until they had ceased to be stewards, yet it was still obligatory upon 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 shewn 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. (i)

So an indictment lies against the president and stewards of a friendly society for disobeying an order of justices requiring them and the members of the said society to readmit a member, though it be sworn that the power of doing so is not in the president and stewards, but in a committee. (j)

served.

There must be personal service of an order on all persons who are The order charged with a contempt of it: and it was held, upon demurrer, to should be be a decisive objection to an indictment for a disobedience and personally 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. (k)

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. (1)

Upon an indictment for disobeying an order commanding the stewards of a friendly society to readmit A. B., it seems to be sufficient to prove that the order was served on one of the defendants, and that the others when A. B. applied to them to be readmitted said they would not, and did not care for the justice's order. (m)

It appears to have been holden not to be necessary, in an indict- Of the indict

(h) Rex v. Gash and another, 1 Starkie, 41.

(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 ma. gistrates of Middlesex had jurisdiction.

ment.

Legality of the order cannot be

inquired into on the trial or

on motion in arrest of

judgment.

But want of jurisdiction may.

ment against a public officer for disobedience of orders, to aver that the orders have not been revoked; for the orders, being stated to have been given by those who were empowered by certain statutes to give them, must be taken to remain in force until they were revoked or contradicted. (n) But an indictment for disobeying an order of justices must shew explicitly that an order was made; and it is not sufficient to state the order by way of recital. (o) It is said to be more safe to aver that the defendant was requested to comply with the terms of the order. (p) But if the statement of the order having been served on all the defendants (which, as has been before observed, 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. (q)

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 shew that the justices had jurisdiction to make the order under the 33 Geo. 3, c. 54, s. 2. (99) Upon the trial of such an indictment, (qq) 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. (r) Upon the trial, therefore, of such an indictment it is no defence that the party ordered to be readmitted was ineligible to be a member of the society, as that was matter of defence before the justices. (s) So on a motion to arrest the judgment upon an indictment for disobeying an order of justices for the payment of a fine upon a conviction, the Court of King's Bench refused to hear any objections to the conviction which did not appear upon the face of it. (1) 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. Where, therefore, certain justices acting under the Building Act (14 Geo. 3, c. 78) had made an order that a building should be removed, as an encroachment on a highway, but the building was not stated in the order to extend beyond the general line of the houses so as to be contrary to the provisions of the act, it was held, upon an indictment for disobeying such order, that the defendant should be acquitted, although the objection appeared upon the record. (u)

Where an indictment stated that M. had been expelled from a friendly society, and had been deprived of certain relief from it, to which he was entitled, and that finding himself aggrieved thereby, he made complaint thereof to two justices, and deposed before them

point.

(9) Rex v. Kingston, 8 East, 41, 53. (qq) Rex ". Gilkes, 8 B. & C. 439. (r) Rex v. Mitton, 3 Esp. R. 200, S. C. Cald. 536.

(s) Rex v. Gilkes, 3 C. & P. 52. Abbott, C. J.

(t) Rex v. Mitton, 3 Esp. R. 200, in the note.

(u) Rex v. Hollis, 2 Star. N. P. C. 536. Abbott, C. J.

to the truth of the said complaint, and that the justices ordered that he should be continued a member of the society, and that the stewards of the society unlawfully refused so to continue him as a member of the society, and the order when produced, recited only a complaint that the stewards had refused to pay him the relief, but contained an order to pay the relief, and also that he should be continued a member of the society; it was held that the defendants were entitled to be acquitted; first, because the allegations of the indictment were not proved, as the defendants were only summoned to answer one ground of complaint and not two; and, secondly, because the adjudication to continue M. as a member of the society was bad, for the 33 Geo. 3, c. 54, s. 15, confines the jurisdiction of justices to the subject matter of the complaint. (v) Before this subject is concluded, it may be proper, shortly, to notice the 33 Geo. 3, c. 55, s. 1, which gives power to justices of peace assembled at any special or petty sessions, upon complaint upon oath of any neglect of duty, or of any disobedience of any lawful warrant, or order of any justice or justices of the peace, by any constable, overseer of the poor, or other peace or parish officer, (such constable, &c., having been duly summoned) to impose, upon con- to orders of viction, any reasonable fine or fines, not exceeding forty shillings; justices. and, by warrant under the hands and seals of any two or more of such justices so assembled, to direct the fines to be levied by distress and sale of the offender's goods. And it is provided, that any person aggrieved by such fine, warrant, &c., may appeal to the next quarter sessions; giving, at least, ten days' notice.

the

(v) Rex v. Soper, 3 B. & C. 857.

to

33 Geo. 3, c. 55, s. 1, gives a power justices to fine constables, of duty, and disobedience

&c., for neglect

CHAPTER THE THIRTY-SECOND.

Of an escape by the party himself.

Evidence.

OF ESCAPES.

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 of 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: 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 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)

It was decided, upon an indictment for an escape from the House of Correction, after conviction for a capital offence and conditional pardon, that a certificate from the officer of the former conviction was not evidence, as in the case of being at large after sentence of transportation. The indictment was for an escape from the House

(a) Terms de la Ley.

(b) 1 Hale, 590. 2 Hawk. P. C. c. 17, 18, 19, 20, 21.

(c) 2 Hawk. P. C. c. 17, s. 5. 4 Blac.

Com. 129.

(d) 1 Hale, 611. 2 Inst. 589, 590. Summ. 108. Staund. P. C. 30, 31. 2 Hawk. P. C. c. 18, s. 9, 10.

evidence.

of Correction after a pardon, upon condition of being there for one year; the certificate of the clerk of assize was produced in evidence: but, upon a case reserved, the judges were of opinion that the certificate was no evidence, there being no act which made it evidence, and that the conviction was wrong. (e) But the 4 Geo. 4, c. 64, s. Certificate of 44, to the intent that prosecutions for escapes, breaches of prison, conviction and rescues, may be carried on with as little trouble and expense as possible, enacts, (amongst other things) that in case of any prosecution for any escape, attempt to escape, breach of prison or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given by the clerk of assize, or other clerk of the Court in which such offender shall have been convicted, shall, together with due proof of the identity of the person, be sufficient evidence to the Court and jury of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. With respect to the form of such a certificate, a case decided upon the 56 Geo. 3, c. 27, s. 8, [now repealed] may be mentioned, in which it was decided that the certificate of a former conviction, authorized by that statute, should set forth the effect and substance of the conviction; and that stating it to have been for felony only was insufficient. The prisoner was indicted for being at large after a sentence of transportation for seven years: the indictment only stated that he had been convicted of felony, without specifying the nature of that felony; and the certificate to prove the former conviction was in the same form. Upon the point being saved, the judges thought this case decided by a former case of Rex v. Sutcliffe, and the prisoner was remitted to his original sentence. (f)

It may be here mentioned that, by the 44 Geo. 3, c. 92, s. 3, offenders, against whom any warrant shall be issued, escaping from Ireland into England or Scotland, may be apprehended by an indorsed warrant, and conveyed to Ireland: the fourth section makes the same provision as to offenders escaping from England or Scotland into Ireland, being apprehended and conveyed back again to England or Scotland. (g)

Persons escaping from Great Britain from Ireland to Great Britain,

to Ireland, or

to be apprehended and brought back

Escapes effected, or, perhaps more properly, suffered by others again. than the party himself, without force, by permission or negligence, may be either, L. by officers; or, II. by private persons.

(e) Rex v. Smith, East. T. 1788. MS. Bayley, J.

(f) Rex v. Watson, Mich. T. 1821. MS. Bayley, J., and Russ. & Ry. 468. The 56 Geo. 3, c. 27, s. 3, authorized a certificate containing the effect and substance only, omitting the formal part, of every indictment, conviction, &c.

(g) And see as to the apprehension of persons escaping from England into Scotland, and from Scotland into England, 13 Geo. 3, c. 31. And as to the admitting persons apprehended in England, Scotland, and Ireland, respectively, to bail, for bailable offences, see 45 Geo. 3, c. 92, and 54 Geo. 3, c. 186.

VOL. I.

EE