion , Su>nmiifj-iiji, /><;/"« ne,\ Ixejihj. postponement of. See I'ostponemeni of Trial. new, when granted, 205, 206 TRIAL AT HAL. sentence, 197 TRICK, confessions obtained by, 13 larceny by, 560 ei seq. TRUE BILL, how proved. 1 15 3 R 982 Index. TRUSTEES, exception in favour of. 242 in bankruptcy may report for prosecution, 276 fraud by, 848 fraudulently disposing of property, 848 who are within the Act, 84S TURNPIKE GATES, injuries to, 848 TURNPIKE ROAD, larceny of property of trustees of, 552 TURNPIKE TICKET, forgery of, 496 UNDERTAKING for payment of money, forgery of, 4/4, 492 UNDISCHARGED BANKRUPT, 276, 277 UNDUE INFLUENCE, 297 UNKNOWN PERSONS, larceny of goods, 590 UNLAWFUL ASSEMBLY, proof of an, 798 UNLAWFUL COMBINATIONS, 710 UNLAWFULLY WOUNDING, conviction for, on indictment for felony, 267, 850. See Wounding. UNNATURAL OFFENCE, offence. 828 robbery by means of threat to accuse of, 810 et scq. threatening to accuse of, 836, 841 UNSTAMPED INSTRUMENT, forgery of, 487 UNSWORN WITNESS, 101, 768 UNWHOLESOME PROVISIONS, offences of selling, 340, 704 UTTERING. See Coin, Forgery. evidence of guilty knowledge, 81 counterfeit coin, proof of, 355 meaning of term, 360 forged instrument, proof of, 499 VALUABLE SECURITY, agents, &c, fraudently pledging, 242 — 247 meaning of term in Larceny Act, 548 meaning of term in statutes relating to post-office, 753 larceny of, 852 Index, 983 VALUE, averments as to, 74 averments as to, when material how proved, 78 proof of, of effects concealed by bankrupt, 28] proof of, of goods stolen in dwelling-house, 392, 394 whether goods stolen must be of some, 587 VEGETABLES, injuring, 187 VENUE, local offences, 77, 78 in offences l>y accessories, 164 jurisdiction depends on, 169 statutory regulations as to, 217 offences committed on boundary of two counties, I' 17 offences committed partly in one county and partly in another, in detached parts of counties, 21 8 in coaches or vessels, 2is in county, or city, or town corporate, 219 at sea , 221 » jurisdiction of Admiralty, 220 — 223 partly at sea and partly on land. 223 abroad, 22:5 where property carried through several counties. 225 jurisdiction of Central Criminal Court . 225 change of, 227 in indictment against bankrupt, 281 in bigamy, 29 I in indictment for non-repair of bridges, 312 in challenging to fight, :5:5<) in offences relating to coin, 358 in conspiracy, 378 in embezzlement, 397, HO in obtaining money by false pretence-. 152 in forgery and offences connected therewith, 179, 507 in larceny, 551, 592 proof of, in libel, 608 in piracy, 7 I ' I in offences relating to post-office, 751 in indictment for receiving, 779, 789 in offences relating to ships, 818, 821 in prosecutions for smuggling, 826 VERDICT, proof of, 1 Hi discharge of jury wit bout, 193 how t.. be dcli\ ered, L95 may be amended, 195 re-con - iderat ion of, L95 effect of, upon pleadings. See Judgment, Election, Amendment. VESSELS. See Ships. VEXATIOUS INDICTMENTS ACTS, L66, 877. See Indictment, and Statute in Appendia . in bankruptcy, 276 in false pretences, 130 in perjury. 739 in rape, 771 ••; i: 2 984 Index. VIVISECTION, 338. See Cattle. VOIR DIRE, 12] VOLUNTARY OATHS, 710 VOTERS, offences by, 297, 395 paying travelling- expenses of, 299 falsifying lists of, 341 false declarations by, 423 false personation of, 427 WAGES, conspiracy to raise, 380 WALES, proof of marriages in, 287 WALLS, breaking, in burglary, 317 WAREHOUSE, setting fire to, 248 breaking and entering, 392, 823 embezzlement of goods in, 399 WARRANT, to compel attendance of witness, 96 apprehension without, 229, 230 for payment of money, forgery of, 474 in embezzlement, 397 for delivery of goods, forgery of, 474, 496 execution of. See Murder. WASHERWOMAN, larceny of goods in possession of, 589 WATER-COURSE, corrupting, 700 WEIGHTS AND MEASURES, offence of using false, 341 false pretence as to. See False Pretences. WHIPPING, in cases of arson, 248 et seq. destroying bridges, 312 garotting, 261, 800 perjury, 347 boys under eighteen, 365 explosives, 418 of carnally knowing girls, 768, 772 larceny, 548 damaging machinery, 614 manufactures, 638 mines, 639 subornation of perjury, 740 poisoning fish, 749 railway offences, 765 damaging sea and river banks, mill-dams, &c, 817 I n ilex. 9S5 WHIPPING- continued. in cases of damaging ships, 819 larceny by tenant or lodger, 835 threats, 836 damaging trees, shrubs, &c, 845 WIDOWS of persons killed in apprehending offenders, allowance to, 21G WIFE. See Husband and Wife, and Married Women. when incompetent as a witness, 107 when competent witness, 107, 109 in bigamy, 111, 285 in other cases, 111, 112 venereal disease communicated by husband, 264 occupation of house by, in burglary, 327 larceny by, 584 when criminally liable, 868 evidence of being a wife, 868 WILL, concealment of, 366 obtaining property by means of forged, 478 forgery of, 171, 490 property need not be laid in any person in indictment for stealing, 852 stealing, injuring, or concealing, 852 WINDOWS, proof of breaking, in burglary, 315 WITNESSES, when their depositions may be used, 58 et seq. See Depositions. may be proved to be not credible, 89 or not impartial, !*() or may be contradicted on material points, 91 contradicting party's own, ill confirming party's own, 91 compelling attendance of, 93 by recognizance, 93 on postponement of trial, 93, 185 refusing to be bound over, 93 whether they may be compelled to find sureties, W infants and married women, 93, 100 estreating recognizances, 93, 94 by subpccna, !) I by whom issued, !l I from courts of limited jurisdiction, 9 I subpoena duces tecum to produce documents, 94 if producing documents only, not to be cross-examined, 95 and need not lie sivi rn, !)o four persons may be included in one subpoena, 95 must be served personally, 95 within what time to he served, 95 not necessary when witness is present, 95 prisoner may subpoena witnesses, 95 compelling attendance l>y writ of huhv< is m, r ns nd testificandum, W by warrant from the secretary of state. 96 by warrant from a judge, 96 neglecl to obey subpoena, 97 motion for attachment, 97 980 Index, WITNESSES— continued. remuneration of, 98 expenses need not be tendered, 98 except in certain cases, 98 protection of, from arrest, 98, 99 incompetency of, from want of understanding, 100 infants, 100 postponing trial in order to instruct, 101. See Postponement. degree of credit to be given to infants, 101 deaf and dumb persons, 102 idiots and lunatics, 102 incompetency of, from want of religion, 103 oath or affirmation necessary, 103 no one excepted from taking oath, 103 nature of religious belief requisite, 103 belief how ascertained, 104 inadvertently not sworn, 104 . form of oath to be administered to, 104 depends on the religion of-witness, 104 sufficient for purposes of perjury if declared by witness to be binding, 104, 105 affirmation in lieu of oath, 105 persons excommunicated or under sentence of death, 106 incompetency of, from interest, 107 the person charged, 107 can now give evidence on his own behalf, 107 husband and wife, 107, 143 both incompetenbat common law, 107 l>ut can give evidence for defence now, 107 but only when one or other is on the trial, 107 ride only extends to persons lawfully married, 108 where other persons indicted with them, 108 where they are only implicated, 109 does not apply to cases of personal violence to each other, 109 how far it applies to bigamy, 109, 111 exceptions under Conspiracy Act, 111 other exceptions, 111, 112 incompetency in other cases, 112 grand jurymen, 112 judges, 112 petty jurors, 112 , accomplices always admissible, 113. See Accomplice application to admit accomplice must be made to the court, 113 how he is to be taken before grand jury, 113 when prisoner will be discharged in order that he may give evidence, 113 when competent for prisoner, 1 14 promise of pardon, 114 corroboration of accomplice, 114. 115 corroboration of other witnesses, 118 ordering out of court, 119 witness who remains not incompetent, 119 on back of indictment, usual to call, 119 but prosecutor not bound to do so, 119 nor to give their places of residence, 119 in cases of homicide, 120 judge may order to be called, 120 recalling and questioning by court, 120 right to cross-examine in such cases, 120 . Index. 987 WITNESSES— cowtin ued. objection to competency of, when to be taken, 121 examination of, in chief, 121 contradicting your own witness, 91, 121 cross-examination of, 122 cross-examination of prisoner, 123 when prisoners separately defended, 123 as to previous statements in writing-, 123 on depositions, 56, 12-1 as to credibility, 124 refusal to answer. See Privilege of Witness, proof of previous conviction of, 143. See Privileged Witness. latitude allowed in cross-examination, 1 2 I producing documents only, not sworn, 95, 125 not cross-examined, 125 re-examination of, 125 limits within which confined, 125 refreshing memory of, by memoranda, 125 what memoranda may be used, 126 informal depositions, 54, 126 photograph, 126 examination of, as to belief, 126 examination of, asto opinion, 127 skilled persons, 127 medical men, 127 engravers, 127 foreign lawyers, 128 privilege of, 129. See Privilege. compelled to answer under Corrupt Practices Act, 131 Explosive Substances Act, 131 bankruptcy, 44, 140. See Bankruptcy. right to decline to answer, 131 questions tending to degrade, 132 costs of prisoner's, 214. Sec Costs. number requisite in perjury, 734 • intimidation of, 714 credibility of, making charge of rape, 775 character of, for general chastity maybe impeached in rape, 776 in indecent assault, 272 attesting. See Attesting Witness. ■ WOMEN, abduction of. See Abduction . WOODS, setting fire to, 2 I'.', -'>'> WOOL, . stealing from sheep, 153 WOOLLEN GOODS, embezzlement of, K h i WORKMEN, assault by. in combination, 384 combinations and conspiracies by, in restraint of trade, ;'>s (| WORKS OF ALT, injuring, 8 I'.t WORSHIP, PUBLIC. See Public Worship. 988 Index. WOUNDING, with intent to do grievous bodily harm, 267, 521 unlawfully, 267, 850 with intent to murder, 692 conviction for unlawfully, on indictment for felony, 71, 524, 850 conviction for common assault on indictment for misdemeanor, 267 cattle, 337, 338 proof of, 850 proof of malice, 851 WRECK, impeding person endeavouring to escape from, 260 assaulting person saving property, 262 stealing from, 819 injuries to, 820 WR.T, proof of, 147 of error, 198, 204 forgery of, 475, 499 Larceny of, 853 WRITTEN DOCUMENTS. See Documents. cross-examination as to contents, 123 evidence of contents of. See Evidence. cross-examination of witness producing documents only, 125 of no value, larceny of, 587 larceny or destruction of, 852 form of indictment for, 852 stealing wills, 852 effect of disclosure, 852 stealing records or other legal documents, 853 no larceny of, at common law, 853 what are within the statutes, 853 taking with a fraudulent purpose, 855 WRONGFUL DISCHARGE of seamen, 818 THE END. 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