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it was held not

the time of the grant, or secured by the actual transfer of stock in
any of the public funds, the dividends whereof are of equal or
greater annual value than the said annuity ; nor to any voluntary
annuity or rent charge granted without regard to pecuniary consi-
deration or money's worth ; nor to any annuity or rent-charge
granted by any body corporate, or under any authority or trust
created by act of parliament.(a)
It
may

be here mentioned that in a case of an indictment upon On an indict-
the repealed statute 17 Geo. 3. c. 26. s. 7. for taking more than ment on the 17
ten shillings in the 1001. for brokerage, &c. it was objected at the
trial that the evidence did not sustain the indictment; the charge to be necessary
being that 3221. 10s. was paid for brokerage of the sum of 24501., to prove the
and the evidence being that the defendant, at the time of the and that the
money being paid, said that 1001. was for the writings, (he being jury were to
an attorney and having produced them,) 1001. by way of present, ther the mo-
and 5li per cent. on the whole sum, viz. 1221. 10s. Lord Kenyon, niesweretaken
C. J., overruled the objection; and, upon the whole case, directed asafair charge,
the jury to consider whether the transaction were not a mere de- or as a device
vice and colour to receive the sum stated under different pretences, statute.
but in truth for the brokerage and soliciting of the loan, in fraud
of the act of parliament. This decision was confirmed by the
court, who were of opinion that the material question was, whe-
ther more than ten shillings in the 1001. was taken by the defend-
ant; and that it was not necessary to prove that he took the exact
sum laid in the indictment, though it was not laid with a scili-
cet. (n)

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(a) Sect. 10.

sum not being necessary, see Rex v. Rex v. Gillhain, 6 T. R. 265., Burdett, 1 Ld. Raym. 149. Ante, 146, and at N. P. 1 Esp. Rep. 285. As to and Rex v. Hill and others, 1 Stark. the point of the proof of the exact Rep. 359. Ante, 408,

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414

CHAPTER THE THIRTY-EIGHTH.

OF OFFENCES RELATING TO DEAD BODIES.

Taking up It has been holden that it is an indictable offence to take up a dead bodies, dead body, even for the purpose of dissection. Upon an indicteven for the purposes of

ment for this offence it was moved, in arrest of judgment, that if dissection, is it were any crime, it was one of ecclesiastical cognizance only; an indictable that it was not made penal by any statute ; and that the silence of offence.

Stamford, Hale, and Hawkins, upon this subject, afforded a very strong argument to shew that there was no such offence cognizable in the criminal courts. But the Court said, “that common de“ cency required that the practice should be put a stop to: that " the offence was cognizable in a criminal court, as being highly « indecent, and contrà bonos mores ; at the bare idea alone of “ which nature revolted. That the purpose of taking up the body « for dissection did not make it less an indictable offence : and " that, as it had been the regular practice of the Old Bailey, in “ modern times, to try charges of this nature, many of which had " induced punishment, the circumstance of no writ of error hav“ing been brought to reverse any of these judgments was a strong 66 proof of the universal opinion of the profession upon this sub“ ject; and they, therefore, refused even to grant a rule to shew

cause, lest that alone should convey to the public an idea that « they entertained a doubt respecting the crime alleged.(a)

It is an offence against decency to take a person's dead body, with intent to sell or dispose of it for gain and profit. An indictment charged (inter alia) that the prisoner a certain dead body of a person unknown lately before deceased, wilfully, unlawfully, and indecently, did take and carry away, with intent to sell and dispose of the same for gain and profit : and it being evident that the prisoner had taken the body from some burial ground, though from what particular place was uncertain, he was found guilty upon

(a) Rex v. Lynn, 2 T. Rep. 733, 1 cency; and the law of the Franks is Leach, 497. 2 East. P. C. c. 16. s. 89. mentioned, (as in Montesqu. Sp. L. b. p. 652. The defendant was only fined 30. ch. 19.) which directed, that a perfive marks, on the ground that he son who had dug a corpse out of the might possibly have committed the ground, in order to strip it, should be crime merely from ignorance, as no banished from society, and no one sufperson had been before punished for fered to relieve his wants till the relathe offence in that court. In 4 Bla. tions of the deceased consented to his Com. 236, 237, stealing a corpse is re-adınission, mentioned as a matter of great inde

ind if he words of Ca And if an the inter

this count. And it was considered that this was so clearly an indictable offence, that no case was reserved.(a)

The refusal or neglect to bury dead bodies by those whose duty The refusal or it is to perform the office, appears also to have been considered

an olen to hova hoon consi st neglect to bury as a misdemeanor. Thus, Abney, J., in delivering the opinion of a misdemeanthe Court of Common Pleas, said, “ The burial of the dead is, (as or. “ I apprehend, the duty of every parochial priest and minister; “ and if he neglect or refuse to perform the office, he may, by the “ express words of Canon LXXXVI. be suspended by the ordinary “ for three months. And if any temporal inconvenience arise, as “ a nuisance, from the neglect of the interment of the dead corpse, “he is punishable also by the temporal courts, by indictment or “ information.”(b)

Provision has also been made by statute for the suitable inter- 48 G.3. c. 75. ment of such dead bodies as may be cast on shore from the sea. provides for

the suitable The 48 Geo. 3. c. 75. enacts, that the churchwardens and over- interment of seers of parishes in England, in which any dead body shall be such dead bofound thrown in, or cast on shore from the sea, shall, upon notice

ese chauunon notics dies as may be

e sed, Shaing upon ou cast on shore of the body lying within their parishes, cause the same to be from the sea. forthwith removed to some convenient place; and with all convenient speed to be decently interred in the churchyard 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.(c)

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.(d) 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 persons 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 of parish officers neglecting to execute the act. (e) An appeal to the quarter sessions is also given to any person thinking himself aggrieved by any thing done in pursuance of the act.(S)

The preventing a dead body from being interred has also been The prevent. considered as an indictable offence. Thus, the master of a work- ing and

body from behouse, a surgeon, and another person, were indicted for a con- ing interred is spiracy to prevent the burial of a person who had died in a work- also an indicthouse. (8) And though Hyde, C. J., upon a question how far the ab

dead

able offence.

(a) Rex v. Gilles, cor. Bayley, J. a poor parishioner who died in that Northumberland Spr. Ass. 1820. MS. parish. Bayley, J. Russ. & Ry. 366, note (b). (c) 48 Geo. 3. c. 75. s. 1.

(0) Andrews v. Cawthorne, Willes (d) Id. ibid. s. 2. 537, note (a). Abney, J., cited a case (e) Ibid. ss. 1, 3, 4, 5, 6, 7, 8, 12, 13, H. 7 G. 1. B. R. where that court 14. made a rule upon the rector of Da. (f) Id. sect. 10. ventry, in Northamptonshire, to shew (8) Rex v. Young and others, cited cause why an information should not in Rex v. Lyon, 2 T. R. 734. be filed, because he neglected to bury

forbearance to sue one who fears to be sued, is a good consideration for a promise,(h) 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 forbearance, though she was neither executrix nor administratrix;(i) yet the other Judges are said to have doubted of this :(k) and in a recent case, Lord Ellenborough, C. J., said it would be impossible to contend that such a forbearance could be a good consideration for an assumpsit.(1) Lord Ellenborough, C. J., continued, “to “ seize a dead body upon any such pretence would be contrà bonos " mores, and an extortion upon the relatives.” And in a subsequent part of the case, his Lordship said, “As to the case cited 6 by Hyde, C. J., of a mother who promised to pay on forbear“ ance of the plaintiff 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 moral feeling : such an act is revolting to humanity,

" and illegal.” The interment There is one case in which the too speedy interment of a dead of the body of

on who body may be an indictable offence; namely, where it is the body has died a vio- of a person who has died of a violent death. In such case, by lent death be- Holt, C.J., the coroner need not go ex officio to take the inquest, fore the coroner is sent for but ought to be sent for, and that when the body is fresh; and to is a misde- bury the body before he is sent for, or without sending for him, meanor.

is a misdemeanor.(m) It is also laid down that if a dead body in prison, or other place, whereupon an inquest ought to be taken, be interred or suffered to lie so long that it putrefy before the coroner has viewed it, the gaoler or township shall be amerced.(n)

Die

(h) Quick v. Coppleton, 1 Vent. 161. (m) Regina v. Clark, i Salk, 377.

(0) The name of the case is not men- Anon. 7 Mod. 10. 2 Hawk. P.C. c. 9. tioned; but it is said that Hyde, C.J., S. 23, note (4). cited it as a case that occurred in the (n) 2 Hawk. P. C. c. 9. s. 23. And Court of Common Pleas when he sat see an indictment against a township there.

for a misdemeanor, io burying a body (k) Quick v. Coppleton, 1 Vent. 161. without notice to the coroner, 2 Chit. (1) Jones v. Ashburnham, 4 East, 460. Cr. L. 266.

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OF GOING ARMED IN THE NIGHT-TIME, FOR THE DESTRUCTION OF

GAME,

The statute, 57 Geo. 3. c. 90., reciting that idle and dis- 57 G. 3. c.190. orderly persons go frequently armed in the night-time for the s. Jon Persons ?

found at eers' purpose of protecting themselves, and aiding and abetting, and tain times assisting each other, in the illegal destruction of game or rabbits; within any for and that such practices were found by experience to lead to the

un intent to de commission of felonies and murders; for the more effectual sup- stroy, &c.e pression thereof enacts, “ That if any person or persons, having game, and “entered into any forest, chase, park, wood, plantation, close, or deemed ruilev

armed, to be "other open or inclosed ground, with the intent illegally to de- of a misde“stroy, take, or kill, game or rabbits, or with the intent to aid, meanor, “abet, and assist, any person or persons illegally to destroy, take, “or kill, game or rabbits, shall be found at night, that is to say, “ between the hours of six in the evening and seven in the morn"ing, from the first day of October to the first day of February ; “between seven in the evening and five in the morning from the “ first day of February to the first day of April ; and between nine “ in the evening and four in the morning for the remainder of the “year; armed with any gun, cross-bow, fire arms, bludgeon, or “any other offensive weapon, every such person so offending, “ being thereof lawfully convicted, shall be adjudged guilty of a “misdemeanor, and shall be sentenced to transportation for seven and may be “ years, or shall receive such other punishment as may by law be tra

seven years, or “inflicted on persons guilty of misdemeanor, and as the court receive other “ before which such offenders may be tried and convicted shall punishment. “adjudge : and if any such offender or offenders shall return into And offenders Great Britain before the expiration of the term for which he or returning after

transportation “ they shall be so transported, contrary to the intent and mean- are to be trans“ing hereof, he or they so returning, and being thereof duly con- ported for life. “victed, shall be adjudged guilty of felony, and shall be sentenced “ to transportation for the term or terms of his or their natural life " or lives.”

If several are together, and any one of them is armed, the others Construction are liable to be convicted under this act. O'Flannagan and two of the act. others were in a park at night, and two of them had guns. O'Flannagan had one : but which of the other two persons had the other VOL, I.

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