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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.(?) 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
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 a person 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, ner 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,
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)
(h) Quick v. Coppleton, 1 Vent. 161. (m) Regina v. Clark, 1 Salk. 377.
(i) 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, pote (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. 256.
CHAPTER THE THIRTY-NINTH.
OF GOING ARMED IN THE NIGHT-TIME, FOR THE DESTRUCTION OF
The statute, 57 Geo. 3. c. 90., reciting that idle and dis- 57 G. 3. c. 90. orderly persons go frequently armed in the night-time for the s. 1.-- Persons purpose
of protecting themselves, and aiding and abetting, and tain times assisting each other, in the illegal destruction of game or rabbits; within
any foand that such practices were found by experience to lead to the intent to de commission of felonies and murders; for the more effectual sup- stroy, &c. pression thereof enacts, " That if any person or persons, having game, and T entered into any forest, chase, park, wood, plantation, close, or
armed, to be
deemed guilty “ 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 transported for “ 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
transportation they shall be so transported, contrary to the intent and mean- are to be transing 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
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
gun could not be ascertained. The point was therefore saved, whether either of these two could be found guilty: but, upon the case reserved, the Judges were clear that, if any one of the party was armed, every one of the party was within the act; and the conviction of all these was held right. (a) But if several are out together, and one has arms without the knowledge of the others, the others are not liable to be convicted under this act. Johnson and Southern went into a close in the night to kill game; Johnson had a loaded pistol, but Southern did not know it: and, upon a case reserved, the Judges thought Southern not liable to be convicted under the act. (1) Perceiving a person fire is finding him armed, though his
is not seen at the time: and it is no answer to a charge under the act, that the parties put down their arms, and left them before they were seen, if it was perceived that some one was there armed before they were seen. A keeper heard a gun fired in a wood, and called to his man to watch : the persons in the wood immediately abandoned their guns, and had crept away two hundred yards from them, when the keeper and his man discovered and seized them. A case was reserved upon the question, whether they could be considered as found armed when they had got to so great a distance from their guns before they were discovered: and the Judges (eleven) held that they were, and that they were rightly convicted.(c)
The indictment upon this statute for having entered into a forest, chase, &c. and being found armed in the night, must in some way or other particularize the place; for the defendant has a right to know to what specific place the evidence is to be directed: and stating that in the parish of A. the party entered into a certain close there is not sufficient. The first count of an indictment stated, that the defendant, at the parish of Whitford, in the county of Northumberland, having entered into a certain close there situate, with intent there illegally to kill g::
me, was there found at night armed with a certain gun; and the second count charged him in like manner with having entered into a certain inclosed ground: but neither the close nor the inclosed ground were described by name, ownership, occupation, or abuttals. And upon a case reserved, Abbott, C. J., Holroyd, J., and Park, J., thought any such description unnecessary: but Burrough, J., Garrow, B., Best, J., Hullock, B., and Bayley, J., thought otherwise, because there was substantially a local offence, and the defendant was entitled to know to what specific place the evidence was to be directed; and judgment was arrested (1)
A person convicted under this statute of 57 Geo. 3. of being found armed in the night in a forest, chase, park, wood, or plantation, may be sentenced to hard labour by 3 Geo. 4. c. 114. ; for all these places are either open or inclosed ground. (e) That statute enacts, that whenever any person shall be convicted of (amongst
(a) Rex v. Smith, Mich. T. 1818. Bayley, J. Russ. and Ry. 886. MS. Bayley, J. and Russ. and Ry. 368. (d) kex v. Ridley, Trin. T. 1823.
(0) Rex v. Southern, East. T. 1821. Russ. and Ry.515. MS. Bayley, J. Russ. and Ry. 444. (e) Rex v. Pankhurst, Hil. T. 1823.
(c) Rex v. Naslı, Last. 'T. 1819. MS. Russ. and Ry. 503,
many other offences specified) having entered any open or inclosed ground, with intent there illegally to destroy, take, or kill, game or rabbits, or with intent to aid, abet, and assist, any person or persons illegally to destroy, take, or kill, game or rabbits, and having been there found at night armed with any offensive weapon, it shall and may be lawful for the court, before which any such offender shall be convicted, or which by law is authorized to pass sentence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment, with hard labour, for any term not exceeding the term for which such court may now imprison for such offence, either in addition to, or in lieu of, any other punishment which may be inflicted on any such offender, by any law in force before the passing of this act.
The second section of the 57 Geo. 3. c. 90. enacts, that, for the 57 Geo. 3. more easy and speedy bringing the offenders against this act to c. 90. s. 2.justice, it shall be lawful for the rangers, owners, and occupiers, keepers, &c. of
any such forest, chase, park, wood, plantation, close, or other may appreopen or inclosed ground, and also for their keepers, servants, and hendoffenders, for any other persons, to seize and apprehend, or to assist in seizing them to a and apprehending offenders by virtue of this act, and to convey peace officer. and deliver such offenders into the custody of a peace officer, who is hereby authorized and directed to convey them before a justice of the peace for the county or place where such offence shall be alleged to have been committed; or, in case such offenders shall And a justice not be so apprehended, any such justice may, on information before of peace, on him on the oath of any credible witness or witnesses, issue his &c. may, in warrant for the apprehension of them; and if, upon the apprehen- default of sion of any such offenders, it shall appear to such justice, on the bail, commit oath of any credible witness or witnesses, that the persons so sessions, or charged have been guilty of the crime of being found armed at gaol delivery: night as aforesaid, such justice may admit them to bail, and in default of bail, commit them to the county gaol, until the next general quarter sessions of the peace, or the next general commission of gaol delivery, for the same county or place, there to be tried and dealt with as by this act is directed; and if in Scotland, And if in Scotuntil the persons so charged shall be dealt with as any persons land, until the charged with a transportable offence may be dealt with according with according to the law and practice of Scotland.
But persons unarmed, going out by night for the destruction of Scotland. game, are not liable to such serious punishments; this statute 57 Geo. 3. being more mild in its enactments than one which was passed in
Persons found the preceding year. (f). With respect to such persons unlawfully in any forest entering into, or being found in, any forest, &c. or other open or &c, at night, inclosed ground at night, (according to the former provisions of &c. for dethe act as to what shall be deemed night for these purposes,) hav- stroying game, ing any net, engine, or other instrument, for the purpose, and with may be taken
before a justhe intent to destroy, take, or kill, or who shall wilfully destroy, tice. take, or kill game, it enacts, that the rangers, owners, and occu
to the law of
c. 90. s. 3.
(f) The 56 Geo. 3. c. 130. which subject, 39 and 40 Geo. 3. c. 50., is also is repealed by this statute, s. 4. ; and repealed. by s. 5. a former statute on the same
any such forest, &c. or other open or inclosed ground, and also their keepers, servants, and any other persons, may seize and apprehend, or assist in seizing and apprehending such offenders, and convey and deliver them into the custody of a peace officer, who is to convey such offenders before a justice of the peace for the county or place where the offence shall be alleged to have been committed, to be dealt with according to law. (g).
(g) 57 Geo. 3. c. 90. s. 3. For the such offenders, see 2 Buro. Just. tit. different modes of proceeding against Game.