them, as members of the society, to attempt to reinstate the complainant; and that their having ceased to be stewards was no justification of entire neglect on their part. (h) Lord Ellenborough, C. J., said at the trial, 'The order is not confined to the stewards alone, but is made upon all the members of the society; and the defendants were members of the society independently of their being stewards, and were bound, as members, to see that the order was obeyed: or, at least, to have taken some steps for that purpose. As members, they might have done something; as stewards, indeed, they might, with greater facility, have enforced obedience to the order; but each member had it in his power to lend some aid for the attainment of that object.' And when in the ensuing term a motion was made that a verdict might be entered for the defendants, on the ground that, having ceased to be stewards when the notice was served, they had not been guilty of a criminal default; the Court said, that if the defendants had shown that they did everything in their power to restore the party, in obedience to the order, they might have given it in evidence by way of excuse. (¿)

There must be personal service of an order on all persons who are charged with a contempt of it; and it was held, upon demurrer, to be a decisive objection to an indictment for a disobedience and contempt of an order of sessions, that it charged a contempt by six persons of an order, which was only stated to have been served on four of them. (j)

The entire order of a Court to pay the expenses of a prosecution, under the 7 Geo. 4, c. 64, s. 26, must be served on the treasurer of the county. Where, therefore, an order was made to pay an aggregate sum, the details of which were annexed, and the attorney tore off the details, and served the order for the payment of the aggregate sum alone on the treasurer; it was held, on a case reserved, that he was not indictable for refusing to obey the order. (k)

It seems not to be necessary, in an indictment against, a public officer for disobedience of orders, to aver that the orders have not been revoked. (1) But an indictment for disobeying an order of justices must show explicitly that the order was made; and it is not sufficient to state the order by way of recital. (m) It is said to be more safe to aver that the defendant was requested to comply with the terms of the order. (n) But if the statement of the order having been served on all the defendants (which, as has been before observed,

(h) R. v. Gash, 1 Starkie, 41. The Acts relating to Friendly Societies are consolidated and amended by the 38 & 39 Vict. c. 60.

(i) Id. ibid. The motion was also made on another ground; namely, a defect in the jurisdiction of the magistrates: two magistrates of the county of Middlesex, where the meetings of the society were held, having made the order, though the society had been originally established in London, and its rules enrolled at the sessions for London. But the Court decided that the magistrates of Middlesex had jurisdiction. See 33 Geo. 3, c. 54, and 49 Geo. 3, c. 125, s. 1. R. v. Wade, 1 B. & Ad. 861.

() R. v. Kingston, 8 East, 41. R. v. Gilkes, 3 C. & P. 52.

(k) R. v. Jones, 2 Moo. C. C. R. 171; 9 C. & P. 401, S. C.

(1) R. v. Holland, 5 T. R. 607, 624, a case of an indictment against the defendant for malversations in office while he was one of the council at Madras.

(m) R. v. Crowhurst, 2 Lord Raym. 1363. (n) 2 Chit. Crim. L 279, note (9), citing 1 T. R. 316, which is the case of R. v. Fearnley, where an objection was taken to an indictment that it did not contain such statement; but the Court did not find it necessary to give any opinion upon the point.

is a necessary statement) be omitted, the want of such an allegation will not be supplied by averring that they were all requested to perform the duties required by the order. (o)

Where an indictment for refusing to obey an order of justices to pay a church-rate, alleged that the rate was duly made as by law in that behalf required, and that the same was afterwards duly allowed as by law in that behalf required,' and that the defendant was duly rated' in and by the said rate at the sum of sixteen shillings; it was objected that the facts ought to have been stated which constituted a due making and allowance of the rate and a due rating of the defendant; but it was held, first, that these introductory facts were alleged only to show that the justices had jurisdiction to make the order, and therefore they fell within the description of inducement, in which such a general allegation was allowed. Secondly, that the rest of the count showed that the justices had sufficient authority to make the order, as there was a sufficient information by competent persons to give them jurisdiction. (p) The same indictment stated that a church-rate had been duly demanded of the defendant, and that he had refused and neglected to pay the rate to W. A. and J. C., who then were the churchwardens; and it was held that, though it did not state that they were churchwardens when the rate was demanded, it was sufficient that they were shown to be so when the rate was neglected and refused to be paid; for that was the offence. (9) The same indictment alleged that a justice made his warrant (summons), whereby, after reciting as therein recited,' he summoned the defendant, and the indictment did not state to whom the warrant was directed; and it was held that it was sufficient, for enough of the warrant was stated without mentioning the recital, and it was sufficiently averred that it was directed to the defendant. (9) The same indictment averred that a summons was issued on the 30th of May to appear on the 6th of June then next, and was before the said 6th day of June, to wit, on the 30th of May' personally served on the defendant, who did not appear in pursuance of it; and it was held that it must be assumed that the justices satisfied themselves that it had been served a reasonable time before the day of appearance, otherwise they would have acted unjustly in making the order in the absence of the defendant, and the intendment is always favourable to the validity of an order. (r) On the same indictment it was also held that it is not necessary to set out the order according to the tenor; it is enough to set out the substance of it correctly. (s) The same indictment did not aver the church-rate to have been in force when the order to pay it was made, but it was held that, as it averred that the rate continued in force at the time of the indictment, it was quite sufficient. (t) It was also held that such an indictment need not allege the date of the order, (u) as that was immaterial.

An indictment alleged that an appeal was made by the defendants against a rate to the sessions, who dismissed the appeal, and

ordered the defendants immediately upon service of the said order, or a true copy thereof,' to pay the churchwardens and overseers a sum for costs of the appeal, and that a true copy of the said order was afterwards personally served upon each of the defendants, and each of them had notice of the said order. Nevertheless, the defendants wilfully neglected and refused to pay. Upon the trial the Clerk of the Peace produced the minutes of the sessions, and read the order, which ordered the defendants immediately upon service of this order, or a true copy thereof,' to pay the costs. The Clerk of the Peace stated that the costs were not taxed during the actual sitting of the sessions, but between the time of the Court adjourning and its meeting. I reported to the magistrates what I thought fit and proper costs; and the Court adopted it. I made a verbal statement, which the Court adopted. I gave both parties an opportunity of attending. The defendants did not attend. I wrote a letter to their solicitor. The appeal was dismissed for want of due notice.' The defendants' attorney was the person attending the appeal, and was present when the order was made. There were four or five of the magistrates at the adjournment who were at the original sessions. A witness proved that he served each defendant with a paper, which he told them was a true copy of the order, as in fact it was, and at the time of service read to each the contents of a parchment writing, which was also a true copy of the order, and was produced on the trial. It was objected, first, that as notice to produce the copies served had not been given, evidence could not be given that the copy served was a true copy; but it was held that a notice to produce the paper served would have been notice to produce a notice, which is never required; secondly, that an order to pay upon service of the said order, or a true copy thereof,' was bad on the face of it; but it was held to be perfectly sufficient, that an order of sessions in that form was good. And the service was also good, whether the book of the sessions or the parchment was the order; for if the book was the original, it could not be shown at the time of the service, and if the parchment was the original, its contents were read over. (v) And, lastly, that the adjourned sessions had no jurisdiction to fix the amount of costs; but the Court held that it was unnecessary to decide that point. The magistrates must be taken to have ordered in the first instance, in the presence of all the parties, that the defendants should pay such costs as the officer might find to be due; and the result of the evidence being that both parties had an opportunity of attending the taxation, and no objection being made when the amount was stated in Court, a state of things took place which amounted to a consent, and therefore the order was valid. (w)

The 11 Geo. 2, c. 19, s. 16, enables two justices to put a landlord in possession of premises in any case where one year's rent (x) is in arrear, and the tenant deserts the premises and leaves them unculti

(v) Per Coleridge, J., An order of the quarter sessions is not like an order of justices out of sessions. It is the judgment of the Court, and that cannot be carried about: it is sufficient if a copy be shown.'

(w) R. v. Mortlock, 7 Q. B. 459. (x) Extended to one half year's rent by 57 Geo. 3, c. 54.

vated or unoccupied so as no sufficient distress can be had; and sec. 17 empowers the next justice or justices of assize, on the appeal of the tenant, to award restitution to the tenant. Upon an indictment for disobeying the order of the justices of assize to restore possession to the tenant, it seems that it is not necessary to prove the proceedings before the magistrates preliminary to the restitution; and that it is sufficient to put in the record made up by the justices of the peace, in which, after reciting the complaint and other proceedings, they declare that they put the landlord into possession; and it seems unnecessary to prove the complaint of the landlord (y)

Upon the trial of an indictment for not paying a sum of money pursuant to an order of sessions made on an appeal by the defendant against a certificate of two justices, for stopping up, diverting, and turning a part of a public footway, the record of the order of sessions, together with proof of the service of a copy of the order upon the defendant, and a demand of the sum ordered thereby to be paid, to which the defendant only answered that he did not owe anything, is sufficient evidence to go to the jury, and it is not necessary to prove aliunde the existence of the certificate or the fact of the appeal. An order of sessions made upon such an appeal need not show the time at which the certificate of the justices was lodged with the clerk of the peace; for the sessions have no duty to inquire into that fact, unless the objection is raised before them. (z)

On the trial of an indictment against the stewards of a friendly society for disobeying an order of justices, which recited that the rules of such society had been enrolled, such recital is not evidence of that fact, and it must be proved by other means, in order to show that the justices had jurisdiction to make the order under the 33 Geo. 3, c. 54, s. 2. (a) Upon the trial of such an indictment, the Court will not enter into the merits of the original case, nor will they hear objections to the order which do not appear upon the face of it. (b) But if it appear on the face of the order that the justices had no jurisdiction to make it, the defendant should be acquitted, without being left to bring a writ of error, though the want of jurisdiction be apparent on the face of the indictment. (c)

(y) R. v. Sewell, 8 Q. B. 161. The very ground of the appeal might be that the justices of the peace had acted without any complaint, and therefore the proof of the complaint could not be necessary. The Court held in this case that the order of the justices of assize must be made by them as individual justices, and not as a Court, and therefore a certificate of such an order, signed by the deputy clerk of assize in the same way as an order of Court, is not sufficient. seems also that the order should be signed by the justices of assize, and that they alone,

It

and none of the other commissioners, have jurisdiction to make such an order.

(z) R. v. Thornton, 2 Cox, C. C. 493. (a) R. v. Gilkes, 8 B. & C. 439. The Acts relating to Friendly Societies are consolidated and amended by the 38 & 39 Vict. c. 60.

(b) R. v. Mitton, 3 Esp. R. 200, S. C. Cald. 536. R. v. Gilkes, 3 C. & P. 52. Abbott, C. J.

(c) R. v. Hollis, 2 Star. N. P. C. 536. Abbott, C. J. R. v. Soper, 3 B. & C. 857.

CHAPTER THE THIRTY-FOURTH.

OF ESCAPES.1

AN escape is where one who is arrested gains his liberty before he is delivered by the course of the law. (a) And it may be by the party himself; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also either without force, by their permission or negligence, or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself with force, it is called prison-breaking; and where it is effected by others, with force, it is commonly called a rescue. (b) In the present chapter it is proposed to consider those acts without force, which more properly come under the title of escape.

There is little worthy of remark in the books respecting an escape effected by the party himself, without force: 2 but the general principle appears to be, that, as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, before they are put in hold, are guilty of an offence in the nature of a high contempt, and punishable by fine and imprisonment. (c) And it is also criminal in a a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanor; and if his prison be broken by others, without his procurement or consent, and he escape through the breach so made, he may be indicted for the escape. (d)