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method of proceeding prescribed by the statute. (d) But upon the principles which have been stated in a former part of this Work, as to an indictment being sustainable where there is a general prohibitory clause in a statute, though there be afterwards a particular provision and a particular remedy given, it should seem that an indictment will lie upon the statute where an usurious transaction has been carried into effect. (e) An indictment for usury has not, however, been a frequent mode of proceeding, as the party prosecuting has, in general, been contented to sue for the heavy penalties given by the statute: and it is clear that an indictment cannot be maintained for a corrupt agreement only; as where such an agreement was stated in an indictment for usury, without any loan, or taking excessive interest in pursuance of it, judgment was arrested.(ƒ)

Justices of peace have no jurisdiction on an indict

ment for

It was holden, that justices of the peace at their quarter sessions had no jurisdiction upon an indictment on the statute of 12 Car. 2. (g) And with respect to an information on the statute of 12 Anne, it has been holden that the court of King's Bench will not grant it after the time has elapsed within which the common usury. informer should institute his proceedings; on the ground that As to an information by where a penalty has vested in the crown only, the court have no the court of power to grant an information, but must leave it to the attorney- K. B. general to file one if he shall think proper.()

It is said that an indictment for usury, (supposing it to be sus- Form of intainable,) must contain all the requisites of a declaration for dictment. usury.(i)

If the transaction were effected by means of some device, or Evidence. colourable pretence, it must be left to the jury to say whether the sum taken, though ostensibly for another purpose, was not in reality taken as usurious interest.(k)

The statute 53 Geo. 3. c. 141. repeals the 17 Geo. 3. c. 26. 53 Geo. 3. c. except as to annuities or rent charges granted before the passing 141. Endeaof the act; and after providing for the due enrolment of the deeds, vouring to in

(d) Reg. v. Dye, (7 Anne,) 11 Mod. 174. The case is very shortly reported, and does not state upon which section of the statute the question was raised: but the editor of the Reports, (ed. 1796,) has cited many authorities in support of the decision, as to the applicability of some of which qu. Reg. v. Dye is however cited as law in 7 Bac. Abr. Usury, (I).

(e) Ante, 47. et sequ. And see 2 Chit. Crim. L. 549, note (ƒ).

(f) Rex v. Upton, 2 Str. 816. (g) Reg. v. Smith, (4 Anne,) 2 Salk. 680. 2 Ld. Raym. 1144. S. C.

(h) Rex v. Hendricks, 2 Str. 1234. By the 31 Eliz. c. 5. s. 5. the common informer is limited to a year after the offence committed; and, if no such suit is brought within a year, then the crown may sue at any time within two years after the end of the first year.

(i) 2 Chit. Crim. L. 549. note (ƒ).

1

In an action for usury, the averment
of the quantum of the excess taken is
material.

But some of the reasons
for that accuracy, namely, that the
penalty is apportioned to the value,
and that the judgment depends upon
the quantum taken, do not apply to
the proceeding by indictment. It may,
however, be said, on the other hand,
that, as the contract must be set forth
in the indictment, the general rule of
pleading will apply; namely, that in
setting forth a contract it is necessary
to set it forth correctly, and prove it
as set forth.

(k) Per Grose, J. in Rex v. Gillham, 6 T. R. 268 See further as to the points decided concerning usury, and the proceedings for the recovery of the penalties, 1 Hawk. P. C. c. 82. 6 Com. Dig. Usury. 7 Bac. Abr. Usury. 2 Blac. Com. 455, el sequ. 4 Blac. Com. 156, 157.

duce infants

to grant an

demeanor.

66

&c. whereby any annuity or rent charge shall be granted, makes nuities a mis- all contracts for the purchase of any annuity or rent-charge, with any person being under the age of twenty-one years utterly void; and then enacts (s. 8.) "that if any person shall either in person, "or by letter, agent, or otherwise howsoever, procure, engage, "solicit, or ask, any person being under the age of twenty-one years, to grant or attempt to grant any annuity or rent-charge, or to execute any bond, deed, or other instrument for securing "the same, or shall advance or procure, or treat for any money "to be advanced to any person under the age of twenty-one years, 66 upon consideration of any annuity or rent-charge to be secured "or granted by such infant, after he or she shall have attained "his or her age of twenty-one years; or shall induce, solicit, or "procure, any infant, upon any treaty or transaction for money "advanced or to be advanced, to make oath, or to give his or her "word of honour or solemn promise, that he or she will not plead "infancy, or make any other defence against the demand of any "such annuity or rent-charge, or the repayment of the money "advanced to him or her when under age, or that when he or she "comes of age, he or she will confirm or ratify, or in any way "substantiate such annuity or rent-charge, every such person "shall be guilty of a misdemeanor; and being thereof lawfully con"victed in any court of assize, oyer and terminer, or general gaol "delivery, shall and may be punished for the said offence by fine, "imprisonment, or other corporal punishment, as the court shall "think fit to award."

Acting as solicitors, &c. in

such cases misdemeanor.

Competency of witnesses.

Proviso for
Scotland or

Ireland, and
annuities
granted by
will, &c.

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The 9th section enacts "that all and every solicitors and "solicitor, scriveners and scrivener, brokers and broker, and other persons or person, who shall ask, demand, accept, or receive, "directly or indirectly, any sum or sums of money, or any other "kind of gratuity or reward, for the soliciting or procuring the "loan, and for the brokerage of any money that shall be actually "and bona fide advanced and paid as and for the price or consi"deration of any such annuity or rent charge, over and above the 66 sum of ten shillings for every one hundred pounds so actually "and bona fide advanced and paid, shall be deemed and adjudged "guilty of a misdemeanor; and being lawfully convicted of such "offence in any court of assize, oyer and terminer, or general gaol delivery, shall and may for every such offence, be punished by fine and imprisonment, or one of them, at the discretion of "the court; and that the person or persons who shall have paid "or given any sum or sums of money, gratuity or reward, shall "be deemed a competent witness or witnesses, to prove the same."

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This act is not to extend to Scotland or Ireland, nor to any annuity or rent-charge given by will or by marriage settlement, or for the advancement of a child, nor secured freehold or copyhold, or customary lands, of equal or greater annual value than the said annuity, (over and above any other annuity, and the interest of any principal sum charged or secured thereon, of which the grantee had notice at the time of the grant) whereof the grantor is seised in fee simple or fee tail in possession, or the fee simple whereof in possession the grantor is enabled to charge at

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 consideration 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 the repealed statute 17 Geo. 3. c. 26. s. 7. for taking more than ten shillings in the 1007. for brokerage, &c. it was objected at the trial that the evidence did not sustain the indictment; the charge being that 3227. 10s. was paid for brokerage of the sum of 24507., and the evidence being that the defendant, at the time of the money being paid, said that 1007. was for the writings, (he being an attorney and having produced them,) 1007. by way of present, and 51. per cent. on the whole sum, viz. 1227. 10s. Lord Kenyon, C. J., overruled the objection; and, upon the whole case, directed the jury to consider whether the transaction were not a mere device and colour to receive the sum stated under different pretences, 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, whether more than ten shillings in the 1007. was taken by the defendant; 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 scilicet. (n)

(a) Sect. 10.

(n) Rex v. Gillham, 6 T. R. 265., and at N. P. 1 Esp. Rep. 285. As to the point of the proof of the exact

sum not being necessary, see Rex v.
Burdett, 1 Ld. Raym. 149. Ante, 146,
and Rex v. Hill and others, 1 Stark.
Rep. 359. Ante, 408.

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414

CHAPTER THE THIRTY-EIGHTH.

OF OFFENCES RELATING TO DEAD BODIES.

Taking up dead bodies, even for the purposes of dissection, is an indictable offence.

IT has been holden that it is an indictable offence to take up a dead body, even for the purpose of dissection. Upon an indictment for this offence it was moved, in arrest of judgment, that if it were any crime, it was one of ecclesiastical cognizance only; that it was not made penal by any statute; and that the silence of 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 σε 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 "proof of the universal opinion of the profession upon this subject; 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)

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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 Leach, 497. 2 East. P. C. c. 16. s. 89. p. 652. The defendant was only fined five marks, on the ground that he might possibly have committed the crime merely from ignorance, as no person had been before punished for the offence in that court. In 4 Bla. Com. 236, 237, stealing a corpse is mentioned as a matter of great inde

cency; and the law of the Franks is mentioned, (as in Montesqu. Sp. L. b. 30. ch. 19.) which directed, that a person who had dug a corpse out of the ground, in order to strip it, should be banished from society, and no one suffered to relieve his wants till the relations of the deceased consented to his re-admission.

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

dead bodies is

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 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)

ἐσ

મંદ

Provision has also been made by statute for the suitable interment of such dead bodies as may be cast on shore from the sea. The 48 Geo. 3. c. 75. enacts, that the churchwardens and overseers of parishes in England, in which any dead body shall be found thrown in, or cast on shore from the sea, shall, upon notice of the body lying within their parishes, cause the same to be 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 cther 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 párochial 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. (f)

48 G. 3. c. 75. provides for the suitable

interment of such dead bo

dies as may be cast on shore

from the sea.

The preventing a dead body from being interred has also been The preventconsidered as an indictable offence. Thus, the master of a work- ing a dead 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.(g) And though Hyde, C.J., upon a question how far the able offence.

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