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onment; but as the removal of the nuisance is of course the object of the indictment, the court will adapt the judgment to the circumstances of the case. If the nuisance, therefore, is alleged in the indictment to be still continuing, the judgment of the court may be, that the defendant shall remove it at his own cost. 1 Hawk. c. 75, s. 14. But where the existence of the nuisance is not averred in the indictment, then the judgment of abatement would not be proper; for it would be absurd to give judgment to abate a thing which does not appear to exist. Stead's case, 8 T. R. 142; and see R. v. Justices of Yorkshire, 7 T. R. 468. And where the court are satisfied that the nuisance is effectually removed before judgment is prayed upon the indictment, they will in that case also refuse to give judgment to abate it. Incledon's case, 13 East, 127. When judgment of abatement is given, it is only to remove or pull down so much of the thing that actually causes the nuisance; as, if a house be built too high, the judgment is to pull down only so much of it as is too high. And the like where the defendant is convicted of a nuisance in carrying on an offensive trade, in which case the judgment is not to pull down the building where the trade is carried on, but only to prevent the defendant from using it again for the purpose of the offensive trade. Pappineau's case, 1 Str. 686 ; see 9 Co. 53 ; Co. Ent. 92, b.
Where a defendant had entered into a recognizance to appear at the assizes, and plead to an indictment for a nuisance, and at the time of the assizes he was on the continent in ill health ; the nuisance having been abated, and the prosecutor being willing to consent to an acquittal ; Patteson, J., after conferring with Erskine, J., under these circumstances, allowed a verdict of not guilty to be taken. Macmichael's case, 8 C. and P. 755 (a).
See further, titles Bridges, Highways.
Statutes.] The offence of taking or administering unlawful oaths is provided against by the 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104.
By the former of these statutes (sec. 1,) it is enacted,“ that any person or persons who shall in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at, or present at, and consenting to the administering or taking of any oath or engagement, purporting or intended to bind the person taking the same, to engage in any mutinous or seditious purpose, or to disturb the public peace, or to be of
(a) Eng. Com. L. Rep. xxxiv. 621.
any association, society, or confederacy, formed for any such purpose; or to obey the order or commands of any committee or body of men not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose; or not to inform or give evidence against any associated confederate or other person; or not to reveal or discover any unlawful combination or confedracy; or not to reveal or discover any illegal act done, or to be done; or not to reveal or discover any illegal oath or engagement, which may have been administered or tendered to, or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement, shall, on conviction, be adjudged guilty of felony, and be transported for any term not exceeding seven years, and every person who shall take such oath or engagement, not being compelled thereto," is subject to the same punishment. See Mark's case, 3 East, 157.
By the 52 Geo. 3, c. 104, s. 1, "every person who shall in any manner or form whatsoever administer, or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, *purporting or intending to bind the person taking the same to [ *749 ] commit any treason, or murder, or any felony punishable by law with death, shall, on conviction, be adjudged guilty of felony, [and suffer death as a felon, without benefit of clergy,] and every person who shall take any such oath or engagement, not being compelled thereto, shall, on conviction, be adjudged guilty of felony, and be transported for life, or for such term of years as the court shall adjudge.”
Now by the 7 Wm. 4 and 1 Vict. c. 91, after reciting so inuch of the above section as relates to the administering of the oaths therein mentioned, and also the third section of the same act, see post, p. 750, it is enacted, “that if any person shall, after the commencement of this act, be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.'
By s. 2, in cases of imprisonment, the court may award hard labor and solitary confinement. See a similar clause, ante, p. 333.
The statutes are not confined to oaths administered with a seditious or mutinous intent. Ball's case, 6 C. and P. 563 (a); Brodribb's case, Id. 571 (6). And it is sufficient to aver that the oath was administered, not to give evidence against a person belonging to an association of persons associated to do "a certain illegal act.” Brodribb's case, ubi sup.
Proof of the oath.] With regard to what is to be considered an oath within these statutes, it is enacted by the 37 Geo. 3, c. 123, s. 5, that any engagement or obligation whatsoever in the nature of an oath, and by 52 Geo. 3, c. 104, s. 6, that any engagement or obligation whatsoever in the nature of an oath, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of those statutes, in whatever form or manner the same shall be ad
(a) Eng. Com. L. Rep. xxv. 545. (6) Id. 549.
ministered or taken, and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any person or persons, without any administration thereof by any other person or persons.
It is not necessary in the indictment to set forth the words of the oath or engagement, the purport or some material part thereof is sufficient. 37 Geo. 3, c. 123, s. 4; 52 Geo. 3, c. 104, s. 5; Moore's case, 6 East, 419, (n.) Parol evidence may be given of the oath, though the party administering it appeared to read it from a paper, to produce which no notice has been given. Moor's case, ubi sup. ante, p. 10. And where the terms of the oath are ambiguous, evidence of the declarations of the party administering it, made at the time, is admissible, to show the meaning of those terms. Id. [ *750 ) *If the book on which the oath was administered, was not the Testament, it is immaterial, if the party taking the oath believes himself to be under a binding engagement. Brodribb's case, 6 C. and P.571 (a); Loveless' case, 1 Moo. and Rob. 349; 6 C. and P. 596 (b).
Where the prisoners were indicted under the 37 Geo. 3, Williams, B., said, that with regard to the oath contemplated by the act of parliament, it was not required to be of a formal nature, but that it was sufficient if it was intended to operate as an oath, and was so understood by the party taking it. The precise form of the oath was not material, and the act provided against any evasions of its intentions by declaring, (sec. 5,) that any engagement or obligation whatever, in the nature of an oath, should be deemed an oath within the intent and meaning of the act, in whatever form or manner the same should be administered or taken. Loveless' case, I Moo. and Rob. 349; 6 C. and P. 596.
Proof of aiding and assisting.] Who shall be deemed persons aiding and assisting in the administration of unlawful oaths, is declared by the third section of the 37 Geo. 3, c. 123, which enacts that persons aiding or assisting in, or present and consenting to the administering or taking of any oath or engagement before mentioned in that act, and persons causing any such oath or engagement to be administered or taken, though not present at the administering or taking thereof, shall be deemed principal offenders, and tried as such, although the person or persons who actually administered such oath or engagement, if any such there be, shall not have been tried or convicted. The statute 52 Geo. 3, c. 104, contains a similar provision, (sec. 3). See ante, p. 749.
Proof for prisoner-disclosure of facts.] In order to escape the penalties of these statutes, it is not sufficient for the prisoner merely to prove that he took the oath or engagement by compulsion, but in order to establish that defence, he must show that he has complied with the requisitions of the statutes, by the earlier of which (sec. 2,) it is enacted, that compulsion shall not justify or excuse any person taking such oath or engagement, unless he or she shall within four days after the taking thereof, if not prevented by actual force or sickness, and then within four days after the hindrance produced by such force or sickness shall cease, declare the same, together with the whole of what he or she knows
(a) Eng. Com. L. Rep. xxv. 549. (6) Id. 557.
touching the same, and the person or persons to whom and in whose presence, and when and where such oath or engagement was adıninistered or taken, by information on oath before one of his majesty's justices of the peace, or one of his majesty's principal secretaries of state, or his majesty's privy council, or in case the person taking such oath or engagement shall be in actual service in bis majesty's forces by sea or land, then by such information on oath as aforesaid, or by information to his commanding officer. The 52 Geo. 3, c. 104; contains a similar provision, (sec. 2, fourteen days being substituted for four days,
*Venue.] Offences under these statutes committed on the [ *751'] high seas, or out of the realm, or in England, shall be tried before any court of oyer and terminer or gaol delivery for any county to England in the saine manner and form, as if the offence had been therein committed.
Unlawful combinations. As connected with this head of offence, the following statutes relative to unlawful combinations are shortly referred to.
By the 39 Geo. 3, c. 79, s. 2, all societies, the members whereof are required to take unlawful oaths, or engagements within the intent of the 37 Geo. 3, c. 123, or any oath not required or authorized by law, are declared unlawful combinations.
By s. 8, offenders may be summarily convicted, or may be proceeded against by indictment, and in the latter case are liable to transportation for seven years, or imprisoned for two years.
By the 57 Geo. 3, c. 19, s. 25, all societies, the members whereof shall be required to take any oath or any engagement which shall be unlawful within the 37 Geo. 3, c. 123, or the. 52 Geo. 3; c. 104, or to take any oath not required, or authorized by law, &c., are to be deemed guilty of unlawful combinations within the 39 Geo. 3, c. 79.
In Dixon's case, 6.C. and P. 601 (a), Bosanquet, J., held that every person engaging in an association, the members of which in consequence of being so, take any oath not required by law, is guilty of an offence within the 57 Geo. 3, c. 19, s. 25.
OFFICES_OFFENCES RELATING TO.
Proof of malfeasance-illegal acts in gen- Proof of extortion
752 Proof on prosecutions for refusing to exProof of nonfeasance 752 ecute an office
Under this head will be considered the evidence requisite in prosecutions against officers,-1, for malfeasance ; 2, for nonfeasance: 3, for extortion; and, 4, for refusing to execute an office.
(a) Eng. Com. L. Rep. xxv. 557.
* Proof of malfeasance-illegal acts in general.] It is a general rule that a public officer is indictable for misbehavior in his office. Anon. 6 Mod. 96. And where the act done is clearly illegal, it is not necessary, in order to support an indictment, to show that it was done with corrupt motives. Thus, where a licence having been refused by certain magistrates, another set of magistrates, having concurrent jurisdiction, appointed a subsequent day for a meeting, and granted the licence which had been refused before, it was held that this was an illegal act, and punishable by indictment, without the addition of corrupt motives. Sainsbury's case, 4 T. R. 451. Still more is such an offence punishable when it proceeds from malicious or corrupt notives. Williams's case, 3 Burr. 1317; Holland's case, 1 T. R. 692.
A gaoler is punishable for barbarously misusing the prisoners, Hawk. P.C. b. 1, c. 66, s. 2. So overseers of the poor for misusing paupers, as by lodging them in unwholesome apartments, Wetheril's case, Cald. 432; or by exacting labor from such as are unfit to work, Winship’s case, Cald. 76. . But it is no part of their duty to cause paupers to be vaccinated. 3 Ad. and E. 552 (a).
Public officers are also indictable for frauds committed by them in the course of their employment. As where an overseer receives from the father of a bastard a sum of money as a compensation with the parish, and neglects to give credit for this sum in account, he is punishable, though the contract is illegal. Martin's case, 2 Campb. 268. See also Bembridges's case, cited 6 East, 136.
Where an officer neglects a duty incumbent on him, either by common law or statute, he is for his fault indictable. Per Cur. Wyat's case, I Salk. 380.
Upon an indictment against a public officer for neglect of duty, it is sufficient to state that he was such officer, without stating his appointment; neither is it necessary to aver that the defendant had notice of all the facts alleged in the indictment, if it was his official duty to have known them. So where a defendant is charged with disobedience of certain orders communicated to him, it need not be alleged that such orders still continue in force, as they will be assumed to continue in force until they are revoked. And an indictment for neglect of duty under a particular statute need not state that the neglect was corrupt, if the statute makes a wilful r.eglect a misdemeanor. Hollond's case, 5 T. R. 607.
Every inalfeasance or culpable nonfeasance of an officer of justice, with relation to his office, is a misdemeanor, and punishable with fine or imprisonment, or both.
Proof of non feasance.] Upon a prosecution for not performing the duties of an office, the prosecutor must prove, 1, that the defendant holds the office; 2, that it was his duty, and within his power to perform the particular act; and 3, that he neglected so to do.
Where an officer is bound by virtue of his office, to perform an act, the [*753 ] neglect to perform that act is an indictable offence. Thus a *coroner, 2 Chitt. C. L. 255; 1 Russell, 141; a constable, Wyat's case, 1 Salk. 380; a sheriff, Antrobus's case, 6 C. and P. 784 (6), and an overseer of the poor, Tawney's case, 1 Bott. 333; are indictable for not per