CHAPTER XII.

PROCEEDINGS IN THE CHANCERY DIVISION.

State shortly, and according to the example given by Stephen, in what manner the statement of claim should be drawn in an action of foreclosure?

The statement of claim should commence by shortly reciting the mortgage under which the plaintiff claims, the amount which it was given to secure, and the rate of interest The title of the

plaintiff should then be shown in case the mortgage was not made directly to him, and the title of the defendant should also be stated in case the mortgage was not made directly by him. And, after alleging the sum lent to be still due, with arrears of interest, the statement should proceed to claim an account to be taken of what is due to the plaintiff, and that the defendant be decreed to pay the same on a certain day, to be appointed by the Court, to the plaintiff, together with his costs of motion; the plaintiff on his side offering, on being so paid, to convey the premises as the Court shall direct, and further claiming that, in default, the defendant may be foreclosed of his equity of redemption.

CHAPTER XIII.

PROCEEDINGS IN THE PROBATE, DIVORCE AND ADMIRALTY DIVISION.

What are the first steps in proceedings for divorce? Do the rules and orders under the Judicature Acts affect such proceedings?

The first step is by a petition addressed to the president of the divorce division. None of the rules and orders under the Judicature Acts apply to proceedings taken to obtain either a divorce or judicial separation, or to other subjects within the exclusive juris diction of this division.

CHAPTER XIV.

PROCEEDINGS AFFECTING THE CROWN.

State the method of obtaining possession or restitution from the Crown of real and personal property.

The method is by petition of right, in which the petitioner must be careful to state truly the whole title of the Crown, otherwise the petition shall abate; and then, upon this answer being indorsed or underwritten by the Crown, "let right be done to the party," a commission issues to inquire into the truth of the suggestion; after the return to which, the attorney-general is at liberty to plead ; and the merits are determined upon issue or demurrer, as in actions between subject and subject.

BOOK VI.

OF CRIMES.

CHAPTER I.

THE NATURE OF CRIMES AND THEIR PUNISHMENTS.

In treating of public wrongs what may be considered?

(i.) The general nature of crimes and punishments; (ii) the persons capable of committing crimes, their several degrees of guilt; (iii) the several species of crimes, and their respective punishments; (iv.) the means of prevention; (v.) the method of punishment.

What breaches of law are designated as "offences"?

Offences are such breaches of law as are not the subjects for indictment, and are punishable merely by a pecuniary penalty, recoverable on a summary conviction before one or more justices of the peace.

What is a crime?

A crime or misdemeanour is an act committed or omitted in violation of a public law, either forbidding or commanding it.

Stephen defines a crime as "violation of a right;" explain and illustrate the difference between a crime and a civil injury.

Crimes are distinguished from civil injuries in that they are a breach and violation of the public rights due to the whole community considered as a community, whereas civil injuries are a breach and violation of private rights due to individuals considered merely as individuals. An example of a crime would be a murder, injury would be the detention of a field

whereas that of a civil from a person.

How are offences technically divided according to the English law? and distinguish between them.

Into (i.) felonies which are of feudal origin, and comprise every species of crime which occasioned at Common Law the forfeiture of land and goods; (ii.) misdemeanors, which by our Common Law are deemed to be inferior in degree to felony.

How may punishments be considered?

(i.) As to the power; (ii.) the end; and (iii.) the measure of the inflictions.

In whom is the power or right of inflicting human punishments? For natural crimes, or such as are mala in se by the law of nature, in every individual, but by the fundamental contract of society it is now transferred to the sovereign power, in which also is vested by the same contract the right of punishing positive offences or such as are mala prohibita.

What is the end of human punishments?

To prevent future offences, (i.) by amending the offender himself; (ii.) by deterring others through his example; (iii.) by depriving him of the power to do future mischief.

How is the measure of human punishments to be determined?

By the wisdom of the sovereign power, and not by any uniform universal rule, though that wisdom may be regulated and assisted by certain general equitable principles.

CHAPTER II.

PERSONS CAPABLE OF COMMITTING CRIMES.

Who are capable of committing crimes?

All persons, unless there be in them a defect of will, for to constitute a legal crime there must be both a vicious will and a vicious act.

Mention the cases in which the will does not concur with the act.

(i.) Where there is a defect of understanding.

(ii.) Where no will is exerted; and

(iii.) Where the act is constrained by force or violence.

Mention the cases in which a vicious will is wanting?

(i.) Infancy; (ii.) idiotcy or lunacy; (iii.) drunkenness, which, however, does not excuse the crime; (iv.) misfortune or chance; (v.) ignorance or mistake of fact; (vi.) compulsion or necessity, which is (a) that of civil subjection; (b) that of duress per minas; (c) that of choosing the least pernicious of two evils where one is unavoidable; (d) that of want or hunger, which is no legitimate

excuse.

At what age are infants amenable to the Criminal Law?

With regard to felonies, infants under seven are deemed incapable of them; between seven and fourteen they are primâ facie deemed doli incapaces, unless it appear to the Court that they are doli capax, and the malitia supplet ætatem is the maxim except in cases of rape; after fourteen an infant is presumably doli capax. In some cases of misdemeanor, and more particularly in cases of omission, as not repairing a bridge, or highway, &c., the law of England privileges an infant so as to escape fine and imprisonment, because not having the means until twenty-one he wants the capacity to do those things which the law requires, but in case of notorious breaches of the peace, like riots, battery, or the like, which infants, when full-grown, are fully capable of committing, infants above the age of fourteen are equally liable as persons of twenty-one.

What degree of proof is necessary to excuse a madman from punishment?

That he was perfectly unaware of the nature, character, and consequence of the act he was committing.

Is drunkenness an excuse for crime?

No, it is not; on the contrary, rather as an aggravation of the crime, but it is primâ facie evidence that the act was not premeditated.

Is misfortune or chance, ignorance or mistake, an excuse for an unlawful act?

It depends on whether it was the consequence of a lawful act or not; if the former, it is an excuse, otherwise it is not; with regard to ignorance or mistake, it must be of a matter of fact, and not of law.

Can a wife be convicted of any offences committed in the presence of her husband?

She cannot be convicted of theft, burglary, or the like, because it may be fairly assumed she is acting under the coercion of her husband, but she may be in cases of murder, manslaughter, and the like, as also of treason.

Are there any other compulsions or necessities which afford an excuse for committing an offence?

In the case of duress per minas, that is, threats which induce a fear of death or bodily harm; and a man may kill another in selfdefence.