prisoner, there was a presumption that he was the maker of the coin. (ƒ) Upon an indictment for procuring counterfeit money with intent to utter it, the uttering the money, knowing it to be counterfeit, is evidence that it was procured with that intent.(g)

With respect to persons having implements for house-breaking, &c., in their possession with a felonious intent, the Legislature has made some provisions. The 5 Geo. 4, c. 83, s. 4, made persons having in their possession implements of housebreaking or weapons with intent to commit any felonious act, liable to be summarily convicted; and the 24 & 25 Vict. c. 96, s. 58, makes persons armed with offensive weapons, or in possession of implements of house-breaking, guilty of a misdemeanor. And in some instances an act, accompanied with a certain intent, has been made a felony by particular statutes; as by the 24 & 25 Vict. c. 96, s. 38, the severing with intent to steal the ore of any metal, or any coal, &c., from any mine, bed or vein thereof, is made felony punishable by two years imprisonment. And by the 24 & 25 Vict. c. 97, s. 14, the damaging certain articles in a course of manufacture, with intent to destroy them, and the entering certain places with intent to commit such offence, is made felony punishable by penal servitude for life or imprisonment, &c.

Where an offence is not so at common law, but made an offence by Act of Parliament, an indictment will lie where there is a substantive prohibitory clause in such statute, though there be afterwards a particular provision and a particular remedy given.(h) *Thus, an unqualified person may be indicted for acting as an attorney contrary to the 6 & 7 Vict. c. 73, s. 2, although sec. 35 and sec. 36 enact, that in [*87 case any person shall so act he shall be incapable of recovering his fees, and such offence shall be deemed a contempt of court and punishable accordingly.(i) And it is stated as an established principle that when a new offence is created by an Act of Parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty; but he may proceed on the prior clause, on the ground of its being a misdemeanor.(k) And wherever a statute forbids the doing of a thing, the doing it wilfully, although without any corrupt motive, is indictable.(7) Thus, under the 3 & 4 Vict. c. 95, s. 15, which makes it a misdemeanor if any person "shall wilfully do, or cause to be done, anything in such a manner as to obstruct any engine or carriage using any railway," Maule, J., held, that if a person designedly placed on a railway substances having a tendency to produce an obstruction, he was within the Act, and that it was not necessary that he should have placed them there expressly with the view to obstruct an engine. (m) If a statute enjoin an act to be done, without pointing out (f) Fuller & Robinson's case, supra.

(g) Brown's case, 1 Lew. 42, Holroyd, J. It is said the learned judge seemed to consider a procurement elsewhere, with intent to utter, a continuing procurement in the county where the uttering took place.

(h) Rex v. Wright, 1 Burr. 543; Rex v. Gregory, 5 B. & Ad. 555 (27 E. C. L. R.); 2 N. & M. 478; Reg. v. Crossley, 10 A. & E. 132 (37 E. C. L. R.).

(i) Reg. v. Buchanan, 8 Q. B. 883 (55 E. C. L. R.).

(k) By Ashurst, J., in Rex v. Harris, 4 T. R. 205. And this principle has been held to apply, where the clause annexing the penalty was in the same section of the statute. Thus the repealed clause, 5 Eliz. c. 4, s. 31, enacted, "that it shall not be lawful to any person to set up, &c., any craft, mystery, &c., except he shall have been brought up therein seven years as an apprentice," &c., upon pain that every person willingly offending or doing the contrary forfeit for every default forty shillings for every month; and the method of proceeding upon this statute was either by information qui tam in the court of oyer and terminer or sessions of the county, &c., where the offence was committed, to recover the penalty, or by indictment in those courts. See the cases collected in the note to Rex v. Kilderby, 1 Saund. 312 a. But it should be observed that a subsequent section (39) gave authority to proceed by indictment, or by information, &c.

(1) Rex v. Sainsbury, 4 T. R. 457, where it was held to be a misdemeanor in magistrates to grant an ale license where they had no jurisdiction. See Reg. v. Nott, 4 Q. B. 768 (45 E. C. L. R.), where Lord Denman, C. J., said, "If the statute in terms create an offence all persons are bound to know it. But if a statute enacts something without in terms making it an offence, and you would convict a person of misdemeanor in having disobeyed such an enactment, are you not bound to show that the disobedience was wilful, and in the nature of contempt?"

(m) Reg. v. Holroyd, 2 M. & Rob. 339; and see Jones v. Taylor, 1 E. & E. 20 (102 E. C.

any mode of punishment, an indictment will lie for disobeying the injunction of the Legislature.(n) Thus, the father of a child is indictable if, being requested by the registrar within forty-two days of its birth so to do, he wilfully refuse to inform the registrar of the particulars required by the Act to be registered touching the birth, contrary to the 6 & 7 Will. 4, c. 86, s. 20.(o) And this mode of proceeding in such case is not taken away by a subsequent statute pointing out a particular mode of punishment for such disobedience.(p) Where the same statute which enjoins an act to be done contains also an enactment providing for a particular mode of proceeding, as commitment, in case of neglect or refusal, it has been doubted whether an indictment *will lie.(g) But where a statute only *88] adds a further penalty to an offence prohibited by the common law, there is

no doubt but that the offender may still be indicted, if the prosecutor think fit, at the common law.(r) Where a statute makes that felony which before was a misdemeanor only, the misdemeanor is merged, and there can be no prosecution afterwards for the misdemeanor;(rr) but if it gives a new punishment or new mode of proceeding for what before was a misdemeanor, without altering the class or character of the offence, the new punishment or new mode of proceeding is cumulative only, and the offender may be proceeded against as before for the common law misdemeanor. Therefore, notwithstanding the provisions of 9 & 10 Will. 3, c. 32, against blasphemy, it was held that a blasphemous libel might be prosecuted as a common law offence. (s) It may be observed also, that it is an offence at common law to obstruct the execution of powers granted by statute.(1) But where a public Act regulates rights which are merely private, an indictment will not lie for the infringement of those rights: as, if a statute empowers the setting out of private roads and the directing their repairs, an indictment does not lie for not repairing them.(u)

Where the statute making a new offence only inflicts a forfeiture and specifies the remedy, an indictment will not lie.(v) The true rule is stated to be this: Where the offence is punishable by a common law proceeding, before the passing of a statute which prescribes a particular remedy by a summary proceeding, then either method may be pursued, as the particular remedy is cumulative, and does not exclude the common law punishment; but where the statute creates a new offence by prohibiting and making unlawful anything which was lawful before, and appoints a particular remedy against such new offence by a particular sanction and particular method of proceeding, such method of proceeding must be pursued and no other.(w) The mention of other methods of proceeding impliedly excludes that of indictment; (x) unless such methods of proceeding are given by a separate

L. R.), as to the meaning of the words "wilfully trespass upon any railway" in the 3 & 4 Vict. c. 97, s 16.

(n) Rex v. Davis, Say. 133.

(o) Reg. v. Price, 11 A. & E. 727 (39 E. C. L. R.).

(p) Rex v. Boyal, 2 Burr. 832; Rex v. Balme, Cowp. 648, cited in the notes to 2 Hawk. P. C. c. 25, s. 4. And, generally speaking, the Court of King's Bench cannot be ousted of its jurisdiction but by express words, or by necessary implication. By Ashurst, J., in Cates v. Knight, 3 T. R. 445.

(9) Rex v. Cummings and another, 5 Mod. 179; Rex v. King, 2 Str. 1268: Cases of indictments against overseers for neglecting to account, and for not paying over the balance within the time limited by the statute. But see the authorities: and, in 2 Nol. P. L. 453, it is stated that an indictment will lie in these cases, though the statute provides another remedy by commitment. See cases there cited.

(r) 2 Hawk. P. C. c. 25, s. 4; Rex v. Wigg, Lord Raym. 1163; 2 Sálk. 460. And see the cases collected in Rex v. Dickenson, 1 Saund. 135 a, note (4).

(rr) But see now the 14 & 15 Vict. c. 100, s. xii.

(s) Rex v. Carlisle, 3 B. & A. 161, 164 (5 E. C. L. R.).

(t) Rex v. Smith and others, Dougl. 441. And an indictment for such offence need not, and ought not, to conclude contra formam statuti. ·

(u) Rex v. Richards, 8 T. R. 637.

(v) Rex v. Wright, 1 Burr. 543; Rex v. Douse, 1 Lord Raym. 672.

(w) Rex v. Robinson, 2 Burr. 805; Rex v. Carlisle, 3 B. &. A. 163 (5 E. C. L. R.); Rex

v. Boyal, 2 Burr. 832. See also Hartley v. Hooker, Cowp. 524; Rex v. Wright, 1 Burr. 543; Rex v. Balme, Cowp. 650. And see Faulkner's case, 1 Saund. 250, note (3). (x) 2 Hawk. c. 25, s. 4.

and substantive clause.(y) Thus it has been held, (2) and seems now to be settled,(a) that where a statute making a new offence, not prohibited by the common law, appoints in the same clause a particular manner of proceeding against the offender, as by commitment or action of debt or information, without mentioning an indictment, no indictment can be maintained. By 21 Hen. 8, c. 13, s. 1, no spiritual person shall take land to farm on pain to *forfeit £10 per month; [*89 and it was decided on this statute, that as the clause prohibiting the act specified the punishment, the defendant was not liable to be indicted. (b) And it was held not to be an indictable offence to keep an alehouse without a license, because a particular punishment, namely, that the party be committed by two justices, was provided by the statute. (c) And an indictment for assaulting and beating a custom-house officer in the execution of his office was quashed, because the 13 & 14 Car. 2, c. 11, s. 6, appointed a particular mode of punishment for that offence.(d) So an indictment for killing a hare was quashed, on the ground that it was not indictable; the 5 Anne, c. 14, having appointed a summary mode of proceeding before justices. (e) In one case, where no appropriation of the penalty, nor mode of recovering it, was pointed out by the statute, the Court held that it could not be recovered by indictment; but it was in the nature of a debt to the Crown, and suable for in a Court of revenue only.(ƒ)

Amongst other decisions as to cases which cannot be made the subject of indictment, it appears to have been ruled that an indictment will not lie for setting a person on the footway in a street to distribute handbills, whereby the footway was impeded and obstructed; (g) nor for throwing down skins into a public way, by which a personal injury is accidentally occasioned ; (h) nor for acting, not being qualified, as a justice of peace; (i) nor for selling short measure; (k) nor for excluding commoners by enclosing;() nor for an attempt to defraud, if neither by false tokens or conspiracy;(m) nor for secreting (y) Ante, p. 86. (z) Glass's case, 3 Salk. 350. (b) Rex v. Wright, 1 Burr. 543.

(a) 2 Hawk. c. 25, s. 4. (c) Anon., 3 Salk. 25; s. P. Watson's case, i Salk. 45; and Rex v. Edwards, 3 Salk. 27. And see Faulkner's case, 1 Saund. 248, and Mr. Serj. Williams's note (3) at page 250 e. (d) Anon., 2 Lord Raym. 991; 3 Salk. 189. So an indictment for keeping an alehouse was quashed, because the 3 Car. 1. c. 3, had directed a particular remedy: Rex v. James, cited in Rex r. Buck, 1 Stra. 679.

(e) Rex v. Buck, 1 Stra. 679.

(f) Rex v. Malland, 2 Stra. 828, a case upon the 12 Geo. 1, c. 25, which imposes a penalty of twenty shillings per thousand for burning place bricks and stock bricks together. (9) Rex v. Sermon, 1 Burr. 516. But it was held by Lord Ellenborough that every unauthorized obstruction of a highway, to the annoyance of the King's subjects, is an indictable offence, in Rex v. Cross, 3 Campb. 227, where it was held to be an indictable offence for stage coaches to stand plying for passengers in the public streets. (k) Rex v. Gill, 1 Stra. 190.

(i) Castle's case, Cro. Jac. 643.

(k) Rex v. Osborn, 3 Burr. 1697; but selling by false measure is indictable: Ibid. (4) Willoughby's case, Cro. Eliz. 90.

(m) Rex v. Channell, 2 Stra. 793. Indictment against a miller for taking and detaining part of the corn sent to him; and Rex v. Bryan, 2 Stra. 866; Anon., 6 Mod. 105; Rex v. Wheatley, 2 Burr. 1125; Rex v. Wilders, cited 2 Burr. 1128; and Rex v. Haynes, 4 M. & S. 214. This last case was an indictment against a miller, for receiving good barley, to grind at his mill, and delivering a mixture of oat and barley meal, different from the produce of the barley, and which was musty and unwholesome. On the part of the prosecution, a note in 1 Hawk. P. C. c. 71, s. 1, referring to 1 Sess. Ca. 217, was cited, where it is laid down, that changing corn by a miller, and returning bad corn instead of it, is punishable by indictment; for, being in the way of trade, it is deemed an offence against the public:" but it was held that the indictment would not lie. Lord Ellenborough, in giving judgment, said, that if the allegation had been that the miller delivered the mixture as an article for the food of man, it might possibly have sustained the indictment, but that he could not say that its being musty and unwholesome necessarily and ex vi termin imported that it was for the food of man; and it was not stated that it was to be used for the sustentation of man, but only that it was a mixture of oat and barley meal. His Lordship then proceeds: "As to the other point, that this is not an indictable offence, because it respects a matter transacted in the course of trade, and where no tokens were exhibited by which the party acquired any greater degree of credit, if the case had been that this miller was owner of a soke-mill, to which the inhabitants of the vicinage were bound to resort, in order to get their corn ground, and that the miller, abusing the confidence of this his situation, had made it a color for practising a fraud, this might have

*90] *another;(n) nor for bringing a bastard child into a parish ;(o) nor for entertaining idle and vagrant persons in the defendant's house;(p) nor for keeping a house to receive women with child, and deliver them.(g)

Where an indictment charged that the prisoner contriving to injure the inhabitants of the parish of Barking, and unjustly to burthen the said parish with the charge and maintenance of a female child of very tender age, unlawfully did take the said child into the said parish, and there in a certain open highway unlawfully did leave and desert the said child contrary to her duty in that behalf, the said child being unable to take care of herself; after a verdict of guilty, the indictment was held to disclose no offence, as it did not allege that the child was settled elsewhere than in Barking.(r) So where an indictment alleged that the prisoner contriving to injure the inhabitants of the parish of Bathwicke, and unjustly to burthen them with the maintenance of her bastard child, being of very tender age and unable to move or walk, unlawfully did abandon the said child in the said parish without having provided any means for the support of the said child, the said child not being settled in the said parish; it was held that the indictment was bad, because the mere abandonment, the possible consequence of which might be to injure the parish, was not an indictable offence.(8)

Where an indictment stated that the prisoner intending to burthen the inhabi

tants of a parish with the maintenance of her *bastard child abandoned the *91] said child in the said parish, and it appeared that the prisoner left the child

in a dry ditch in a field in the parish; there was a pathway in the field by the ditch, and a lane separated from the ditch by a hedge, neither of which was much frequented; Parke, B., held that there was no ground for imputing any intention to burthen the parish, as it was not placed in a position where it was likely to come to the knowledge of the officers of the parish.(t)

It has been held that administering a poisonous ingredient with intent to hurt and damage the body, and whereby sickness and disorder of the body is caused, is not indictable.(u)

presented a different aspect; but as it now is, it seems to be no more than the case of a common tradesman, who is guilty of a fraud in a matter of trade or dealing; such as is adverted to in Rex v. Wheatley, and the other cases as not being indictable." And see also Rex v. Bower, Cowp. 323, as to the point that for an imposition, which a man's own prudence ought to guard him against, an indictment does not lie, but he is left to his civil remedy. But in Rex v. Dixon, 3 M. & S. 11, it was held, that a baker who sells bread containing alum, in a shape which renders it noxious, is guilty of an indictable offence, if he ordered the alum to be introduced into the bread, although he gave directions for mixing it up in the manner which would have rendered it harmless. See post, p. 168. (n) Rex v. Chaundler, 2 Lord Raym. 1368: an indictment for secreting A, who was with child by the defendant, to hinder her evidence, and to elude the execution of the law for the crime aforesaid.

But qu.

(0) Rex v. Warne, 1 Stra. 644, it appearing that the parish could not be burthened, the child being born out of it. But see a precedent of an indictment for a misdemeanor at common law, in lodging an inmate who was delivered of a bastard child, which became chargeable to the liberty: 2 Chit. Crim. Law, 700. And see also id. 699, and 4 Wentw. 353. Cro. Circ. Comp. (7th edit.) 648, precedents of indictments for misdemeanors at common law, in bringing such persons into parishes in which they had no settlements, and in which they shortly died, whereby the parishioners were put to expense. In a late case it is stated to have been held, that no indictment will lie for procuring the marriage of a female pauper with a laboring man of another parish, who is not actually chargeable: Rex v. Tanner and Another, 1 Esp. 304. But if the facts of the case will warrant a charge of conspiracy, the offence would be substantiated, if under the circumstances the parish might possibly be put to expense. See 1 Nol. P. L. Settlement by Marriage, Sec. I. in the notes; Rex v. Seward, 1 A. & E. 706 (28 E. C. L. R.); 3 N. & M. 557. (p) Rex v. Langley, 1 Lord Raym. 790. (r) Reg. v. Cooper, 1 Den. C. C. 459; 2 C. & K. 876. The indictment was also held bad, because it did not allege that the prisoner injured the child, or that it received any damage or was likely so to do. See now the 24 & 25 Vict. c. 100, s. 27, post, as to abandoning children.

(2) Rex v. Macdonald, 2 Burr. 1646.

(s) Reg. v. Hogan, 2 Den. C. C. 277. The indictment was also held bad, because it did not allow that the child suffered any injury.

(1) Reg. v. Renshaw, 2 Cox C. C. 285.

(u) Reg. v. Hanson, 2 C. & K. 912 (61 E. C. L. R.), Williams and Cresswell, JJ. This case would fall within the 24 & 25 Vict. c. 100, s. 24, post.

Cases of non-feasance and particular wrong done to another are not in general the subject of indictment: and it has been doubted whether a clergyman is indictable for refusing to marry persons who were lawfully entitled to be married;(v) but we have seen that circumstances may exist of mere non-feasance towards a child of tender years (such as the neglect or refusal of a master to provide sufficient food and sustenance for such a child, being his servant and under his dominion and control), which may amount to an indictable offence.(w)

It has been held, that where a mayor of a city, being a justice, made an order that a company in the city should admit one to be a freeman of that corporation, and the master of the company, being served with the order, refused to obey it, such refusal was not the subject of indictment.(x) And an indictment will not lie for not curing a person of a disease according to promise, for it is not a public offence, and no more in effect than a ground for an action on the case. (y) To keep an open shop in a city, not being free of the city, contrary to the immemorial custom there, has been held not to be indictable.(z)

With regard to trespasses, it has been held that a mere act of trespass (such as entering a yard and digging the ground, and erecting a shed or cutting a stable) committed by one person, unaccompanied by any circumstances constituting a breach of the peace, is not indictable; and the court quashed such indictment on motion. (a) And an indictment against one person for pulling off the thatch off a man's house, who was in the peaceable possession of it, was also quashed on motion (b) So an indictment for taking away chattels must import that such a degree of force was used as made the taking an offence against the public. An indictment averred that the defendant with force and arms unlawfully, forcibly, and injuriously seized, took, and carried away, of and from J. S., and against his will, a paper-writing purporting to be a warrant to apprehend the defendant [*92 for forgery; and, after a conviction, a motion was made in arrest of judgment on the ground that the charge did not amount to an indictable offence. Perryn, B., took time to consider until the subsequent assizes, and had the case argued before him; 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.(c)

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.(d) And an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace:(e) and though such goods are the prosecutor's own property, yet, if he take them in that manner, he will be guilty.(ƒ)

With regard to the punishment of misdemeanors, it may be laid down as a general rule that all those offences less than felony, which exist at common law, and have not been regulated by any particular statute, are within the discretion of the Court to punish. (9) Fine and imprisonment appear to be the most ordinary judgments in cases of misdemeanor; but a fine cannot be imposed on a married woman, as she has nothing to pay the fine with. (h) The pillory was also a common punishment in these cases; but it was abolished by the 1 Vict. c. 23 and the 56 Geo. 3, c. 128; which by sec. 2 empowers the Court to pass such sentence of fine or imprisonment, or of both, in lieu of a sentence of pillory, as to the Court shall

(r) Reg. v. James, 2 Den. C. C. 1. The point was not decided, as there had been no sufficient demand to marry.

(w) Ante, p. 80.

(x) Rex v. Atkinson, 3 Salk. 188.

(y) Rex v. Bradford, 1 Lord Raym. 366; 3 Salk 189. In an Anon. case, 2 Salk. 522, it appears to have been held, that if a pawnbroker refuses, upon tender of the money, to deliver the goods pledged, he may be indicted. But Rex v. Jones, 1 Salk. 379, is contra. (2) Rex v. George, 3 Salk. 188. Nor is it an indictable offence to exercise trade in a borough contrary to the by-laws of that borough: Rex v. Sharpless, 4 T. R. 777. (a) Rex v. Storr, 3 Burr. 1699.

(b) Rex v. Atkins, 3 Burr. 1706.

(e) Rex v. Gardiner, Salisbury, 1780, MS. Bayley, J.
(d) Rex v. Storr, 3 Burr. 1699.
(f) Ibid.

L. R.).

(e) Anon., 3 Salk. 187.

See Blades v. Higgs, 10 C. B. (N. S.) 713; 12 C. B. (N. S.) 501 (104 E. C.

(g) 1 Ch. Cr. L. 710; Rex v. Thomas, C. T. H. 278.

(h) Rex v. Thomas, supra.

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