of a mill, if it appear that the mill was built within the time of legal memory, the defendant must be acquitted. Hayinan's case, Mo. and M. 401 (a).

Any act of repairing on the part of an individual, is prima facie evidence of his liability. Thus, it is said, that if a bishop has once or twice, of alms, repaired a bridge, this binds not, yet it is evidence against him that he ought to repair, unless he proves the contrary. 2 Inst. 700.

Reputation is not evidence on an indictment against an individual for not repairing a bridge ratione tenure. Per Patteson, J., Antrobus' case, 6 C. and P. 790 (b); but see infra.

On an indictment for the non-repair of a bridge, ratione tenure, it was held that a record of 18 Edw. 3, setting out a presentment of the bishop of Lincoln for non-repair of the bridge, and his acquittal by the jury, which was shortly followed by a grant of portage from the crown, on the ground that it had been found, by inquest, that no one was liable to repair the bridge, was admissible in evidence to negative any immemorial liability to repair ratione tenure.

The jury after finding a verdict of acquittal, also found that the bridge had been recently built, and that no one was liable to repair it. Semble that such finding by a jury, in ancient times, is admissible as reputation on a question as to the liability to repair ratione tenure. Sutton's case, 3 N. and P. 569.

Proof in defence-by counties.] Where a county is indicted, and the [*299] defence is that a parish or other district, or a corporation or *individual, is liable to the repairs, this defence must be specially pleaded, and cannot be given in evidence under the general issue of not guilty. R. v. Inhab. of Wilts, 1 Salk. 359; 2 Lord Raym. 1174; 1 Russell, 356; 2 Stark. Ev. 191, 2d ed. Upon that plea the defendants can only give evidence in denial of the points which must be established on the part of the prosecution, viz. 1, that the bridge is a public one; 2, that it is within the county; and, 3, that it is out of repair. 2 Stark. Ev. 191, 2d ed. With a view to the first point, the inhabitants of a county may show under not guilty, that a district or individual is bound to repair, as a medium of proof that the bridge is not a public bridge. Id. R. v. Inhab. of Northampton, 2 M. and S. 262. For repairs done by an individual are to be ascribed rather to motives of interest in his own property, than to be presumed to be done for the public benefit. Per Ld. Ellenborough, ibid.

Upon a special plea by a county, that some smaller district or some individual is liable to repair, the evidence on the part of the county to prove the obligation, seems to be the same as upon an indictment against the smaller district or individual. 2 Stark. Ev. 192, 2d ed.

Proof in defence—by minor districts, or individuals.] Where a parish, or other district, or a corporation, or individual, not chargeable of common right with the repairs of a bridge, is indicted, they may discharge themselves under the general issue. R. v. Inhab. of Norwich, 1 Str. 177. For as it lies on the prosecutor specially to state the grounds on which such parties are liable, they may negative those parts of the charge under

(a) Eng. Com. L. Rep. xxii. 341. (b) Id. xxv. 654.

the general issue. 628 (a) ante, p.296.

1 Russell, 356; Sed vide R. v. Hendon, 4 B. and Ad.

Proof in defence-by corporation.] A corporation may be bound by prescription to repair a bridge, though one of their charters within time of legal memory use words of incorporation, and though the bridge may have been repaired out of the funds of a guild; for such repairs will be taken to have been made in ease of the corporation. R. v. Mayor, &c. of Stratford-upon-Avon, 14 East, 348.

Venue and trial.] By the 1 Ann. st. 1, c. 18, s. 5, "all matters concerning the repairing and amending of bridges and the highways thereunto adjoining shall be determined in the county where they lie, and not elsewhere." It seems that no inhabitant of a county ought to be a juror on a trial of an issue whether the county is bound to repair. Hawk. P. C. b. 1, c. 77, s. 6. In such cases, upon a suggestion, the venire will be awarded into a neighboring county. R. v. Inhab. of Wilts, 6 Mod. 307; 1 Russell, 358.

Competency of witnesses.] By the 1 Ann. stat. 1, c. 18, s. 13, reciting, "that many private persons, or bodies politic or corporate, were of right obliged to repair decayed bridges and the highways *thereto [*300] adjoining," the evidence of the inhabitants of the county, &c. is made admissible. Vide ante, p. 133.

Maliciously pulling down, &c.] By the 7 & 8 Geo. 4, c. 30, s. 13, "if any person shall unlawfully and maliciously pull down, or in anywise destroy any public bridge, or do any injury with intent, and so as thereby to render such bridge or any part thereof dangerous or impassable, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years; or to be imprisoned for any term not exceeding four years, and if a male to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment."

(a) Eng. Com. L. Rep. xxiv. 128.

3'7

Offence at common law.] Burglary is a felony at common law, and a burglar is defined by Lord Coke as "he that in the night-time breaketh and entereth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not." 3 Inst. 63. And this definition is adopted by Lord Hale. 1 Hale, P. C. 549; Hawk. P. C. b. 1, c. 38, s. 1.

Statute 7 and 8 Geo. 4, c. 29, &c.] By the 7 and 8 Geo. 4, c. 29, s. 11, it was enacted, "That every person convicted of burglary shall suffer death as a felon ;" and it is thereby declared, "that if any person shall enter the dwelling-house of another, with intent to commit felony; or being in such dwelling-house shall commit any felony, and shall in either case break out of the said dwelling-house in the night-time, such person shall be deemed guilty of burglary."

By the 7 Wm. 4 and 1 Vict. 86, s. 1, so much of the above act as relates to the punishment of any person convicted of burglary, and of principals in the second degree, and of accessaries before and after the fact in that offence, is repealed; and by s. 2, it is enacted, "that whosoever shall be convicted of the crime of burglary shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the

natural life of such offender, or for any term not less than ten years, or to be imprisoned for any term not exceeding three years."

By s. 7, "where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labor in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of *such imprisonment, or of [ *302 ] such imprisonment with hard labor, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet."

As to the punishment of principals in the second degree and accessaries under the above act, (s. 6.) see ante, p. 207.

Burglary and assault, with intent to murder, &c.] By the 7 Wm. 4 and 1 Vict. c. 86, s. 2," whosoever shall burglariously break and enter into any dwelling-house, and shall assault, with intent to murder any person being therein, or shall stab, cut, wound, beat, or strike any person, shall be guilty of felony, and being convicted thereof shall suffer death." This sentence may be recorded, ante, p. 224.

The evidence to support an indictment under this section of the statute, will be the same as that required on an indictment for simple burglary, see post; and in addition the prosecutor must prove that the prisoner assaulted the party named in the indictment, then being in the house, with intent to murder, which intent may be inferred from the circumstances. If, instead of assaulting with intent to murder, the charge be that the prisoner stabbed, cut, wounded, beat, or struck some person, proof must be given of such stabbing, &c. The latter part of the section does not seem to require that the person stabbed, &c. shall be in the dwellinghouse at the time that the violence is used towards him.

Where the indictment charged the prisoners with a burglary and with striking David James, and it appeared in evidence that the name of the person struck was Jones, it was held that the capital offence was not proved, and the prisoners were convicted of the burglary only. Parfitt's case, 8 C. and P. 288 (a), ante, p. 98.

Evidence in burglary.] Upon the trial of an indictment for the of fence of burglary, the prosecutor must prove, 1, the breaking; 2, the entering; 3, that the house broken and entered was a mansion-house; 4, that the breaking and entry were in the night-time; 5, that the breaking and entering were with intent to commit a felony.

The offence of breaking out of a mansion-house in the night-time will be separately treated.

Proof of the breaking.] What shall constitute a breaking is thus described by Hawkins: It seems agreed, that such a breaking as is implied by law in every unlawful entry on the possession of another, whether it be open or be inclosed, and will maintain a common indictment, or action of trespass quare clausum fregit, will not satisfy the words felonice et burglariter, except in some special cases, in which it is accom

(a) Eng. Com. Law Rep. xxxiv. 393.

panied with such circumstances as make it as heinous as an actual breaking. And from hence it follows, that if one enter into a house by a door which he finds open, or through a hole which was made there before, and [*303] steal goods, &c., *or draw any thing out of a house through a door or window which was open before, or enter into the house through a door open in the day-time, and lie there till night, and then rob and go away without breaking any part of the house, he is not guilty of burglary." Hawk. P. C. b. 1, c. 38, s. 4, 5.

Proof of breaking-general instances.] Proof of breaking a window, taking a pane of glass out by breaking or bending the nails or other fastenings, the drawing a latch, when a door is not otherwise fastened, picking open a lock with a false key, putting back the lock of a door or the fastening of a window, with an instrument, turning the key where the door is locked on the inside, or unloosing any other fastening which the owner has provided: these are all proofs of a breaking. 2 East, P. C. 487; 2 Russ. 3 (1).

1

Proof of the breaking-doors.] Entering the house through an open door is not, as already stated, such a breaking as to constitute a burglary. Yet if a defendant enters the house in the night-time, through an open door or window, and when within the house turns the key of, or unlatches, a chamber door, with intent to commit felony, it is a burglary. Hale, P. C. 553 (2). So where the prisoner entered the house by a back-door which had been left open by the family, and afterwards broke open an inner door and stole goods out of the room, and then unbolted the street-door on the inside and went out; this was held by the judges to be burglary. Johnson's case, 2 East, P. C. 488. So where the master lay in one part of the house, and the servants in another, and the stair-foot door of the master's chamber was latched, and the servant in the night unlatched that door, and went into his master's chamber with intent to murder him, it was held burglary. Haydon's case, Hutt. 20, Kel. 67; 1 Hale, P. C. 554; 2 East, P. C. 488.

Whether the pushing open the flap or flaps of a trap-door, or door in a floor, which closes by its own weight, is a sufficient breaking, was for some time a matter of doubt. In the following case it was held to be a breaking. Through a mill (within a curtilage,) was an open entrance or gateway, capable of admitting wagons, intended for the purpose of loading them with flour, through a large aperture communicating with the floor above. This aperture was closed by folding doors with hinges, which fell over it and remained closed with their own weight, but without any interior fastenings, so that persons without, under the gateway, could push them open at pleasure. In this manner the prisoner entered with intent to steal; and Buller, J., held that this was a sufficient breaking to constitute the offence of burglary. Brown's case, 2 East, P. C. 487. In another case, upon nearly similar facts, the judges were equally divided in opinion. The prisoner broke out of a cellar by lifting up a heavy flap, whereby the cellar was closed on the outside next the street. The flap had bolts, but was not bolted. The prisoner being

(1) So removing a stick of wood from an inner cellar door and turning a button. Smith's case, 4 Rogers' Rec. 63. (2) State v. Wilson, 1 Coxe, 439.