cabin, he could not have seen *the pit's mouth. It was a dark [*S

morning we had the rodneys out."

John Parton. "I recollect seeing the defendant in the cabin. When I went in, he was talking about the coal. I cannot say who went in first, me or Whateley: we both went in the same time, as near as I can recollect. Howells could not see the pit from where he was standing. I can't tell what the people were doing when I went in. The cage came up for the second band soon after I went in. I was not there when the first band went down."

Joseph Dabbs. "I am banksman at one of the pits in question. I remember the morning of the accident. I came about 5 o'clock. I remember the first band of men going down. I was standing by my cabin door: the two cabins adjoin one another. Howells came out of the cabin and saw Corbett: he turned into the cabin again, and there he remained till the first and second bands had gone down. Corbett assists to send the men down when he is there. Howells could not see the cage lowered. The cage was not drawn up when Howells went out of the cabin. As soon as he saw Corbett, he went into the cabin again. I saw Parton and Whateley go into the cabin: that was before the accident, and after the first band went down."

Cross-examined. "My pit is about ten yards from defendant's, and is on the same bank. The same engine works both pits. That cage is at the bottom at night. I got to the pit at 5 o'clock. I have a cabin as well as the defendant. It is not usual to let more than eight go down. I have known twelve to go down. The men are not long going down. Four bands will take my men down. Both cabins are round. There is a blacksmith's shop between them: the shop is between my door and the defendant's door. *Chirms went down in the ["9 first band. I saw him get in. Howells was in the cabin. Chirms was nearer Howells than I was. I saw Corbett put the bar in. It is an untruth if Chirms and Corbett swore the defendant was on the bank when the first band went down. I was standing by my cabin door. There were a many people about the cabin. I saw Howells turn into the cabin. I kept my eye on the door; and he did not come out till the second band had gone down. The band went down Howells's pit, and then down mine. When the band went down my pit, I went to the catches to attend to them. I draw the catches myself. While I was doing so, I could see the defendant's cabin. I could attend to my duty and watch what defendant was doing at the same I had my eye on the defendant's pit; my pit and the cabin at the same time. I can attend to the defendant's pit as well as mine. I could see what he was doing at his pit, and at the same time attend to let my men down. I always look at the defendant's cabin door. I watch that cabin door every morning. I will not swear I did not let more than eight men down that morning."

time.

Charles Owen. "I remember the 29th of December. I went to the bank when the first band was just up, and got in. I did not see Howells that morning. I got into the first band, If Howells had been there, I must have seen him. I looked round, but never saw him. I will swear he was not near the top of the pit."

Cross-examined. "I went down with the first band. I did not know how many were in till I came up again. The cage was not

very full: they were most boys: there were above eight people. The band was waiting when 1 got up. I ran and jumped in. Corbett was *10] waiting to put the bar in. When I passed Corbett, *he had the bar in his hand. I was at Richards's end. I was in a great hurry to get down. I always like to get down first. I was late, and had to run for it. I live about three-quarters of a mile from the pit. I ran from the bottom of the bank. I did not run as hard as I could: I did run. I did not take any notice if there were many people on the bank. I cannot tell any one that was on the bank, or who went down with me."

Alexander Jones. "I am managing agent to the Lilleshall Company. I know the two cabins. If a person was standing at the door of one cabin, he could see a person going in the other cabin."

Cross-examined. The banksman could not keep his eye on the defendant's cabin and attend to his own duties at the same time. After he had sent down the band, he could look straight there. At the same time he was sending the band down his own pit, if he were attending to his duty he could not see what Howells was doing: he could not see two ways at one time."

At the close of the evidence for the complainant, the defendant's attorney contended that the 24th rule did not make the charter-master liable for the neglect of the banksman; that there was no evidence that the defendant was aiding and abetting; and that, in order to justify a conviction, it should have been shown that he had done. some act or uttered some expression to identify him with the unlawful act Richards was doing.

The evidence satisfied the justices that the defendant was close to the pit; that he was cognisant that more than eight men were being lowered down at one time; and that, under the 15th rule, he was the person in charge of the pit, and had the power to prevent Richards (who was his servant) lowering the men down and they therefore convicted him under the above information, and ordered him. *11] to be imprisoned for two calendar months, with hard labour. The question for the opinion of the court was, whether the evidence above set out was sufficient to justify the conviction.

Hayes, Serjt., for the appellant, upon the case being called on, objected that the respondent was not entitled to be heard, inasmuch as he had not complied with the rule of court as to the delivery of his paper-books to the two junior puisne judges, the appellant having upon his default duly delivered the whole of them.(a)

Welsby, for the respondent, the argument having been adjourned

(a) The 16th rule of Hilary Term, 1853, 13 C. B. 6 (E. C. L. R. vol. 76), provides that "four clear days before the day appointed for argument the plaintiff shall deliver copies of the demurrer-book, special case, special verdict, or appeal case, with the points intended to be insisted on, to the Lord Chief Justice of the Queen's Bench or Common Pleas, or Lord Chief Baron, as the case may be, and the senior puisne judge of the court in which the action is brought; and the defendant shall deliver copies to the other two judges of the court next in seniority and, in default thereof by either party, the other party may, on the day following, deliver such copies as ought to have been so delivered by the party making default: and the party making default shall not be heard until he shall have paid for such copies or deposited with the master a sufficient sum to pay for such copies." And by rule of Michaelmas Term, 1857, 3 C. B. N. S. 141 (E. C. L. R. vol. 91), it is ordered that in "cases of appeal to a superior court under the provisions of the statute 20 & 21 Vict. c. 43, the 15th and 16th rules of Hilary Term, 1853, so far as the same are applicable, shall be observed."

for the purpose,-produced an affidavit that the respondent's attor ney had in due time delivered the paper-books which by the practice of the court he was bound to deliver, to the judges' clerks in [*12 their own room at Westminster. [WILLIAMS, J.-No doubt you delivered your copies in due time. But the question is, whether they were delivered at the proper place. That, I apprehend, is the judges' Chambers.] The object being that the judges shall have the paperbooks, it is clearly enough if they are delivered to the clerks at Westminster Hall. [BYLES, J.-There is a record kept of what is done at Chambers: but, if the paper-books are delivered to the clerks at Westminster, it rests upon mere recollection. WILLES, J.-There must be a place of search to see if the rule has been complied with: and where else can that be but the judges' Chambers?] It may perhaps be reasonable to create a practice for the future. The rule of court makes no mention of the place at which the paper-books are to be delivered.

WILLIAMS, J.-The respondent's attorney has clearly adopted an erroneous course. Our officers inform us that the proper place for the delivery of paper-books, is the Chambers in Rolls Gardens. It has been truly said that no mention is made in the rule as to where the delivery is to take place: nor is there any other direction therein. an that the plaintiff shall deliver the paper-books to the Lord. Chief Justice and the senior puisne judge, and the defendant to the two junior puisne judges,-not to their clerks. If the rule were to be complied with literally, the paper-books might be delivered at the judges' houses, or to the judges whilst riding or walking along the streets. That would be manifestly absurd. There must be a usual place for their delivery, where the opposite party may search whether the rule has been complied with or not, in order that he may supply the defect. The respondent's attorney being clearly in default, the *appellant's attorney was justified in incurring the expense of [*13 delivering the additional paper-books, and must be reimbursed. WILLES, J.-I do not think the rule of court is so defective as Mr. Welsby suggests. The only proper place for the delivery of the paper-books, is the judges' Chambers.

BYLES, J.-If this were not so, it would make it necessary for the attorney to search at two places, when there is only one place at which any official record of the transaction is kept.

Welsby undertaking that the copies should be paid for, the argument was allowed to proceed.

Hayes, Serjt., for the appellant.-The offence with which the appellant is charged is created by the 11 & 12 Vict. c. 43, s. 5, which enacts that "every person who shall aid, abet, counsel, or procure the commission of any offence which is or hereafter shall be punishable on summary conviction, shall be liable to be proceeded against and convicted for the same, either together with the principal offender, or before or after his conviction, and shall be liable, on conviction, to the same forfeiture and punishment as such principal offender is or shall by law be liable to," &c.: and the charge is, not that the appellant "counselled and procured," but that he was present "aiding and abetting" the principal offender in the commission of the offence, which makes him a principal in the second degree. The 11th section of the

Mines Regulation Act, 23 & 24 Vict. c. 151, provides for the estab lishment of special rules for the guidance of persons acting in the management of mines, and of persons employed therein: and the 22d section enacts that every *person (other than the owner or prin*14] cipal agent or viewer) "employed in or about a coal-mine, colliery, or iron-stone mine, who neglects or wilfully violates any of the special rules established for such coal-mine, colliery or ironstone mine, shall for every such offence be liable, upon a summary conviction for the same before two justices of the peace, &c., to a penalty not exceeding 21., or to be imprisoned, with or without hard labour, in the common gaol or house of correction for any period not exceeding three calendar months." The offence here charged was committed by Richards the banksman, as to whose duties there are various regul tions in the special rules besides the 24th. [BYLES, J.-The question is, whether the appellant, who was the superior of Richards, is not responsible for the offence of Richards, by reason of his abstaining from using his authority to prevent its commission.] There is nothing in the rules which requires the charter-master to see that the banksman does his duty. [WILLES, J.-Do you dispute that there was evidence to justify the conclusion of fact to which the justices came?] No. [WILLES, J.-Then the question is, whether the appellant, wh had authority, and whose duty it was to forbid Richards to send down more than eight men and boys at one time, by standing by and not interfering to prevent it, did not virtually authorize and assent to the illegal act of Richards.] Would the evidence sustain a charge of manslaughter against the appellant? In Hale's Pleas of the Crown 438, it is said: "To make an abettor to a murder or homicide principal in the felony, there are regularly two things requisite. 1. He must be present. 2. He must be aiding and abetting ad feloniam aut murdrum sive homicidium. If he were procuring or abetting, and absent, he is accessory in case of murder, and not principal, unless in

some cases of poisoning. If he be present, and not *aiding *15] abetting to the felony, he is neither principal nor accessory This latter is precisely the case of the appellant here. He is preser› but does and says nothing. Aiding and abetting is something active. "If A. and B. be fighting, and C., a man of full age, comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide, as principal in the second degree; but it is a misprision, for which he shall be fined, unless he use means to apprehend the felon." [WILLES, J.-The real question is, what was Howells's duty. If it was his duty to prohibit Richards from sending down the men in violation of the 24th rule, and he did not do so, he was guilty of the offence. "Qui non prohibet quod prohibere potest, assentire videtur." No special duty as to the descent of the cage is by the rules imposed upon the charter-master: that duty is cast upon the banksman. In The Queen v. Barrett, 32 Law J. M. C. 36, 9 Cox Cr. Cas. 255, it was held, that, if a weekly tenant of a house use it as a brothel, and the landlord receive no additional rent by reason of the immoral occupation, the latter cannot be convicted of keeping a brothel, merely because, having notice of the nature of the occupation he does not give the tenant notice to quit. [WILLES, J.-Lord Coke, commenting upon the word "aide" in the Statute of Westminster 1

(3 Ed. 1), c. 14, says,-2 Inst. 182,-" Under this word is compre hended all persons counselling, abetting, plotting, assenting, consenting, and encouraging to do the act, and are not present when the act is done; for, if the party commanding, furnishing with weapon, or aiding, be present when the act is done, then he is principal." A permission, whether active or passive, by a person having authority to prevent the act being done, is a consenting. WILLIAMS, J.-In all misdemeanors, an accessory before the fact is a principal. The question is whether the facts stated in this case could be regarded by a jury as constituting Richards Howells's agent.] It is sub[*16 mitted they could not, and consequently that he was improperly con

victed.

Welsby, for the respondent, was not called upon.

WILLIAMS, J.-The question raised upon this appeal is precisely the same as that which would have been raised for the consideration of the judge, if this, instead of being an offence punishable on a summary conviction, had been made by the statute an indictable offence, and the appellant had been indicted jointly with Richards for an offence which constituted a violation of the 24th rule referred to in the special case. The question then would have been, whether, if the facts here disclosed were laid before a jury, it would have been the duty of the judge to stop the case, or to leave it to them to say whether or not they were satisfied from the evidence that the defendant aided and abetted Richards in the commission of the offence with which they were charged. I am satisfied that in the case supposed it would have been the judge's duty to leave the question to the jury. The defendant is found to have been close to the pit's mouth, and so cognisant of the fact that Richards was permitting a larger number of persons to descend at one time than is allowed by the 24th rule. He is the person who has charge of the pit, and who has power to prevent Richards, who is his servant, from lowering down the cage so as to violate that rule. Having authority to prevent the illegal act being done, and having chosen to stand by and see it done without exercising his authority, he might fairly be assumed by those who are constituted the judges of the fact to have aided and assisted in the doing of it. I think the justices were clearly warranted by the evidence in coming to the conclusion they did.

[*17

WILLES, J.-I am of the same opinion. The respondent has clearly been guilty of a breach of the discipline necessary to be kept up by those who are answerable for the safety of the men. He was present when the banksman let the men down: It was his duty to prevent,and he might have prevented, -the illegal act, and he did not. I think it is quite right to look to the most responsible person, and to make an example of him, and so make it the interest of those who are most open to the dread of punishment to prevent such offences from being committed. The act of parliament would become a dead letter if such evidence as this would not warrant a conviction.

BYLES, J.-I am of the same opinion. In misdemeanors, all who are present when the offence is committed, and have power to prevent it, and do not exert that power, are equally guilty with him who ac tually commits the offence. It is plain here that the respondent had power and it was his duty to prohibit Richards from doing as he did. C. B. N. S., VOL. XV.—3