oath or affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial or punishment of any offence, or to any oath or affirmation required or authorized by any law of Canada, or by any law of the province wherein such oath or affirmation is received or administered, or is to be used, or to any oath or affirmation, which is required or authorized by the laws of any foreign country to give validity to an instrument in writing or to evidence designed or intended to be used in such foreign country. R.S.C., c. 141, s. 1.

The following sections (26 and 27) of The Canada Evidence Act 1893 shew the present law relating to extra-judicial oaths:

"Any judge, notary public, justice of the peace, police or stipendiary magistrate, recorder, mayor, commissioner authorised to take affidavits to be used either in the Provincial or Dominion Courts, or any other functionary authorised by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making the same before him, in the form in the schedule A to this Act, in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing."

"Any affidavit, affirmation or declaration required by any insurance company, authorised by law to do business in Canada, in regard to any loss of or injury to person property or life insured or assured therein, may be taken before any commissioner authorised to take affidavits, or before any justice of the peace or before any notary public for any province of Canada; and any such officer is bereby required to take such affidavit, affirmation or declaration."

Declared before me

at

A. D.,
18 ."

SCHEDULE A.

"I. A., B., do solemnly declare that (state the fact or facts declared to), and I make this solemn declaration conscientiously believing the same to be true, and knowing that it is of the same force and effect as if made under oath and by virtue of The Canada Evidence Act, 1893.

154. Corrupting juries and witnesses.-Every one is guilty of an indictable offence and liable to two years' imprisonment who

(a.) dissuades or attempts to dissuade any person by threats, bribes or other corrupt means from giving evidence in any cause or matter, civil or criminal; or

(b.) influences or attempts to influence, by threats or bribes or other corrupt means, any juryman in his conduct as such, whether such person has been sworn as a juryman or not; or

(c.) accepts any such bribe or other corrupt consideration to abstain from giving evidence, or on account of his conduct as a juryman; or

(d.) wilfully attempts in any other way to obstruct, pervert or defeat the course of justice. R.S.C., c. 173, s. 30.

66

Embracery.-Sub-section (b) covers a common law offence called embracery. Some of the old English statutes against embracery are the 5 Edward 3, c. 10,entitled 66 The punishment of a Juror that is Ambidexter and taketh money the 34 Edward 3, c. 8,-entitled, "The Penalty of a Juror taking reward to give "his verdict"; the 38 Edw. 3, stat. 1, c. 12,-entitled The punishment of a "Juror taking reward to give verdict and of Embracers"; and the 32 Hen. 8, c. 9,-entitled "The Bill of Bracery and Buying of Titles." The preamble to this statute says, that there is nothing within this realm that conserveth the king's loving subjects in more quietness, rest, peace and good concord than the "due and just ministration of his laws and the true and indifferent trials of such "titles and issues as have to be tried according to the laws of the realm; which "his most royal majesty perceiveth to be greatly hindered by maintenance, "embracery, champerty, subornation of witnesses, sinister labor, buying of "tities and pretensed rights of persons not being in possession; whereupon great perjury hath ensued, and much inquietness, oppression, vexation, "troubles, wrongs and disinheritance." The statute then goes on to enact, among other things, "that from henceforth all statutes heretofore made con"cerning maintenance, champerty and embracery shall be put in due execution; "and that no person do hereafter unlawfully retain, for maintenance of any suit

66

or plea, any person or persons, or embrace any freeholders or jurors."

An old law dictionary contains the following description of the offence, Embraceor. He that when a matter is in trial between party and party comes "to the bar with one of the parties, having received some reward so to do and

.6

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speaks in the case, or privately labors the jury, or stands in the court to survey "or overlook them, whereby they are awed or influenced or put in fear or doubt "of the matter. But lawyers, attorneys, etc., may speak in the case for their 'clients, and not be embraceors. (1) If the party himself instructs a juror or "promises any reward for his appearance then the party is likewise an "embraceor. And a juror may be guilty of embracery when he by indirect "practices gets himself sworn on the tales to serve on one side."

Blackstone defines embracery as "an attempt to influence a jury corruptly "to one side by promises, persuasions, entreaties, money, entertainments, and "the like." (2) And Hawkins says, It seems clear that any attempt whatso"ever to corrupt or influence or instruct a jury, or any way to incline them to "be more favorable to the one side than the other, by money, promises, letters, "threats or persuasions, except only by the strength of the evidence and the "arguments of counsel in open court at the trial of the cause, is a proper act ot

embracery; whether the jurors on whom such attempt is made give any verdict "or not, or whether the verdict given be true or false." (3)

46

155. Compounding penal actions.-Every one is guilty of an indictable offence and liable to a fine not exceeding the penalty compounded for, who, having brought, or under colour of bringing, an action against any person under any penal statute in order to obtain from him any penalty, compounds the said action without order or consent of the court, whether any offence has in fact been committed or not. R.S.C., c. 173, s. 31.

This article applies to qui tam actions.

(1) Co. Lit., 369; 1 Hawk, P. C. Curw. ed. p. 467, s. 4,

(2) 4 Bl. Com. 140.

(3) 1 Hawk; P. C. Curw. ed. p. 466, s. 1.

**

In reference to this offence Blackstone says that the Statute of 18 Eliz., c. 5. provided that if any person informing under pretense of any penal law, makes "any composition without leave of the court or takes any money or promise "from the defendant to excuse him (which demonstrates his intention of com"mencing the prosecution to be merely to serve his own ends, and not for the public good), he shall forfeit £10, shall stand two hours in the pillory, and "shall be for ever disabled to sue on any popular or penal statute." (1)

With regard to compounding misdemeanors, Blackstone says, It is not uncommon when a person is convicted of a misdemeanor which principally and more immediately affects some individual, as a battery, imprisonment, or the

like, for the court to permit the defendant to speak with his prosecutor before any judgment is pronounced; and if the prosecutor declares himself satisfied, to inflict but a trivial punishment."

44

156. Corruptly taking reward for helping to recover stolen property. Every one is guilty of an indictable offence and liable to seven years' imprisonment who corruptly takes any money or reward directly or indirectly, under pretense or upon account of helping any person to recover any chattel, money, valuable security or other property which, by any indictable offence has been stolen, taken, obtained, extorted, converted or disposed of, unless he has used all due diligence to cause the offender to be brought to trial for the R.S.C., c. 164, s. 89.

same.

See Article 3 (cc.), ante p. 6, for the meaning of "valuable security."

In Archbolds Crim. Pleading and Evidence 21st ed. (1893) the following authorities amongst others, are cited at pages 185, 186, 955 and 956, as to compounding offences (felonies and misdemeanors); R. v. Burgess, 16 Q. B. D. 141; 55 L. J. (M. C.) 97; R. v. Stone, 4 C. and P. 379; R. v. Gatley, R. and R. 84, R. v. Crisp., 1 B. and Ald. 282; R. v. Best 2 Mood, C. C. 125; 9 C. D. P. 368; Kerr. v. Leeman, 6 Q. B. 308; 13 L. J. (Q. B.) 359 ; in Ex. Ch. 9 Q. B. 371 ; 15 L. J. (Q.B.) 360; and Windhill Local Board of Health v. Vint, 45 Ch. D. 351. In the latter case, the plaintiffs, a local board, had indicted the defendants for obstructing a highway. At the trial of the indictment a compromise was made by the parties and sanctioned by the judge, and afterwards confirmed by deed, By this deed the defendants covenanted to restore the road within seven years, and the plaintiffs covenanted that when that had been done they would consent to a verdict of "not guilty" on the indictment. The defendants failed to restore the road, and the plaintiffs then brought an action on their covenant. It was held by the Court of Appeal affirming the judgment of Stirling J. that as the indictment was for a public injury, the agreement to consent to a verdict of "not guilty" was illegal, and that the plaintiffs could not maintain an action on the defendants' covenant.

This case and the other authorities above referred to, shew that when an offence, even if it be not very serious,-is one of a public nature, the compromise of a prosecution based upon it will be illegal; but it appears that if the offence is of a light character and one which might be made the subject of a civil action, such as a common assault or a libel, an agreement to withdraw the prosecution will be legal; but where the public characteristic of the offence predominates, as for instance, in the case of an assault and riot combined, an agreement to compromise the prosecution would be illegal.

157. Unlawfully advertising reward for return of stolen property. -Every one is liable to a penalty of two hundred and fifty dollars for each offence, recoverable with costs by any person who sues for the same in any court of competent jurisdiction, who—

(1) 4 Bl. Com. 136.

(a.) publicly advertises a reward for the return of any property which has been stolen or lost, and in such advertisement words purporting that no questions will be asked; or

any

(b) makes use of any words in any public advertisement purporting that a reward will be given or paid for any property which has been stolen or lost, without seizing or making any inquiry after the person producing such property; or

(c.) promises or offers in any such public advertisement to return to any pawnbroker or other person who advanced money by way of loan on, or has bought, any property stolen or lost, the money so advanced or paid, or any other sum of money for the return of such property; or

(d) prints or publishes any such advertisement. R.S.C., c. 164, s. 90.

The time within which a prosecution for an offence under (d) may be commenced is limited to six months. (1)

158. Signing false declaration of execution of judgment of death. -Every one is guilty of an indictable offence and liable to two years' imprisonment, who knowingly and wilfully signs a false certificate or declaration when a certificate or declaration is required with respect to the execution of judgment of death on any prisoner. R. S. C., c. 181, s. 19.

PART XI.

ESCAPES AND RESCUES.

"In reference to the somewhat intricate subject of escape and rescue we have "made distinctions, which are, we think, insufficiently recognised by the existing law, between the commission of such offences by peace officers and gaolers, "and by other persons." Royal Commissioners' Report.

159, Being at large while under sentence of imprisonment.-Every one is guily of an indictable offence and liable to two years' imprisonment who, having been sentenced to imprisonment, is afterwards, and before the expiration of the term for which he was sentenced, at large within Canada without some lawful cause, the proof whereof shall lie on him.

160. Assisting escape of prisoners of war. r.-Every one is guilty of an indictable offence and liable to five years' imprisonment who knowingly and wilfully—

(a.) assists any alien enemy of Her Majesty, being a prisoner of

(1) See article 551 (d) post.

war in Canada, to escape from any place in which he may be detained; or

(b) assists any such prisoner as aforesaid, suffered to be at large on his parole in Canada or in any part thereof, to escape from the place where he is at large on his parole.

161. Breaking prison.-Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by force or violence breaks any prison with intent to set at liberty himself or any other person confined therein on any criminal charge.

162. Attempting to break prison.-Every one is guilty of an indictable offence and liable to two years' imprisonment who attempts to break prison, or who forcibly breaks out of his cell, or makes any breach therein with intent to escape therefrom. R. S. C., c. 155, s. 5.

By article 3 (u), "prison" includes any penitentiary, common gaol, public or reformatory prison, lock-up, guard-room, or other place in which persons charged with the commission of offences are usually kept or detained in custody.

Prison breach.-Under article 161 prison breach is forcibly or violently breaking a prison either by a prisoner confined therein, on a criminal charge, with intent to release himself, or by a third person with intent to release any such prisoner.

If a prisoner confined in prison on a criminal charge climbs over the prison wall, and so sets himself at liberty, this is not a prison breach under the terms of article 161; but it would be punishable as an escape, under, article 163; and where, in getting over the wall the escaping prisoner disturbed and threw down some loose bricks it was held a prison-breaking. (1)

Under article 161 the forcible breaking with intent to escape seems to be sufficient to constitute the offence. It does not seem necessary that the prisoner should succeed in regaining his liberty.

To constitute a prison breach as distinguished from a mere escape the prison must be broken, or there must be real force or violence used when the escape is made or attempted. Therefore, if without any obstruction, a prisoner go out of the prison doors, they being opened by the consent or negligence of the gaoler, or if he otherwise escape, without using any kind of force or violence, he will not be guilty of any thing more than an escape (2). In Haswell's case the prisoner, who was convicted of horse stealing, made his escape from the house of correction by tying two ladders together and placing them against the wall of the yard, on the top of which wall was a range of bricks placed loose and without mortar, some of which were thrown down by the prisoner (it was supposed accidentally), in getting over the wall. Mr. Baron Wood doubted whether there was such force used as to constitute the crime of prison-breaking or whether it amounted to only an escape; and the point being reserved, the judges were unanimously of opinion that it was a prison-breaking. (3)

Escapes and Rescues. In law an escape has two separate meanings. The one is the going away by the prisoner himself from lawful custody or imprisonment, without any prison-breaking and without any force or violence; and the other where the officer having lawful charge of a prisoner voluntarily allows him to leave and go free from his place of confinement. (See subsection b) of articles 165 and 166).

(1) R. v. Haswell, R. and R. 458; Burbridge, Dig. Cr. L. 143.

(2) 1 Hale 611; 2 Hawk. c. 18, s. 9.

(3) R. v. Haswell, R. and R. 458.