:

c. 39.

money for building or rebuilding, repairing or enlarging any prison, 11 & 12 VICT. court house, or other necessary buildings to be used therewith, and to secure the repayment of such money as therein mentioned: and that it is expedient that greater facilities should be given to such councils for raising and from time to time repaying moneys levied for the purposes aforesaid and that "The Commissioners Clauses Act, 1847," contains certain clauses with respect to mortgages executed by the commissioners, and that it would be attended with public advantage if such clauses were made applicable to mortgages and bonds executed by councils of boroughs under the powers of the said act relating to prisons: it is enacted, "that the several clauses in the said 'Commissioners Clauses Act, 1847,' Clauses in contained with respect to mortgages executed by the commissioners, 10 & 11 Vict. save as to such of the provisions thereof as are or may be inconsistent mortgages with the provisions of this act, and save as hereinafter excepted, shall be extended to this incorporated with and form part of this act, and shall be applicable to all mortgages or bonds which may at any time have been or shall be granted under the common seal of any borough by virtue of the provisions of the said recited act to amend the Laws concerning Prisons."

999

c. 16, respecting

act.

done by the com

council and town

Sect. 2. "That everything which by The Commissioners Clauses Act, Matters to be 1847,' is provided or required to be done, and all powers which may be missioners and exercised by the commissioners respecting any mortgages of rates or other their clerk may property, shall and may be lawfully done by the council of any such bo- be done by rough as aforesaid, with respect to moneys raised or to be raised under clerk. the provisions of the said recited act, to amend the Laws respecting Prisons,' and everything which by the said Commissioners Clauses Act, 1847,' is provided or required to be done in relation to the borrowing or raising moneys by the clerk to the commissioners shall and may be lawfully done by the town clerk of any such borough.'

enforce payment

Sect. 3. "That the mortgagees or bondholders of the corporation shall Mortgagees may be empowered to enforce the payment of the arrears of interest or of the of arrears by arrears of principal and interest due to them by the appointment of a appointment of receiver, in the same manner as is directed by the said Commissioners Clauses Act, 1847.'

999

receivers.

Sect. 4. "That the 84th clause in the said Commissioners Clauses 10 & 11 Vict. Act, 1847,' which provides for the repayment of moneys borrowed on the sinking fund not c. 16, s. 84, as to security of rates by a sinking fund within a limited period, shall not apply to apply to this to or be incorporated with this act."

act.

loans to be paid

Sect. 5. "That if the council shall at any time borrow or take up at Money raised to interest any sum of money at a lower rate of interest than any securities pay off prior given by them and then in force shall bear, the money so borrowed at a off within the lower rate of interest shall be paid off within the period of thirty years, to original period be calculated from the time when the money paid off was originally bor- of thirty years.

rowed in the first instance."

be provided.

Sect. 6. "That in order to discharge the principal money borrowed, Sinking fund to which the said council are by the provisions of the said recited act for amending the Laws concerning Prisons' required to pay off within the term of thirty years, the said council shall every year appropriate and set apart a sum equal to not less than six pounds and ten shillings per centum on the amount of every sum so borrowed by them respectively, and shall apply such sum from time to time, after payment thereout of the interest from time to time becoming due, as a sinking fund in paying off the respective principal moneys so borrowed, and shall from time to time cause such sinking fund to be invested in the purchase of Exchequer Bills or other Government Securities, and to be increased by accumulation in the way of compound interest, or otherwise, until the same respectively shall be of sufficient amount to pay off the principal debts respectively to which such sinking fund shall be applicable, or some part thereof, which the said council shall think ought to be then paid off, at which time such accumulated moneys or an adequate part thereof shall be so applied in paying off such principal debts in the manner mentioned in the said 'Commissioners Clauses Act, 1847.'"

Highways.

Order of justices A NOTICE to the surveyors of highways of an intended application by for contribution the clerk of turnpike trustees to justices, for an order for contribution out of highwayrates to the funds to their funds out of the highway rates, need not state what part (if any) of turnpike trusts of the turnpike road is out of repair, or to what purposes the money is form of order to be applied, or that the road is within the division for which the justices act. It is sufficient if it gives full knowledge of the nature of the application.

sufficiency of, &c.

Indictment for nonrepair by a township

necessary averment.

Question of sufficient repair upon

The order itself recited the information of the clerk as to the state of the road and of the funds of the trustees, and that notice had been given to the surveyors. It stated the appearance of the surveyors, and an inquiry into the matter, and then ordered payment of a sum of money by the surveyors, out of the next rate to be made for the repair of the highways within the hamlet. Held, that the order was valid; that no express adjudication that the information was true, or that the surveyors had had notice, was necessary, because, first, the information of the clerk alone gave the justices jurisdiction; and, secondly, it appeared, by reasonable intendment, that the justices had held the information to be true. That it was unnecessary to specify in the order what part of the road was out of repair, because the justices have jurisdiction to make the order, if the funds of the trust are insufficient for the general repair of the road, although, at the date of the order, no part of the road should be actually out of repair. That the order might properly be for payment out of the "next rate to be made." That it sufficiently appeared that the hamlet was one maintaining its own highways, from the description of the rate, and of the defendants as surveyors for the hamlet. That it was unnecessary to set out the state of the revenues, or the length of the road out of repair. That the order sufficiently showed that the money was to be paid out of rates made under the Highway Act, and not out of a common law rate, because the adjudication must be taken to apply to the rate mentioned in the information, and that was a rate "by virtue of the statutes." It was objected (upon affidavit), that the order was untrue in stating the appearance of the defendants, but the court overruled the objection, because it appeared clearly that the defendants had notice, and that, therefore, the jurisdiction of the justices was not affected by their absence, and because the defendants had obtained the rule for a certiorari, absolute in the first instance upon the objections in point of form. (Reg. v. Preston, 3 New Mag. Cas. 66; 18 L. J. M. C. 4—10.) By a local act for the improvement of a particular portion of a parish it was provided, that every inhabitant or owner who should be assessed for the rates made under that act for any lands or tenements within the limits of the act should be released and free from all rates and assessments towards the paving and lighting any other street, road, or place within the parish, in respect of such lands and tenements. Held, that this did. not exempt an occupier of premises assessed within the local district from being assessed in a general highway-rate imposed upon the whole parish, although a portion of such rate might be expended in paving parts of the parish out of the district. (Richardson v. Tubbs, 4 C. B. 4.)

An indictment against a township for the nonrepair of a highway must aver that the road in question was a road which, but for the custom, would have been repaired by the parish. (2 Cox's Crim. Cas. 184, Alderson, B.)

Upon an indictment for nonrepair of a highway, the question for the an indictment for jury is not whether the road is in as good repair as it ever was or usually nonrepair of a has been, but whether it is in a state of sufficient repair with reference to

highway.

the present use of it. (Reg. v. Inhabitants of Henley, 2 New Mag. Cas.

354; 10 Law T. 110.)

of a dedication.

Public use of a road for fifty years is evidence from which a jury may User-Evidence infer a dedication, though it may not be clear in whom the ownership of the soil is vested. (Reg. v. Inhabitants of East Mark, 2 Cox's Crim. Cas. 60; 17 L. J. 181, M. C.) If, upon the trial of an indictment for the nonrepair of a highway Judge no power ordered by justices under the 5 & 6 Will. 4, c. 50, s. 94, it appears that to certify for the road indicted is not the road set out in the order of justices, and the that the road prosecution fails in consequence, the judge has no jurisdiction to certify indicted is not for costs under sect. 95. (Reg. v. Inhabitants of Fifehead, 3 Cox's Crim. the order of Cas. 59; New Mag. Cas. 60.)

costs if it appears

that set out in

disobedience to

against a certifi

&c. a public

justices. Upon the trial of an indictment for disobedience to an order of sessions, Evidence upon made upon appeal by the defendant against a certificate of two justices, an indictment for for stopping up, diverting, and turning a public footway, the prosecutors an order of gave in evidence the record of the order of sessions, and proved service sessions made upon the defendant of a copy, and demand and refusal of the amount of upon an appeal costs thereby ordered to be paid by the defendant. The only answer cate of justices made by the defendant when the money was demanded was, that he did for stopping up not owe anything. Held, sufficient evidence to go to the jury that the footway. offence charged had been committed, and that it was not necessary to prove, aliunde, the evidence of the certificate or the fact of the appeal. The appeal against such certificate given by the 5 & 6 Will. 4, c. 50, s. 88, is to the sessions "next after the expiration of four weeks from the day of the said certificate, &c., having been lodged with the clerk of the peace." Held, that the order was not bad for not showing the time when the certificate was lodged, as that was a fact of which the sessions had no judicial knowledge, and into which they were not bound to inquire, unless the objection were raised incidentally before them. By sect. 90 of the 5 & 6 Will. 4, c. 50, the sessions, upon such appeal, are empowered to order the appellant to pay the costs of the respondent, as well as to order the surveyor to pay the appellant's costs. (Reg. v. Thornton, 2 Cox's Crim. Cas. 493; 2 New Mag. Cas. 320; 10 Law T. 184.)

An order was made by the justices of the county of S. for stopping Notice of appeal up certain footways. Notice of appeal was served for the sessions to be against an order for stopping up a holden at I. After service of the notice of appeal the respondents gave footway-time notice of their intention to abandon their application. The sessions were for giving. holden first at B., on the 3rd of January, thence, by adjournment, to I., on the 7th, on which day the appellant attended and applied for costs of opposing the order, under sect. 90. The justices refused to hear the appeal because notice was not served ten days before the sessions at B.; and the Court of Queen's Bench, upon these facts, refused to grant a mandamus to compel them. (Reg. v. Justices of Suffolk, 12 Jur. 480.)

In Reg. v. Irving, 3 New Mag. Cas. 22, it was doubted by the Court of Queen's Bench whether, if a person passed through a turnpike gate and evaded the toll, but did so peaceably and under a claim of right bona fide made, he was liable to a penalty of 107., under the 3 Geo. 4, c. 126, s. 139; 11 Law T. 219.

By the 11 & 12 Vict. c. 66, intituled "An Act to continue to the First 11 & 12 Vict. Day of October, One Thousand Eight Hundred and Forty Nine, and to the c. 66. end of the then next Session of Parliament, an Act for authorizing the 4 & 5 Vict. c. 59, Application of Highway Rates to Turnpike Roads" (passed 31st August, limited time. 1848), the said act was continued accordingly.

continued for a

By the 11 & 12 Vict. c. 96, intituled "An Act to continue certain 11 & 12 Vict. Turnpike Acts for limited Periods" (passed 31st August, 1848), certain c. 96. turnpike acts therein specified were continued for a limited period.

Manslaughter through negligent driving.

Homicide by accident.

Manslaughter

where prisoner cannot be

Homicide.

See "Challenge of Jurors," "Evidence," ante, "Indictment," post.

THE prisoner (who was indicted for the manslaughter of one Henry Clarke, by negligently driving over him) was standing up in a spring cart, and having the conduct of it along a public thoroughfare. The cart was drawn by one horse. The reins were not in the hands of the prisoner, but loose on the horse's back. While the cart was so proceeding down the slope of a hill, the horse trotting at the time, the deceased child, who was about three years of age, ran across the road before the horse, at a distance of a few yards, and one of the wheels of the cart knocking it down and passing over it, caused its death. It did not appear that the prisoner saw the child in the road before the accident. Erle, J., in summing up, directed the jury that a party neglecting ordinary caution, and by reason of that neglect causing the death of another, is guilty of manslaughter; that if the prisoner had reins, and by using the reins could have saved the child, he was guilty of manslaughter; but that if they thought that he could not have saved the child by pulling the reins, or otherwise by their assistance, they must acquit him. (Reg. v. Dalloway, 2 Cox's Crim. Cas. 273.)

A drunken man went into a shop, and in a joke seized a boy round the neck and began spinning him round until they got together into the street. The boy having at length broken away, the prisoner in consequence staggered into the road, and fell against a woman who was passing, knocked her down, and she shortly afterwards died of the injuries she had received. It appeared that the boy made no resistance to the prisoner's treatment of him, believing that it was merely done in play. Upon this it was held that there was no evidence to support a charge of manslaughter. (R. v. Bruce, Cox's Crim. Cas. 268, Erle, J.)

A prisoner indicted for manslaughter was proved to have assaulted the deceased some time before her death, but the surgeon who examined the committed of an deceased after death was of opinion that her death was owing entirely to natural causes. Upon this it was held that the jury could not find the prisoner guilty of an assault, under the 7 Will. 4 & 1 Vict. c. 85, s. 11. (Reg. v. Connor, 2 Car. & Kir. 518.)

assault.

party in county

Indictment.

See "Criminal Justice (Amendment,)" "Criminal Law (Amendment,)" "Evidence," ante, "Post Office," post.

As to indicting a VENUE.]—If a man kill a sheep in county A., and carry the carcase into B. who has killed county B., he may be convicted upon an indictment for stealing, taking, a sheep in another and driving away the sheep in county B. If a man kill a sheep in county A., and carry the carcase into county B., he cannot be convicted of killing the sheep with intent to steal the carcase in county B. (Reg. v. Newland, 2 Cox's Crim. Cas. 283, Wilde, C. J.)

county but carried it into B.

The court will take judicial notice that the

term "esquire"

is merely an addition.

Addition.The prosecutor was termed in the indictment Joseph Nunn Brewster, Esquire; it was proved that his name was Joseph Nunn Brewster, but no evidence was given that he was an esquire. Held, that the court would take notice that esquire was an addition, and not part of

the name, and that it was immaterial that such addition should be proved as laid. (Reg. v. Keys, 2 Cox's Crim. Cas. 225, Wilde, J.)

Misnomer of prosecutor.]-Indictment charged that defendant made an What misnomer assault upon Henry B. B. and him the said William B. B., did beat, cured by verdict. wound, and illtreat. Held good upon motion in arrest of judgment.

(Reg. v. Crespin, 12 Jur. 433, Q. B.; 11 Law T. 150.)

the statute.

Following words of the statute.]—The 33 Geo. 3, c. 52, s. 62, enacts Stating offence "that the demanding or receiving any sum of money or other valuable in the words of 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 person whatsoever, by any British subject holding or exercising any office or appointment under his Majesty or the Company of the East Indies, shall be deemed to be extortion, and a misdemeanor at law, and punished as such." Held, upon motion in arrest of judgment, first, that it was sufficient to charge the receipt of the gift in the words of the statute, without showing that the donor was an Asiatic: secondly, that it was unnecessary to allege that the moneys received were the property of the person named in the count as the person from whom they were received: thirdly, that it was unnecessary to allege that it was by colour of the defendant's employment or office which would be essential to constitute extortion at common law, as the statute made the act described amount to extortion: fourthly, that it was unnecessary to state for whose use the money was received. (Reg. v. Douglas, 2 Cox's Crim. Cas. 251'; 16 L. J. 376, Q. B.)

support a count

Abandonment of an infant.]—An indictment against a single woman What not suffifor abandoning a male bastard child, with intent to injure the inhabitants cient evidence to of the parish, and to burthen them with the charge and maintenance of abandoning a of the child, is not supported by evidence of the prisoner having left the child with intent child in a ditch in a field in the parish, that not being a public spot in in injure the which it would easily be found, and come to the knowledge of the parish parish and officers. (Reg. v. Renshaw, 2 Cox's Crim. Cas. 285; 11 Jur. 615.)

99.66

inhabitants of a

burthen them with the charge of the child.

disobedience to

Church-rate.]—An indictment for disobedience of an order of justices Sufficiency of an for payment of a church-rate, alleged in prefatory allegations, that the indictment for rate was “duly made,’ 'duly allowed," and that the defendant was " duly an order of jusrated." Held sufficient, without stating the facts which constituted the tices for payment due making, &c., because this was matter of inducement only. Held of a church-rate. also, that as on a sufficient complaint on oath by the churchwardens, the justices would have had_jurisdiction to make the order, these allegations were unnecessary. In such an indictment it is not necessary to aver that the churchwardens were authorized to collect and receive the rate when they demanded it, if it be averred that they were so at the time when the defendant refused and neglected to pay it, which is the offence, nor is it any valid objection to such an indictment that in stating the warrant to appear, it is alleged that in the warrant "it is recited as is therein recited," as enough of the warrant would be stated without mentioning the recital. In such an indictment, an allegation that the justice made his warrant whereby he did summon, convene, and require the defendant to appear, &c., sufficiently shows that the warrant was addressed to the defendant; and it is not necessary to aver in the indictment that the warrant was served a reasonable time before the day of appearance. It is also no objection that the order is not averred to have any date; neither is it that there is no averment that the rate was in force when the order was made, if it be averred that it continued in force at the time of the indictment. In such an indictment it is not necessary to set out the order verbatim. (Reg. v. Bidwell, 2 Car. & Kir. 564; 2 New Mag. Cas. 282; 17 L. J. 99, M. C.)