Sivut kuvina

siding within the country, to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory, as well as from any possibility of doubt concerning the validity of marriages solemnized within the British lines, by any chaplain, or officer, or other person officiating under the orders of the commanding officer of a British army serving abroad ; it is enacted that all such marriages shall be deemed and held to be as valid in law, as if the same had been solemnized within his majesty's dominions, with a due observance of all forms required by law. And it is provided that the act shall not confirm, or impair, or affect the validity of any marriage solemnized beyond the seas, save and except such as are solemnized as therein specified and recited.

Marriages in Newfoundland are regulated by the statute 5 Geo. 4, c. 68, repealing the 57 Geo. 3, c. 51.

Venue.] The stat. 9 Geo. 4, like that of 1 Jac. 1, enacts, that [ *290 ] *the prisoner may be tried in the county in which he is apprehended. Upon the latter statute, it was held that the prisoner, having been apprehended for larceny in the county of W., and a true bill having been found against him while in custody under that charge, for bigamy, he might be tried for the latter offence in the county of W. Jordan's case, Russ. and Ry. 48 (a). The second marriage was at Manchester, and a warrant was issued by a magistrate there to apprehend the prisoner. He having removed to London, surrendered to one of the police magistrates there, who admitted him to bail. On his trial at the Old Bailey, the court, on an objection taken by his counsel, were of opinion, that as the warrant had not been produced, and as it had not been proved that the prisoner was apprehended in the county of Middlesex, the court had no jurisdiction to try him. Forsyth's case, 2 Leach, 826. But now, by stat. 9 Geo. 4, the prisoner may be tried in the county in which he is in custody.

An indictment for bigamy committed in one county, found by a jury of another, where the party was apprehended, must state that fact. The prisoner was tried and convicted in Middlesex, in which county he was apprehended, of bigamy committed in Surrey. It being discovered, after the trial, that the indictment contained no averment as to the place or county where the prisoner was apprehended, the case was subrnitted to the judges, who determined that the judgment should be arrested. Fraser's case, 1 Moody, C. C. 407 (6).

Proof for the prisoner under the exceptions.] The prisoner may prove under the first exception in the statute 9 Geo. 4, that he is not a subject of his majesty, and that the second marriage was contracted out of England. Secondly, he may prove that his wife has been continually absent from home for the space of seven years last past, and was not known by him to be living within that time. There is no exception as in the 1 Jac. 1, with regard to persons "continually remaining beyond the seas for the space of seven years together.” That statute, like the 9 Geo. 4, contained an exception, exempting persons absent, without knowledge by the other party of their being alive. The question, whether a prisoner setting up

(a) 1 Eng. C. C. 48. (6) 2 Ibid. 407.

this defence ought to show that he has used reasonable diligence to inform binself of the fact, and whether, if he neglects the palpable means of availing himself of such information, he will stand excused, does not appear to be decided. 1 East, P. C. 467. '1 Russell, 189.

The third exception is where the party, at the time of the sccond marriage, has been divorced from the bond of the first marriage. The words of the 1 Jac. 1, were “ divorce:) by the sentence of any ecclesiastical court," and were held to extend to a divorce à mens î et thoro. 1 Hale, P. C.694 ; 4 BI. Com. 164; 1 East, P. C. 467. But now a divorce à vinculo matrimonii must be proved. It is not sufficient to prove a divorce out of England, where the first marria ze was in this country. The prisoner was indicted for bigamy under the 1 Jac. 1. It appeared that he had been married in England, *and that he went to Scotland, and procured there [ *291 ] a divorce à vinculo matrimoniin on the ground of adultery, before his second marriage. This, it was insisted for the prisoner, was a good defence under the third exception in the statute 1 Jac. 1; but on a case reserved, the judges were unanimously of opinion that no sentence or act of any foreign country could dissolve an English marriage à vinculo matrimonii, for ground on which it was not liable to be dissolved à vinculo matrimonii in England, and that no divorce of an ecclesiastical court was within the exception in sec. 3 of 1 Jac. 1, unless it was the divorce of a court within the limits to which the 1 Jac. 1 extended. Lolley's case, Russ. and Ry. 237 (a).

The fourth exception is where the former marriage has been declared void by the sentence of any court of competent jurisdiction. The words in the statute of 1 Jac. 1 were, “by sentence in the ecclesiastical court ;' and under these, it was held that a sentence of the spiritual court against marriage, in a suit of jactitation of marriage, was not conclusive evidence, so as to stop the counsel for the crown from proving the marriage, the sentence having decided on the validity of the marriage only collaterally, and not directly. Duchess of Kingston's case, 11 St. Tr. 262, fo. ed. ; 20 How. St. Tr. 355 ; 1 Leach, 146.

The 9 Geo. 4, unlike the 1 Jac. 1, contains no exception with regard to cases where the first marriage was within the legal age of consent, that is, fourteen in a male, and twelve in a female. 1 BI. Com. 436; Gordon's case, Russ. and Ry. 48 (6). It has been observed, that notwithstanding this omission, no judge, probably, would direct a jury to find a party guilty of bigamy, where the first marriage was within that age, and not followed up by any subsequent agreement or cohabitation, after the parties had attained that age. i Deac. Dig. C. L. 143.


Nature of the offence.] Bribery is a misdemeanor punishable at common law. Bribery in strict sense, says Hawkins, is taken for a great misprision of one in a judicial place, taking any valuable thing except

(@) 1 Eng. C. C. 237. (b) 1 Ibid. 48.

meat and drink of small value of any man who has to do before him in any way, for doing his office, or by color of his office. In a large sense, it is taken for the receiving or offering of any undue reward by or to any person whomsoever, whose ordinary profession or business relates to the administration of justice, in order to incline him to do a thing against the known rules of honesty and integrity. Also bribery sometimes signi[ *292 ] fies the taking or giving a *reward for offices of a public nature. Hawk. P. C. b. 1, c. 67, s. 1, 2, 3.

An attempt to bribe is a misdemeanor, as much as the act of successful bribery, as where a bribe is offered to a judge, and refused by him. 3 Inst. 147. So it has been held, that an attempt to bribe a cabinet minister for the purpose of procuring an office, is a misdemeanor. Vaughan's case, 4 Burr. 2494. So an attempt to bribe, in the case of an election to a corporate office, is punishable. Plumpton's case, 2 Ld. Raym. 1377.

Bribery at elections for members of parliament.] Bribery at elections for members of parliament, is an offence at common law, punishable by indictment or information, and the statute 2 G. 2, c. 24, which imposes a penalty upon such offence, does not affect that mode of proceeding. ,

Pitt's case, 3 Burr. 1339, 1 W. Bl. 380. Where money is given it is bribery, although the party giving it take a note from the voter, giving a counter note, to deliver up the first note when the elector has voted. Sulston v. Norton, 3 Burr. 1235, 1 W. Bl. 317. So also a wager with a voter, that he will not vote for a particular person. Loft, 552. Hawk. P. C. b. 1, c. 67, s. 10 (n.)

Where a voter received money after an election for having voted for a particular candidate, but no agreement for any such payment was made before the election ; it was held not to be an offence within the 2 G. 2, c. 24, s. 7. Lord Huntingtower v. Gardiner, 1 B. and C. 297 (a).

If A. give money to B. to induce him to vote for a candidate, and B. agree to do so in consideration of the gift, A. is liable to the penalty of 5001. for corrupting B. to vote within the 2 G. 2, c. 24, s. 7, though B. does not give the vote; and a jury may infer the agreement from circumstances, although B., who is a witness, does not state that he ever intended to vote. Henslow r. Fawcett, 3 Ad. and E. 51 (6). If, in fact, B. never did so intend, A's. offence was complete by his giving the money for the purpose of inducing B. to vote, and by B's. professedly accepting it on these terms. Per Patteson and Coleridge, JJ. Ib. See also Webb v. Smith, 4 Bing. N. C. 373 (c).

As to bribery at municipal elections, see 5 and 6 W. 4, c. 76, s. 54; and Harding v. Stokes, Tyr. and Gr. 599, 2 M. and W. 233.

As to bribing officers of the customs, see 3 and 4 W. 4, c. 51, s. 8; and Everett's case, 8 B. and C. 114 (d).

(a) Eng, Com. L. Rep. viii. 83. (b) Id. xxx. 24. (c) Id. xxxiii. 382. (d)' Id. xv. 158.


Indictment for not repairing


Individuals-ratione tenure - 298 Proof of bridge being a public bridge 293 Proof in defence-by counties 298 Highway at each end


By minor districts or individuals 299 Proof of the bridge being out of re

By corporation

299 pair 295 Venue and trial

299 Proof of the liability of the defen

Competency of witnesses

299 dants-at common law

295 | Indictment for inaliciously pulling down New bridges 296 bridges

• 300 Public companies


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Indictment for not repairing. Upon an indictment for a nuisance to a public bridge, whether by obstructing or neglecting to repair it, the prosecutor must prove, first, that the bridge in question is a public bridge ; and secondly, that it has been obstructed or permitted to be out of repair, and in the latter case, the liability of the defendants to repair.

Proof of the bridge being a public bridge.] A public bridge may be defined to be such a bridge as all his majesty's subjects have used freely, and without interruption, as of right, for a period of time competent to protect themselves, and all who should thereafter use them, from being considered as wrong doers, in respect of such use, in any mode of proceeding, civil or criminal, in which the legality of such use may be questioned. Per Lord Ellenborough, R. v. Inhab. of Bucks, 12 East, 204. With regard to bridges newly erected, the general rule is, that if a man builds, a bridge, and it becomes useful to the county in general, it shall be deemed a public bridge, (but see the regulations prescribed by the 43 G. 3, c. 59, s. 5, post, p. 297,) and the county shall repair it. But where a man builds a bridge for his own private benefit, although the public may occasionally participate with him in the use of it, yet it does not become a public bridge. R. v. Inhab. of Bucks, 12 East, 203, 204. Though it is otherwise, if the public have constantly used the bridge, and treated it as a public bridge. R. v. Inhab. of Glamorgan, 2 East, 356, (n.) Where a miller, on deepening a ford, through which there was a public highway, built a bridge over *it which the public used, it was held that the [ *294 ] county was bound to repair. R. v. Inhab. of Kent, 2 M. and S. 513.

A question has sometimes arisen whether arches adjacent to a bridge, and under which there is a passage for water in times of food, are to be considered either as forming part of the bridge, or as being themselves independent bridges. Where arches of this kind existed, more than 300 feet from a bridge, on an indictment against the county for non-repair of them, and a case reserved, the Court of King's Bench held that the county was not liable. R. v. Inhab. of Oxfordshire, 1 Barn. and Ad. 297, (n.) Second indictment, Id. 289 (a). The rule laid down by Lord Tenter

(a) Eng. Com. L. Rep. xx. 389.

den, C. J., in the latter case was, that the inhabitants of a county are bound, by common law, to repair bridges erected over such water only as answers the description of flumen vel cursus aquæ, that is, water flowing in a channel between banks more or less defined, although such channel may be occasionally dry.

In the following case, a question arose whether a bridge for foot-passengers which had been built adjoining to an old bridge for carriages, was parcel of the latter. The carriage-bridge had been built before 1119, and certain abbey lands were charged with the repairs. The proprietors of those lands had always repaired the bridge so built. In 1765, the trustees of a turnpike road, with the consent of a certain number of the proprietors of the abbey lands, constructed a wooden foot-bridge along the outside of the parapet of the carriage-bridge, partly connected with it by brick work and iron pins, and parily resting on the stonework of the bridge. It was held that the foot-bridge was not parcel of the old carriage-bridge, but a distinct structure, and that the county was bound to repair it. R. r. Inhab. of Middlesex, 3 B. and Ad. 201 (a).

Where the trustees under a turnpike act built a bridge across a stream, where a culvert would be sufficient; yet, if the bridge become upon the whole more convenient to the public, the county cannot refuse to repair it. R. r. Inhab. of Lancashire, 2 B. and Ad. 813 (6).

Semble, that an arch of nine feet span without battlements at either end, over a stream usually about three feet deep, is a culvert and not a bridge to be repaired by the county ; and if the parish have pleaded guilty to a former indictment, which described it as a part of the road, they are concluded by having so done. Whitney's case, 7 C. and P. 208 (c).

The public may enjoy a limited right only of passing over a bridge, as where a bridge was used at all times by the public, on foot, and with horses, but only occasionally with carriages, viz., when the ford below was unsafe to pass, and the bridge was sometimes barred against carriages by means of posts and a chain, it was held that this was a public bridge, with a right of passage, limited in extent, yet absolute in right. R. v. Inhab. of Northampton, 2 M. and S. 262. A bar across a public bridge locked, except in times of flood, has been ruled to be conclusive evidence that the public have only a limited right to use the bridge at such times, and | *295 ) *it is at variance to state, that they have a right to use it “at their free will and pleasure." R. v. Marquis of Buckingham, 4 Campb. 189. But where a bridge passed over a ford, and was only used by the public in times of foods, which rendered the ford impassable, yet, as it was at all times open to the public, Abbott, C. J., ruled that the county was bound to repair. R. r. Inhals, of Deron, Ry, and Moo. N. P. C. 144 (d).

Proof of the bridge being a public bridge--highway at each end.) At common law the county is bound prima facie to repair the highway at each end of a public bridge, and by the statute 22 Hen. 8, c. 5, the length of the highway to be thus repaired is fixed at 300 feet. If indicted for the non-repair of such portion of the highway, they can only excuse themselves by pleading specially, as in the case of the bridge itself, that some other person is bound to repair by prescription, or by tenure.

R. v.

(a) Eng. Com. L. Rep. xxii. 57. (b) Id. xxii. 189. (c) Id. xxxii. 493. (d) Id. xxi. 401.

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