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mit any party so authorized and nominated as aforesaid to make such
examination, 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 rc(juiro the body
to be interred without such examination."

By sec. 9, no body is to be removed for anatomical examination from The body
the place where such person died until after forty-eight hours from the ""^ ^'> b*-'
death, nor unless a certificate, stating in what manner sucli person came [vi'"hout a
by his death, shall have been given by the medical man who attended certificaie.
such person, or who examined the body after death.

By sec. 10, "it shall be lawful for any member or fellow of any col- Professors,
lege of physicians or surgeons, or any graduate or licentiate in medicine, ^"•"Kcons.
or any person lawfully qualified to practise medicine in any part of the niny re-
United Kingdom, or any professor, teacher, or student of anatomy, medi- ^■'^''\<5
cine or surgerj', having a license from his majesty's principal secretary anatomical
of state or chief secretary as aforesaid, to receive or possess for anatomi- exnmiaa-
cal examination, or to examine anatomically, the body of any person '"^"''"
deceased, if permitted or directed so to do by a party who had at the
time of giving such permission or direction lawful possession of the
body, and who had power, in pursuance of the provisions of this act, to
permit or cause the body to be so examined, and provided such certifi-
cate as aforesaid were delivered by such party together with the body."

By sec. 11, such persons are to receive a certificate with the body,
and transmit it and a return of the time the body was received, and
other matter.s, to the inspectors of the district.

By sec. 1*2, notice is to be given to the Secretary of State of places
where anatomy is intended to be practised.

By sec. 13, bodies are to be removed in a decent cofiin or shell, and
after undergoing anatomical examination are to be decently interred in
consecrated ground, or in some public burial ground in use for persons
of that religious persuasion to which the person whose body was so
removed belonged.

*By sec. 1-1, " no member or fellow of any college of physicians or *apj
surgeons, nor any graduate or licentiate in medicine, nor any person Persons
lawfully qualified to practise medicine in any part of the United King- doseribed
dom, nor any professor, teacher or student of anatomy, medicine, or 'j,",^^^*,"^'^
surgery, having a license from his majesty's principal secretary of state liable to
or chief secretary as aforesaid, shall be liable to any prosecution, penalty, ^""'^V
forfeiture, or punishment for receiving or having in his possession for having in
anatomical examination, or for examiuing anatomically, any dead human **'*".'" T''^-
body, according to the provisions of this act." iiuiuan

By sec. 15, the act is not to prohibit any j^ost mortem examination ^^uJies-
directed by competent authority.

By sec. 18, " any person ofiending against the provisions of this act in offonces
England or Ireland shall be deemed and taken to be guilty of a misde- against this
meanor, and being duly convicted thereof, shall be punished by impri- "*^^"
sonment for any term not exceeding three months, or by a fine not
exceeding fifty pounds, at the discretion of the court before which he
shall be tried ; and any person ofiending against the provisions of this act
in Scotland, shall, upon being duly convicted of such ofi"cncc, be punished

VOL. I.— 32



467 OF OFFENCES RELATING TO DEAD BODIES. [BOOK II.



by iin})rlsonmeut for a term not exceeding three months, or by a fine

not exceeding fifty pounds, at the discretion of the court before which

he shall be tried."

It^erpretn- By sec. 19, '< the words, 'person and pf -ty,' shall be respectively

t;on of ccr-jjgg,^gjj ^q include any number of persons, or any society, whether by

;j this act. charter or otherwise; and that the meaning of the aforesaid words shall

not be restricted although the same may be subsequently referred to in

the singular number and masculine gender only."

48 G. 3 0. Provision has been made by statute for the suitable interment of such

75, pro- dead bodies as may be cast on shore from the sea. The 48 Geo. 3, c.

the^nter- "^^J enacts, that the churchwardens and overseers of parishes in Eng-

inent of land, in which any dead body shall be found thrown in, or cast on shore

dead bodies ^^^^ ^j^^, ^^.^^ shall, upon notice of the body lying within their parishes,

shore from cause the same to be forthwith removed to some convenient place ; and

the sea. ^j^j^^ ^11 convenient speed to be decently interred in the church-yard or

burial-ground of such parishes : and if the body be thrown in, or cast

on shore in any extra-parochial place, where there is no churchwarden

or overseer, a similar duty is imposed upon the constable or headborough

of such place. (e)

It is further enacted that every minister, parish-clerk, and sexton of
the respective parishes, shall perform their duties as is customary in
other funerals, and admit of such dead body being interred, without any
improper loss of time ; receiving such sums as in cases of burials made
at the expense of the parishes.//) The statute provides also as to the
expenses of such burials, and the raising of money to defray them ;
gives a reward of five shillings to the person first giving notice to the
parish officers, or to the constable or headborough of an extra-parochial
place, of any dead body being cast on shore ; and imposes a penalty of
five pounds on persons finding dead bodies and not giving notice, and on
parish officers neglecting to execute the act. (j/) An appeal to the quarter
*4(38 *scssions is also given to any person thinking himself aggrieved by any
thing done in pursuance of the act. (It)
The pre- The preventing a dead body from being interred has been considered
venting a ^^ a,n indictable ofience. Thus, the master of a work-house, a surgeon,
fiwn beiii"' and another person were indicted for a conspiracy to prevent the burial
interred is of a pcrson who had died in a work-house, (t) And though Hyde, C. J.,
"bie° ^^ ' lipoid ^ question how far the forbearance to sue one who fears to be
offence. sued, is a good consideration for a promise, (Z;) cited a case where a
woman, who feared that the dead body of her son would be arrested for
debt, was holden liable, upon a promise to pay in consideration of for-
bearance, though she was neither executrix or administratrix ;(7i:) yet
the other judges are said to have doubted of this:(?) and in a recent
case. Lord Ellcnborough, C. J., said, it would be impossible to contend
that such a forbearance could be a good consideration for an assump-
sit. (??i) Lord Ellenborough, C. J., continued, "to seize a dead body
upon any such pretence would be contra honos mores, and an extor-
tion upon the relatives." And in a subsequent part of the clause, his

(e) 48 Geo. 3, c. 75, s. 1. (/) Id. ibid. s. 2.

Iff) Ibid. ss. 1, 3, 4, 5, G, 7, 8, 12, 13, 14. (h) Id. sec. 10.

(i) Rex V. Young and others, cited in Rex v. Lynn, 2 T. R. 734.
(/) Quick V. Coppleton, 1 Vent. IGl.

(/c) The name of the case is not mentioned ; but it is said that Hyde, C. J., cited it as a
case that occurred in the Court of Common Pleas when he sat there.

(/) Quick V. Coppleton, 1 Vent. 161. (w?) Jones v. Ashburnham, 4 East, 400.



CHAP. XXXVITI.] OF OFFENCES RELATING TO DEAD BODIES. 468

lordship said, "As to the case cited by Hyde, C. J., of a mother who
promised to pay on forbearance of the plaintiif to arrest the dead body
of her son, which she feared he was about to do, it is contrary to every
principle of law and n^oml feeling : fauch an act is revolting to humanity,
and illegal. "(A)

A gaoler has no ri^ht to detain tlie body of a person who died in
prison for any debts due to himself. "Where, therefore, a gaoler refused
to deliver up the body of a person, who had died while a prisoner in
execution in his custody, to the executors of the deceased, unless they
would satisfy certain claims made against the deceased by the gaoler,
the Court of Queen's Bench issued a mandamus, peremptory in the first
instance commanding that the body should be delivered up to the ex-
ecutors. (?«??!)

And a gaoler is indictable at common law for detaining the body of a
person who has died in gaol in order to compel the payment of certain
claims made by the gaoler. An indictment stated tliat a prisoner had
died in gaol, and that the body remained in gaol in tlie possession of the
defendant, then being gaoler; th;it tlie executor requested him to deliver
up the body to them, and suffer them to take it away, in order that they
might bury it; that it thereupon became the defendant's duty to deliver
up the body; but that he refused to do so; that defendant unlawfully, and
in abuse of the office, without legal authority or excuse, and against the
will of the executors, detained the body a long time in gaol, to wit, from,
&c , until, &c., when defendant unlawfully and indecently, &c., buried
the body without any rite of Christian burial, or any funeral ceremony
or observance, in a place not being a consecrated burial ground, or a
customary or fit place for burial, (to wit) a yard of, and within the pre-
cincts of, the gaol. The second count alleged a refusal to deliver up,
&c., unless the executors would account with the defendant concerning
certain claims of money which he pretended to have against the de-
ceased estate, and pay the defendant what should appear due; that the
defendant wrongfully detained, &c., under pretext of such claims, tho
executors not accounting, &c., until, &c., when he buried, &c. Maule, J.,
said, at the close of the case, that the notion of a gaoler being author-
ized to detain a dead body on account of pecuniary claims was a mis-
take, and that a gaoler doing so was guilty of a misconduct in his public
character, for which he was liable to prosecution. (?!»«) It is said that it
was contended that some necessary allegations were wanting in the in-
dictment, but the report did not state what they were ; nor does it state
that any opinion was pronounced upon them ; but it was agreed that
the defendant should enter into recognizances to appear for judgment
when called upon.

An indictment will lie for wilfully obstriicting and interrupting a ^"^ "'•"<' 's
clergj'man in reading the burial service, and interring a corpse: but such venting a

(mm) Reg. r. Fox.' 2 Q. B. R. 247.
(nn) Reg. v. Scott,^ 2 Q. B. R. 248.

(A) A case of this nature was brought by indictment before the Supreme Court of Mnssa-
chusettp, in the county of Biirnstable. It was tried at nisi priiis, before the late Chief
Justice Tarsons ; the defendants were convicted, and a small fine imposed upon them,
upon the ground that tliey were ignorant that it was nn offence. In this case the corpse
was arrested upon a civil process for debt, on its way to the grave, in the public highway,
in the presence of the friends of the deceased, and of a procession which attended the
funeral.

] Eng. Com. Law Reps. xlii. GG8. « lb. xlii. 658.



4G8 OP GOING ARMED IN THE NIGHT TIME [bOOK II.

minister an indictment must allege that the person obstructed was a clergyman,
th'^'^burial^ ^^^ '^^*' ^^ ^^^ ^^ ^^"^ execution of his office, and lawfully burying the
sorvico. corpse : and it must also show how the party was obstructed, as by set-
ting out the threats and menaces used. And it is not sufficient to allege
that the party did unlawfully, by threats and menaces, prevent the
burial. («)
Tlie inter- There is one case in which the too speedy interment of a dead body
ment of the may be an indictable offence : namely, where it is the body of a person
person who "^^^ ^^^ ^^^^ *^^ ^ violent death. In such case, by Holt, C. J., the coro-
has died a ner need not go ex officio to take the inquest, but ought to be sent for,
violent jj^j^j ^Y\at when the body is fresh; and to bury the body before he is sent
before the for, or without sending for him, is a misdemeanor. (o)[l] It is also laid
coroner is (Jqwu that if a dead body in prison, or other place, whereupon an in-
misde- quest ought to be taken, be interred or suffered to lie so long that it
ineanor. putrefy before the coroner has viewed it, the gaoler or township shall be
amerced. (j>)



*469 *CHAPTEIl THE THIETY-NINTH.

OP GOING ARMED IN THE NIGHT TIME FOR THE DESTRUCTION OF GAME,
AND OF ASSAULTING GAMEKEEPERS.

The 9 Geo. 4, c. 69, s. 1, reciting the 57 Geo. 3, c. 90, and that " the
practice of going out by night for the purpose of destroying game has
nevertheless very much increased of late years, and has in very many
instances led to the commission of murder, and of other grievous offen-
ces ; and it is expedient to repeal the said recited act, and to make more
effectual provisions than now by law exist for the repressing of such
. practice," enacts " that the said recited act shall be, and the same is

repealed, hereby repealed, except so far is the same repeals any other acts ; and
Persons if any person shall, after the passing of this act, by night, unlawfully
£ame°by"° ^^^^ ^^' ^Gstroy any game or rabbits in any land, whether open or in-
night com- closed shall by night unlawfully enter or be in any land, whether
mitted, for Qpg^ qj. inclosed,(a) with any gun, net, engine, or other instrument, for
offence, the purpose of taking or destroying game,(i) such offender shall, upon
three ^ conviction thereof before two justices of the peace, be committed for the
and kept to first offence to the common gaol or house of correction for any period

(n) Rex V. Cheere,i 4 B. & C. 902. 7 D. & R. 461. See Rex v. How, 2 Str. 699.

(o) Reo;. V. Clark, 1 Salk. 377. Anon. 7 Mod. 10. 2 Hawk. P. C. c. 9, s. 23, note (4).

(p) "2 Hawk. P. C. c. 9, s. 23. And see an indictment .against a township for a misde-
meanor, in burying a body without notice to the coroner, 2 Chit. Cr. L. 256.

(a) See Tapsell v. Croskey, 7 M. & W. 441, as to this word in the Turnpike Act, 3 Geo. 4,
c. 126.

(6) It is to be observed that the word "rabbits" is here omitted ; so that if poachers enter
for the purpose of taking rabbits, but have not either taken or destroyed any, they have
committed no oflence within sect. 1, and therefore sect. 2 gives no authority to apprehend
them. Section 9 extends to poachers entering with intent to take both game and rabbits,
and is, therefore, in this respect, more extensive than sect. 1. See Rex v. Ball, R. & M. C.
C. R. 330, post, 473.

[1] {In Eez V. Prohj tj- al., 1 Kenyon's Rep. 250, the Court of King's Bench refused a
rule to show cause, why an information should not go against the defendant, for burying a
dead body found in the river Med way, without sending for the coroner, saying that the pro-
secutor might proceed by iudictmeut. [

' Eug. Com. Law Reps, x 4GG.



CHAP. XXXIX.] FOR THE DESTRrCTION OF aAHE, ETC. 4G9

not exceeding three calendar months, there to be kept to hard labour, I'ard
and at the expiration of such period sliall find surctii's by recognizance, ^^ ,°,"^i' "°
or in Scotland by bond of caution, himself in ten pounds, and two sure- Bureties ;
ties in five pounds each, or one surety in ten pounds, for his not so
offending again for the space of one year next following : and in case
nf 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 in ease such person sliall so offend a second second
time, and shall be tliorcof convicted before two justices of the peace, he ""^j^,"*}!^^' ^'*
shall be committed to the common gaol or house of correction for any and kept to
period not exceeding six calendar months, there to be kept to hard l"!''*^
labour, and at the expiration of such period shall find sureties by recog- and to'fmd
nizanee, or bond as aforesaid, himself in twenty pounds, and two sure- ^"'^^^'*^* >
ties in ten pouTuls each, or one surety in twenty pounds, for his not so
ofibuding again for the space of two years next following ; and in case
of not finding such sureties, shall be further imprisoned *and kept to *470
hard labour for the space of one year, unless such sureties are sooner
found ; and in case such person shall so ofiend a third time, he shall be , . ,
guilty of misdemeanor, and been convicted thereof, shall be liable, at oflence to
the discretion of the court, to be transported beyond seas for seven years, ^'^ ''i^'le to
or to be imprisoned and kept to hard labour in the common gaol, ortiya,
house of correction, for any term not exceeding two years; and in Scot-
land, if any person shall so offend a first, second, or third time, he shall
be liable to be punished in like manner as is hereby provided in each
case."

By sec. 2, "where any person shall be found upon any land commit- Owners or
ting any such oflfence as hereinbefore mentioned, it shall be lawful for occupiers
the owner or occupier of such land, or for any person having a right or lo^^j, „f
reputed right of free warren or free chase thereon, or for the lord of the nianors, or
manor or reputed manor wherein such land may be situate, and also for ynn[s^"nay
any person assisting such gamekeeper or servant, to seize and appro- apprehend
hend such offender upon such land, or in case of pin-suit being made, in '^'^•-'ii'^crs.
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 offenders
order to his being conveyed before two justices of the peace ; and in npsaulting
case such offender shall assault or offer any violence with any gun, violence "
crossbow, firearms, bludgeon, stick, club, or any other offensive weaponpi;iiiy of a
whatsoever, towards any person hereby authorized to seize and appro- IJIe^^Qo,.
hend him, he sliall, 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 ti-ansported beyond 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 ; and in
Scotland, whenever any person shall so offend, he shall be liable to bo
punished in like manner." (/y)

By sec. 4, " the prosecution for every offence punishable upon sum- Limitation
mary conviction by virtue of this act shall be commenced within six "'^ ''™*/'""

'' '' , , procecd-

calendar months after the commission of the offence ; and the prosecu- ings under
tion for every offence punishable upon indictment, or otherwise than ^^'^ •*<='•
upon summary conviction, by virtue of this act, shall be commenced

(fi) By sec. 3, a justice may issue his warrant to apprehend any person charged on the
oath of any credible witness with any olfcnce punishable under the act upon summary con-
viction.



470 OF GOING ARMED IN THE NIGHT TIME [BOOK II.

within twelve calendar months after the commission of such of-
fence. "(c)
Convic- Ej sec. 8, "on every conviction under this act for a first or second

returned to offoncc the couvicting justices shall return the same to the next quarter
the quarter scssions for the county, riding, division, city, or place wherein such
sessions oficncc shall have been committed ; and the record of such conviction,

and regis- . ' .

tared, and or any copy thereof, shall be evidence in any prosecution to be instituted
may be against the party thereby convicted for a second or third offence ; and
evidence. ^^^ clerk of the peace shall immediately on such return make or cause
to be made a memorandum of such conviction in a register, to be kept
*471 l*y liiDi of the names and places of abode of *the persons so convicted,
and shall state whether such conviction be the first or second conviction
of the offending party."
Persons to By sec. 9, " if any persons, to the number of three or more together,
oflhr'ee' ^^^ shall by night unlawfully enter or be in any land, whether open or in-
being closed, for the purpose of taking or destroying game or rabbits, any of
armed, g^^j^ persons being armed with any gun, crossbow, fire-arms, bludgeon,
any land by or any other offensive weapon, each and every of such persons shall be
night for guilty of a misdemeanor, and being convicted thereof before the justices
of destroy- of gaol delivery, or of the court of great sessions of the county or place
ing game, in which the offence shall be committed, shall be liable at the discretion
taiity of a ^^ *^*^ court, to be transported beyond seas for any term not exceeding
DiLsde- fourteen years, nor less than seven years, or to be imprisoned and kept
meanor. ^^ j^^^^j,^ labour for any term not exceeding three years ; and in Scotland,
any person so offending shall be liable to be punished in like manner." (c?)
■\7hat time By sec. 12, <' for the purposes of this act the night shall be considered,
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."
■^hat shall By sec. 13, " for the purposes of this act, the word ' game,' shall be
came!™^ deemed to include hares, pheasants, partridges, grouse, heath or moor

game, black game, and bustards."
Com- Where a bill of indictment had been preferred within a year after the

of'th'e^pro'i commission of an offence under this act, against the prisoner and Robins,
secution. and ignored as to the prisoner, but found against Robins, who was con-
victed, and four years afterwards a fresh bill was found against the
prisoner; it was considered to be clear that preferring the first bill was
the commencement of a prosecution, but it was doubted whether the
condition in section 4, requiring a prosecution by indictment to be com-
menced within twelve calendar months, had been complied with by pre-
ferring the bill, which was ignored. And Adam v. The Inhuhitants of
Bristol^c'^ was referred to : where in an action for an injury to property

(c) Sec. 5 gives the form of conviction for offences under the act : as to which see Rex v.
Mellor, 2 Dowl. P. R. 1 73. Sec. 6 gives an appeal to any person aggrieved by any summary
conviction ; and sec. 7 takes away the certiorari. See Rex v. Mellor, supra, and Rex v. Hester, ''
4 Dowl. P. R. 589.

{d) By sec. 10, in Scotland, the sheriff of the county within which the offence shall have
been committed shall have cumulative jurisdiction with the justices of the peace in regard to
the same; and the conviction in Scotland maj' be proved in the same manner as a conviction iu
any other case accoi-ding to the law of Scotland; and by sec. 11, in all cases in Scotland of
a third offence, or in other cases in Scotland where a sentence of transportation ma3^ by the
provisions of this act, be pronounced, the offender shall be tried before the High Court or
Circuit Court of Justiciary.

{e) 2 A. &,E. 38^,' 4 N. & M. 141.

' Eng. Com. Law Reps. xxix. 125.



CHAP. XXXIX.] FOR THE DESTRUCTION OF GAME, ETC. 471

by rioters on the 7 & 8 Geo. 4, c. 31, wliith requires the action to he
cominenccJ within three mouths, the party had commenced an action
within three mouths, and died, and her executor brought an action
within forty days after her death, but more tluin three months after the
damage was done, and it was contended tliat the condition having been
once complied with, the executor had a right to bring an action within
a reasonable time; but the court held that the action was not brought
in timc.(/)

* Although three or more poachers arc out by niglit armed, and arc *472
guilty of an offence within sec. 9, still they are liable to be apprehended Ai= to tbo
under sec. 2, as they arc guilty of an offence under sec. 0.(;/) If per- P"''*'J", '" ,
sons arc found actually in the commission of an offence against sec. 1, poachers.
they may be apprehended by the person authorized to apprehend by
sec. 2, although no notice be given to them of the cause for which they
are apprehended j for the circumstances constitute sufficient notice. (/«)
And it is not necessary that there should be written authority ; it is suffi-
cient if the party were employed as watcher of game preserves by the
lord of the manor. (/) And although the persons mentioned in sec. 2
have no authority to apprehend unless the poachers arc found upon the
manor or land of the persons therein specified ;( A yet if a poacher be



Online LibraryWilliam Oldnall RussellA treatise on crimes and misdemeanors (Volume 1) → online text (page 82 of 154)