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should have been directed to see — 1, whether the equippers or the pur-
chasers had the prohibited intent ; and, 2, whether with such intent
they had dune any act towards equipping, furnishing, or fitting out the
ship, beyond the mere work of building the hull of the vessel, or had
attempted to do so. Attorney- General v. Silietn, 2 H. & C. 431.

Page 156. The 26 & 27 Vict. c. 125 repeals the 27 Hen. 8, c. 4.

p The prisoner was convicted of manslaughter committed on board the

Gustav Adolph on the high seas, at a point about five days' sail from Per-
nambuco, and about 200 miles from the nearest land ; the ship was built
at Kiel, in the duchy of Holstein, and sailed thence to London, and thence
on the voyage in which the offence was committed. All the officers and
crew were foreigners ; the prisoner was the second mate, and the deceased
the master. The ship was sailing under the English flag when the
offence was committed. The crew were told before sailing that Mr.
Render was sole owner. He was not born an Englishman. A certified
copy of the register of the Gustav Adolph under the 17 & 18 Vict. c.
104 was put in, and admitted as -prima facie evidence that the ship was
a British ship. Certain letters were put in, which, it w r as urged, showed
a partnership between Rehder and Elders, and it was urged that under
the 17 & 18 Vict. c. 104, ss. 18, 38, and 103, the owner of a beneficial
interest in a British ship must be qualified in the same way as the owner
of a legal interest; that, even admitting that the registration of the
ship in the name of Rehder was prima facie evidence that he w r as owner,
it could be no evidence of Ehler's qualification, and therefore the letters
proving Ehler's interest in the ship rebutted the prima facie evidence
that she was a British ship. And, on a case reserved, it was held that
there was prima facie evidence that she was a British ship ; as there
was evidence of a certificate of registry in London, wherein Rehder was
described as the owner at that time resident in London, and the ship
was sailing under the British flag ; but that the prima facie proof was
rebutted by the proof that Rehder was alien born; and that there was
no presumption that letters of denization or naturalisation had been
granted to him, by reason that he, being alien born, would have become
liable to penalties under the Act for registering the ship as belonging to
a British owner. Reg. v. Bjomsen, 12 Law T. 473. 10 Cox, C. C. 74.

Page 181. Note (to), after Palmer read 1 M.& Rob.

Page 215. The 26 & 27 Vict. c. 125, repeals the last two sections of the 5 &

6 Edw. 6, c. 16, that is, sees. 6, 7 — and therefore the passage from the
words in the third line from the bottom of the page, 'and further,' to
the end of the paragraph, is repealed.

Page 255. In the blank in note (/) insert Flight v.

Page 258. An agreement to be carried into effect in this country, which would

be void <ni the ground of champerty if made here, is not the less void
because i; is made in a foreign country, where such a contract would be
Legal. Where, th< refore, an attorney entered into an agreement in France
witli a French subject to sue lor a debf due to the latter from a person
: i siding her< . whereby the attorney was to receive by way of recompense
a moiety of the amount recovered ; it was held that this agreement was
void for champerty. Grell v. Levy, 16 C. B. (N.S.) 73. If any act
were done under such an agreement in England, the party doing it would
be indictabL here. Rex v. Brisac, 4 East, R. 163.

Page 262. The 26 k 27 Viet. c. 125 repeals the 1 Rich. 2, c. 9.

Page 270. On an indictment for bigamy a witness proved the first marriage to



Addenda, Volume I. 647

have taken place eleven years ago, and that the parties lived together
some years, but could not say how long — it might be four years. Wight-
man, J., after referring to the 24 & 25 Vict. c. 100, s. 57, and the pro-
viso, said, ' How is it possible for any man to prove a negative ? The
prisoner cannot do that.' ' It seems to me that there is no evidence
to take the case out of the statute. There is no evidence that the
prisoner and this wife lived together within the seven years, or that
he knew that she was alive.' Reg. v. Ileaton, 3 F. & F. 8 1 9.

Upon an indictment for bigamy it was proved that the first marriage Page 307.
was performed in an Independent chapel by a Wcsleyan methodist minis-
ter, in the presence of the registrar of the district and two witnesses, and
a certificate of the marriage was produced, and it was held that there
was sufficient proof of the marriage without proving that the chapel had
been duly registered. Reg. v. Cradock, 3 F. & F. 837, Willes, J., and
Pollock, C.B.

So where in an action for goods sold there was a plea of coverture,
and the defendant stated that she was married to J. Lambert in 1844, at
a Roman Catholic chapel in George Street, Portman Square; that she
aud Lambert were both Roman Catholics, and were married by a priest
in the way in which Roman Catholic marriages are ordinarily celebrated,
and that they lived together for some years, and she produced a certi-
ficate of the marriage from the priest who performed the ceremony, and
a certificate showing that the civil contract of marriage had been per-
formed before the French Consul; but there was no proof that the person
who performed the ceremony was a priest, or that the chapel was a
place licensed for marriages, or that the registrar was present at the
time; the Court of Common Pleas held that it might be presumed that the
chapel was licensed and the registrar present, as well because the 6 &
7 Will. 4, c 85, s. 39, declares, any person who wilfully solemnises a
marriage in any other place than a registered building or in the absence
of the registrar, guilty of felony, as because the ordinary rule omnia
prcesumuntur rite esse acta ought to prevail in such a case. Sichel v.
Lambert, 15 C. B. (N. S.) 781.

Reg. v. Orgill was much doubted by Lord Wensleydale in Yclverton v. Page 314.
Yelverton in the House of Lords.

As to privileged communications, see White ley v. Adams, 15 C. F>. Page 347.
(N. S.) 392, Fryer v. Kinnersley, ibid. 422, and Force v. Warren, ibid.
806.

See Campbell v. Spottiswoode, 3 B. & S. 769, as to a libel in the Page 350.
Saturday Revietv.

The prisoner was indicted in various counts for publishing, or threat- Page 374.
ening to publish, or to abstain from publishing, a certain matter, or a
false and scandalous libel with intent to extort money from one W. Gee,
and in other counts for publishing a certain false and scandalous libel ;
every count set out in hcec verba the words published. One of the
publications was, ' W. Gee, Solicitor, Bishop Stortford. To be sold by
auction, if not previously disposed of by private contract, a debt of
the above, amounting to .£3,197, due upon partnership and mortgage
transactions.' The other was similar, but stated the amount to be
£3,900. Bramwell, B., was of opinion that these publications were not
libellous, as each was a mere offer on the face of it to sell an alleged
debt, which it did not necessarily imply an inability to pay, and did not,
on the evidence, appear to be false. But he left the case to the juiy,
telling them what the law in his opinion was, and leaving them to apply
it. Bramwell, B., also held that, assuming the intent to extort money
were proved, it was not necessary that the matter threatened to be pub-
lished should be libellous, as the 6 & 7 Vict. c. 96, s. 3, has the words



648 Addenda, Volume I.

' any matter.' On the evidence. Bramwell, B., was of opinion that there
was no intent to extort money, but only to extort accounts. Reg. v
Coffhlan, 4 F. & F. 316.

Page 435. As to private nuisances, sec Hodgkinson v. Ennor, 4 B. & S. 229;

Tipping v. St. Helen's Smelting Company, 4 B. & S. 60S; Roberts v.
Yardley, 3 II. & C. 162 ; Bamford v. Turnley, 3 B. & S. 62.

Pace 438. An indictment alleged that the defendant near divers public highways

and dwelling-houses did work certain quarries of stone, and did unlaw-
fully send, throw, and discharge divers large pieces of rock and stones
into and upon the said dwelling-houses, and in and upon the said high-
ways, whereby the dwelling-houses were injured and the inhabitants put
in fear and danger, and the highways were rendered unsafe for pas-
si liters, &c. Evidence was given of stones having fallen into two
houses, and also of stones having fallen in the public highway, one of
which hit a horse drawing a cart on the highway ; and that these stones
had been thrown from the prisoner's quarry by Wasting the rock ; and
there was evidence that powder had been used in too large quantities.
The jury were directed that, if they were of opinion that in working
the quarry stones were thrown out upon the houses and roads, and that
the use of the houses or the traffic of the roads was rendered unsafe to
such a degree that persons inhabiting the houses or using the roads, of
ordinary courage, might reasonably apprehend injury or danger, that was
a nuisance, and that, if the defendant had committed the act by which
the stones were thrown upon the houses and road, they might find him
guilty ; and they were directed to find whether, in the manner of work-
ing the quarry, the defendant had been guilty of negligence. The jury
found the defendant guilty, and that he had worked the quarry negli-
gently ; and, on a case reserved on the question whether, upon the facts
proved, the defendant was properly convicted on this indictment, the
conviction was affirmed, as there was abundant evidence for the jury.
Reg. v. Mutters, 10 Cox, C. C. 6. The summing up was too favour-
able for the defendant ; for people have a right to travel on a public
road without any impediment whatever ; and in such a case it was per-
fectly immaterial whether the defendant had acted negligently or not,
as no man can justify a nuisance on the ground that he acted without
negligence. See Scott v. Frith, 4 F. & F. 349, an action for a nuisance
caused by a rolling mill fitted up with steam hammers.

Page 448. See Doggett v. Catterns, 17 C. B. (N. S.) 669, as to the meaning of

' other place 'in 16 & 17 Vict. c. 1 19, s. I ; and see the same case in error
where the decision of the C. P. was reversed, 12 Law T. 355.

Page 449. To note (x) add S. C. L. & C. 263.

On an indictment for keeping a bawdy-house, it appeared that the
house was inhabited entirely by women, who lived by prostitution openly
carried on, and whose conduct was often riotous and grossly indecent,
30 as to be a scandal to the neighbourhood. The defendant owned the
house, but occupied no part of it, did not keep the key, and had no
right of entry. The apartments were let to weekly tenants, who occu-
pied separately, under distinct takings, each lodger having her own
room, her own key, and a door opening into the street, or into a passage
communicating with the street. The defendant had nothing whatever
to do with the management of the house (if indeed a house thus divided
into separate holdings can be said to be managed as a house), or of any
purt of it. He received no share of the earnings of the women, nor did
he derive any ben< lit therefrom, except so far as he maybe said to have
done so incidentally, from their ability to pay their rent being thereby
increased. He had no control over the tenants, except such as might
arise indirectly from his power as landlord to determine the tenancy



Addenda, Volume I. 649

from one week to another. lie only went to the house to collect the
weekly rent from the different lodgers, or, when being pressed hy the
complaints of the neighbours (as sometimes happened), to endeavour to
prevail on the inmates to be more orderly in their behaviour. But it
was abundantly clear that he knew the use to which the apartments
were applied by the several lodgers, and that he let the apartments with
a full knowledge that they would be applied to the purpose of prostitu-
tion, and with a perfect assent on his part to their being so applied.
Upon a case reserved upon the question whether, under the circum-
stances, the defendant could be considered as having 'kept' the house
in the legal sense of that term, it was held that he could not. The
house was not kept by him. He had no power to admit any one whom
he desired to enter the house, or to exclude any one whom he wished
not to enter. In fact, he was not the keeper of the house. Reg. v.
Stannard, L. & C. 349. With all deference to the learned judges, it
may well be doubted whether this decision, as well as Beg. v. Barrett,
be not erroneous. The contract in each case was clearly illegal, as it
is plain that the letting was for the purposes of prostitution. Crisp v.
Churchill, 1 Selw. N. P. 68, 7th edit. Girarday v. Richardson, 1 Esp.
N. P. C. 13, Lord Kenyon, C. J. That being so, the defendant was in
point of law the occupier of the house, and the residents in the house
merely his agents or servants in carrying on the purposes in question.
But even if they were the occupiers, they were guilty of the offence, and
the part he took would have made him an accessory before the fact, if
the offence were felony, and it made him a principal, as it was only
a misdemeanor, and he might have been convicted on an indictment
charging him with keeping the house. See my note, p. 128 of Vol. I.
Besides, the law is clear that, if a man lets a house with a nuisance upon
it, he is indictable, and a fortiori if he lets a house for the very purpose
that a nuisance may be created by its use. See infra at p. 454.

On an indictment for indecent exposure, it appeared that the prisoner, Page 449.
while several female servants of a club-house were going to bed, exposed
himself on the roof of a house exactly opposite the window of the room
where the females were. On the following night the prisoner again
exposed himself in a most indecent manner, remaining on the roof about
ten minutes. The head waiter and a policeman were sent for, both
of whom saw the exposure, making, with five females, seven persons
before whom on this occasion the exposure took place. The house out
of which the prisoner came, as well as the club, were situate in public
streets, but his acts could not be seen by persons passing along the
streets, but they could be seen from the back windows of houses in these
streets. Upon a case reserved, it was held that there was an abundant
publicity in this case. Beg. v. Thallman, L. & C. 326.

Where an indictment for indecent exposure alleged the offence to
have been committed on a certain public and common highway, it was
held, on a case reserved in Ireland, that evidence that it was committed
on a piece of land near the highway did not support the indictment.
And a count having been amended so as to state the offence to have
been committed ' on a place in view of a public highway,' and there
being no evidence that any one could have seen the prisoner except one
female, it was held that no offence was proved ; for an exposure seen
by one person only, and being capable of being seen by one person only,
is not an offence at common law ; but if the prisoner had been seen by
one person only, and there had been evidence that others might have
seen him, the case would have been different. Beg. v. Farrell, 9 Cox,
C. C. 446. No opinion w r as expressed as to the propriety of the
amendment.

An indictment charged the prisoner with having, in a house situate in Page 451.
a public street, exposed divers filthy, offensive, and disgusting pictures



650 Addenda, Volume I.

in the windows of the house, in such a position as to attract the attention
of persons passing along the street. The defendant was a herbalist, and
had exhibited in his shop-window in the High Street at Chatham two
large coloured pictures of the size of life, each of them representing the
half length of a man naked to the waist, and one of them covered with
sores. There was no indecency, hut the effect was disgusting to the
last degree. The other represented a cure. He had done this to exhibit
the effect of a medicine he vended. Willes, J., held that there was no
doubt that the exhibition of the picture in a highway was a nuisance.
Reg. v. Grey, 4 F. & F. 73.

Pa^e 453. As to lotteries within the 42 Geo. 3, c. 119, s. 2, see Morris v. Black-

man, 2 II. & C. 912.

Tage 454. Where a dangerous grating had existed over the area of a house for

five years, and the rent for it had been paid quarterly, but there was no
further evidence of the terms of the holding ; it was held that the
landlord was liable for an accident caused by the state of the grating, on
the ground that his permitting the tenant to remain in occupation year
after year, without taking steps for the termination of the tenancy, is
equivalent to a new letting at the end of each year. Gaudy v. Jabber,
5 B. & S. 78. Error is pending on this judgment, and, as it did not
appear that the defendant had any knowledge of the nuisance, the de-
cision seems very questionable.

Pagc4GO. A custom for the freeman and citizens of a town on a particular day

in the year to enter upon a close for the purpose of holding horse-races
thereon, is a good custom. Mounsey v. Ismay, 1 II. & C. 729.

There are many towns in which the market-places are large, and the
public have clearly the right of passing backwards and forwards over
each and every part of them ; and it should seem that an indictment
alleging a right in the public to pass and repass in, over, and across each
and every part of such a place would be valid.

Page 461. The public have only a right to use the land over which a public

road passes for the purpose of passage, and therefore a person cannot
justify using a highway for the purpose of racing upon it. Soiverby v.
Wadsivorth, 3 F. & F. 734.

To note (z) add Smith v. Hoivden, 14 C, B. (N. S.) 398. licy. v.
The Strand Board of Works, 4 B. & S. 526.

Page 470. To note (o) add See Robbins v. Jones, 15 C. B. (N. S.) 221, fully

adopting Fisher v. Prowse.

Page 478. Note (s) S. C. as Wright v. Frant, 4 B. & S. 118.

Page 486. The mere fact that a part of a public highway has been used for

twenty years by an innkeeper for the standing of the vehicles of his
guests is no answer to a complaint for obstructing a ' highway ' under
tin; ■'> & (i Will. 4, e. 50, s. 72. If the innkeeper could have made out
an immemorial right, it might be that the highway might have been
dedicated subject to that right ; but there was no proof that the highway
was dedicated after this usage began. Gcr/itx/x. Barfield, 16 C B.
(N. S.)5!'7.

Page 489. If an excavation be made so near a highway as to cause danger to ill ■

public using the way, it is no defence to the party who made it that
other parties were under a legal obligation created by statute to fence
the highway, and that they had neglected to do so. Wettor v. Dunk,
•1 V. & k. 298.

To not (o) add 9 Cox, C. C. 137, 174.
To note ('/) add S. C 2, E. 8c E. 651.

Page 490. Sec Reg. v. Dukinfield t 1 B. h S. 158, as to the steps necessary to be



Addenda, Volume 1. 651

taken under the 5 & 6 Will. 4, e. 50, s. 23, and the Public Health Act,
11 & 12 Vict. c. 63, s. 70, to render a road repairable by a parish.

See Freeman v. Reed, 4 B. & S. 174, as to the evidence of the separate Page 501.
liability of a township to repair its highways.

The 95th section of the 5 & 6 Will. 4, c. 50, is in force still in South rage 509.
Wales, notwithstanding the 23 & 24 Vict. c. 68. Reg. v. James, 3
B. & S. 901.

On the hearing of a summons under sees. 94, 95, the surveyor denied
that the road was a highway, and said that consequently he denied the
liability of the parish to repair it. The justices proceeded to hear
evidence as to the road being a highway, but another justice came in,
and the discussion was renewed before him. The justices made the order
without hearing further evidence. The Court of Queen's Bench made
a rule absolute to bring up the order in order that it might be quashed.
In any view of the statute the justices were not justified in making the
order ; either the road must be admitted to be a highway, or there must
be evidence to satisfy them that the road is a highway. Reg. v. Askerton,
11 Law T. 706. This case must not be taken as deciding that the
justices have jurisdiction to try whether the road be a highway. See
Reg. v. Chedworth and other cases, p. 526 of Vol. I., which were not
cited, and show that the true construction of sec. 95 is that it only
applies where the road is confessedly a highway, but there is a dispute
as to the party liable to repair it.

On an indictment for continuing a nuisance upon a highway, the judg- Page 520.
ment on an indictment for the same nuisance, which was the erection of
a wall, is conclusive evidence, and no evidence to the contrary is admis-
sible. Reg. v. Maybury, 4 F. & F. 90. Martin, B., on the authority
of Reg. v. Haughton, 1 E. & B. 501.

To the end of note 0) add S. C. 2 E. & E. 613. Page 523.

Where an order was made to indict a ' highway called Quaker Lane,' p agc 526.
and the indictment contained counts alleging it to be a way for carriages,
and others a pack and prime way, and the jury found it was not a way
for carriages, and the defendants admitted it was a pack and prime way;
the Court of Queen's Bench held that the prosecutor was not entitled
to costs ; for the defendants really only denied that it was a highway for
carriages. Reg. v. Cleckheaton, 11 Law T. 305.

To note (/) add See also Reg. v. Buckland, 1 2 Law T. 380, that the
same law prevails under the 25 & 26 Vict. c. 61, s. 19.

Add to note (p) S. C. 3 B. & S. 313.

Where the defendants plead guilty to an indictment for the non- Page 527.
repair of a highway, there is no power to grant costs under the 5 & 6
Will. 4, c. 50, s. 98, on the ground that the defence was frivolous or
vexatious. Reg. v. Denton, 10 Cox, C. C. 61.

The township of Wareham was included in a highway district under Page 529.
the 25 & 26 Vict. c. 61, and Heath having caused an obstruction in a
street in the township, the Highway Board, at the instance of the way-
warden of Wareham, indicted Heath for the same, who removed the
indictment by certiorari, and was convicted, and paid the costs, but
there were extra costs, which the Highway Board charged on Wareham, (

and it Avas held that the Highway Board were justified in incurring these
costs to remove an obstruction in the highway, and that they were
properly chargeable against the township ; and per Cockburn, C. J.,
Crompton, J., and Blackburn, J., the same would have been the case
under the 5 & 6 Will. 4, c. 50. Reg. v. Heath, 12 Law T. 492.

Both the person who erects, and the person who keeps erected, on the Page 537.
shore of a navigable river between high and low water mark, a work for
the more convenient use of his wharf adjoining, which work, either from



652 Addenda, Volume T.

its original defective construction, or from want of repair, presents a
dangerous obstruction to the navigation, is guilty of a nuisance. White v.
Phillips, 15 C. 13. (N. S.) 245.

Page 551. The justices in Quarter Sessions have a discretionary power under

the 43 Geo. 3, c. 59, s. 2, to order a bridge to be widened, and are not
bound to make such an order even if the bridge be narrow and incom-
modious; audit seems that a presentment of the fact should first be
made under the proviso in that section. In re Newport Bridge, 2
E. & E. 377.

Page 591. When any person is convicted of 'any escape or rescue from lawful

custody on a criminal charge,' the court may by the 14 & 15 Vict,
e. 100, s. 29, sentence the offender to be imprisoned for any term
now warranted by law, and also to be kept to hard labour during the
whole or any part of such term of imprisonment. See Appendix of
Statutes, p. x.

Pago 006. See the preceding addendum.

By the 23 8c 24 Viet. c. 75, s. 12, ' any person who rescues any
person ordered to be conveyed to any asylum for criminal lunatics
during the time of his conveyance thereto or of his confinement therein,
and any officer or servant in any asylum for criminal lunatics who through
wilful neglect or connivance permits any person confined therein to escape
therefrom, or secretes, or abets or connives at the escape of any such per-
son, shall he guilty of felony, and being convicted thereof shall be liable
to be kept in penal servitude for the term of five (27 & 28 Vict. c. 47)



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