for the districts in Schedule (B.), and that the latter vestries were only for the purpose of sending representatives to the district boards; but I am of opinion that, although cumulative powers relating to the formation of districts and district boards are granted for the general regulation and improvement of the parishes, those provisions do not interfere with the other purposes of the act. Then, reliance was placed upon the exception in section 3. ofthe 19 & 20 Vict. c. 112, relating to guardians, governors, &c., and it seems that under the 26 Geo. 2. c. xcviii. s. 24. the vestry were bound to appoint thirty vestrymen of the parish, to be called governors and directors of the poor, but they were only a sub-committee, a small portion of the vestrymen, appointed to visit the workhouse, to take care of destitute children, &c., and derived their authority from the vestry. The other words, "trustees" and "Commissioners," apply to the case of parishes where persons are appointed by local acts as trustees and Commissioners eo nomine, and do not extend to vestries acting in such capacities. I am, therefore, of opinion, that the new vestry had power to make this rate, that it was lawfully made by them, and, therefore, that the plaintiff is entitled to the judgment of the Court.

CROMPTON, J.-When this case was before me at the trial, I thought that the question was a complicated and difficult one, but my mind is relieved from all doubt now that my attention has been called to the important clauses before us. I entirely agree with the observations which have been made by my Brother Erle, and I am of opinion that the plaintiff has shewn that the rate was properly made by the new vestry. The questions are, first, whether the old vestry was a vestry within the meaning of the 18 & 19 Vict. c. 120. and of the 19 & 20 Vict. c. 112, and whether the powers possessed by it are transferred to the new vestry appointed under those acts. The churchwardens and overseers are mentioned in the 2 Geo. 2. c. x, as well as the vestrymen; and it is said that they are a distinct body from the vestrymen, because if they were not, they would be included in that term, but I think that they are only named separately

because they are persons of greater dignity than the rest of the body, and that they are not intended to be a body distinct from the vestry. Then, when we come to the 8th section of the 18 & 19 Vict. c. 120, after directions have been given as to how the vestry is to be made up, it is said, "and such vestrymen, with such other persons as herein before mentioned, shall forthwith be deemed to constitute the vestry of such parish, and shall supersede any existing vestry." Then, going on to section 90, we find that all the duties, powers, &c., in relation to the improvements of the parishes in Schedule (B.) are to go to the board of works, but that section is not an exception to section 8; and it is not intended that the powers of the old vestries, in making poor-rates, should be transferred to the board of works, but that they should be vested in the new vestries. The 19 & 20 Vict. c. 112, which was passed to amend the former act, and to remove doubts and difficulties arising upon the proper construction of that act, by section 3. enacts, that, save as therein before provided, all the duties, &c., including such as relate to, among other things, the management or relief of the poor, which might have been performed or exercised by any vestry, "shall be deemed to have become transferred" to the new vestry. I had some little doubt as to the meaning of the words " any open, or elected, or other vestry," but I now think that these words must include any vestry whatever. I am clearly of opinion that our judgment ought to be that the rate is good, and that the plaintiff is entitled to recover.

ERLE, J.-My Brother Hill requested me to say that, at the time of his leaving the court, his opinion was the same as that which we have expressed. (Hill, J. left for chambers shortly before the arguments were concluded.)

Collier asked for leave to appeal, if, upon consideration, it should be deemed advisable to do so.

Per Curiam.-Where there is no doubt, leave to appeal ought not to be granted. Rule discharged.

The following case was reserved by Hill, J.:

Richard Fletcher was tried, before me, at the last Winter Assizes, 1858, for Liverpool, upon a charge of rape, committed upon the person of Jane Jones. Jane Jones was proved, at the trial, to be of the age of thirteen years at the time of the offence charged; she was also proved to be of weak intellect, and to be incapable of distinguishing right from wrong. Her mother stated in her evidence that Jane was not allowed to go about by herself, and that she was unable to distinguish the house in which she lived from that of any of the neighbours. On the day in question Jane had left the house without her mother's knowledge; the prisoner met her, and it was proved by witnesses who saw them that the prisoner had sexual intercourse with the girl, but she was not shewn to have offered any resistance, though she did exclaim whilst the prisoner was in the act that he hurt her, and on the prisoner rising from her and her getting up she made a start as if to run away. The girl Jane Jones was placed in the witness-box and I asked her several questions, in the hearing of the jury, to ascertain if she possessed sufficient intelligence to be sworn. satisfied that she did not.

I

was

It was objected by counsel for the prisoner, that the charge of rape was not made out, as it was not proved that the prisoner had carnal knowledge of the girl against her will. I left the case to the jury, and I stated to them that if they were satisfied upon the evidence that the prisoner had carnal knowledge of the girl by force and against the will of the girl, they ought to convict the prisoner. Also, that if the

* Coram Lord Campbell, C.J., Martin, B., Crowder, J., Willes, J. and Watson, B.

jury should be of opinion that the girl was incapable of giving consent or of exercising any judgment upon the matter, then, if they were satisfied upon the evidence that the prisoner had carnal knowledge of the girl, by force and without her consent, they ought to find the prisoner guilty. The jury found the prisoner guilty, and, in answer to a question from me, they stated that they considered that Jane Jones was incapable of giving consent from defect of understanding. I directed the verdict of guilty to be recorded, but postponed passing sentence until the judgment of the Court for the consideration of Crown Cases could be obtained upon the case.

The

R. A. Cross, for the prisoner. conviction cannot be supported. The definition of rape is the carnal knowledge of a woman forcibly and against her will -1 Hale, P. C. 627, 1 Hawk. P.C. c. 16, s. 2, Co. Lit. 123, b, 2 Inst. 180, 3 Inst. 60, 1 Inst. 60, 1 East, P.C. c. 10. s. 1. p. 434. Here there was no proof of anything done against the girl's will. It is true, where a man gave a girl liquor with a view of exciting her, and made her insensible, it was held he was guilty of rape, on the principle that the fraud on his part supplied the want of force and violence-The Queen v. Camplin (1); and when a girl, believing she was being treated medically, made no resistance, it was held to be an assault-The Queen v. Case (2). But in both those instances, the want of will was caused by the fraud of the man. In the earlier cases, when a man induced a woman to submit to his embraces, under the supposition that he was her husband, it was considered that the offence was a rape, but late decisions have conclusively settled that it is only an assault-The King v. Jackson (3), The Queen v. Williams (4), The Queen v. Clarke (5). The case of an idiot is similar, and that of a child of very tender years. It was doubted at one time whether a rape could be committed on a girl under ten years of age; and in

(1) 1 Den. C.C. 89.

(2) Ibid. 580; s. c. 19 Law J. Rep. (N.s.) M.C.

174.

(3) Russ. & Ry. 487.

(4) 8 Car. & P. 286.

(5) Dears. & P. C.C. 397; s. c. 24 Law J. Rep. (N.S.) M.C. 35.

consequence of that doubt Mr. East tells us that the statute 18 Eliz. c. 7. was passed-1 East, P. C. 435. The doubt could have existed only in consequence of the assumption that the act must be not only without consent, but against the will of the female-The Queen v. Read (6). The old statute, 13 Edw. 1. c. 34, which says, "if a man do ravish a woman where she did not consent, neither before nor after," does not alter the common-law definition, the word "ravish importing that the act is done by force and against the will of the woman. A different construction would be contrary to all the authorities.

J. Kay, for the Crown.-Rape, properly defined, is the having carnal knowledge of a woman by force and without her consent. The statute 13 Edw. 1. c. 34. bears out that view. It is also supported by The Queen v. Camplin. The act there clearly was not done against the will of the girl, as she was at the time insensible, and, there.fore, could exercise no will. The Queen v. Ryan (7) is directly in point. There Platt, B. directed the jury to inquire whether the act was done to a woman who was an idiot, without her consent.

[WILLES, J.-I ruled in a similar manner in a case that was tried before me at the Old Bailey. It was the case of a rape upon an idiot girl. I directed the jury that if they were satisfied that the girl was in such a state of idiotcy as to be incapable of expressing either consent or dissent, and that the prisoner had connexion with her without her consent, it was their duty to find him guilty; but I also told them a consent produced by mere animal instinct would be sufficient to prevent the act from constituting a rape.]

In the cases cited of a medical man having connexion with a girl, and of connexion with married women, there was a consent in fact to the act, though obtained by fraud.

R. A. Cross replied.

LORD CAMPBELL, C.J.-The question is, what is the real definition of the crime of rape; whether it is the having carnal

(6) 1 Den. C.C. 377. (7) 2 Cox, C.C. 115.

knowledge of a woman against her will or without her consent? If the former is the correct definition, the crime is not in this case proved; if the latter, it is proved. Camplin's case seems to me really to settle what the proper definition is, and the decision in that case rests upon the authority of an act of parliament. The statute Westminster 2. c. 34. defines the crime to be where a man do ravish a woman, married, maid, or other, where she did not consent, neither before nor after" (8). We are bound by that definition, and it was adopted in Camplin's case, acted upon in Ryan's case, and subsequently in a case before my Brother Willes. It would be monstrous

66

Bastardy Summons-Proof of Payment of Money within Twelve Months after Birth-Jurisdiction- Waiver—Perjury.

The mother of a bastard child, more than twelve months old, applied to a Justice for a summons against the prisoner, the putative father, alleging (but not proving on oath) that he had paid money for the maintenance of the child within twelve months from the birth. The summons issued in the form given by the schedule to the statute 8 & 9 Vict. c. 10, except that it stated that the woman alleged that the man had paid money within the twelve months, instead of saying that she had given proof of the fact. The prisoner appeared and took no objection to the summons or the proceedings on which it was founded, but denied the paternity, and falsely swore he had not paid any money as alleged. The prisoner was

(8) 2 Inst. 433.

Coram Lord Campbell, C.J., Martin, B., Crowder, J., Willes, J. and Watson, B.

on this indicted for perjury and convicted. On the trial, it was objected, that the Magistrate had no jurisdiction, as proof on oath that the money had been paid as alleged was necessary, under the statutes 7 & 8 Vict. c. 101. s. 2, and the 8 & 9 Vict. c. 10, to give the Justices authority to issue the summons, and that it was immaterial at the hearing whether the money had been paid, as proof of that fact was only necessary prior to the issuing of the summons:-Held, that had the objection of the want of proof on oath of payment of the money, and of the variation of the summons from the form given by the statute, been taken before the Magistrates, it probably ought to have prevailed, but that this was a mere irregularity in process to bring a defendant into court in a proceeding in the nature of a civil suit, and that the prisoner waived it by not taking any objection at the hearing, and by then going into the merits of the case (dissentiente Martin, B.).

Held, secondly, that it was necessary at the hearing to make proof of the alleged payment; and, further, that such proof was also material as corroborative evidence of the paternity.

The following CASE was reserved by Hill, J.

At the Winter Assizes, 1858, for Liverpool, James Berry was tried before me for perjury.

The perjury was alleged to have been committed upon the hearing of a summons, a copy of which is as follows:

"To James Berry, of Worsley, in the county of Lancaster, gamekeeper.

County of Lancaster, Petty Sessional Division of Manchester, to wit.

Whereas application hath been made to me, the undersigned, one of Her Majesty's Justices of the Peace for the county of Lancaster, by Martha Humphreys, single woman, residing at Eccles, in the petty sessional division of Manchester, in the said county of Lancaster, for which I act, who hath been delivered of a bastard child, since the passing of the act of the eighth year of the reign of Her present Majesty, 'An act for the further amendment of the laws relating to the poor in England,' and more than twelve calendar months from the date hereof, and of which bastard child

she alleges you to be the father, and that you have paid money for its maintenance within twelve months after its birth, for a summons to be served upon you to appear at a petty sessions of the peace, according to the form of the statute in such case made and provided.

"These are, therefore, to require you to appear at the petty sessions of the Justices holden at the Court-house, in Worsley, in the said county of Lancaster, being the petty sessions for the division of Manchester, in which I usually act, on Wednesday the 17th day of November instant, at one of the clock in the afternoon, to answer any complaint which she shall then and there make against you touching the premises.

"Herein fail not. Given under my hand at the Court-house in Worsley aforesaid, this 3rd day of November in the year of our Lord 1858. H. L. Trafford.

"Note.-If you neglect to appear at the petty sessions as above stated, the Justices, upon proof that this summons has been duly served upon you or left at your place of abode, may proceed, if they think fit, to make an order upon you, as the putative father of the child above referred to, to pay a weekly sum to the said mother for its maintenance, and other sums for costs and expenses.'

When the summons came on to be heard, James Berry appeared personally in answer thereto; he was also assisted by an attorney; no objection was made to any of the proceedings on which the summons was founded, and the case was gone into on the merits before the stipendiary Magistrate who heard the same.

Upon the hearing of the summons Martha Humphreys proved that she had lodged at Mrs. Sutcliff's house in Salford for eleven months before the birth of the child (April 12, 1856); that James Berry had visited her there constantly; that James Berry was the father of the child; that James Berry visited her constantly at the same place after the birth of the child, and paid her money; that on the day after the birth of the child James Berry paid her 17. 78. 6d., and that he paid her a weekly sum for several weeks after. Other evidence having been given in support of the summons, in answer thereto James Berry was sworn

as a witness on his own behalf, and he deposed, amongst other things, "that he never paid Martha Humphreys any money at all on any account whatsoever;" and "that he never was in Sutcliff's house in Salford," meaning Mrs. Sutcliff's house in which Martha Humphreys lodged.

It was further proved upon the trial before me, that the summons was issued by Mr. Trafford, on the personal application of Martha Humphreys, who stated on such application, but not on oath, that she had been delivered of a bastard child more than twelve months previous, and that money had been paid by James Berry, the father of the child, for its maintenance within twelve months from its birth.

It was objected at the trial, before me, by counsel for James Berry, that the Magistrate had no jurisdiction to hear the summons, as there had been no information in writing, and no proof on oath of money having been paid for the maintenance of the child within twelve months from its birth, and that such information and proof were requisite prior to the issuing of the summons, under the 7 & 8 Vict. c. 101. s. 2. and the 8 & 9 Vict. c. 10.

It was also objected that it was immaterial at the hearing of the summons whether monies had been paid or not, as proof of the fact was necessary only prior to the issuing of the summons.

I stated to the jury that, if the materiality of the matter sworn were a question of law, I thought it material upon the question of paternity, whether the alleged father had paid money towards the expense of the confinement and the maintenance of the child, but that I should leave the question of the materiality to them with the other facts. The jury found the prisoner guilty. I postponed the sentence, and reserved the objections taken by the prisoner's counsel for the judgment of the Court for the consideration of Crown Cases.

Atkinson, Serj., for the prisoner (Jan. 22). The Magistrate had no jurisdiction, as the application for the summons was not upon oath. The statute 7 & 8 Vict. c. 101. s. 2. requires that when the woman does not make application within the twelve months from the birth of the child,

the summons is only to be granted on proof that the alleged father has paid money for the maintenance of the child within the twelve months. The form of summons given in the schedule to the statute 8 & 9 Vict. c. 10. recites that the mother has given proof of the payment to the Justice. Proof must mean proof on oath. The giving such proof is a condition precedent to the Justice acquiring any jurisdictionThe Queen v. Scotton (1).

[LORD CAMPBELL, C.J.-Assuming that there has been an irregularity in not giving proof on oath, has not the party waived it by appearing and not objecting?]

It is not a mere irregularity in procedure, but an essential ingredient in jurisdiction. Besides, there can be no waiver without full knowledge of the facts. The defendant cannot know what was proved before the Magistrate on taking out the summons.

R. Assheton Cross, for the Crown.-The statute does not say that the proof given shall be on oath. It is discretionary with the Magistrate to take such proof as satisfies him-The Queen v. Millard (2). At any rate, if proof on oath ought to have been given it was a mere error in procedure and cannot be raised afterwards, having been clearly waived by the defendant. The Queen v. the Justices of Willshire (3), The Queen v. Stoddard (4), The King v. the Justices of Carnarvon (5), and The King v. Stone (6) are in point. Atkinson, Serj. replied.

Cur. adv. vult.