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and then held the objection valid, as the indictment charged nothing but a mere private trespass, and neither the King nor the public appeared to have any interest therein. (r)

But where the indictment stated the entering a dwelling-house, and vi et armis and with strong hand turning out the prosecutor, the Court refused to quash it. (s) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace (t) and though such goods are the prosecutor's own property. yet, if he take them in that manner, he will be guilty. (u)

Effect of repeal of statutes creating offences. As questions occasionally arise as to the effect of the repeal of statutes creating offences, it may be well to notice this subject. It has been long established that when an Act of Parliament is repealed, it must be considered (except as to transactions passed and closed) as if it had never existed.' (v) Where, therefore, a justice of the peace, under the 13 Geo. 3, c. 78, s. 24, presented the inhabitants of a parish for the non-repair of a highway, and the proceedings were removed into the Court of Queen's Bench, and the defendants pleaded, and issues of fact were joined, and a verdict found against the defendants, and the issues had been joined before, but tried after, the day on which the 5 & 6 Will. 4, c. 50, repealing the 13 Geo. 3, c. 78, came into operation, the judgment was arrested, on the ground that the power to give judgment upon a presentment made under the 13 Geo. 3, c. 78, was gone. (w) So where the liability to repair certain highways in a parish was taken away from the parish by a statute, and cast upon certain townships, and the statute gave a form of indictment against the townships for non-repair, and one of the townships was indicted under the Act, but before the trial the Act was repealed, and a verdict was found against the township, the judgment was arrested, on the ground that, although whatever had been done under the Act before it was repealed was valid, the statute when repealed was, with regard to any future operation, as if it had never existed, and the effect of the repeal is the same whether the alteration affect procedure only or matter which is more of substance. (x) So where a prisoner was indicted for privately stealing in a shop against the 10 & 11 Will. 3, c. 23, which was repealed after the offence was committed, but before the prisoner was tried, by the 1 Geo. 4, c. 117, s. 1, it was held that the prisoner could not be sentenced under the repealed Act. (y)

Repealing Acts, however, sometimes contain clauses for the pur

(r) R. v. Gardiner, Salisbury, 1780, MS. Bayley, J.

(s) R. v. Storr, 3 Burr. 1699.1

(t) Anon. 3 Salk. 187.

(u) Ibid. See Blades v. Higgs, 10 C. B. (N. S.) 713. 12 C. B. (N. S.) 501.

(v) Per Lord Tenterden, C. J., Surtees v. Ellison, 9 B. & C. 752.

(w) R. v. Mawgan, 8 A. & E. 496.
(x) R. v. Denton, 18 Q. B. 761.
(y) R. v. M'Kenzie, R. & R. 429.

AMERICAN NOTE.

1 And see S. v. Batchelder, 5 N. H. 549; S. v. Wilson, 3 Miss. 125, and a case where a woman miscarried in consequence of the disturbance, C. v. Taylor, 5 Binn. 277. Mr. Bishop (see Vol. ii. s. 517 et seq.) devotes a small chapter to the offence of Forcible Tres

pass, and cites a number of American cases. The principle in America, as here, seems to be that a trespass upon the personal property of another is only indictable where it tends to a breach of the peace. See also May's Criminal Law, s. 170.

pose of keeping alive the statutes they repealed so far as they relate to offences committed against them, and where a bankrupt had committed an offence against the 12 & 13 Vict. c. 106, s. 251, and an information had been laid before a magistrate for that offence, and a warrant issued for the prisoner's apprehension, before the 24 & 25 Vict. c. 134, came into operation, which by sec. 230 repeals the former Act, except as to any proceeding pending,' &c., or any penalty incurred,' &c., at the commencement of the Act, it was held that there was a proceeding pending within the meaning of this exception, and that the word 'penalty' in it extended to any penal consequences whatever, and was not restricted to a pecuniary penalty, and, consequently, that the bankrupt might be convicted and sentenced under the former Act. (2)

Many offences ordinarily punishable on summary conviction are under certain circumstances made indictable.

By the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 17, 'A person when charged before a court of summary jurisdiction with an offence in respect of the commission of which an offender is liable on summary conviction to be imprisoned for a term exceeding three months, (a) and which is not an assault, may, on appearing before the court and before the charge is gone into, but not afterwards, claim to be tried by a jury, and thereupon the offence shall as respects the person so charged be deemed to be an indictable offence and if the person so charged is committed for trial or bailed to appear for trial, shall be prosecuted accordingly, and the expenses of the prosecution shall be payable as in cases of felony.'

By the Cruelty to Animals Act, 1876, 39 & 40 Vict. c. 77, s. 15, 'Where a person is accused before a court of summary jurisdiction of any offence against this Act in respect of which a penalty of more than five pounds can be imposed, the accused may, on appearing before the court of summary jurisdiction, declare that he objects. to being tried for such offence by a court of summary jurisdiction, and thereupon the court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence, and not an offence punishable on summary conviction, and the offence may be prosecuted on indictment accordingly.'

(2) R. v. Smith, L. & C. 131.
(a) E. g., 43 & 44 Vic. c. 16, s. 5.

not 43 & 44 Vic. c. 20, s. 20. See Carle But Elkington, 17 Cox, C. C. 557.

BOOK THE SECOND.

OF OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, THE PUBLIC PEACE, OR THE PUBLIC RIGHTS.

CHAPTER THE FIRST.

OF COUNTERFEITING OR IMPAIRING COIN- OF IMPORTING INTO THE KINGDOM COUNTERFEIT OR LIGHT MONEY AND OF EXPORTING

--

COUNTERFEIT MONEY.

SEC. I.

Of Counterfeiting Coin.1

THE Legislature has made provision against the counterfeiting of the following descriptions of coin, namely:-I. The King's current gold or silver coin. II. Foreign gold, silver, or copper coin. III. The copper money of this realm.

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Counterfeiting the King's gold and silver coin. I. The first of these, usually called the King's money, was protected by enactments, which placed the offence of counterfeiting it in the highest class of crimes, upon the ground that the royal majesty of the Crown was affected by such offence in a great prerogative of government; the coining and legitimation of money, and the giving it its current value, being the unquestionable prerogatives of the Crown. (a) But these enactments were repealed by the 2 Will. 4, c. 34, s. 1 (now repealed by the 24 & 25 Vict. c. 95).

What is the King's money. It appears that the coin or money of this kingdom consists properly of gold or silver only, with a certain alloy, constituting what is called sterling, coined and issued by the King's authority: and therefore such money is supposed to be referred to by any statute naming 'money' generally. (b) The weight,

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alloy, impression, and denomination, of money made in this kingdom are generally settled by indenture between the King and the master of the mint but the Coinage Act, 1870, now regulates the standard of coins, and has consolidated and amended the law in this respect. (c) A proclamation has in some cases been made as a more solemn manner of giving the coin currency: but the proclamation in general cases is certainly not necessary, and in prosecutions for coining need not be proved. (d) And it is not necessary in such prosecutions to produce the indentures; though it may be of use in case of any new coin with a new impression, not yet familiar to the people, to produce either the indentures, or one of the officers of the mint cognizant of the fact, or the stamps used, or the like evidence. But in general, whether the coin, upon a question of counterfeiting or impairing it, be the King's money or not, is a mere question of fact which may be found upon evidence of common usage or notoriety (e) It should be observed, that any coin, once legally made and issued by the King's authority, continues to be the current coin of the kingdom until recalled, notwithstanding any change in the authority by which it was constituted. (f) Her Majesty in council may direct the establishment of any branch of the mint in any British possession, and make the coins issued by it a legal tender, and also direct that foreign coins may be a legal tender. (g)

Interpretation of terms. The 24 & 25 Vict. c. 99, which came into effect on the 1st of November, 1861, (h) and applies to England, Scotland, and Ireland, enacts by sec. 1, that, 'In the interpretation of and for the purposes of this Act, the expression, "the Queen's current gold or silver coin," shall include any gold or silver coin coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's dominions, whether within the United Kingdom or otherwise; and the expression, "the Queen's copper coin" shall include any copper coin and any coin of bronze or mixed metal coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's said dominions; and the expression, "false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin," shall include any of the current coin which shall have been gilt, silvered, washed, coloured, or cased over, or in any manner altered, so as to resemble or be apparently intended to resemble or pass for any of the Queen's current coin of a higher denomination; and the expression "the Queen's current coin" shall include any coin coined in any of Her Majesty's mints, or lawfully current, by virtue of any proclamation or otherwise, in any part of Her Majesty's said dominions, and whether made of gold, sil

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King, there can be no general notoriety of the fact.

(f) 1 East, P. C. 148, where it is said also, that this recall may be by proclamation; and long disuse may, it is conceived, be evidence of it. It has also been effected by Act of Parliament, as by 9 Will. 3, c. 2, and 6 Geo. 2, c. 26.

(g) See 33 Vict. c. 10, s. 11.`
(h) Sec. 43.

ver, copper, bronze, or mixed metal; and where the having any matter in the custody or possession of any person is mentioned in this Act, it shall include not only the having of it by himself in his personal custody or possession, but also the knowingly and wilfully having it in the actual custody or possession of any other person, and also the knowingly and wilfully having it in any dwelling-house or other building, lodging, apartment, field, or other place, open or enclosed, whether belonging to or occupied by himself or not, and whether such matter shall be so had for his own use or benefit or for that of any other person.' (i)

The words of the 2 Will. 4, c. 34, s. 21, were coined in any of His Majesty's mints and lawfully current' in any part of His Majesty's dominions, whether within the United Kingdom or otherwise; and consequently did not include coin which was not coined in any such mint, but was current in any of the colonies by virtue of any proclamation or otherwise; this clause is so framed as to include all such coin, and by that means the provisions of this Act are extended to it.

The definition of the Queen's current coin' is new. A genuine sovereign was fraudulently filed at the edges, thereby reducing the weight by one twenty-fourth part. The old milling being destroyed, a new milling was made so as to make the coin appear like a current sovereign; it was held that the coin so altered was false and counterfeit, the words' shall include' in section 1, not being words of limitation, but of extension. (j)

In R. v. Rogers, 2 M. C. C. R. 85; R. v. Gerrish, 2 M. & Rob. 219; and R. v. Williams, 1 C. & M. 259, questions had arisen whether a person could be said to be in possession of coin within the meaning of the 2 Will. 4, c. 34, s. 21, which was with his knowledge in the personal possession of another, even though he were in company and acting in concert with such other, and the words 'knowingly and wilfully having it in the actual custody or possession of any other person' were introduced to remove all doubt in such cases.

Counterfeiting the Queen's gold or silver coin. Sec. 2. Whosoever shall falsely make or counterfeit any coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, -or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement.' (k)

Colouring counterfeit coin or any pieces of metal with intent to make them pass for gold or silver coin. - Sec. 3. Whosoever shall gild or silver, or shall, with any wash or materials capable of producing the colour or appearance of gold or of silver, or by any means whatsoever, wash, case over, or colour any coin whatsoever resembling or apparently intended to resemble or pass for any of the Queen's current gold

(2) This clause is framed on the 2 Will. 4, c. 34, s. 21, and 22 & 23 Vict. c. 30.

6) R. v. Hermann, 4 Q. B. D. 284, per Coleridge, C. J, and Pollock & Huddleston BB., (Lush and Stephen JJ., diss.)

VOL. I. - 14

(k) This clause is taken from the 2 Will. 4, c. 34, s. 3. See the interpretation clause, ante, p. 208.

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