pay or account for all money levied or received by him by virtue of his office, the Judge, at any sitting of the court, if complaint be made to him in writing, may inquire into the matter in a summary way, and may make such order thereupon for the repayment of any money extorted, or for the payment of any money received, and for the payment of damages and costs, and in default of payment after warrant may commit the party to prison. (See Con. Stat. U. C. c. 19, s. 185.)

EXTORTION." If any clerk, bailiff, or other officer exacts or takes any fee or reward other than the fees appointed and allowed by law for or on account of anything done by virtue of his office, or on any account relative to the execution of this act, he shall, upon proof thereof before the court, be for ever incapable of being employed in a division court in any office of profit or emolument, and shall also be liable in damages to the party aggrieved."* (Ib. s. 186.)

RAPE.

"Every person guilty of the crime of rape shall suffer death as a felon." (Con. Stat. C. c. 91, s. 19.)

OFFENCE DEFINED.-Rape is the offence of having carnal knowledge of a woman by force, against her will, and is a capital offence.

1

A boy under fourteen years of age is, in law, incapable of committing a rape; and if he be under that age, no evidence will be admitted to shew that in point of fact he could commit the offence.

In an indictment for rape, the party ravished is an admissible witness; but the value of her testimony must be left to

* This and the former clause do not in any way deprive the Justice of his power to investigate complaints against any division court officer for extortion or misconduct.

In those two or three counties where the division court Judge is dissipated or otherwise unfit for his office, some few of the clerks and bailiffs misconduct themselves. In the counties referred to, the Justices should instruct the county detective to pay particular attention to the misconduct of those officers; and when a case of extortion is discovered, the crown attorney should be requested to have it tried at the supreme court, and not before the Judge of whose ability or honesty there is a doubt.

the jury. For instance, if the witness be of good fame, if she presently discovered the offence, and made search for the offender; if the party accused fled for it; these are corroborative circumstances, which give greater probability to her testimony. But, on the other hand, if she concealed the injury after she had an opportunity to complain of its perpetration; if the place where the fact is alleged to have been committed is where it was possible she might have been heard, and made no outcry, these carry a strong, but not conclusive, presumption that her testimony is false and feigned.

Moreover, an assault to ravish, however shameless and outrageous it may be, unless it amount to some degree of consummation of the deed, is not a rape.

It is the essential character of this crime, that it must be against the will of the female on whom it is committed. And if a woman be beguiled into her consent by any artful means, it will not be a rape; and, therefore, having carnal knowledge of a married woman under circumstances which induced her to suppose it was her husband, was held by a majority of the judges not to be a rape. However, the crime is not mitigated by shewing that the woman yielded at length to violence, if her consent were obtained by duress, or threats of murder; nor will any subsequent acquiescence on her part do away with the guilt of the ravisher. It is a rape to force a prostitute against her will: so it is for a man to have forcible copulation with his own concubine, because the law presumes the possibility of a return to virtue. A man, however, cannot be guilty of a rape upon his own wife, for the marital consent cannot be retracted; but he may be a criminal in aiding and abetting another in such a design.

All who are present, of both sexes, aiding in the perpetration of rape, are punishable.

EVIDENCE." It shall not be necessary upon the trial of any person for the crime of buggery or of rape, mentioned in the eighteenth and fifteenth sections, or of carnally abusing girls under the respective ages of ten and twelve years, mentioned in the sixteenth and seventeenth sections of the act respecting

offences against the person, to prove the emission of seed in order to contribute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration. only." (Con. Stat. C. c. 99, s. 70.)

RECEIVING STOLEN GOODS.

receives any

RECEIVING EMBEZZLED GOODS.-"If any person chattel, money, or valuable security which has been so fraudulently disposed of as to render the party disposing thereof guilty of a misdemeanor under any of the provisions of the nine preceding sections of this act,* knowing the same to have been so fraudulently disposed of, he shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the party guilty of the principal misdemeanor has or has not been previously convicted or has or has not been amenable to justice." (Con. Stat. C. c. 92, s. 60.)

WHEN A MISDEMEANOR." If any person receives any chattel, money, valuable security, or other property whatsoever, the stealing, taking, obtaining, or converting whereof is made an indictable misdemeanor by this act, excepting sections fifty-one to sixty-seven, such person knowing the same to have been unlawfully stolen, taken, obtained, or converted, such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor has or has not been previously convicted thereof, or has or has not been amenable to justice; and every such receiver shall be imprisoned in the penitentiary for any term not less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years." (Ib. s. 75.)

WHEN FELONY.-"If any person receives any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof amounts to a felony either at com

See article "Embezzlement," ante, p. 225.

mon law or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact or for a substantive felony; and in the latter case, whether the principal felon has or has not been previously convicted, or be or be not amenable to justice." (Ib. s. 76.)

Every such receiver, howsoever convicted, shall be imprisoned in the penitentiary for any term not exceeding fourteen years nor less than two years, or be imprisoned in any other prison or place of confinement for any term less than two years; and no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence." (Ib. s. 77.)

VENUE. "If any person receives any chattel, money, valuable security, or other property whatsoever, knowing the same to have been feloniously or unlawfully stolen, taken, obtained, or converted, such person, whether charged as an accessory after the fact to the felony or with a substantive felony, or with a misdemeanor only, may be dealt with, tried, and punished in any district, county, or place in which he has had any such property in his possession, or in any district, county, or place in which the party guilty of the principal felony or misdemeanor may by law be tried, in the same manner as such receiver may be dealt with, indicted, tried, and punished in the district, county, or place where he actually received such property." (Con. Stat. C. c. 99, s. 15.)

"Any person who in any part of this province receives or has any chattel, money, valuable security, or other property whatsoever, which has been stolen or otherwise unlawfully taken in any other part of her Majesty's dominions, knowing the said property to have been stolen or otherwise unlawfully taken, may be dealt with, indicted, tried, and punished for such offence in that part of this province where he so received or had the stolen property, in the same manner as if it had been originally stolen or unlawfully taken in that part of Canada." (Ib. s. 16.)

"If upon the trial of two or more persons indicted for jointly receiving any property, it be proved than one or more of such persons separately received any part of the property, the jury may convict such of the said persons as are proved to have received any part of such property." (b. s. 38.)

RECORDERS' COURTS AND POLICE MAGISTRATES. JURISDICTION OF RECORDERS' COURTS.-" There shall be in every city a court of record, to be called the Recorder's Court of the city; and therein the recorder alone, or assisted by one or more of the aldermen, shall preside; or in the absence of the recorder, or when there is no recorder, the mayor (and in his absence one of the aldermen elected by themselves), assisted by one or more aldermen, shall preside; and the court shall, as to crimes and offences committed in the city, and as to matters of civil concern therein, have the same jurisdiction and powers and use the like proceedings as courts of Quarter Sessions of the Peace in counties." (Con. Stat. U. C. c. 54, s. 370.)

RECORDERS AND POLICE MAGISTRATES TO BE JUSTICES OF THE PEACE. "Every recorder and police magistrate shall be appointed by the crown, and shall hold office during the pleasure of the crown; and shall ex officio be a Justice of the Peace for the city or town for which he holds office, as well as for the county in which the city or town is situate." (Ib. s. 375.)

THE CLERK. "The clerk of the council of every city or town, or such other person as the council of the city or town may appoint for that purpose, shall be the clerk of the police office thereof, and perform the same duties and receive the same emoluments as clerks of Justices of the Peace; and the city clerk, or such other person as the council of the city may appoint for that purpose, shall also be clerk of the recorder's court, and shall perform the same duties and receive the same emoluments as clerks of the Peace; and in case the said clerk or other person is paid by a fixed salary, the said emoluments shall be paid by him to the municipality, and form part of its funds." (b. s. 376.)