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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. (f)
It was holden, that justices of the peace at their quarter ses- Justices of sions had no jurisdiction upon an indictment on the statute of 12 peace have no
jurisdiction Car. 2. (g) And with respect to an information on the statute of
on an indict12 Anne, it has been hołden that the court of King's Bench will ment for 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 inwhere 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.(h)
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.(0)
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, youring
to in(d) Reg. v. Dye, (7 Anne,) 11 Mod. In an action for usury, the averment 174. The case is very shortly reported, of the quantum of the excess taken is and does not state upon which section material. But some of the reasons of the statute the question was raised: for that accuracy, namely, that the but the editor of the Reports, (ed. penalty is apportioned to the value, 1796,) has cited many authorities in and that the judgment depends upon support of the decision, as to the ap- the quantum taken, do not apply to plicability of some of which qu. Reg. the proceeding by indictment. It may, v. Dye is however cited as law in 7 however, be said, on the other hand, Bac. Abr. Usury, (I).
that, as the contract must be set forth (e) Ante, 47. et sequ. And see 2 Chit. in the indictment, the general rule of Crim. L. 549, note (f).
pleading will apply; namely, that in (f) Rex r. Upton, 2 Str. 816. setting forth a contract it is necessary
(g) Reg. v. Smith, (4 Anne,) 2 Salk. to set it forth correctly, and prove it 680. 2 Ld. Raym. 1144. S. C.
as set forth. (h) Rex v. Hendricks, 2 Str. 1234. (k) Per Grose, J. in Rex v. Gillham, By the 31 Eliz. c. 5. s. 5. the common 6 T. R. 268 See further as to the informer is limited to a year after the points decided concerning usury, and offence committed ; and, if no such the proceedings for the recovery of suit is brought within a year, then the the penalties, 1 Hawk. P. C. c. 82. crown may sue at any time within 6 Com. Dig. Usury. 7 Bac. Abr. Usury. two years after the end of the first 2 Blac. Com. 455. el sequ. 4 Blac. year.
Com. 156, 157. (i) 2 Chit. Crim. L. 549. note (f).
to grant an- &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 demeanor.
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,
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 soli- The 9th section enacts “ that all and every solicitors and citors, &c. in
“ solicitor, scriveners and scrivener, brokers and broker, and other such cases
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 “ 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 Competency “ the court; and that the person or persons who shall have paid of witnesses.
or given any sum or sums of money, gratuity or reward, shall
“ be deemed a competent witness or witnesses, to prove the Proviso for This act is not to extend to Scotland or Ireland, nor to any Scotland or
annuity or rent-charge given by will or by marriage settlement, Ireland, and annuities or for the advancement of a child, nor secured upon freehold or granted by copyhold, or customary lands, of equal or greater annual value will, &c.
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 On an indictthe 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 was held not 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
exact sum laid, 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 moand 5l. per cent. on the whole sum, viz. 1221. 10s. Lord Kenyon, niesweretaken C. J., overruled the objection; and, upon the whole case, directed as afair 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, whether more than ten shillings in the 1001. 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.
sum not being necessary, see Rex v. (n) Rex v. Gillham, 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 poiut of the proof of the exact Rep. 359. Ante, 408.
CHAPTER THE THIRTY-EIGHTH.
OF OFFENCES RELATING TO DEAD BODIES.
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
ment for this offence it was moved, in arrest of judgment, that if purposes of 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 r 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 “ 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-admission. mentioned as a matter of great inde
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 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 to 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 i 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
provides for The 48 Geo. 3. c. 75. enacts, that the church wardens 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 dies as may be 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 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 extrà 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. ()
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 house, 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 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..
(b) Andrews v. Cawthorne, Willes (1) 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 Northamplonshire, to shew (g) Rex v. Young and others, cited cause why an information should not in Rex v. Lynn, 2 T. R. 734. be filed, because be neglected to bury