all other offences committed on the high seas, out of the body of any county of this realm. 39 G. 3, c. 37. The mode of proceeding by commission under stat. 28 H. 8, c. 15, however, was found to occasion considerable delay in the trial of these offences; and therefore the legislature, upon the establishment of the central criminal court, gave that court jurisdiction of all offences "committed or alleged to have been committed on the high seas, and other places within the jurisdiction of the admiralty of England;" 4 & 5 W. 4, c. 36, s. 22; and in practice, such offences are now always tried by the central criminal court, at the Old Bailey, in London. This, however, makes no alteration in the practice of commitment by justices for such offences: the justice still commits to the county gaol, &c.; the gaoler transmits a copy of the warrant to the home office; and the offender is thereupon removed to London for trial. What is above mentioned, relates to the trial of offences committed on the high seas, &c. within the jurisdiction of the admiral. But if persons, charged in England, as principals or accessories, with murder or manslaughter committed on land out of the United Kingdom, whether within the Queen's dominions or without, be committed for trial or admitted to bail, a commission shall issue, under the great seal, to such persons as the lord chancellor shall appoint, for the purpose of trying them; but it is provided that peers, against whom any indictment shall be found before such commissioners, shall be tried by their peers, as heretofore used. 9 G. 4, c. 31, s. 7. As to the punishment of offences committed at sea: By stat. 7 & 8 G. 4, c. 28, s. 12, all offences, prosecuted in the high court of Admiralty of England, shall, upon every first and subsequent conviction, be subject to the same punishments, whether of death or otherwise, as if such offences had been committed upon the land. And this Act would, I think, be holden to extend to all offences committed at sea, for which the offenders are prosecuted before the Central Criminal Court. AFFRAY. At Common Law.] Lord Coke (3 Inst. 158), and after him Hawkins (1 Hawk. c. 63, s. 1), define an affray to be, a public offence to the terror of the people. This indeed is not very definite. But it may safely be laid down, that all violence not amounting to felony, and all preparations for violence, used publicly, and calculated to terrify the people, is an affray. f two men fight in the public highway, it is an affray. If several persons arm themselves in a dangerous and unusual manner, for the purpose of a breach of the peace, and shew themselves publicly thus armed, it is an affray. But no words, however quarrelsome or threatening, amount to that offence. 1 Hawk. c. 63, s. 2. at common law, punishable An affray is a misdemeanor at with fine or imprisonment, or both. Commitment :-on and highway there, unlawfully and to the great terror and disturbance of Her Majesty's subjects there being, did make an affray. And you the said keeper," &c. By statute.] By the statute of Northampton, 2 Ed. 3, c, 3, no man shall come before the King's justices, or other of the King's ministers doing their office, with force and arms, or bring any force in affray of the peace, or go or ride armed, by night or by day, in fairs, markets or elsewhere, or in presence of the justices or other ministers: upon pain of forfeiting his armour to the king, and his body to prison, at the king's pleasure constables and wardens of the peace within their wards, shall have power to execute this Act. According to Hawkins, a justice of the peace may, ex officio, proceed to the place where such an affray occurs, may seize the offender's arms, and commit the offender himself to prison. Or if the matter take place in his absence, he may have the facts found by an inquest taken before him, and may commit the offender. The justice should then make a record of the whole proceeding, and transmit it to the Exchequer. 1 Hawk. c. 63, s. 5, 6. It is scarcely necessary to say, that this very rarely occurs in practice. How and by whom suppressed.] Any private persons, if they see others fighting, may lawfully part them, may stay them until the heat be over, and may then deliver them to a constable, for the purpose of his taking them before a justice of the peace. 1 Hawk. c. 63, s. 11. A fortiori may a justice of peace interfere in this way. Id. s. 18, 19. So a constable not only may, but must, interfere, if he see persons fighting or preparing to attack each other; he may imprison them for a reasonable time, until the heat be over, and should then take them before a justice of the peace; Id. s. 14; but he cannot arrest them, without warrant, where the affray has not been within his view. Id. s. 17. AGENT, BANKER, &c. Embezzlement of money, &c. by.] "If any money or security for the payment of money, shall be intrusted to any banker, merchant, broker, attorney or other agent, with any direction in writing to apply such money or any part thereof, or the proceeds or any part of the proceeds of such security, for any purpose specified in such direction, and he shall, in violation of good faith and contrary to the purpose so specified, in any wise convert to his own use or benefit such money, security or proceeds, or any part thereof respectively:" misdemeanor, transportation for not more than 14 nor less than 7 years; or such fine or imprisonment or both, as the court shall award. 7 & 8 G. 4, c. 29, s. 49. This however is not to apply to trustees, or to mortgagees of real or personal property, in respect of any act by them with relation to the property in trust or mortgage; nor to bankers, &c. receiving money payable on such security, according to the tenor and effect thereof; nor to bankers, &c. selling, transferring or disposing of such securities or effects, to the extent of any lien, claim or demand enabling them by law to do so. Id. s. 50. See also sect. 52, post p. 15. Where the prisoner, a merchant and the private friend of the prosecutor, advised him, as money was likely to be scarce, to get bills discounted to answer any demand upon him, and offered to get them discounted for him: one bill for 15661. 48. he accordingly got discounted, and handed the money to the prosecutor; another for 16811. 5s. was entrusted to him for the same purpose, but of which he rendered no account being indicted on stat. 55 G. 3, c. 63, (which in this respect was nearly the same as the above section), Abbott, C. J. held, that he was not an agent within the meaning of the statute, saying that the statute extended only to cases where agents were entrusted with bills, &c. in the exercise of their particular functions or business. R. v. Prince, 2 Car. & P. 517, Moody & M. 21. Where an indictment on the same statute, charged that the defendant was entrusted with Exchequer bills and money to the amount of 1200l. with a written direction to lay it out in the funds, and it appeared in evidence that the written instruction, after stating that the prosecutor was going abroad, desired the defendant to lay out the 12001. in the funds, for the prosecutor's son, in the event of any accident happening to the prosecutor, and it appeared that no such accident did happen: Lord Tenterden, C. J. held that this evidence did not sustain the indictment; and the defendant was accordingly acquitted. R. v. White, 4 Car. & P. 46. at Commitment:-That on --, one C. D. did intrust to A. B. (he the said A. B. being then a banker and agent, or as the case may be), the sum of one hundred pounds, [or as the case may be], with directions to the said A. B. in writing to apply the said sum of money for a certain purpose then and there specified in the said directions, that is to say, [here state the substance of the directions]; and that the said A. B. afterwards on at in violation of good faith, and contrary to the purpose so in the said directions specified as aforesaid, unlawfully did convert to his own use and benefit, the said sum of money [or as the case may be] so to him entrusted as aforesaid: against the form of the statute in such case made and provided. And you the said keeper," &c. Selling, &c. chattels or securities entrusted to him.] "If 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 this kingdom, or of Great Britain or of Ireland, or of any foreign state, or in any fund of any body corporate, company or society, shall be entrusted to any banker, merchant, broker, attorney or other agent, for safe custody or for any special purpose, without any authority to sell, negotiate, transfer or pledge, and he 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 entrusted to him, sell, negotiate, transfer, pledge, or in any manner convert to his own use or benefit 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 :" Misdemeanor, transportation for not more than 14 nor less than 7 years; or such fine or imprisonment or both, as the court shall award. 7 & 8 G. 4, c. 29, s. 49. The 50th section, (ante, p. 13), providing that the Act shall not apply to trustees, mortgagees, &c. applies equally to this as to the last offence. See also sect. 52, post, p. 15. Commitment: that on trust to A. B. for safe custody [or for the purpose of· the said A.B. being then a banker and agent, or as the case may be,) a certain promissory note, drawn by one E. F. for the payment of fifty pounds [or as the case may be], without any authority to sell, negotiate, transfer, or pledge the same; and that the said A. B. afterwards on in violation of good faith, and contrary to the object and purpose for which the said promissory note was so entrusted to him as aforesaid, unlawfully did negotiate, transfer, and convert to his own use and benefit [or as the case may be] the said promissory note; against the form of the statute in such case made and provided. And you the said keeper, &c." at at one C. D. did en-] (he Factor pledging the property of his principal.] "If any factor or agent, entrusted, for the purpose of sale, with any goods or merchandize, or entrusted with any bill of lading, warehousekeeper's or wharfinger's certificate, or warrant or order for delivery of goods or merchandize, shall, for his own benefit, and in violation of good faith, deposit or pledge any such goods or merchandize, or any of the said documents, as a security for any money or negotiable instrument borrowed or received by such factor or agent at or before the time of making such deposit or pledge, or intended to be thereafter borrowed or received:" misdemeanor, transportation for not more than 14 nor less than 7 years; or such fine or imprisonment, or both, as the court shall award. 7 & 8 G. 4, c. 29, s. 51. But this is not to extend to such factors or agents as deposit or pledge such goods or documents, merely as a security for such sums as may be due to them from their principal, or for the amount of any bills drawn by or for their principal, on and accepted by them. Id. See also sect. 52, infra. at Commitment:-" That on one C. D. did intrust to A. B. (he the said A. B. being then and there a factor and agent) one thousand quarters of wheat, of the value of three thousand pounds, for the purpose of selling the same [or as the case may be]; and that the said. B. afterwards on - at for his own benefit, and in violation of good faith, unlawfully did deposit and pledge the said one thousand quarters of wheat with one E. F. as a security for a sum of two thousand pounds [or as the case may be] by the said A. B. then borrowed and received [or by the said A. B. before that time borrowed and received, or by the said A. B. then intended to be thereafter borrowed and received] of and from the said E. P. against the form of the statute in such case made and provided. And you the said keeper," &c. And with reference to each of the three offences, under this head, it is provided by the 52nd sect. of the statute (7 & 8 G. 4, c. 29) that no banker, merchant, broker, factor, attorney, or other agent, shall be liable to be convicted by any evidence whatever, as an offender against this Act, in respect of any act done by him, if he shall at any time previously to his being indicted for such offence have 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 disclosed the same in any examination or deposition before any commissioners of bankrupt." |