duties, or actuated by any vindictive or corrupt motive, he is liable to be punished by a Criminal Information. Misconduct in his office may render him liable, though he be not actuated by motives of pecuniary interest or personal malice; as if he gave way to passion, so as clearly to interfere with the due administration of justice; but a mere display of ill-humour, or an error of judgment, such as the omission to administer an oath, or to give a caution to a dying man before taking his examination, would not induce the Court to interfere. (R. v. Barker, 4 Cox C. C., 353).

CRUELTY.

See "ANIMALS," "SERVANTS."

M. at Com. Law. Bail comp.-Cruelty to those of tender years under one's control,-as by not providing food, &c.,-or deserting infant in street, &c., whereby injury to health occasioned.

P. Fine or impr., or both. (2 Camp., 650; 22 L. J. M. C., 113; 24 L. J. M. C., 109; and see 16 Vic., No 17, s. 7).

CUSTOMS AND EXCISE.

See 9 Vic., No. 15; 10 Vic., No. 9; 13 Vic., No. 43; and 20 Vic., No. 22.

DEAD BODIES.

M. At Com. Law. Bail Comp.-Disinterring a dead body.
P. Fine or impr., or both. (s)

DISOBEDIENCE.

M. At Com Law. Bail comp.-Disobedience of a Justice's order; or of the direction or prohibition of a statute, where no penalty is annexed. P. Fine or impr., or both. (Dick. Q. S., 288, 454; R. v. Buchanan, 8 Q. B., 887).

DISORDERLY HOUSE.

See "THEATRE."

Every bawdy-house is necessarily a disorderly house, but every disorderly house is not necessarily a brothel; and though the proof of one may fail, the evidence may be sufficient to maintain a charge of the other.

A wife may be indicted with her husband, and punished with him, for keeping a bawdy-house. In all cases where the wife offends alone, without the company or coercion of her husband, she is responsible for her offence as much as any feme sole. (4 Steph. Com., 105).

Evidence].-It must be proved that the house in question, or a room

(s) R. v. Lynn, 2 T. R., 733; R. v. Gillies, R. & Ry., 366 n., and a recent case, R. v. Sharpe, 26 L. J. M. C., 47, where it is held to be a misdemeanor at Common Law, to enter an unconsecrated burial ground, and, without the knowledge and consent of the owners thereof, to dig up and carry away a corpse buried therein, although the party may have been actuated by religious feeling, and have conducted the matter most decently.

or rooms in it, were let out for the purposes alleged. If a lodger let her apartment for the purpose of indiscriminate prostitution, it is as much a bawdy-house as if she held the whole house. (2 Ld. Raymond, 1197). It is not necessary to prove who frequents the house, for that may be impossible; and if any unknown persons are proved to be there, behaving disorderly, it is sufficient to support the indictment. (1 T. R., 754).

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Evidence of particular instances may be given under the general charge. It must be proved that the defendant acted or behaved as master or mistress, or as the persons having the care and government, or management of the house in question," which is sufficient evidence that they kept the house.

By 14 Vic., No. 23, s. 3, Every house, room, building, garden, or place, wherein any such entertainment of the stage (see s. 2) shall be acted, &c., unless the same shall be authorized by the Colonial Secretary, shall be deemed a disorderly house, room, building, or place. And see "Theatre."

S. 13 Vic., No. 29, s. 37. [Two Justices].-Any person having or keeping any house, shop, room, or place of public resort, wherein provisions, liquors, or refreshments of any kind shall be sold or consumed, and wilfully or knowingly permitting drunkenness or other disorderly conduct in such house, &c., or knowingly suffering any unlawful games or gaming whatsoever therein, or knowingly permitting or suffering prostitutes, or persons of notoriously bad character, to meet together and remain therein. P. Fine not exc. £10. See "Publican," and the case of Greig v. Bendeno, 27 L. J. M. C., 294.

M. at Com. Law. Bail comp.-Keeping indecent brothels, gaminghouses, and disorderly places of resort.

P. Fine or impr., or both. (Dick. Q. S., 423).

DISTILLER. (T)

See "BREWER."

The regulations provided by the Legislature for the Distillation, Rectifying, and Compounding of Spirits, for the warehousing under bond, and

(T) Procedure].-This work does not profess to enumerate all the offences under the Distillery Statutes, but only such as are likely, in ordinary practice, to come under the recognizance of Justices.

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With regard to the procedure under these statutes, it is to be remembered that by s. 35 of Jervis's Act, the provisions of the latter statute are not to extend to complaints and orders with respect to lunatics, &c., nor to any information or complaint, or other proceeding, under or by virtue of any of the statutes relating to H. M.'s revenue or Excise, Stamps, Taxes, Post Office, &c." There is some difficulty in deciding how far this section is applicable to this Colony. The following Notes from the last edition of Paley point to a distinction between those proceedings for penalties which are conducted by the officers of particular departments,e. g., prosecutions under the Distillery Acts, (13 Vic., Nos. 26 & 27), and under the Postal Act, (13 Vic., No. 38); see, post, “Post Office,"—and other proceedings, where the information can be laid by any person whatever. If this is the true distinction, the Licensed Publicans' Act would be within the operation of Jervis's Act:

the exportation, free of duty, of Colonial Spirits, are very numerous and elaborate; for which reference must be made to the statute. (13 Vic., No. 27).

S. 13 Vic., No. 27, s. 2. [Two Justices].-(1) Any person carrying on the business of a distiller, or a rectifier and compounder of spirits, or having, keeping, or making use of any still or other utensil for distilling, or for rectifying and compounding spirits, except in such places as the Governor shall appoint or direct by proclamation, to be published in the Gazette.

P. Fine £500-£100; (u) if not immediately paid, or satisfactory security given, impr. 12—3 mths., unless sooner paid. (S. 127).

"With reference to these exceptions under s. 35 of Jervis's Act, Mr. Archbold (Jervis's Act, p. 187, &c., 2nd. ed.) remarks that orders of removal and lunatic orders are not within the scope of the Act, because they are made ex parte, and their truth or validity cannot be tried out of sessions. Convictions for offences relating to the Excise, Customs, Stamps, Taxes, and Post-office are excluded, because the officers in these departments were accustomed to, and had a confidence in, their respective modes of proceeding, which they were unwilling to exchange for any other. As to convictions under the Factory Acts, the whole law in this respect is now usually administered by the Factory Inspectors, who have a concurrent jurisdiction, in such matters, with the Justices of the Peace; and these Factory Inspectors were so used to their own mode of proceeding, and (as they conceived) had got it into such admirable working order, that they begged that their proceedings might be excluded from the operation of this Act, and it was conceded to them. It is to be remarked that the statutes relating to the matter thus excepted, provide Forms, which, for the most part, are as general as those given by the Act in question."-Paley, S. Convictions, p. 50. And again, in the same book, is found the following Note:-" This statute (sc., relating to Alehouse-keepers, 9 G. IV., c. 61), is not exempt from the operation of 11 & 12 Vic., c. 43, as being a statute relating to the excise, (s. 35), although the statutes regulating the sale of beer and cider in beer-houses and shops, (1 W. IV., c. 64, 4 & 5 W. IV., c. 85, and 3 & 4 Vic., c. 61), come under this denomination. The distinction is this: The last-mentioned statutes apply to such persons who take out an excise license for the sale of beer and cider only by retail; or, in other words, they extend to retail beer-houses, as distinguished from inns or public-houses. The keeper of a retail beer-house does not require a Magistrate's license under 9 G. IV., c. 61, but is authorized to sell beer and cider, (which include ale, porter, and perry), by retail, on taking out an excise license. But, by st. 9 G. IV., c. 61, the keeper of a common inn, ale-house, or victualling house requires a Magistrate's license, and may also, under the provisions of that statute, procure a license to sell beer and cider, as well as wine and spirits, by retail, without taking out a license for that purpose under the Excise Acts above referred to. (See 1 B. J., pp. 60, 82)".-Paley on Convictions, 512). The recent case of R. v. Bakewell, 26 L. J. M. C., 150), in which the effect of s. 35 is very fully considered, decides that the exception in this section does not apply where the particular information or complaint proceeds upon a section of a statute not relating to the revenue of excise, &c., although there are other sections in the statute which do relate to the revenue of excise. Lord Campbell, C. J. :-"The effect of this statute is, that with respect to all matters affecting the revenue, the officers of the revenue should be at liberty to follow their own course and mode of conducting proceedings as before the Act. In matters which have nothing to do with the revenue of excise or customs, Jervis's statute has given a useful general form, and that form has been followed bere. The conviction will be affirmed."

(U) Informations, &c.]-Penalties must be sued for within one year after the commission of the offence; one-third of which is to be appropriated to Government, one-third to the informer, and one-third to the prosecutor, where such fines,

G

S. Id., s. 3. [Two Justices].—(2) Any person having, keeping, or making use of any still, or other utensil for distilling, or for rectifying and compounding spirits, in the colony, &c., without first having obtained a license for keeping or using the same from the Colonial Treasurer or other person appointed by the Governor.

P. Fine £500-£100, with forfeiture of such still and utensils: fine recoverable as offence (1).

S. Id., s. 17. [Two Justices].-(3) Any apothecary, chemist, or druggist, having in his possession any still, without having entered into the recognizance required by s. 17, and obtained a license from the Colonial Treasurer.

P. Fine £500-£100: recoverable as offence (1).

S. Id., s. 18. [Two Justices].—(4) Any person keeping or using any still of not more than eight gallons content for any scientific purpose, or for the purpose of distilling scent or perfume from any vegetable matter, &c., without having entered into the proper recognizance, (see 18 s.), and obtained a license from the Colonial Treasurer.

P. Fine £500-£100: recoverable as offence (1).

S. Id., s. 19. [Two Justices].—(5) Any maker of wine from grapes, the produce of his own vineyard, having in his possession any still without having entered into the proper recognizance, (see 19 s.), and obtained a license from the Colonial Treasurer.

P. Fine £500-£100: recoverable as offence (1).

S. Id., s. 24. [Two Justices].-(6) Any Gas Light Company, or manufacturers of gas, having in their possession any still, without having entered into the proper recognizance, and obtained a proper license.

P. Fine £500-£100: recoverable as offence (1).

S. Id., s. 26. [Two Justices].—(7) Any person who shall have obtained licenses under the provisions of this Act, or any person whatsoever, practising, following, or using the trade or business of a brewer of ale, porter, beer, or ginger beer, within the premises on which there is a still, or on any part thereof, or on any place or premises within one hundred yards of the premises on which there is a still.

&c., are recovered in consequence of information being given to the seizing officer; otherwise, one-half to Government, and one-half to the seizing officer, or person suing. (S. 126).

The Forms of Information, Conviction, and Warrant of Commitment are given in the Act, and, as, perhaps, revenue cases are excluded from the operation of Jervis's Act, should be strictly followed. (See s. 35 of 11 & 12 Vic., c. 43). By s. 122, Every conviction or warrant of commitment for any penalty shall be deemed valid, &c., in which the offence, &c., is set forth in the words of the Act, or words to the like effect. By s. 119, All informations, suits, or actions for the recovery of any fine, forfeiture, or penalty imposed by this Act, may be heard and determined in a summary way before any two or more Justices of the Peace, or the Judges of the Supreme Court, at the instance of any Inspector of Distilleries; and any such information, &c., shall and may be filed in the name of the Attorney-General, or of the Chief or other Inspector of Distilleries; and viva voce evidence shall be deemed sufficient evidence of his being such Chief or other Inspector. By s. 123, In case of any information, &c., the averment that the prosecutor is an Inspector, &c., shall be sufficient proof of such appointment, unless the defendant prove the contrary. By s. 125, In any seizure or stoppage for non-payment of duties, the proof that the duties have been paid shall lie on the owner or claimant. 13 Vic., No. 27, is slightly modified by 14 Vic., No. 22.

P. Fine £100: recoverable as offence (1).

MEM.—SS. 28-88 contain numerous regulations to be observed by distillers under specified penalties. (See the Act).

S. 13 Vic., No. 27, s. 89. [Two Justices].-(8) Any person selling or disposing of, or offering to sell or dispose of, any quantity of illicit spirits, or spirits part of which is illicit.

P. Fine £100: recoverable as offence (1).

S. Id., s. 89. [Two Justices].-(9) Any person knowingly purchasing any such spirits.

P. Fine £100: recoverable as offence (1); together with forfeiture of the said spirits so purchased.

MEM. SS. 99-105 contain the provisions binding rectifiers under penalties.

S. Id., s. 108. [Two Justices].-(10) Any person giving, offering, or promising to give, any bribe, recompense, or reward, or making any collusive agreement with any Inspector or other officer appointed by the Governor under this Act, to induce him to neglect his duty, or to conceal or connive at any act whereby any provisions of any existing Act relating to the distillation of spirits may be evaded.

P. Fine £200, whether such gift be accepted, or such promise performed, or not recoverable as offence (1).

S. Id., s. 108. [Two Justices].-(11) Any Inspector or other officer, directly or indirectly, taking or receiving any bribe, recompense, or reward, or in any way neglecting his duty, or concealing or conniving at any act whereby the provisions of any existing Act relating to the distillation of spirits may be evaded.

P. Fine £200: recoverable as offence (1).

S. 13 Vic., No. 26, s. 9. [Two Justices].-(12) Any person having in his possession or custody any unlicensed still, or any still-head, or worm, or other utensil for distilling whatsoever, or unlawfully making,-or aiding, assisting, or being otherwise concerned in unlawfully making any spirits, -or knowingly supplying the means or materials for establishing, working, or maintaining any unlicensed still,-or knowingly carrying, conveying, or concealing, or aiding, assisting, or being otherwise concerned in the carrying, conveying, or concealing any spirits upon which the full duty shall not have been paid.

P. Fine £500-£100; if not immediately paid or satisfactory security given, impr. 12-3 mths., unless sooner paid. (S. 41). (v)

N.B.-In informations and convictions under the first part of this section, "having in his possession, &c., any still, &c.," it is well to aver, that it is

(v) Recovery of Penalties, &c.]-Penalties under this Act are to be sued for in the name of some officer of Customs, or Inspector of Distilleries, by information in a summary way before two Justices; they may be commenced and prosecuted at any time within one year after the commission of offence. If any fine is not immediately paid, or security given to the satisfaction of the Justices for due payment of such fine, the offender shall forthwith be committed to gaol for not exc. 12 and not less than 3 mths., unless the fine be sooner paid. (S. 41). It is to be considered whether the class of cases are not within the exclusion clause, (s. 35 of 11 & 12 Vic., c. 43). See Note (U) supra. By s. 36, The statement of the offence in any conviction, &c., in the words of the Act, or words to the like effect, shall be sufficient, &c.